Complainant

Respondent

Parties

Kieran Glynn

Ray Whelan Limited

Representatives

Mr. William Maher BL on the instructions of Mr. Terence Doyle, Solicitor, Malcomson Law

Ms. Cathy McGrady BL on the instructions of Ms. Jill Griffin, Solicitor, Farrell McElwee Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00041775-001

04/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00041775-002

04/01/2021

The Complainant was employed by the Respondent as a Binman from 1998 until September, 2020.   The Complainant claims that he was unfairly dismissed by the Respondent on 3 September, 2020. The Complainant further claims without prejudice to the foregoing, that the Adjudication Officer is not precluded from making an alternate finding of constructive dismissal. The Respondent disputes that the Complainant was dismissed, either constructively or otherwise, and contends that the Complainant resigned his position of his own volition.

The Complainant claims that he was subjected to discrimination by the Respondent on the grounds of his disability contrary to Section 8 of the Employment Equality Acts. The Complainant also claims that the Respondent has failed to provide him with reasonable accommodation contrary to its obligations under Section 16 of the Acts. The Complainant also claims that the Respondent has subjected to him to harassment contrary to Section 14A of the Acts and to victimisation contrary to Section 74(2) of the Acts. The Respondent disputes all of the claims of discrimination under the Employment Equality Acts.

The Complainant submits that he commenced employment with the Respondent in 1998 and worked as a Binman until 3 September, 2020 when he was dismissed from his position. The Complainant is medically obese and has asthma which on occasion has resulted in shortness of breath. The Complainant submits that he was also diagnosed with Type II diabetes and a respiratory complaint but submits that he was fit to work and carry out his duties as a Binman at all material times despite the Respondent’s contention to the contrary. The Complainant submits that by the time of his dismissal he had completed 22 years’ service and was by far the longest serving binman working with the company.

The Complainant submits that he went absent from work on certified sick leave on 8 February, 2019 for one week as a result of gout. The Complainant notified the Respondent of his intention to return to work on 18 February, 2019 but received notification from Mr. Joe Shannon (Transport Manager) to advise him not to return to work. The Complainant was advised to report to Mr. Ray Whelan (Managing Director) on 19 February, 2019. The Complainant attended this meeting and was told by Mr. Whelan that he did not consider that the Complainant was fit enough to do his job and that he was being effectively suspended from work without pay until he could sort himself out. The Complainant submits that Mr. Whelan offered him a sum of €10,000 to do with as he pleased but he would not be allowed back to work until he could prove his fitness to work. The Complainant asked for the proposal in writing, but this was not provided to him.

The Complainant submits that he was shocked by this offer and was concerned that it was in effect a form of compensation to force him from his employment. The Complainant did not accept that he wasn’t fit to carry out his duties, and therefore, did not accept the offer of €10,000 from the Respondent and instead made an appointment with his General Practitioner for a consultation to assess his fitness to work. The Complainant submits that he obtained a report from his GP dated 25 February, 2019 which confirmed that he was medically and physically fit to work.

The Complainant submits that he immediately contacted the Respondent to confirm his fitness to return to work, but Mr. Ray Whelan dismissed the medical certification and stated that a GP “would type up anything” and asked the Complainant if he was even “able to run around the block”. The Complainant submits that this remark was completely disingenuous given the fact that the Respondent by that juncture had two medical certificates to confirm his fitness to return to work.

The Complainant submits that he subsequently received correspondence from Mr. Ray Whelan on 28 February, 2019 which noted his purported concern for the Complainant’s level of health and fitness and his ability to meet the physical demands of his role. The Respondent set out a number of conditions in this letter which the Complainant would have to satisfy before retiring to work, namely that he would have to provide a medical certificate from his own GP confirming his fitness to return to work; that the company reserved the right to have the Complainant assessed by the company doctor or a health and safety consultant to confirm his fitness for work; and that the company would not allow the Complainant return to work until it was satisfied regarding these two stipulations.

The Complainant submits that he contacted the Respondent again on 8 March, 2019 and asked if he could return to work given that he was medically fit to do so and was also struggling financially without any pay. The Respondent refused to accede to the Complainant’s request and informed him that he would have to attend the company doctor which the Complainant readily agreed to. The Complainant submits that he was reviewed by the Company Doctor (Dr. A) on 14 March, 2019 who issued a report to the Respondent dated 21 March, 2019. This report was not disclosed to the Complainant, and he did not hear from the Respondent about his position after he attended the medical.

The Complainant submits that he subsequently attended a meeting with the Respondent on 1 April, 2019 to request that he be allowed to return to work. However, the Complainant was informed by Mr. Whelan at this meeting that he had Type II diabetes and lung disease and would therefore not be insured to be on the premises. The Complainant submits that Mr. Whelan suggested that he go home and look for an office job or a job driving and also refused to consider a proposal that the Complainant be allowed to attempt to obtain a lorry licence so that he could then drive the bin lorry. The Complainant submits that he was left with no alternative but to engage a solicitor to write to the Respondent on his behalf in relation to his ongoing exclusion from work.

The Complainant submits that his solicitor wrote to the Respondent on 24 May, 2019 and queried his ongoing exclusion from work and sought an explanation for the reason why the report from his GP certifying him fit to return to work was not acceptable. The Complainant also sought full disclosure of the correspondence between the Respondent and the Company Doctor and an explanation in relation to the offer of €10,000 to ascertain its purpose and whether same was by way of compensation for loss of earnings during his absence on sick leave.

The Complainant submits that an e-mail was received from the Respondent’s solicitor on 29 May, 2019 enclosing a copy of the medical report from the Company Doctor which indicated that he would be allowed to return to work when his respiratory situation and had been brought under control. This correspondence from the Respondent also indicated that the offer of €10,000 was withdrawn.

The Complainant submits that his solicitor subsequently made attempts to ascertain if the Company Doctor had been furnished with a copy of the medical certificates from his GP confirming his fitness to return to work. The Complainant submits that his solicitor obtained confirmation from both the Respondent and the Company Doctor that she had not been made aware that the Complainant’s own GP had certified him fit to return to work. The Complainant submits that he had been absent from work without pay for over three months at that juncture and that the Respondent had not made any efforts during that period to put any special measures or modifications to his duties in place to accommodate his return to work. 

The Complainant submits that he attended his own GP for a further review and was again certified fit to return to work. The Complainant’s solicitor wrote to the Respondent on 13 August, 2019 enclosing the medical certificate confirming his fitness to return to work. However, the Complainant’s request to return to work was refused by the Respondent and he was referred back to the Company Doctor for a further review on 4 September, 2019 who reported that he was fit to work as a binman.

The Complainant submits that he was allowed to return to work on 9 September, 2019 and it was extraordinary that the medical conditions which purportedly had justified his exclusion from work over the previous seven months were not addressed further at that juncture by the Respondent. The Complainant submits that the Respondent was prepared to accept this advice from the Company Doctor despite its dismissive attitude towards the almost identical advice from his own GP during the interim period. The Complainant submits that his demand for payment during the period of his absence from work was repeatedly refused by the Respondent and that he accrued a loss in earnings of approx. €15,000 during this period.

The Complainant submits that he was instructed by the Respondent to report for work on 9 September, 2019 and was assigned to menial tasks sorting rubbish which amounted to a clear demotion from his position as a binman. The Complainant submits that he sought to raise this matter with both Mr. Joe Shannon (Transport Manager) and Mr. Ray Whelan (Managing Director) on this date but to no avail. The Complainant submits that his solicitor subsequently wrote to the Respondent’s solicitor stating the belief that the Complainant was being victimised and punished by way of demotion as a result of the stand that he had taken in relation to his employment. Following this correspondence, the Complainant was restored to his position of binman and without any explanation from the Respondent and he continued to work without any issue until May, 2020 when he was again removed from his position as binman following a dispute with a family member unrelated to work.

The Complainant submits that he received a call from Mr. Shannon on 26 May, 2020 after work to say that the driver of the truck had made a complaint about him saying that he was in bad health and was a danger to himself and others. Mr. Shannon added that the Complainant would never work on the bin lorry again and was placed on alternative duties, but he was not provided with any written confirmation to explain this decision. The Complainant submits that earlier that same day the truck driver had become embroiled in a family dispute between the Complainant and his nephew who was working alongside him on the bin lorry. The Complainant spoke sharply to the driver who reacted by stating that he would “sort out” the Complainant. The Complainant submits that it appears the driver proceeded to make a complaint about him on his return to the yard.

The Complainant submits that he was approached by Mr. Shannon on 12 June, 2020 to inform him that a medical appointment had been arranged for him in Naas on 29 June, 2020. The Complainant spoke to Mr. Shannon on 25 June, 2020 to inform him that he would not be attending the medical appointment on the advice of his solicitor. The Complainant submits that he didn’t attend the medical appointment and when he attended for work on 29 June, 2020 was informed by Mr. Shannon to remain out of work on pay until he attended a further medical appointment on 1 July, 2020. The Complainant informed the Respondent that he would not be attending this appointment on the advice of his solicitor.

The Complainant submits that his solicitor contacted the Respondent’s solicitor on 2 July, 2020 seeking his restoration as a binman and clarification to explain the reasons for his referral for this medical examination. The subsequent reply dated 6 July, 2020 claimed that a complaint had been received about the risks associated to the Complainant’s purported poor health and that he had been removed from duties as a binman as a result. The Complainant submits that he received a letter dated 13 July, 2020 from the Respondent requesting him to attend a disciplinary hearing on 16 July, 2020 for his purported refusal to attend the medical appointment. The date of this meeting was subsequently rescheduled to 21 July, 2020 on request by the Complainant because his solicitor was unavailable to attend on the initial date.

The Complainant submits that his solicitor wrote to the Respondent’s solicitor on 20 July, 2020 and set out the Complainant’s belief that he was being subjected to harassment and being unfairly targeted on the basis that the Respondent was deliberately seeking to secure medical advice with an adverse finding against him. This letter noted to the Respondent’s solicitor also noted that the Complainant was now being reviewed by a third doctor and that he was perfectly capable of carrying out his duties and that his health did not impede his ability to work.

The Complainant submits that the Respondent proceeded with the disciplinary hearing on 21 July, 2020 notwithstanding the reservations which his solicitor had expressed in correspondence to its solicitor. The Complainant received correspondence from the Respondent following the disciplinary hearing to confirm that if he did not contact the company by 25 July, 2020 it would be deemed that he had terminated his employment. The Complainant submits that he received a further letter from the Respondent dated 24 July, 2020 which confirmed that his employment had been terminated by way of abandonment because he had failed to contact the company to confirm his intention to remain in its employment. The Complainant submits that this letter was sent by the Respondent notwithstanding the fact that the Complainant had explained his willingness to remain in employment, or the fact that his solicitor had over many exchanges made clear his intention to remain in employment, or the fact that the Respondent was terminating his employment before its own imposed deadline had expired.

The Complainant submits that his solicitor received correspondence from the Respondent’s solicitor dated 29 July, 2020 claiming that the Respondent was unaware of his solicitor’s letter at the time it issued the termination notice and, as a result, that letter was thereby withdrawn.  This letter continued to make a series of denials and an additional allegation that the Complainant had informed the Respondent that he did not feel physically capable of carrying out his duties and that he was seeking alternative employment elsewhere. The Complainant categorically denies this allegation and accepts that the parties did discuss alternative work but contends that it was Mr. Joe Shannon who suggested that the Complainant would be better suited to an alternative job.

The Complainant submits that his solicitor engaged in further correspondence with the Respondent’s solicitor on 30 July, 2020 and queried the Respondent’s ongoing refusal to accept a medical report from his own GP confirming his fitness for work and requested his immediate return to work. The Respondent’s solicitor replied to this letter dated 31 July, 2020 and indicated that the Complainant would be returned to the payroll and the disciplinary action suspended in anticipation of him attending the medical examination with the company’s occupational health physicians. The Complainant submits that his solicitor replied and again affirmed that he had no difficulty attending the medical appointment subject to the following conditions, namely that all correspondence and details of contact with the occupational health physicians be furnished to his solicitor; that the medical assessment be conducted in conjunction with his own GP and the company doctor; and that his wages which were wrongfully withheld during the periods of his exclusion from work be paid to him. The Complainant submits that the Respondent proceeded to arrange a further medical assessment without any response or acknowledgement of the aformentioned conditions.

The Complainant submits that his solicitor received a further letter from the Respondent’s solicitor on 28 August, 2020 setting out the basis for the medical referral which included a number of purported concerns and claims regarding his health and fitness for work which had not been previously notified to him for consideration. The referral failed to make any reference to the numerous and repeated medical examinations and appraisals by the Complainant’s own GP or to the fact that he had successfully passed three medical assessments in the previous twelve months, including one by the company doctor. The Complainant submits that this referral justified his belief that the Respondent was actively seeking to obtain a medical report that would enable it to permanently exclude him from his employment and that it was a blatant attempt to influence the occupational health physicians in their conclusions about him.

The Complainant submits that the Respondent failed to accede to the request from his solicitor to provide details of all complaints and complainants of each purported particular of concern but rather insisted that he attend for the further medical examination under threat of disciplinary action. The Complainant’s solicitor reiterated the position by letter dated 1 September, 2020 and confirmed his genuine concerns which prevented him from attending the medical at that juncture. The Complainant submits that the Respondent decided to proceed with the disciplinary action and notified him by letter dated 3 September, 2020 of a disciplinary hearing which was scheduled to take place on 9 September, 2020. The Complainant submits that he attended for work on 3 September, 2020 and was told in clear terms by Mr. Joe Shannon that “there is no work for you in this company anymore” and when the Complainant asked what he should do he was told to leave.

The Complainant submits that his solicitor informed the Respondent’s solicitor by letter dated 9th September, 2020 that the Complainant intended to refer a complaint to the WRC. In response, the Respondent’s solicitor denied that the Complainant had been dismissed on 3 September, 2020 as claimed but nonetheless proceeded to deem the aforementioned correspondence as confirmation that the Complainant had abandoned his employment with the caveat that if he wished to remain in employment that he would be subject to the findings of the disciplinary hearing that was conducted in his absence on 9 September, 2020.

The Complainant submits that at all times the Respondent undermined his trust and confidence in the management of the company and its intentions towards him. The Respondent’s engagements were characterised by a lack of transparency and the Complainant’s well-founded concerns were repeatedly maligned and he was repeatedly subjected to the threat of prejudiced medical assessment as well as an unfair disciplinary hearing. The Complainant submits that at all material times he exercised his work duties diligently and to the best of his ability and that he was fit to carry them out as evidenced by his multiple medical certificates confirming that fact.

Summary of the Complainant’s evidence

The Complainant stated that he was employed by the Respondent for 22 years as a binman and that he enjoyed his work and had a good working relationship with his colleagues. The Complainant stated that he sustained an injury to his ankle in 2015 while carrying out his duties and was absent for a period of over five months at that juncture. The Complainant stated that the Respondent was very good to him after he sustained the workplace injury in 2015 and that he was fully paid during the period of his absence.

The Complainant stated that he was able to fully perform his duties as a binman in 2019 despite the fact that he had a number of medical conditions including obesity and respiratory difficulties. The Complainant stated that he went absent from work on certified sick leave for one week in February, 2019 as a result of gout. The Complainant stated that he was informed by Mr. Joe Shannon (Transport Manager) to report to Mr. Ray Whelan (Managing Director) on 19 February, 2019 prior to his return to work. The Complainant stated that he met with Mr. Whelan who expressed concerns about his ongoing sickness and offered him a sum of €10,000 to go and get himself sorted. The Complainant stated that he requested Mr. Whelan to communicate this offer in writing to him, but he refused to do so. The Complainant stated that he informed Mr. Whelan that he was not prepared to accept this offer on the basis that he feared his job would no longer be available if he did so.

The Complainant stated that he subsequently attended his GP for a medical assessment and was certified fit to resume work. The Complainant presented this medical certificate to Mr. Whelan who indicated that “a doctor would type up anything that you say to him”. The Complainant stated that Mr. Whelan informed him that he was being referred to the Company Doctor for a medical assessment. The Complainant stated that he attended the company doctor for this medical assessment which included blood tests, but the Company Doctor did not seek his permission to do an alcohol blood test. The Complainant stated that he was not provided with a copy of the medical report from the Company Doctor arising from the medical assessment and that he didn’t have any further contact with the Respondent during the period of his absence.

The Complainant stated that he wasn’t allowed to return to work for a period of 7 months from February, 2019 and that he didn’t receive any pay from the Respondent during the period of his absence. The Complainant stated that he had no alternative but to seek alternative employment as a deliver driver for a fast-food outlet during this period.

The Complainant stated that he obtained a medical certificate from his own GP in August, 2019 which confirmed his fitness to return to work and that he also attended a further medical assessment with the company doctor at that juncture. The Complainant stated that he was allowed to return to work by the Respondent on 9 September, 2019 and resumed his employment with the company. The Complainant stated that he was not immediately allowed to return to his previous role as binman on his return to work but rather was assigned to rubbish sorting duties at the Respondent’s yard. The Complainant stated that he was only returned to his role as a binman a number of weeks later after his solicitor made representations to the Respondent to the effect that he was being demoted as a result of the stand that he had taken in relation to his job.

The Complainant stated that he continued to work as a binman until 26 June, 2020 when he was informed by the Respondent that he was being removed from these duties and being re-assigned to alternative duties at the yard. The Complainant stated that he was informed by Mr. Joe Shannon on this date that there had been a complaint made against him by the driver of the lorry he was working on to the effect that he was not capable of doing the job of binman. The Complainant acknowledged that he had been involved in an argument with the lorry driver on the date in question who informed him that he was going to make a complaint about him. The Complainant stated that Mr. Shannon informed him on this date that he wouldn’t be working on the back of the lorry anymore and that he was instructed to take up duties sorting out papers at the yard. 

The Complainant stated that he was informed by the Respondent that he was required to attend a medical assessment with its occupational health physician in Naas on 29 June, 2020 but he was not in a position to travel to this appointment due to the Covid-19 restrictions which were in place at that juncture. The Complainant stated that he attended for work on this date instead but was notified that evening that the medical appointment was rescheduled for 2/3 July, 2020. The Complainant stated that he didn’t attend this appointment or a further appointment which was scheduled for September, 2020 after taking advice on this matter from his solicitor.

The Complainant stated that he wasn’t allowed to work from 26 June, 2020 so he went back to his own GP in July, 2020 to obtain a medical assessment. The Complainant stated that he was certified fit to return by his GP and that he provided this medical certificate to the Respondent but was informed that it wasn’t acceptable. The Complainant stated that he wasn’t entirely clear on the exact date that his employment was terminated by the Respondent but contends that his dismissal occurred when he was informed by Mr. Joe Shannon on a date in either June or July, 2020 that there wouldn’t be any further work available to him with the Respondent.

In cross-examination, the Complainant accepted that the Respondent offered him a sum of €10,000 in February, 2019 to invest in his own health and fitness. However, the Complainant refused to accept this offer because Mr. Ray Whelan would not provide confirmation that his job would still be available if he accepted the offer. The Complainant denied that his medical issues in relation to gout in February, 2019 were in any way related or attributable to alcohol consumption and that he hadn’t consumed any alcohol for a number of weeks prior to his referral by the Respondent to the company doctor in March, 2019. The Complainant stated that this medical condition of gout occurred as a result of his diet and was not related to alcohol consumption. The Complainant stated that he disagreed with the medical report from the company doctor in March, 2019 which indicated that he wasn’t fit to carry out his duties as a binman.

The Complainant stated that he wasn’t allowed to work for over 7 months after the medical assessment by the company doctor even though he was of the opinion that he was fully fit for work. The Complainant stated that he returned to work in September, 2019 after being medically assessed again by the Company Doctor. The Complainant stated that he was assigned to duties in the yard on his return but would have preferred to have returned to his role as a binman on the lorries at that juncture. The Complainant stated that he was re-assigned to duties as a binman a few weeks later after the Respondent experienced a shortage of binman.

The Complainant stated that he continued to work as a binman thereafter until he was informed by the Respondent on 26 June, 2020 he was being taken off the lorries and that he was to report to the yard the following day. The Complainant stated that he didn’t know the reason why he was taken off duties as a binman and disputed the Respondent’s contention that the drivers didn’t want to work with him because he wasn’t fit to carry out his duties. The Complainant also disputes that these concerns were raised with him by the Respondent or that he agreed during a conversation with Mr. Joe Shannon that he wasn’t fit to carry out his duties as a binman.

The Complainant stated that the reason why he didn’t attend the appointments with the company’s occupational health physician was because he wanted to obtain advice from his solicitor on the matter. The Complainant stated that he felt that he was being bullied by the Respondent into attending these medical appointments.

The Complainant stated that he was dismissed after Mr. Joe Shannon informed him that there wasn’t any further work available for him with the company. The Complainant disputes the contention that he left his employment of his own volition and stated that he was dismissed by Mr. Joe Shannon.

Summary of the evidence of Dr. A

Dr. A stated that the Complainant was referred to her by the Respondent for a medical assessment on 24 March, 2019 and that she completed a report in relation to this assessment on 31 March, 2019.

Dr. A stated that her report of the medical examination on the Complainant recorded that he had a number of medical conditions including obesity, diabetes and a wheeze on his chest. Dr. A stated that she indicated in her report that the Complainant should be fit to resume work when his diabetes and respiratory condition had been brought under control. Dr. A stated that a further medical examination of the Complainant was conducted on 4 September, 2019 by another doctor in the practice and that he was certified fit to return to work at that juncture.

Dr. A stated that she conducted routine blood tests on the Complainant as part of his medical assessment and she confirmed that she didn’t conduct a test for alcohol during this procedure. Dr. A was presented with documentation by the Complainant’s solicitor at the hearing in relation to the laboratory tests which were conducted on foot of her medical examination which indicated that she had requested an alcohol test as part of the blood test. Dr. A stated that she didn’t recollect requesting an alcohol blood test as part of her medical assessment of the Complainant and that she wouldn’t have done so without his consent on the day of the examination. Dr. A stated that she didn’t have any explanation in relation to the reason why the laboratory records indicated that an alcohol blood test had been taken from the Complainant.

Dr. A stated that she received a request from the Complainant’s solicitor on 31 May, 2019 for a copy of the Complainant’s medical records and she understood that all of these records had been forwarded to the Complainant’s solicitor by the practice. Dr. A stated that she was surprised to subsequently be informed by the Complainant’s solicitor that they hadn’t received copies of all relevant records relating to the Complainant. Dr. A stated that this situation was rectified as soon as the matter was brought to her attention by the Complainant’s solicitor.

Summary of evidence of Mr. Terence Doyle

Mr. Terence Doyle stated that he acted as solicitor for the Complainant and that he provided legal advice to him and issued letters to the Respondent on his behalf in relation to the issues concerning his employment with the Respondent which gave rise to the instant complaints.

Summary of evidence of Ms. B

Ms. B stated that she is the Complainant’s partner and that she was aware of the issues that had arisen in relation to his employment with the Respondent. Ms. B stated that the issues which occurred in relation to the Complainant’s employment were very distressful and upsetting for him.

Ms. B stated that the Complainant recounted to her the conversations that had taken place with Mr. Joe Shannon on 26th June, 2020 and on subsequent dates in June, 2020 in relation to his position with the Respondent. Ms. B stated that she had taken a contemporaneous note of the Complainant’s account of the matters that were discussed between him and Mr. Shannon on these dates. Ms. B adduced in evidence a copy of her notes in relation to these conversations at the hearing.

CA-00041775-001 – Complaint under the Unfair Dismissals Act, 1977

Legal Submissions

The Complainant submits that he was not afforded any real fairness or due process with respect to the purported claims against him. He was not provided with the full details of the purportedly multiple claims which fundamentally challenged his and his doctor’s advice that he was fit to work and/or his ability to carry out his work. The Complainant was subjected to a series of sham disciplinary hearings where the outcome was clearly predetermined and his genuine concerns in relation to the process applied by the Respondent was justified.

The Complainant submits that at all times since February, 2019 the Respondent sought to force him from its employment and the express statement from Mr. Joe Shannon on 3 September, 2020 that “there is no work for you in this company anymore” was unambiguous in its meaning and the Complainant was left with no doubt but that he had been dismissed.

The Complainant submits that it is notable that after his solicitor wrote to the Respondent expressly stating that the Complainant intended to refer a complaint to the WRC, the Respondent attempted to deviate from Mr. Shannon’s position to claim that the Complainant had not, in fact, been dismissed. The Respondent purported to give the Complainant “the benefit of the doubt one last time” and allow the Complainant to return to work with the proviso that upon his return, the Respondent would issue its determination of the disciplinary hearing held on the 9 September, 2020. The Complainant contends that if he had returned to work on these terms, he would implicitly accept the bona fides of a disciplinary process that in his view was a sham and which was fundamentally flawed and unfair.

The Complainant submits that in the context of all that had happened since February, 2019 and given the drip feed of details that confirmed his suspicions about the true motivations of the Respondent and its purported offer to allow him to return to work was made in bad faith. It failed to offer any reassurance that addressed the Complainant’s well-articulated concerns of a lack of fairness and due process.

The Respondent submits that the Complainant was unequivocally dismissed by Mr. Joe Shannon on 3 September, 2020 and the subsequent ploy by the Respondent to make a conditional offer of return to the Complainant was not sincere and was only made after it was made clear that he now intended to make a complaint to the WRC.

The Complainant submits that without prejudice to the foregoing, if the Adjudication Officer determines that the Complainant was not unfairly dismissed on 3 September, 2020 as maintained, the actions of the Respondent as set out above were so unreasonable and caused such a fundamental breach of trust and confidence, that its conduct and treatment of the Complainant gave rise to a constructive dismissal within the meaning of the Unfair Dismissals Act 1977.

The Respondent relied upon the following cases in support of its claim under the Unfair Dismissals Act 1977, namely: Stopp v The Shaftsbury Society [1982] IRLR 326; Devaney v DNT Distribution Company Limited (UD412/193); Local Government Management Agency v Jim Connolly UDD1922 and William v The governing Body of Alderman Davies Church in Wales Primary School UKEAT/0108/19/LA.

CA-00041775-002 – Complaint under the Employment Equality Act, 1998

Legal Submissions

Claim of Discrimination on the grounds of disability

The Complainant submits that he has been diagnosed with a number of medical conditions including obesity, diabetes, asthma and chronic obstructive pulmonary disease (COPD) which clearly fall within the definition of the term “disability” for the purposes of section 2 of the Employment Equality Acts. The Complainant submits that the case of Kaltoft v Municipality of Billund C-354/13 is authority for the recognition of obesity as a disability.

The Complainant submits that the claim of direct discrimination arises on the basis of his adverse treatment by the Respondent in the workplace on the grounds of his disability during the period from February, 2019 until his dismissal in September, 2020. The Complainant contends that he was excluded from work without pay because of his disability and that he was required to undertake successive medical assessments by the Respondent notwithstanding the fact that he had been certified fit to work by his own doctor.

The Complainant contends that the Respondent sought to coerce his removal from work by wilfully trying to secure a medical opinion confirming his disabilities without providing that doctor with a full account of his relevant workplace history. He submits that the Respondent concealed the fact that it had furnished its medical expert with details of numerous hitherto unknown complaints deliberately omitting any reference to the four most recent medical reports which confirmed his fitness to work and where those medical reports appear to be contemporaneous with those alleged complaints. The Complainant submits that the Respondent contrived a biased and unfair context to its medical referral with the sole objective of obtaining a medical reference that would assist it in its attempt to force the Complainant from his job.

The Complainant submits that the Complainant was treated less favourably by the Respondent than another person would have been treated on the grounds of his disability. The Complainant accepts that there is not a direct comparator in this case but submits that he is entitled to rely upon a hypothetical comparator in respect of this claim.

Claim of failure to provide Reasonable Accommodation

The Complainant submits that the Respondent failed to provide him with reasonable accommodation in accordance with its obligations under Section 16 of the Employment Equality Acts.

The Complainant contends that notwithstanding the fact that he at all times believed himself to be capable of carrying out his duties, if the Respondent was genuine in its treatment of him, it is reasonable to expect that some attempt would have been made to provide reasonable accommodation for him. Instead in 2019, the Respondent forced the Complainant out of work without pay for over seven months and made absolutely no attempt to engage with him to secure his return to work. The Complainant disputes that the offer of €10,000 which was made by the Respondent when he went absent on sick leave in February, 2019 was a genuine attempt to provide him with reasonable accommodation but rather was an attempt to force his exit from the company.

The Complainant submits that the Respondent made no attempt to engage with the Complainant in relation to the provision of reasonable accommodation to facilitate his return to work following the receipt of the medical report from the company doctor on 21 March, 2019. The Complainant contends that the Respondent failed to act with integrity towards him at that juncture and that this contention was supported by the fact that the issue of alcohol use was a factor in terms of the referral to the company doctor.

The Complainant submits that a similar situation pertained in 2020 when the Respondent’s actions demonstrated a clear desire to remove him from work while refusing to engage with his repeated reasonable request via his solicitor.

Claim of Harassment

The Complainant claims that he was subjected to harassment by the Respondent within the meaning of Section 14A of the Employment Equality Acts.

The Complainant submits that the numerous referrals for medical assessments (including the referral for an alcohol test) and the refusal by the Respondent to accept the medical report from his own doctor amounted to harassment. The Complainant contends that there was a lack of engagement with him after he had attended the company doctor and that he had to expend a considerable amount of his own money to try and get back into his job.

The Complainant submits that he was targeted by management within the Respondent company and that there was an attempt to build up a dossier of complaints against him and none of which were made known or disclosed to him.

The Complainant submits that these acts constitute harassment within the meaning of Section 14A of the Acts.

Claim of Victimisation

The Complainant claims that he was subjected to victimisation by the Respondent contrary to Section 74(2) of the Employment Equality Acts.

The Complainant submits that the repeated harassment of him by the Respondent about his fitness to return to work, the demotion upon his return to work, being subjected to a series of disciplinary actions without any fairness or due regard to the repeated concerns raised by his solicitor, the reliance place on a series of purported complaints when these details were deliberately withheld from him constitute cumulative and individual acts of victimisation that caused detriment to him and his health and well-being.

The Complainant relied upon the following cases in support of his position, namely: Nano Nagle v Daly [2019] IESC 63 and Department of Defence v Barrett EDA1017.

The Respondent submits that it operates a waste management and skip hire business and that the Complainant commenced employment as an Operative in or around 1998.

The Respondent submits that the Complainant commenced a period of sick leave in February, 2019 and was referred for a medical assessment to the company’s occupational health physician who confirmed that he was unfit to work at that juncture due to a respiratory condition and diabetes. The Complainant remained on sick leave until 4 September, 2019 when he was certified fit to return to work by the company’s occupational health physician. The Respondent submits that out of pure consideration and compassion for the Complainant, Mr. Ray Whelan (Managing Director) offered him a payment of €10,000 to help with his recovery. The Complainant had been offered similar assistance by the Respondent in 2015 when it discharged the fees of a trainer and dietician to similarly assist him.

The Respondent submits that there was, therefore, no basis for the Complainant’s alleged concern that this offer was in reality an attempt to force him from his job. The Respondent submits that at no time during the Complainant’s sick leave was his employment threatened but rather he was urged by the Respondent to address his health issues and was offered very generous assistance in doing so, so that he could return to work.

The Respondent submits that on 26 May, 2020 a driver of a bin truck approached Mr. Joe Shannon (Transport Manager) and made certain disclosures about health, safety welfare issues concerning the Complainant, who was working as an operative on his truck. The Driver disclosed in particular that the Complainant’s mobility was poor, that he stumbled while getting up and down from the lorry and regularly complained of pains in his knees and hips. The Driver requested that the Complainant be removed from the truck, stating that he was unwilling to take responsibility for his health and safety in the circumstances. Earlier that day the Complainant had had a dispute with his own nephew who also worked on the lorry. The Respondent submits that the Driver’s disclosure was unrelated to this issue, and it disputes the Complainant’s contention that Mr. Shannon had indicated to him that he would never work on the lorry again.

The Respondent submits that in or around this time that other staff members had also disclosed that the Complainant was unsteady on his feet and out of breath while performing his duties, that he was falling asleep in the cab of the lorry and that he refused to carry out his duties telling others to empty the bins. The Respondent submits that it also received a report from a concerned customer that the Complainant was being dragged by the lorry and this had potentially very serious consequences for the Complainant who could have been seriously injured.

The Respondent submits that there were serious concerns about the potential consequences for the Complainant’s health and safety and the other employees in the circumstances and the company sought HR advices in relation to its obligations under Health & Safety legislation. The Respondent submits that Mr. Joe Shannon contacted the Complainant on 26 May, 2020 and advised him of the disclosures that had been made. Mr. Shannon also suggested and the Complainant agreed that he would carry out alternative duties pending medical assessment and on that basis the Complainant was advised to attend the yard for alternative work instead of working as a binman.

The Respondent submits that on 27 May, 2020 the Complainant and Mr. Shannon had a conversation in which the Complainant stated that he was no longer physically able for the role and advised Mr. Shannon that he had applied to other companies for work and asked Mr. Shannon to put in a word for him. The Respondent submits that in light of the foregoing, that contact was made with the company’s occupational health physician and an appointment for the Complainant was made for 29 June, 2020. The Complainant was notified of the appointment and did not raise any objection, however without any explanation he failed to attend the appointment. When this matter was queried with the Complainant, he responded that he had been advised not to attend.

The Respondent submits that Mr. Shannon wrote to the Complainant on 29 June, 2020 expressing regret that he had failed to attend the occupational health assessment and noting its health and safety obligations to the Complainant and to other employees. The Complainant was advised not to attend the workplace in the circumstances but was told that he would be kept on full pay and a new appointment would be arranged. A further appointment was arranged for 1 July, 2020 but again he failed to attend.

The Respondent submits that on 3 July, 2020 the company’s solicitor received correspondence from the Complainant’s solicitor alleging that a concerted effort to force the Complainant from his employment and that he had been demoted as a result of a minor dispute with a colleague. The Complainant’s solicitor failed to offer any explanation for his failure to attend the medical appointments but instead referred to medical opinions from the previous year and alleged that the Respondent was shopping around in the hope of obtaining a report that contradicted them. The Respondent submits that this letter was not only inaccurate but ignored entirely the Complainant’s refusal to cooperate with the company’s reasonable and legitimate obligations to address the issues that arose in relation to his employment.

The Respondent submits that its solicitor replied to Complainant’s solicitor by letter dated 6 July, 2020 and confirmed that there was no concerted attempt to force the Complainant from his employment and indicated that he would not be allowed to return to work pending medical examination and sought confirmation by 8 July, 2020 that he would attend the next appointment.

The Respondent submits that by letter dated 13 July, 2020 the Complainant was invited to a disciplinary hearing on 16 July, 2020 to discuss his failure to attend the occupational assessments and to afford him the opportunity to put forward any mitigating factors in relation to his refusal to attend. The Complainant requested a deferral of this disciplinary hearing and the Respondent agreed to reschedule the meeting to 21 July, 2020. The Respondent submits that the Complainant did not make further contact and failed to attend the hearing on this date or return the calls from Mr. Shannon who attempted to contact him. In the circumstances where the Complainant had failed to attend for occupational assessments and disciplinary hearings, Mr. Shannon wrote to the Complainant noting that it was clear from his actions that he no longer wished to be employed by the Respondent. However, the Complainant was offered one last opportunity to contact Mr. Shannon to confirm to the contrary.

The Respondent submits that on the same day (i.e. 21 July, 2020) a letter was faxed to the Respondent’s solicitor asserting that the Complainant was fit to carry out his duties and enclosing a certificate from his own GP stating generally that the Complainant was fit for work generally but also confusingly stating that he was unfit to attend work from 16 July, 2020. The Complainant didn’t proffer any explanation as to why he had attended his own GP instead of the appointment that had been arranged with the Respondent’s occupational health physician. It was further alleged by the Complainant without any justification or basis in fact that he had been subjected to unfair treatment and harassment by the Respondent. The Complainant’s solicitor sought to rely upon medical advices that had been obtained eleven months previously and simply ignored the intervening events. The Complainant threatened injunctive relief if confirmation was not given by 24 July, 2020 that he could immediately return to work.

The Respondent submits that its solicitor was not in the office when this letter was sent by the Complainant’s solicitor and the Respondent was therefore not aware of the said letter. In the absence of any knowledge of this correspondence, Mr. Shannon advised the Complainant that as he had not been in contact and had been absent from work since 30 June, 2020 that there was no option but to terminate his employment by abandonment.

The Respondent submits that its solicitor confirmed to the Complainant’s solicitor by letter 29 July, 2020 that the Respondent had no knowledge of the Complainant’s letter dated 21 July, 2020, when the letter dated 24 July was therefore withdrawn and that the Complainant should instead respond to the letter of 21 July, 2020 by 1 August, 2020. It was also explained that medical certificate from the Complainant’s GP did not address the issues that arose and was contradictory on its face, the Respondent could not in reliance thereon and reiterated the requirement for him to attend a specialist doctor.

The Respondent submits that its solicitor received a letter from the Complainant’s solicitor dated 30 July, 2020 in which it was alleged that the Respondent was intent on getting rid of the Complainant. However, this letter failed to acknowledge the Respondent’s requirement to obtain the opinion of a specialist occupational health physician in the context of the issues that had arisen in relation to the Complainant. It was further stated that the Complainant would attend for work the next day. The Respondent’s solicitor replied to this letter on 31 July, 2020 and noted that it was a welcome development that the Complainant appeared to want to remain in employment. It was indicated that a further appointment would be arranged for the Complainant with its occupational health physician and that he would be returned to the payroll and the disciplinary action placed on hold in anticipation of him attending this appointment.

The Respondent submits that a further appointment was made for the Complainant to attend its occupational health physician on 31 August, 2020 (and subsequently rescheduled for 2 September, 2020) but the Complainant’s solicitor indicated that he would not attend an appointment until the Covid-19 restrictions were removed and the Respondent agreed to a number of pre-conditions relating to his attendance. There was further correspondence between the respective solicitor for the parties during the following two weeks in relation to the pre-conditions which the Complainant’s Solicitor had attached to the Complainant’s attendance at the medical appointment. The Respondent submits that the Complainant’s solicitor failed to identify any legitimate concerns in relation to the Complainant’s attendance at the medical appointment and was reminded in correspondence that failure to attend the appointment may result in disciplinary action. However, notwithstanding the interaction between the solicitors for both parties the Complainant failed to attend the medical appointment on 2 September, 2020.

The Respondent submits that the Complainant attended for work on 3 September, 2020 and Mr. Shannon enquired why he had failed to attend the occupational health assessment, to which the Complainant replied that he had been advised not to attend by his solicitor. Mr. Shannon advised the Complainant that he could not work on the trucks as he had not attended the assessment and that the HR Department would be in touch with him.

The Respondent submits that the Complainant was thereafter invited to a disciplinary hearing on 9 September, 2020 regarding his continued refusal to attend the occupational health assessments. The Respondent’s solicitor received a letter from the Complainant’s solicitor dated 9 September, 2020 In which it was erroneously asserted that Mr. Shannon had informed the Complainant on 3 September, 2020 that there was no work for him in the company anymore and that it was clear the Complainant had been unfairly dismissed and that he would be referring a complaint for unfair dismissal to the WRC. The Respondent submits that this assertion is not only denied but it is also contrary to the actions of the Respondent in inviting the Complainant to a disciplinary hearing.

The Respondent submits that its solicitor by letter dated 14 September, 2020 clearly and unequivocally clarified the position including most importantly that the Complainant had not been dismissed. It was noted in this letter that it appeared that the Complainant had abandoned his employment and/or frustrated his contract but that the Respondent would give him the benefit of the doubt, and should he wish to remain in employment, he should advise accordingly by 16 September, 2020. The Respondent submits that the Complainant’s solicitor replied by letter dated 16 September, 2020 and again deliberately misrepresented the content of previous correspondence and asserted that the Complainant had been dismissed from his employment.

Summary of the evidence of Mr. Joe Shannon

Mr. Shannon stated that he is employed by the Respondent in the role of Transport Manager. Mr. Shannon stated that he was the Complainant’s direct manager and that the Complainant worked on a wheelie bin lorry collecting domestic waste. Mr. Shannon stated that concerns were notified to him from other employees in 2019 and 2020 in relation to the Complainant’s general health and physical fitness to carry out his duties as a binman. Mr. Shannon stated that these complaints were made to him in confidence by the Complainant’s work colleagues, but the Complainant was made fully aware of the details and substance of the complaints. Mr. Shannon stated that one such complaint was made by a lorry driver in May, 2020 who indicated that he would not work with the Complainant any longer due to the concerns in relation to his health and fitness to work.

Mr. Shannon stated that he undertook the driving duties on the lorry that the Complainant was assigned in order to observe him and to confirm the veracity of the complaints made by his colleagues. Mr. Shannon stated that the Complainant experienced difficulty in boarding the back of the lorry and had breathing difficulties. Mr. Shannon stated that he also had to collect the Complainant from work on a number of occasions after he had fallen asleep on the back of the lorry.

Mr. Shannon stated that he consulted with the company’s HR Consultant after receiving the complaints about the Complainant and was advised to refer the Complainant to an occupational health specialist for a medical assessment. Mr. Shannon stated that the Respondent made a number of appointments for the Complainant to attend a medical assessment with its occupational health physician during the period between June-September, 2020 but the Complainant refused to attend any of the appointments. Mr. Shannon stated that the only reason which the Complainant put forward in respect of his failure to attend these appointments was that he was acting on the advice of his solicitor.

Mr. Shannon stated that he sent a letter to the Complainant on 21 July, 2020 in relation to his failure to attend two appointments with the company’s occupational health physician and the disciplinary hearings which had been scheduled. Mr. Shannon stated that he informed the Complainant in this letter that if he failed to contact the Respondent by 25 July, 2020 to confirm that he wished to remain in employment that it would be taken that he no longer wished to be employed. Mr. Shannon stated that he sent another letter to the Complainant on 24 July, 2020 to confirm that the Respondent had no option but to terminate his employment by abandonment due to his failure to contact him to confirm that he wished to remain in employment.

Mr. Shannon stated that the letter dated 24 July, 2020 was subsequently withdrawn after the Respondent became aware that there had been correspondence between the parties solicitors after he had issued the letter on 21 July, 2020. Mr. Shannon stated that the Respondent scheduled a further appointment for the Complainant with the company’s occupational health physician thereafter which the Complainant also failed to attend.

Mr. Shannon stated that the Complainant attended for work on 3 September, 2020 which was the day after he had failed to attend the appointment for a medical assessment with the company’s occupational health physician. Mr. Shannon stated that he informed the Complainant that he had no work for him that day and that he would re-arrange the appointment for the medical assessment. Mr. Shannon stated that he contacted the company’s HR Consultant later that day and was advised to send a letter to the Complainant inviting him to attend a disciplinary hearing on 9 September, 2020 in relation to his refusal to attend the medical appointments.

In cross-examination, Mr. Shannon stated that a number of complaints had been made by work colleagues in relation to the Complainant’s health and fitness to work prior to him going on sick leave in February, 2019. Mr. Shannon stated that the complaints were made on a confidential basis by the Complainant’s work colleagues and that he didn’t make any written record of the complaints.

Mr. Shannon stated that he didn’t have any involvement in relation to the referral of the Complainant for a medical assessment with the Company Doctor in March, 2019 and that he didn’t talk to the Company Doctor about this referral.

Mr. Shannon stated that he recalls sending a text message to the Complainant on 7 September, 2019 and asking him to report to the yard the following Monday morning. Mr. Shannon stated that he had a conversation with the Complainant when he returned to work on the Monday following a period of absence on sick leave and that he was assigned to alternative duties painting railings in the yard. Mr. Shannon stated that he disputes the Complainant’s contention that he was assigned to duties sorting rubbish in dusty conditions at that juncture. Mr. Shannon stated that the Respondent attempted to facilitate the Complainant with an easier job than working as a binman as a result of the concerns that arose over his health, but the Complainant made no effort to cooperate with the Respondent. Mr. Shannon stated that the Complainant was returned to working on the lorries after the Complainant’s Solicitor threatened to seek an injunction against the Respondent.

Mr. Shannon stated that the Complainant was moved between several different lorries in September, 2019 after the drivers had made complaints about his health and fitness to work as a binman. Mr. Shannon stated that there was a further complaint made by a driver in 2020 on a confidential basis who indicated that he was not prepared to work with the Complainant any longer. Mr. Shannon stated that the driver informed him that the Complainant was unsteady on his feet and unable to do the job. Mr. Shannon stated that he spoke to the Complainant directly about the complaints from his colleagues and informed him of the issues that had been raised by the drivers. Mr. Shannon stated that the Complainant informed him during one of these conversations that he thought that he would only get one more year out of the bins and asked if he would put in a word with another company to try and obtain alternative employment for him.

Mr. Shannon stated that he received a further complaint from a driver in May, 2020 about an altercation involving the Complainant and another helper on the lorry which occurred as a result of concerns in relation to his ability to do the job. Mr. Shannon stated that the driver indicated that the altercation arose because the Complainant was asleep on the lorry and wouldn’t do his share of the work. Mr. Shannon stated that the driver had raised this complaint on the basis of concerns in relation to the Complainant’s health and safety and well-being.

Mr. Shannon stated that he sought advice from the company’s HR Consultant following the receipt of this complaint and was advised to take the Complainant off the lorry and assign him to lighter duties at the yard. Mr. Shannon stated that he subsequently spoke to the Complainant at the yard and that he indicated that he had applied for another job as a driver with a retail outlet and that the Complainant asked him to have a word with another employer to see if he could obtain alternative employment.

Mr. Shannon stated that he took the decision to refer the Complainant for a medical assessment with its occupational health physician following advice from the company’s HR Consultant as a result of the concerns that had arisen following the receipt of the complaints. Mr. Shannon stated that he informed the Complainant that he was being referred for this medical assessment due to the concerns for his health and safety on foot of the complaints. Mr. Shannon stated that the Complainant had no difficulty in attending the medical assessment until he obtained advice from his solicitor.

Mr. Shannon disputed the Complainant’s contention that the Respondent was attempting to force him from his employment. Mr. Shannon also denied the Complainant’s contention that he informed the Complainant on 3 September, 2020 that there wasn’t any more work for him with the company. Mr. Shannon stated that he told the Complainant during this conversation that there wasn’t any work for him with the Respondent on that particular day and he disputes the Complainant’s contention that he had dismissed him on that date.

Summary of the evidence of Ms. Michelle Bambrick

Ms. Bambrick stated that she is employed by the Respondent in the role of Office Manager and has responsibility for payroll. Ms. Bambrick stated that she was aware of the assistance which the Respondent had provided to the Complainant in 2015 by way of financial assistance for gym fees and a dietician when he experienced medical difficulties.

Ms. Bambrick stated that she was aware that Mr. Ray Whelan (Managing Director) wanted to provide this assistance to the Complainant to help him improve his health and fitness and his ability to carry out his role as a binman after he had sustained an injury to his ankle in the workplace. Ms. Bambrick stated that she was also aware of the financial assistance of €10,000 which Mr. Whelan offered to the Complainant in 2019 to assist with the improvement of his health and fitness and that she wasn’t aware of any other employees being offered such assistance by the Respondent.

Ms. Bambrick stated that she was responsible for making the arrangements for the Complainant’s medical assessments with the company’s occupational health physician. Ms. Bambrick stated that the Complainant’s GP was also the company doctor and that the Respondent wanted a second opinion in relation to the Complainant’s medical fitness to carry out his job as a result of the concerns in this regard that had been raised by his work colleagues. Ms. Bambrick stated that she was satisfied that the Complainant had been properly notified in relation to all of the appointments with the company’s occupational health physician.

In cross-examination, Ms. Bambrick stated that the Complainant was paid while absent on sick leave after injuring his ankle in 2015 despite the fact that it was not the normal company policy to pay employees while absent on sick leave. Ms. Bambrick stated that she completed the documentation for the referral of the Complainant to the company’s occupational health physician on the instruction of Mr. Shannon. Ms. Shannon stated that the purpose of the Complainant’s referral to the occupational health physician was to obtain an occupational assessment in relation to his fitness to carry out the role of binman and that this assessment was job specific.

Summary of the evidence of Mr. Ray Whelan

Mr. Whelan stated that he is the owner of the Respondent company and that he has been operating the business for approx. 46 years. Mr. Whelan confirmed that his company has employed the Complainant for over 20 years.

Mr. Whelan stated that the Complainant was absent from work in 2015 and had experienced problems with his weight which affected his ability to carry out his role as a binman. Mr. Whelan stated that the Respondent agreed to pay the Complainant for a period of four months while he was absent from work in an effort to assist him to improve his health and fitness and ability to carry out his job. Mr. Whelan stated that he hadn’t provided this kind of special assistance to any other of his employees.

Mr. Whelan stated that the Complainant went absent from work again in February, 2019 as a result of health related issues and that he had a meeting with the Complainant to discuss this matter on 27 February, 2019. Mr. Whelan stated that he had invested approx. €15,000 in trying to improve the Complainant’s health and fitness with poor results in 2015 and that he wanted to try a different approach in February, 2019 with a view to facilitating the Complainant’s return to work.

Mr. Whelan stated that he offered the Complainant a sum of €10,000 to invest in his health and fitness so that he would be able to effectively carry out his duties as a binman. Mr. Whelan stated that this offer was not put forward as a means of trying to force the Complainant to leave his employment and that’s why he also invited the Complainant’s brother to attend the meeting so that there wouldn’t be any ambiguity in relation to the situation.

Mr. Whelan stated that he was kept informed about the situation involving the Complainant during 2020 but that he was not actively involved in managing this situation at that juncture. Mr. Whelan stated that the Respondent wanted to obtain a medical assessment in 2020 with the company’s occupational health specialists to confirm if the Complainant was fit to carry out the role of binman. Mr. Whelan stated that the medical certificate that the Complainant submitted from his own GP at that juncture did not confirm that he was fully fit to carry out his duties as a binman.

In cross-examination, Mr. Whelan denied that the reason why the Respondent provided financial assistance to the Complainant in 2015 was because the company didn’t want him to initiate personal injury litigation arising from the injury to his ankle. Mr. Whelan stated that the job of binman is a physically demanding occupation and that the reason the Complainant was offered this assistance was to improve his health and physical fitness so that he would be able to carry out his duties.

Mr. Whelan stated that the Complainant refused to accept the offer of €10,000 in 2019 to assist with his health and fitness due to concerns that he would lose his job if he accepted the money. Mr. Whelan denied that this offer was an attempt to try and force the Complainant to leave his employment or that that any such indication was communicated to him. Mr. Whelan stated that he had discussion with the Complainant at the meeting on 27 February, 2019 in relation to how he could improve his health and fitness and that he made suggestions to the Complainant about the measures that he could take to achieve this aim.

Mr. Whelan stated that he didn’t have any recollection of talking to the Company Doctor in March, 2019 in relation to the referral of the Complainant for a medical assessment. Mr. Whelan stated that the issue the alcohol use by the Complainant was not a concern for him at that juncture. Mr. Whelan accepted that the Complainant was not paid during the period of his absence from work from February-September, 2019 which was in accordance with company policy.

Mr. Whelan stated that the Respondent had received complaints from drivers as far back as 2012/13 that they did not want to work with the Complainant on the bin lorries. Mr. Whelan stated that the Respondent also received a number of complaints from drivers that the did not want to work with the Complainant after he returned to work in September, 2019.

Summary of the evidence of Mr. Liam Barton

Mr. Barton stated that he is a HR Consultant and that he provides consultancy services in relation to such matters to the Respondent.  Mr. Barton stated that he recalls receiving a telephone call from Mr. Joe Shannon in June, 2020 who informed him that he had received a number of complaints from drivers in relation to the Complainant’s ability to carry out his duties as a binman. Mr. Barton stated that he advised Mr. Shannon to make arrangements to have the Complainant medically assessed by an occupational health specialist in relation to his fitness to carry out his job. Mr. Barton stated that Mr. Shannon subsequently contacted him to confirm that the Complainant had failed to attend the appointments with the company’s occupational health physician.

Mr. Barton stated that he subsequently drafted a number of letters for issue by the Respondent in relation to the matters that occurred involving the Complainant. These letters included the letter dated 13 July, 2020 which notified the Complainant that his refusal to attend the occupational health assessments was to be dealt with under the internal disciplinary procedures. Mr. Barton stated that it was made clear in this letter that the Complainant was being afforded fair procedures in relation to this matter and that he was being afforded the opportunity to put forward his explanation and any mitigating factors in respect of his refusal to attend these appointments. Mr. Barton stated that he was made aware by Mr. Shannon that the Complainant failed to attend the disciplinary hearings which were scheduled in relation to this matter.

Mr. Barton stated that Mr. Shannon also contacted him on 3 September, 2020 to indicate that the Complainant had attended for work on this date and that he advised Mr. Shannon that the Complainant needed to be medically assessed before being allowed to return to work as a binman. Mr. Barton stated that he drafted the letter dated 3 September, 2020 which invited the Complainant to a further disciplinary hearing and that he wouldn’t have drafted this letter if there had been any indication that the Complainant was dismissed on this date.

In cross-examination, Mr. Barton stated that he had provided advice in relation to issues relating to the Complainant for a number of years including in 2015 when Mr. Whelan informed him that the Respondent had put measures in place to pay the Complainant for four months while absent from work to assist him to return to full fitness so that he would be able to perform his job as a binman.

Mr. Barton stated that he was made aware by Mr. Shannon that the Complainant had provided a medical certificate from his own GP to indicate that he was fit for work, but he advised that if the company still had concerns about his fitness to undertake his duties that there was no difficulty in having him medically assessed by an occupational health specialist. Mr. Barton stated that his consistent advice to the Respondent was that the company was entitled to have the Complainant medically assessed if it had concerns about his fitness to carry out his duties.

Mr. Barton stated that he was made aware by Mr. Shannon that a number of drivers had made complaints in relation to the Complainant’s health and well-being and his fitness to carry out his duties as a binman. Mr. Barton stated that he understood that the drivers did not want to raise these complaints on a formal basis and were not willing to put the complaints in writing. Mr. Barton stated that he advised Mr. Shannon to consult with the drivers to establish if they wished to make formal written complaints against the Complainant.

CA-00041775-001 – Complaint under the Unfair Dismissals Act 1977

Legal Submissions

The Respondent submits that the fact of dismissal is very much in dispute in the circumstances of the present case, and it is denied that the Complainant was dismissed on 3 September, 2020 or at all. The Respondent submits that the claim of constructive dismissal at some unidentified time, is inconsistent with the claim that the Complainant was dismissed on 3 September, 2020 and it is further submitted that the Complainant must elect which claim he wishes to pursue.

The Respondent submits that the Complainant has sought to misrepresent the conversation that took place between him and Mr. Shannon on 3 September, 2020. It submits that the assertion the Complainant was dismissed on this date is contrary to the evidence given by Mr. Shannon and is inconsistent with the actions of the Respondent in inviting the Complainant to a disciplinary hearing thereafter.

The Respondent submits that if there was any doubt whatsoever about this, it was clarified by letter of 14 September, 2020 from the Respondent’s solicitor, wherein it was expressly stated that the Complainant had not been dismissed and his assertion to this effect was manifestly untrue. The Respondent submits that this was simply ignored by the Complainant’s representative who instead again erroneously and deliberately misrepresented the Respondent’s reasonable queries about the correspondence from the Complainant’s solicitor and the implications of the Complainant’s actions in lodging a claim for unfair dismissal and offer for him to clarify the position, as the Complainant having “been dismissed (again)”. The Respondent submits that this was a clear manipulation of the facts and the correspondence to suit the Complainant’s own agenda.

The Respondent submits that it appears that the Complainant relies upon a fundamental breach of his contract which led to the termination of his contract i.e. the contract test to ground his claim of constructive dismissal. However, the Complainant has failed to identify the term of his contract that he alleges was fundamentally breached and has failed to identify how it is alleged that the said term was breached. He has failed to specify, in the absence of a resignation letter when the alleged dismissal occurred. It submits that the Complainant has failed to satisfy the “contract test” as set out in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332.

The Respondent submits that the Complainant makes reference to “the actions of the Respondent since 2019 and especially the treatment of the Claimant during the summer of 2020” but has failed to identify the alleged conduct which was a significant breach going to the root of the contract, which shows that the employer no longer intended to be bound by any essential term of the contract. It is submitted that there was no significant breach by the Respondent but rather that it was the Complainant who failed to act in accordance with his obligations as an employee.

The Respondent submits that the Complainant also failed to invoke any grievance and that it is well established that this is generally fatal to a claim of constructive dismissal. The Complainant has failed to prove or even identify any facts such that would meet the high bar of either the reasonableness test or the contract test, required to succeed in a claim for constructive dismissal. 

The Respondent submits that the conduct of the Respondent was at all times reasonable and acted in an effort to address the issues that had been raised in relation to the Complainant. It is submitted that the interventions of the Respondent were entirely appropriate and should simply have been taken in the right spirit by the Complainant. However, the Complainant failed to do so and instead obstructed the legitimate attempts of the Respondent to manage the situation that arose.

The Respondent also disputes the Complainant’s contention that he was denied fair procedures and due process in terms of the alleged failure by the Respondent to provide full details in relation to the complaints made against him by other work colleagues. The Respondent submits that it was required to protect the identity of his colleagues who disclosed the concerns in relation to the Complainant’s health and safety but provided all relevant information to him in relation to this matter. It is submitted that the Complainant was simply being asked to attend for appropriate medical assessment in relation to the real and legitimate concerns, arising from health issues, that are admitted.

The Respondent submits that the disciplinary process was only implemented to encourage the Complainant’s attendance at the appropriate medical assessment and that there is absolutely no basis for the assertion that outcome of the disciplinary process was predetermined. The Respondent submits that the evidence is to the contrary and that it simply wanted to be guided by the medical advices. It is denied that the Complainant had genuine concerns or that they were justified or that he was dismissed either constructively, or otherwise.

The Respondent relied upon the following cases in support of its position, namely: Berber v Dunnes Stores Limited [2009] IESC 10; Maguire Haulage Limited v Tom Kelly UDD2215; Nicola Coffey v Connect Family Resource Centre UD1126/2014; Ruffley v The Board of Management of St. Anne’s School [2017] IESC 3 and Sheehan v Continental Administration Co. Limited (UD858/1999).

 CA-00041775-002 – Complaint under the Employment Equality Act 1998

Claim of Discrimination on the grounds of Disability

The Respondent submits that the Complainant has first of all failed to identify a comparator who was in a comparable situation. Furthermore, the Complainant’s claim of discriminatory treatment is comprised of mere assertions and erroneous conjecture in relation to the Respondent’s motivations and misrepresentation of the facts.

The Respondent submits that, in fact, what occurred was that the Respondent legitimately attempted to manage the Complainant’s admitted ill-health, in order to ensure compliance under Health and Safety legislation, to minimise the risk of injury to the Complainant and others and to seek appropriate medical advices to accommodate the Complainant if necessary. This does not constitute less favourable treatment, than another person in a comparable situation.

The Respondent submits that the Complainant has not identified a comparator and appears to rely upon a hypothetical comparator. In response to such a hypothetical scenario, it is denied that a person with no illness or other illness would be treated differently in situations where health, safety or welfare concerns arise. It is submitted that the Complainant has failed to establish the primary facts on credible evidence, of such significance, to raise a presumption of discrimination.

Claim of failure to provide Reasonable Accommodation

The Respondent submits that the Complainant has not referred a claim to the WRC in respect of a failure to provide reasonable accommodation. On his Complaint Form, it is expressly stated “not selected” in relation to Reasonable Accommodation. It is submitted that the Complainant is out of time to refer any such claim and that the Adjudication Officer therefore lacks jurisdiction in relation to this claim.

The Respondent submits, without prejudice to the foregoing, that it certainly did take “appropriate measures” to ascertain if reasonable accommodation was required and if so, what that would look like, by referring the Complainant to a specialist occupational health adviser and setting out the context of the referral. It was the Complainant who frustrated the Respondent’s said attempts.

The Respondent submits that it has also previously accommodated the Complainant with reduced hours and alternative duties when necessary. The Respondent made it clear that it would be guided by medical advice in relation to the Complainant’s health issues and also had a history of accommodating the Complainant including by adapting his working time, distributing tasks, providing special training in the form of paying for a trainer/dietician and even in 2019, generously offering hm the sum of €10,000 to assist with his health and fitness.

Claim of Harassment

The Respondent disputes the claim of harassment contrary to Section 14A of the Employment Equality Acts and submits that the Complainant has failed to identify which conduct within the cognisable period or at all, is alleged to have had the purpose of violating his dignity. However, it is submitted that no actions on the part of the Respondent had such purpose or effect, being motivated solely by the welfare of the Complainant and other staff members.

The Respondent submits that the Complainant has agreed and identified in his submissions that he had multiple health issues. If any tension arose, it was due to the Complainant’s continued failure on the advice of his Solicitor, to attend for appropriate assessment, so that the Respondent could obtain the necessary medical advices to manage his situation.

Claim of Victimisation

The Respondent disputes the claim of victimisation contrary to Section 74(2) of the Employment Equality Acts. It submits that no act of victimisation under Section 74(2) has been identified, upon which the Complainant relies.

The Respondent submits, without prejudice to the foregoing, that no act of victimisation has been outlined within the cognisable period or at all. It submits that contrary to the Complainant’s assertions, he was not harassed, was not demoted and was not subject to unfair disciplinary process. The purported concerns of the Complainant’s Solicitor were fully addressed, and the Complainant was provided with the relevant referral forms relating to the occupational health assessment.

The Respondent relied upon the following cases in support of its position, namely: Melbury v Valpeters EDA0917 and Southern Health Board v Mitchell [2001] ELR 201.

CA-00041775-001 – Complaint under the Unfair Dismissals Act, 1977

The Law

Section 1 of the Unfair Dismissals Act provides the following definition of “dismissal”:

“dismissal”, in relation to an employee, means—

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The key material facts in this case, including the fact of dismissal, were very much in dispute between the parties. Accordingly, it is a matter for the Complainant to establish that he has been dismissed by the Respondent. 

Therefore, the first issue which I must consider is whether or not the Complainant was actually dismissed from his employment within the meaning of Section 1 of the Act or if, as contended by the Respondent, that he left this employment of his own volition by way of abandonment.  

In considering this issue, it is necessary to examine the events and circumstances that occurred during the relevant period prior to the termination of the Complainant’s employment. The Complainant contends that the Respondent at all times since February, 2019 embarked upon a campaign to try and force him from his employment which culminated on 3 September, 2020 when he was unequivocally dismissed by Mr. Joe Shannon. The Complainant contends that he was denied fair procedures by the Respondent in terms of its failure to provide him with the full details of the purportedly multiple complaints from his work colleagues which fundamentally challenged his and his doctors’ advices that he was fit to work and carry out his duties as a binman.

The Respondent disputes that the Complainant was dismissed on 3 September, 2020 or at all. The Respondent contends that the Complainant left his employment by way of abandonment after failing to participate in an internal disciplinary process which was initiated arising from his refusal to attend a number of scheduled appointments for a medical assessment with the company’s occupational health physician. 

In considering this matter, I note that there is a clear conflict in the evidence between the parties in relation to the events that transpired during the course of the meeting that took place between Mr. Joe Shannon and the Complainant on the 3 September, 2020. I find that Mr. Shannon’s evidence, on the one hand, was very compelling and persuasive in terms of his recollection of the conversation that took place with the Complainant on this date, and he vehemently denies that he dismissed the Complainant. Mr. Shannon adduced evidence that he informed the Complainant on this date that he had no work for him that day and that he would re-arrange the appointment for the medical assessment with the company’s occupation health physician.

I find that the Complainant’s evidence on this matter was very much lacking in clarity and that he was unable to provide a clear account of the detail of the conversation that took place with Mr. Shannon which it has been alleged resulted in his dismissal. Moreover, the Complainant was unable to provide confirmation of the actual date upon which this conversation took place and he indicated during his evidence that his dismissal occurred on a date in June or July, 2020.

Having regard to the totality of the evidence adduced on this matter, I find the Respondent’s evidence to be more compelling and I am satisfied that Mr. Shannon’s evidence in relation to the nature of the conversation that took place with the Complainant on 3 September, 2020 represents a more accurate and credible version of events. In the circumstances, I find that the Complainant was not dismissed from his employment with the Respondent during the course of his meeting with Mr. Shannon on 3 September, 2020.

It is also important to note at this juncture that I find the Complainant’s evidence in general to be lacking in clarity and that he was unable to provide a clear or accurate account in relation to many of his interactions and conversations with both Mr. Shannon and Mr. Whelan during the period from February, 2019 to September, 2020.

Furthermore, I do not accept the Complainant’s contention that there was an insincere and subsequent ploy by the Respondent to make a conditional offer of return to the Complainant only after it was made clear that he now intended to make a complaint to the WRC. In the circumstances, I am satisfied that the Complainant’s position was clearly still available to him at that juncture and that the disciplinary process which had been initiated in relation to his refusal to attend a medical assessment with the company’s occupation health physician was still ongoing. In this regard, I am satisfied that information to the effect that the Complainant had not been dismissed was clearly and unambiguously conveyed to him both in Mr. Shannon’s letter dated 3 September, 2020 and in further correspondence from the Respondent’s solicitor to the Complainant’s solicitor on 14 September, 2020.

Having regard to the foregoing, I find that the Complainant was not dismissed from his employment within the meaning of Section 1 of the Acts on 3 September, 2020. 

The Complainant has also claimed that, if the Adjudication Officer determines that he was not unfairly dismissed on 3 September, 2020, the actions of the Respondent were so unreasonable in the circumstances and caused such a fundamental breach of trust and confidence, that its conduct and treatment of the Complainant gave rise to a constructive dismissal within the meaning of the Unfair Dismissals Act 1977.

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating his employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act (as quoted above).

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp[1]. It comprises of two tests, referred to as the “contract” and the “reasonableness” tests. It summarised the “contract test” as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The “reasonableness test” assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

In both types of situations, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment.

The Complainant is relying on both tests to ground his claim.

In relation to the “reasonableness”testthe Complainant contends that the actions of the Respondent during the period from February, 2019 until his employment terminated in September, 2020 by way of attempting to force him from his employment were so unreasonable and caused such a fundamental breach of trust and confidence, that its conduct and treatment of him gave rise to a constructive dismissal. The Complainant contends that spurious complaints were allegedly made against him by work colleagues and that he was subjected to a fundamentally flawed disciplinary procedure by the Respondent which was lacking in procedural fairness in respect of his failure to attend for an occupational health assessment.  

The Respondent contends that its conduct towards the Complainant was at all times reasonable and that it acted in good faith to address the legitimate issues and concerns which had been raised in relation to the Complainant’s fitness to conduct his duties both from a medical and health and safety perspective. The Respondent submits that the disciplinary process was only implemented to encourage the Complainant’s attendance at the appropriate medical assessment and that there is absolutely no basis for the assertion that outcome of the disciplinary process was predetermined.

In considering this issue, I find that the Respondent had genuine and legitimate concerns in relation to the Complainant’s health and medical fitness to safely and effectively carry out his duties as a binman over a significant period going back to at least 2015. It was common case that the Respondent had provided assistance to the Complainant in 2015 to return to full fitness to carry out his duties after he had sustained an injury to his ankle. It is clear that the Respondent’s concerns in relation to the Complainant’s health and medical condition re-occurred in February, 2019 and that there were conflicting medical reports obtained at various junctures in the months thereafter both from the Complainant’s own doctor and the company doctor in relation to his medical fitness to carry out his duties. I am satisfied that the issues and concerns which arose on the part of the Respondent in relation to the Complainant’s health and medical fitness to conduct his duties were further exacerbated after complaints and concerns were raised by his work colleagues in or around May, 2020 in relation to his medical and physical fitness to perform the job.

In the circumstances, I find that it was not unreasonable for the Respondent to act upon these concerns from a health and safety perspective and in light of the conflicting medical opinions to seek to have the Complainant reviewed by an independent occupational health specialist in order to assess his fitness to carry out his role as a binman. However, I find that the Complainant refused to cooperate with the Respondent’s reasonable attempts to have this occupational health assessment completed and he failed to attend several appointments during the period from June-September, 2020.

I find that the Respondent initiated the internal disciplinary procedures against the Complainant only as a result of his failure to attend the appointments for this assessment and not in respect of any complaints that had arisen in respect of his competence or capability to conduct his role as a binman. In this regard, I accept that it would have been more appropriate had the Respondent notified the Complainant in writing in respect of any such complaints from his work colleagues on this matter. However, I accept the evidence of Mr. Shannon that these matters were extensively discussed with the Complainant and that he was made fully aware of the nature and content of the claims that had been made against him by his work colleagues in relation to this matter.

In the circumstances, I cannot accept the Complainant’s contention that he was subjected to a sham disciplinary process by the Respondent or that he was denied fair procedures in terms of the manner in which the disciplinary process was conducted. It is clear that this disciplinary process was still ongoing and had yet to reach a conclusion when the Complainant’s solicitor informed the Respondent’s solicitor on 16 September, 2020 that the Complainant intended to initiate proceedings in relation to the matter. I find that the Complainant’s employment was terminated on this date and that, in effect, he left his employment with the Respondent of his own volition on this date.

Having regard to the totality of the evidence adduced, I cannot accept that there was any cogent or compelling evidence adduced by the Complainant from which I could reasonably conclude that there was a concerted, or pre-meditated campaign orchestrated or implemented by the Respondent to force the Complainant from his employment.

In order to satisfy the “reasonableness test” the Complainant must establish that the Respondent conducted its affairs in relation to him so unreasonably that he could not be expected to put up with it any longer and therefore was justified in resigning his employment. This notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his or grievance with their employer.

The Labour Court has held in the case of Emmanuel Ranchin -v- Allianz Worldwide Care S.A.[2] that: ”In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UD 474/1981”.

Having regard to my findings above, I find that the Complainant has failed to establish that the manner in which the Respondent conducted itself in relation to the matters concerning the requests to attend an occupational health assessment and the subsequent initiation of a disciplinary process as a result of the Complainant’s refusal to attend such an assessment was so unreasonable such as to make the continuation of his employment intolerable.

In accordance with the established principles in constructive dismissal cases, I am satisfied there was an obligation on the Complainant to invoke the internal grievance procedures to try and resolve the workplace related grievances which arose during his employment before taking the step to resign from his employment. However, I find that the Complainant failed to invoke the internal grievance procedures in relation to the workplace related grievances which occurred in relation to his employment.

It is also well established that there can be situations in which a failure to invoke the internal procedures in relation to a grievance will not be fatal in circumstances where it is established that an employee could not have faith in the employer’s ability to properly or effectively address his/her grievances (see Liz Allen -v- Independent Newspapers[3], Moy -v- Moog Ltd[4], and Monaghan -v- Sherry Bros[5] and New Era Packaging -v- A Worker[6]). However, in the instant case, I am not satisfied that there were factors present which might excuse the Complainant’s failure to invoke the internal grievance procedures before resigning. I cannot accept the Complainant’s argument that it would have been futile for him to invoke the internal grievance procedures prior to his resignation. I do not accept that the manner in which the Respondent applied the internal disciplinary procedures in relation to these matters could reasonably be found to have created a justification for the Complainant’s assessment that his grievances would not have been dealt with in an effective or fair manner.

In relation to the “contract test”, I find that there was no evidence to suggest that the Respondent was guilty of conduct which amounted to a significant breach going to the root of the contract of employment, or which demonstrated that the Respondent no longer intended to be bound by one or more of the essential terms of the contract.

Having regard to the two tests identified above, I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that he had no option but to resign his position or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract.

In the circumstances, I find that the Complainant resigned from his employment of his own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that his complaint is not well-founded, and therefore, cannot succeed.

CA-00041775-002 – Complaint under the Employment Equality Act 1998

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. 

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. 

The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v. Valpeters EDA0917 where it held that Section 85A: "…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..”.  Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other either is not or is a person with a different disability".

Accordingly, the issues for consideration by me are (1) whether or not the Complainant was subjected to discriminatory treatment on the grounds of his disability contrary to Section 8 of the Acts (2) whether as a person with a disability within the meaning of Section 2 of the Acts, the Respondent has failed to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts (3) whether or not the Complainant was subjected to harassment contrary to Section 14A of the Acts and (4) whether or not the Complainant was subjected to victimisation contrary to Section 74(2) of the Acts.

Jurisdictional Issues

The Respondent raised a number of issues of jurisdiction in relation to the complaint under the Employment Equality Acts which are dealt with hereunder.

Jurisdictional issue as to whether the Complainant has a disability

The first jurisdictional issue I have to consider is whether the complainant has a disability within the meaning of the Acts. The definition of disability in Section 2(1) of the Acts is as follows:

‘‘disability’’ means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.

The Complainant adduced evidence that he was diagnosed with a number of medical conditions including obesity, respiratory illness and Type II diabetes and he contends that these conditions amount to a disability within the meaning of Section 2(1) of the Acts. The Respondent disputes the Complainant’s contention that any of these medical conditions constitute a disability within the meaning of Section 2(1) of the Acts.

The issue concerning whether or not an illness or sickness can constitute a disability within the meaning of Section 2(1) of the Acts has been the subject of much consideration by both the WRC/Equality Tribunal and the Labour Court in recent years.  The Labour Court held in the case of Cregg Labour Solutions Limited t/a Cregg Group –v- Gerard Cahil EDA1634 that “the definition of “disability” in Irish law, which preceded the Directive is sufficiently broad to cover certain types of illness although clearly it would be absurd to suggest that all forms of sickness could properly be classified as a “disability".  Whilst I accept that the definition of disability in the Acts is wider than that in Directive 2000/78/EC (which establishes a general framework for equal treatment in employment and occupation), I attach importance to the judgement of the CJEU in the case of HK Danmark –v- Dansk Almennyttigt Boligselskab[7] where it was held that “that the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one.”.

In applying this test to the context of the present case, I am satisfied that the Complainant has demonstrated that the medical conditions affecting him at the material time relevant to the within complaint were of such a nature to constitute a disability within the meaning of paragraphs (a) to (e) above.  Accordingly, I find therefore that the Complainant had a disability within the meaning of Section 2(1) of the Acts.

Scope of the complaint under the Employment Equality Acts

The second jurisdictional issue which I must address relates to the Respondent’s contention that the claim in relation to reasonable accommodation under the Employment Equality Acts is inadmissible on the basis that it is outside of the scope of the initial complaint which was referred to the Director General of the WRC. The Respondent contends that the Complainant failed to expressly select a claim in relation to reasonable accommodation on his Complaint Referral Form and that he is out of time to refer any such complaint at this juncture. The Respondent contends that the claim in relation to reasonable accommodation was first referenced in the Complainant’s written submission which she submitted to the WRC on 27 September, 2021 were not included in the initial Complaint Referral Form which was submitted on 4 January, 2021.

The Complainant disputes the Respondent’s contention that the claim in relation to reasonable accommodation is inadmissible. The Complainant submits that the Complaint Referral Form is not a statutory form and that the fact of him not having ticked the check box on this Form is relation to “Reasonable Accommodation” does not preclude him from having this matter considered by the Adjudication Officer. The Complainant submits that the broad nature of the claim in relation to reasonable accommodation was outlined in the narrative to the complaint that was included on the Complainant Referral Form and further expanded upon in subsequent written submissions to the WRC. The Complainant submits that the Respondent was fully aware of the nature of the claim in relation to reasonable accommodation and that it is not in any way prejudicial should this claim proceed.

In considering this issue, I note that it was indicated on the Complaint Referral Form which the Complainant submitted to the WRC on 4 January, 2021 that his complaint related to discrimination and he ticked the check box for the “disability” ground and selected the following claims:

·         I have been discriminated against on the grounds of my disability;

·         The Respondent has treated me unlawfully by discriminating against me in victimising me;

·         The Respondent has treated me unlawfully by discriminating against me in dismissing me because I opposed discrimination;

·         The Respondent treated me unlawfully by discriminating against me in harassing me.

It is clear that the Complainant did not expressly indicate on his Complaint Referral Form that he wished to pursue a claim in relation to reasonable accommodation by ticking the relevant check box on the Form in respect of such a claim. I note that the Complainant also provided further details in relation to his complaint under the Employment Equality Acts in the section of the Form which allows for the provision of the specific details in relation to the complaint. I am satisfied that the narrative which sets out the broad nature or generality of the overall complaint which was provided in this part of the Form did not include any information which would indicate that the Complainant was seeking to raise a claim in relation to a failure to provide reasonable accommodation by the Respondent as part of his complaint. I am also satisfied that the first occasion that the Complainant indicated that he wished to pursue a complaint in relation to reasonable accommodation was when his written submission relating to the initial complaint was forwarded to the WRC on 27 September, 2021.

I note that the circumstances in which a Complainant can subsequently amend an original claim were considered by the High Court in the case of the Louth VEC v The Equality Tribunal [2009] IEHC 370 in which McGovern J. held as follows at paragraphs 6.2 and 6.3:- “I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint remains the same."

I further note that in his Judgment in Clare County Council v Director of Equality Investigations [2011] IEHC 303 Hedigan J. stated:- "It is clear from the foregoing that because the EE1 form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise or alternatively given adequate time to answer there can be no injustice therein.”

In the Supreme Court case of County Louth VEC v Equality Tribunal[2016] IESC 40 it was held by Mckechnie J. that:“Therefore, when considering the substantive issue, it must be remembered that the Tribunal inquires into referred incidents of discrimination: it looks at prohibited conduct of which it is notified. It has no function in a situation such as this to embark upon a wide-ranging inquiry into discrimination generally, or to generally investigate such discrimination; it does not conduct investigations proprio motu into discrimination which has not been the subject of a statutory referral to the Tribunal. Rather, it determines what lawfully has been referred to it with a view to providing redress to that applicant for any discrimination as found. The Tribunal cannot as such freelance its inquiry.”

It is clear from this jurisprudence that a complainant is not precluded from amending his or her original claim so long as the general nature of the complaint remains the same. In the circumstances, the question that I must decide is whether the inclusion of the claim in relation to reasonable accommodation which were set out in Complainant’s written submissions dated 27 September, 2021 constituted the furnishing of further and better particulars in relation to the his initial claim or if these matters constitute an entirely different complaint than that, which had been made in the original complaint.

In applying the dicta of MacMenimin J. in the County Louth VEC case it is clear that the jurisdiction of an Adjudication Officer when investigating a complaint under the Acts only relates to incidents of discrimination which have been referred or notified to the WRC by the Complainant and does not extend to the conduct of a “wide ranging inquiry” into discrimination generally.  In the circumstances, I find that the additional claim in relation to reasonable accommodation goes beyond the furnishing of further and better particulars in relation to the Complainant’s initial claim of direct discrimination, harassment and victimisation, and therefore, constitutes a new complaint which had not been included in the initial referral. 

The question then turns to the issue as to whether the claim in relation to reasonable accommodation which was outlined in the Complainant’s written submission can be accepted as a valid claim in its own right which is admissible under the Acts.  In considering this issue, and as I have already adverted to above, the Complaint Referral Form is not a statutory form and therefore, a complainant is not legally obliged to use this form when referring a complaint to the Director General. I am satisfied that the nature of the claim in relation to reasonable accommodation is clearly set out by the Complainant in this document and in the circumstances, I accept that this claim is capable of constituting a new complaint within the meaning of the Employment Equality Acts.  However, in order for these new claims to be deemed admissible they must comply with the time limits provisions contained within section 77(5) of the Acts which provides:

“(5) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.

Section 77(6A) provides: -

“For the purposes of this section —

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period”.

The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Director General. This period can be extended to twelve months in accordance with the provisions of section 77(5)(b) in circumstances where the Complainant can demonstrate that there was “reasonable cause” which prevented him or her from referring the complaint within the prescribed time limits.

The additional claim in relation to reasonable accommodation was received by the Director General on 27 September, 2021 and it is clear from the documentation and evidence adduced that the latest date upon which the alleged occurrence of discrimination in relation to this matter could have taken place was on the date of termination of the Complainant’s employment (which I have found to have occurred on 16 September, 2020). Having regard to the foregoing, it is clear that the alleged discrimination in terms of the failure to provide reasonable accommodation falls outside of the statutory time limits provided for in Section 77(5) of the Acts. Accordingly, I find that I do not have jurisdiction to investigate this additional claim in relation to reasonable accommodation. 

Claim of Discrimination on Grounds of Disability

The Complainant contends that he was subjected to various acts of discrimination on the grounds of his disability over the period from February, 2019 until 3 September, 2020 (i.e. the date of the alleged dismissal) which constitute a continuum of discrimination within the meaning of Section 77(5) and/or Section 77(6A) of the Acts. The Complainant contends that the alleged acts of discrimination which occurred prior to the cognisable period of this complaint, namely 5 July, 2020 to 4 January, 2021 should be considered as part of a continuum of discriminatory events.

The Respondent disputes the Complainant’s contention that he was subjected to any specific act and/or ongoing acts of discrimination during his period of employment which constitute a continuum of discrimination within the meaning of Section 77(5) and/or Section 77(6A) of the Acts. The Respondent submits that the Complainant has failed to identify any specific act or acts of discrimination that allegedly occurred during the six-month period prior to the referral of the complaint and therefore, the complaint has not been referred to the WRC within the six-month time limit provided for in Section 77(5) of the Acts.

The time limits which govern the referral of complaints under the legislation are provided for in Section 77(5) of the Acts (as set out above). The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the WRC unless the discrimination in issue is part of a continuum of events.

In considering this matter, I have taken note of the case of County Cork VEC –v- Ann Hurley EDA1124 where theLabour Court considered the issue as to whether events which occurred outside the cognisable period for the complaint made could be considered as part of a regime or continuum and thus within the jurisdiction of the Court. It was held by the Labour Court that: “Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur IRLR 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion”.  The Labour Court also held in this decision that: “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum …… in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit…… their admissibility is dependent upon some link being established between the occurrences outside of the time limit, and those inside the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely. ”

It is clear from the foregoing that the Acts allow for circumstances in which acts of discrimination that occurred outside the normal time limit can nonetheless be relied upon provided the claim is submitted within the six months of the point in which the discrimination ended. In the circumstances, it is necessary for me consider if the incidents of alleged discrimination relied upon by the Complainant can be regarded as part of a continuing act of discrimination for the purpose of Section 77(5) or Section 77(6A) of the Acts.

In that regard, applying the principles identified above to the instant case, it appears that the admissibility of the claim in so far as it relates to alleged acts of discrimination in the period before 5 July, 2020, depends upon the validity of the claim of discrimination which allegedly occurred within the six-month period after that date. Admissibility is also dependent upon some link being established between the occurrences outside the time limit, and those inside the cognisable period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely.

Therefore, in accordance with the consistent approach applied by the Labour Court in circumstances such as those that prevail in the within case, I must first consider whether an act or acts of discrimination occurred within the cognisable period for the within complaint before I can consider whether events outside of that period can be considered to be part of a continuum or regime of discrimination and within my jurisdiction. It is only in circumstances where such a conclusion was to be reached that I would have the jurisdiction to consider events which occurred prior to the cognisable period.

The present complaint was referred to the WRC on 4 January, 2021 and therefore the cognisable period for the purpose of the complaint in accordance with the time limits provided for in Section 77(5) of the Acts is the six-month period prior to the referral of the complaint, namely 5 July, 2020 to 4 January, 2021. The Complainant contends that his ongoing exclusion from work up to the date of his dismissal in September, 2020 and the numerous attempts hitherto by the Respondent to obtain a medical opinion from its Occupational Health physician to justify this exclusion from work was directly related to the fact of his disability. The Complainant contends that the Respondent contrived a biased and unfair context to its medical referral with the sole objective of obtaining a medical reference that would assist it in its attempt to force the Complainant from his job. The Complainant claims that this treatment occurred within the cognisable period and amounted to discrimination on the grounds of his disability.

The Respondent disputes the claim of discrimination on the grounds of disability and contends that what occurred was that the company legitimately attempted to manage the Complainant’s admitted ill-health, in order to ensure compliance under Health and Safety legislation, to minimise the risk of injury to the Complainant and others and to seek appropriate medical advices to accommodate the Complainant if necessary. The Respondent contends that such treatment does not constitute less favourable treatment, than another person in a comparable situation on the grounds of the Complainant’s disability.

Having considered the evidence, I am satisfied that the Complainant has failed to establish facts from which it could be inferred that persons without a disability or a different disability, or indeed a hypothetical comparator, would have been treated more favourably than him in relation to the matters which he has sought to rely upon in the context of the instant complaint.

I have found the Respondent’s evidence in relation to these matters to be more compelling and I accept the Respondent’s evidence that the Complainant was not subjected to any less favourable treatment in relation to the matters complained of on account of his disability. I do not accept that the Respondent attempted to exclude the Complainant from the workplace on the grounds of his disability or that the only purpose of his referral for an occupational health assessment was to obtain a medical report which would facilitate the termination of his employment. I am satisfied that the Respondent had legitimate concerns in relation to the Complainant’s physical and medical well-being and the resultant impact which this matter had on his ability to effectively and safely carry out his duties as a binman. I am also satisfied that it was not unreasonable for the Respondent to seek to have the Complainant reviewed by an independent occupational health specialist in order to assess his fitness to carry out his role.

In the circumstances, I find that the Complainant has failed to adduce any significant evidence to support his claims that the alleged treatment was discriminatory on the ground of disability but rather has essentially relied upon supposition and assertion, unsupported by evidence, in support of these claims. Having regard to the foregoing, I find that the Complainant has failed to establish a prima facie case of direct discrimination on the grounds of disability within the cognisable period of this complaint.

Based on the foregoing conclusions, I find that the events occurring within the cognisable period do not constitute individual acts or a continuum of discrimination and as a result I do not have jurisdiction to consider the complaints made by the Complainant relating to events outside the six-month period set out in the Acts for the making of a complaint of discrimination.

I must also consider the Complainant’s application for an extension of the time limit in accordance with the provisions of Section 77(5)(b) of the Acts. The provisions within Section 77(5)(b) of the Acts allow for the extension of the time limit from six-months to twelve months in circumstances where the Complainant can demonstrate that there was “reasonable cause” which prevented him from referring the complaint within the prescribed time limits. 

The established test for deciding if an extension should be granted for reasonable cause shown is that enunciated by the Labour Court in the case of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. The Labour Court set out the test in the following terms: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

It is a matter for the Complainant to establish that there is reasonable cause for the delay. It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay. In coming to this conclusion, I have taken account of the fact that the Complainant was legally represented during the material period in question and should therefore have been in a position to fully comply with the applicable time limits under the Acts. Having regard to the foregoing, I find that the Complainant has neither explained the delay in referring his claim nor has he put forward a justifiable basis upon which an extension of time could be granted in this case. Having regard to foregoing, Therefore, I find that the Complainant has failed to comply with the relevant time limits provided for in Section 77(5) of the Acts.

On the basis of my findings that the events occurring within the cognisable period do not constitute individual acts or a continuum of discrimination, I therefore do not have jurisdiction to consider the complaints made by the Complainant relating to events outside the six-month period set out in the Acts for the making of a complaint of discrimination. Accordingly, I do not have jurisdiction to inquire into any of the alleged incidents of discrimination that occurred prior to the cognisable period relevant to this complaint.

Accordingly, I find that the Respondent did not discriminate against the Complainant on the disability ground contrary to the provisions of Section 8 of the Acts and that this element of his complaint fails.

Claim of Harassment

The next element of the Complainant’s complaint that I must address relates to the claim that he was subjected to harassment by the Respondent within the meaning of Section 14A of the Acts.

“Harassment” is defined by section 14A(7) of the Acts which states: “references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds …. being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material".  For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a nexus between the alleged treatment and the discriminatory ground. 

The Complainant submits that following acts constitute harassment within the meaning of Section 14A of the Acts, namely:

·         the numerous referrals for medical assessments (including the referral for an alcohol test) and the refusal by the Respondent to accept the medical report from his own doctor;

·         the lack of engagement with him after he had attended the company doctor and that he had to expend a considerable amount of his own money to try and get back into his job, and

·         being targeted by management within the Respondent company and that there was an attempt to build up a dossier of complaints against him and none of which were made known or disclosed to him.

The Respondent disputes the claim of harassment contrary to Section 14A of the Acts and contends that the Complainant has failed to identify which conduct within the cognisable period or at all, is alleged to have had the purpose of violating his dignity.

Having regard to the evidence adduced, I am satisfied that the Complainant has not presented any evidence from which I could reasonably conclude that he was subjected to harassment on the ground of his disability contrary to Section 14A of the Acts. 

As I have already found above, I am satisfied that the Respondent had legitimate concerns in relation to the Complainant’s physical and medical well-being and the resultant impact which this matter had on his ability to effectively and safely carry out his duties as a binman. I find that the Respondent had a duty to act upon the concerns and complaints which were raised in relation to the Complainant’s health, physical well-being and to take appropriate measures to address the matters that were raised in this regard. I do not accept that the measures which were put in place by the Respondent to obtain independent medical certification in relation to the Complainant’s fitness to work and the requirement for him to remain absent from work until such time as an appropriate medical assessment was obtained constitutes harassment within the meaning of the Acts but rather was a reasonable response to the issues that manifested in relation to his ability to carry out his role in an effective and safe manner.

Accordingly, I find that the Complainant has failed to establish a prima facie case of harassment within the meaning of Section 14A of the Acts.

Claim of Victimisation

The final element of the Complainant’s complaint which I must consider relates to the claim that he was subjected to victimisation contrary to the Acts. Section 74(2) of the Acts defines victimisation as follows:

“victimisation” occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

The Complainant submits that the repeated harassment of him by the Respondent about his fitness to return to work, the demotion upon his return to work, being subjected to a series of disciplinary actions without any fairness or due regard to the repeated concerns raised by his solicitor, the reliance place on a series of purported complaints when these details were deliberately withheld from him constitute cumulative and individual acts of victimisation that caused detriment to him and his health and well-being.

The Respondent disputes the Complainant’s claim of victimisation and contends that he did not undertake any of the “protected acts” within the meaning of Section 74(2) of the Acts.

In the case of Tom Barrett -v- Department of Defence EDA1017the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out.  It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant. In the instant case, I must decide, in the first instance, whether or not the Complainant took action that could be regarded as a “protected act”.

In considering this matter, I am satisfied that the Complainant has not established that he invoked or undertook any of the protected acts within the meaning of Section 74(2) of the Acts. In the circumstances, I am not satisfied that the Complainant has adduced any evidence from which it could be reasonably concluded that he has been subjected to victimisation within the meaning of the Acts in relation to the alleged adverse treatment claimed. 

Accordingly, I find that the Complainant has failed to establish facts from which it could be inferred that he was subjected to victimisation within the meaning of Section 74(2) of the Acts in the within case.  

CA-00041775-001 – Complaint under the Unfair Dismissals Act, 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that the Complainant was not dismissed or constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that his complaint cannot succeed.

CA-00041775-002 – Complaint under the Employment Equality Act, 1998

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. I find that -

        (i)            I do not have jurisdiction to investigate the claim in relation to a failure to provide reasonable accommodation contrary to Section 16 of the Acts.

      (ii)            the Complainant has failed to establish a prima facie case of direct discrimination on the grounds of disability contrary to Section 8 of the Acts.

    (iii)            the Complainant has failed to establish a prima facie case of harassment by the Respondent contrary to Section 14A of those Acts.

    (iv)            the Complainant was not subjected to victimisation contrary to Section 74(2) of the Acts.

Accordingly, I find that the complaint is not well-founded.

Unfair Dismissals Act, 1977 to 2015 – Section 1 – Unfair Dismissal - Constructive Dismissal – Employment Equality Acts, 1998 to 2021 – Jurisdiction – Section 77(5) - Time Limits - Discrimination – Disability Ground – Section 14A – Harassment - Section 16 – Reasonable Accommodation – Section 74(2) – Victimisation