Complainant

Respondent

Parties

Edward  Riordan

All-star Deliveries Unlimited Company

Representatives

Thomas Wallace O’Donnell BL instructed by Dundon Callanan Solicitors

Ellen Walsh L.LB, Peninsula Business Services Ireland

Act

Complaint Reference No.

Date of Receipt

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

CA-00053430-001

25/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00053430-002 WITHDRAWN

25/10/2022

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

CA-00055705-001

24/03/2023

The Complainant commenced his employment with the Respondent on 14 September 2020 as a driver. His employment was terminated on 5 December 2022.

On 25 October 2022, the Complainant referred his claim to the Director General of the WRC alleging that he was discriminated against by his employer by reason of his age in conditions of employment. The most recent date of discrimination was stated as 25 October 2022. The Complainant further alleged that the Respondent has not paid him or paid him less than the amount owed to him. The Complainant alleged that the monetary value of the pay not received was €1,566.00 and he should have received it on 20 October 2022. At the adjudication hearing, the Complainant’s representative confirmed that the claim pursuant to the Payment of Wages Act, 1991 bearing reference number CA-00053430-002 was withdrawn.

On 24 March 2023, the Complainant referred his claim to the Director General of the WRC alleging that he was dismissed for a discriminatory reason on the grounds of a disability.

The Respondent rejects the claims.

The Complainant submits as follows.

The Complainant worked for the Respondent as a driver from 14 September 2020 until the date of his dismissal on 5 December 2022. The Complainant turned 72 in August 2022.

Originally the Complainant worked five days per week, but since December 2020 by agreement he worked three days per week, delivering to a named factory (‘the client’).

The Complainant’s pay was at an hourly rate of €12.70 and varied week to week, but the average for the first forty weeks of 2022 (up to 5 October) was €404.15.

The Complainant submits that from the beginning of October 2022, the Respondent stopped assigning any work to the Complainant and stopped paying him. The Respondent had recently hired a new, younger driver (Mr A), who had taken over the Complainant’s route. The Complainant submits that the Transport Manager told the Complainant that things were quiet. Two days later, a named employee (Ms B) in the office, rang the Complainant and told him that there was no work that week as things were quiet.

The Complainant submits that he spoke to the Managing Director, Padraig Murphy, on 17 October 2022 and complained about not getting any work. This was the first time anyone said to the Complainant that there had been a complaint against him by the client. The client said that on 27 September 2022 the Complainant (who had suffered from diarrhoea that day) had defecated under the trailer in the client’s yard. The Complainant explained that he had a medical condition and there were no toilets nearby. He asked if Mr Murphy had other work he could do. Mr Murphy replied: "I might, I might not".

The Complainant submits that his solicitor wrote to the Respondent on 26 October 2022.

The Respondent reinstated the Complainant’s pay from 26 October 2022, but at a lower rate of €339.73 per week. The Respondent did not give the Complainant any work, and he never worked for the company again.

The Respondent purported to carry out an investigation. There was an investigation meeting on 15 November 2022. The Complainant explained that he suffered from peptic ulcer disease. On 27 September he had urgent diarrhoea and had no choice but to defecate under the trailer. There were no toilets nearby the loading bay. He acknowledged that it would have been better if he had reported the matter.

The Respondent undertook no medical investigation. The Respondent did not explore options of giving the Complainant a different run to a different customer. The Respondent did not take steps towards reasonable accommodation. Instead, the Respondent summarily dismissed the Complainant by letter dated 5 December 2022. The Complainant’s appeal was rejected by letter dated 29 December 2022.

Discrimination

The Respondent had recently (15 August 2022) hired a new younger driver, Mr A, who took over the Complainant’s run from the beginning of October. There was no explanation to the Complainant at that time except that work was slow. Sometime after 17 October 2022, the Respondent changed tack and decided to pursue a disciplinary investigation arising from events which occurred in September. On 26 October 2022, the Respondent back paid the Complainant for the missing weeks wages (although at a lower rate). By this stage the Respondent had already replaced the Complainant with a younger driver, and the disciplinary procedure was just a belated attempt at a cover up. But even the cover up was flawed. The Respondent treated the issue not as a medical issue but as a moral issue. The Respondent took no steps to obtain medical opinion. The Respondent took no steps to investigate or apply reasonable accommodation. The Respondent did not simply allocate the Complainant to a different customer. See Eamon Murphy -v- Connolly Supervalu ADJ-00034343.

The Complainant submits that, whether on the ground of age, or whether on the grounds of disability (and quite possibly both) the Respondent discriminated against the Complainant and put him out of work: Employment Equality Acts sections 6(2)(f) and (g), section 8(1), and section 16.

The Complainant was able to get relief work with a different company from 1 January 2023. His income there was €220 for three days work per week (six hours per day) which lasted until the end of March. Since the end of March, the Complainant has only had occasional relief work from them, about six to eight days at a rate of €80 per day. If the Complainant had not been discriminated against and dismissed by the Respondent, he would have continued to work for the Respondent.

In his closing remarks, Mr Wallace-O’Donnell BL said that it was remarkable that the external HR consultant did not attend the hearing. He questioned the Respondent’s assertion that defection is a criminal offence. He further noted that the case of A Worker v A Food Manufacturer relied upon by the Respondent is not applicable in the within case as the Complainant did have a letter confirming his disability.

Summary of direct evidence and cross-examination of the Complainant

The Complainant said that he will turn 73 on his next birthday. He has been a truck driver for 40 years. He started working for the Respondent in September 2020 as a rigid truck driver and drove mostly the route to the named client.

The Complainant said that he started working on a full-time basis (40 hours per week). Subsequently, by agreement, his hours were halved. He confirmed that payslips exhibited at the hearing showed the correct number of hours.

The Complainant said that in September/October 2022 he was getting less work but he did not mind and was not getting upset over it, he worked 20 hours per week at the time.

The Complainant said that Mr A started working for the Respondent on 15 August 2022 as an artic truck driver. The Complainant said that Mr A did some relief work as an artic driver but there was no spare artic truck, so he started driving some of the Complainant’s routes.

The Complainant said that he heard about the incident in question three weeks later. He said that he was not getting any work for two weeks, he then rang the Transport Manager who told him that Mr Murphy (Director of the Respondent) would give the Complainant “a day or two” if he had it. The Complainant said that he asked about not getting any work but did not complain. He was told by the Office Manager that it was quiet. He then rang the Director, Mr Murphy. The Complainant said that he met with Mr Murphy who told him that he was caught on camera. The Complainant said that he told Mr Murphy that the incident did happen, that he had pain in his stomach and there was no toilet to go to, that he would not have made it to the toilet.

The Complainant said that when he was about 17-18 years old, he was hospitalised after suffering a weakness at work. He was diagnosed with a peptic ulcer. He said that the condition improved when he gave up smoking. He had to take some medications over the years but had no flare up since until September 2022.

The Complainant stated that he filled out the Health Questionnaire when he was about two months in employment with the Respondent. He said that he ticked “No” as at this stage he had no problems.

The Complainant said that on the day in question he could not last 10 seconds, as far as he was concerned it was diarrhoea. He had 2.5-hour journey back to Limerick and had no change of clothes with him.

The Complainant said that he attended a meeting with Mr Murphy and Mr Gleeson (General Manager) on 17 October 2022. He then attended an investigatory meeting on 28 October 2022 and a meeting with the external HR Consultant.

The Complainant said that he was never sent to be medically examined. He was not aware of any other sanction other than dismissal being considered. His appeal was refused.

The Complainant said that Mr A, who is 50 years old continues to work for the Respondent.

In cross-examination, the Complainant confirmed that the reduction of working days was by agreement. However, he denied that he asked for less days. He was not sure whether the arrangement started before Mr A commenced his employment. The Complainant confirmed that Mr A was hired for a different truck and was not taking over all the Complainant’s days.

It was put to the Complainant that Mr Murphy would deny that he had said to the Complainant that he might or might not have work for him. The Complainant disagreed.

The Complainant confirmed that he had signed the medical questionnaire. He confirmed that he noted in the questionnaire that he had a knee surgery. The Complainant further confirmed that he said that he would not make the toilet at the same time as Ms Kelleher because of his knee. The Complainant was asked how he was able to crouch beside a rigid truck given his knee issues, he said he could. It was put to the Complainant that in the questionnaire he said that he had no difficulties with walking. The Complainant said that he could walk “nicely”, fast, not as fast as a normal person.

It was put to the Complainant that he said that he had taken medication consistently for years but ticked “No” in the questionnaire when asked about it. It was put to the Complainant that both cannot be true. He said that he did not consider it serious, he quickly ticked a box. The Complainant said that he was not lying.

It was put to the Complainant that he had said that no one would be reversing into the loading bay in question. He said that no truck would have “contact with it”. It was put to the Complainant that Ms Kelleher had to pick up the piece of timber and transport it in order to not to reverse over it. The Complainant replied that it should not have affected her reversing, but he agreed that it did because she found it.

The Complainant said that he had slight pain during the drive which was getting worse. The Complainant was asked why did he not go to the toiled straight away? He said that he wanted to do his loading and go away. He did not think that he would get a sudden gush, like a shot.

The Complainant denied that he received one questionnaire pre-employment and another one for insurance purposes later, he said that he received one only, after he started his employment. 

The Complainant was asked was he fit to drive back two hours given that he said that he was too weak to speak to report it, too weak to clean up, so ill that he defecated on the ground. The Complainant said that he relaxed, took a drink  and was well enough to drive.

The Complainant said that he did not think it was necessary to report to the Respondent or to the client. He said that, in hindsight, he should have but at the time he did not think that defecation on client’s premises was a big issue. He said that he did not report it to the client’s staff because it was the last run of the day and there was nobody there except two workers who unloaded the truck.

It was put to the Complainant that he had said that the faeces was liquid but what was discovered was solid, it was not washed away by rain. The Complainant said that he had thought it would be. The Complainant was asked why did he cover it if he thought it would be washed away by rain in half hour?  The Complainant said that it was liquid but still it was there so, naturally enough, he covered it. He had no tissues, so he covered it. The Complainant said that he had tissues in the cabin of the truck but he could not pick it up with tissues in a thunderstorm. The Complainant said that he had antibacterial wipes, but the question was not about the wipes, the Respondent asked him if he had tissues, not wipes.

Regarding the GP note, the Complainant confirmed that his GP never examined him, he rang her, no doctor examined him at the time.

The Complainant confirmed that he was familiar with gross misconduct outlined in the Handbook and the fact that it could lead to a dismissal. The Complainant confirmed that he knew termination was an option.

The Complainant was asked why he was working when on suspension, while in employment. He said that he was not working, he just did some work for a day to earn extra money. He confirmed that while he put in his submission that he commenced a new employment on 1 January 2023, he did work before that. It was put to the Complainant that he could not attend the appeal meeting because he was driving for another company. The Complainant denied that, he said that he had an appointment but he could not remember what appointment was it. He agreed that he did “a little bit” for another company.

The Complainant was asked if he had any evidence of his illness i.e., a peptic ulcer. He said that he was diagnosed four years ago. It was put to the Complainant that he said that he had attack when he was 16/17 years old and no issues for years. He said that he had slight attacks. He confirmed that he had no evidence of diagnosis and that the GP who provided him with a note was not the one who diagnosed him. The Complainant did not know and could not explain how a peptic ulcer, an upper GI illness would cause lower GI symptoms i.e., diarrhoea which is not associated with peptic ulcer disease. The Complainant confirmed that he did not tell the Respondent that he had a peptic ulcer. The Complainant said that he had never asked for reasonable accommodation.

The Complainant agreed that he did not make a reference to a peptic ulcer during the meeting on 28 October 2022 but mentioned a stomach bug, he said that to him it was a bug, he did not know the difference between a disease and a bug. The Complainant confirmed that the minutes of the meeting were approved.

The Complainant asserted the Ms Kelleher never showed him where the toilets were but he confirmed that he knew where they were. He agreed that Ms Kelleher could not have known whose excrement it was.

It was put to the Complainant that he admitted that he defecated, he said he had diarrhoea, he then said that a dog could have run in, uncovered his diarrhoea, defecated with a solid excrement and covered it. He repeated that it could have been a dog.

The Complainant accepted that excrement poses a health and safety risk. He accepted that one cannot defecate wherever one wants.

It was put to the Complainant that the reason he said that he would do things differently was because it turned into a big deal. He agreed. The Complainant agreed that he said nothing to apologise.

The Complainant confirmed that some two years previously he urinated on the site in question. He said that at the time he did not know where the toilets were.

The Complainant said that he was dismissed because of his age and his disability.

It was put to the Complainant that if Mr A was employed to replace him, he would take over the Complainant’s work, but he did not. The Complainant agreed that it did not make sense.

Regarding the medications, the Complainant said in the medical questionnaire that he did not take any, at the appeal meeting he said he did not, he then at the adjudication hearing said he did. He was asked to clarify. The Complainant said he was not sure, he was confused.  It was put to the Complainant that he said he used the toilets there before, he then said the client had no toilets, that they were locked and then that he would not have made it to the toilet. He first said it was a bug, then (but not until the disciplinary meeting) it was a peptic ulcer, he provided no evidence of having an illness except the GP letter. He also said that it could have been a dog.

It was put to the Complainant that even if defecating was unavoidable (which the Respondent did not accept), reporting it was not avoidable. The Complainant said that he did not think he had to.

The Complainant was asked why he did not tell the Respondent about his health problems. He said that he did not have any problem, he was OK. He did not think it was important to tell the Respondent after the incident. He said he did not know whether it was a bug or flare up.

It was put to the Complainant that he admitted to urinating and defecating on the same site in the period of two years. The Respondent could not trust him. The Complainant said that the Respondent trusted him for two years.

In re-examination, the Complainant said that it was not his intention to defecate in the yard but the only other option was to soil himself.

The Complainant said that CCTV was mentioned by the external HR investigator but there was no further investigation.

The Complainant was asked if he felt that he had done something culpable that he should feel remorse. He said that he did not feel that he did something intentionally.

The Respondent submits as follows.

Background summary

The Respondent company was founded in 1996 and has since built up a successful fleet of trucks and vans servicing national and multi-national companies all over Ireland. It also provides logistics and storage solutions.

From the 14 September 2020 until the 29 December 2022, the Complainant was employed as a rigid truck driver for the Respondent.

Following an incident of gross misconduct which came to light in October 2022, the Complainant was dismissed.

The Complainant has taken claims of discrimination based on age and disability, as well as a claim in relation to pay. All of the claims are wholly denied.

Factual matrix

The Complainant completed two medical questionnaires over the course of his employment. In the questionnaires, the Complainant indicates he did not at that point, nor did he ever suffer with a medical condition.

The Complainant claims part of his reason for dismissal was discrimination on the grounds of age. This is not credible on the basis that the Complainant was employed initially by the Respondent when he was already above the statutory retirement age, being 70 years old at the time of employment.

The Complainant alleges that another member of staff, Mr A, was employed in August 2022 as his replacement due to the age of the Complainant. This is likewise not credible, as the Complainant was employed as a rigid driver, and Mr A primarily as an artic driver, due solely to the Respondent’s rising business need for artic drivers.

In his claim form, the Complainant alleges his hours were reduced to nil on the basis that Mr A had replaced him. In fact, it was due to the fact he was on paid suspension whilst under investigation for gross misconduct.

The gross misconduct in question

The Respondent company holds a contract with a large professional automotive company, wherein the Respondent’s drivers have sole use of a delivery bay (diagram of the premises was exhibited at the adjudication hearing).

On or about the 4 October 2022, a driver of the Respondent, Ms Kelleher was attempting to reverse her truck into the said bay to effect delivery at such time she noticed a plank of timber on the ground. Ms Kelleher discovered the excrement on the day in question. Ms Kelleher immediately notified personnel of the client. The client subsequently reviewed the CCTV footage of the area and identified the Complainant defecating on the ground of the client’s property on the 27 September 2022. They immediately notified the Respondent on the 4 October 2022 some 7 days after the defecation. The client then followed up with the Respondent company regarding this discovery and identification on the 5 November 2022 by email which also banned the Complainant from the client’s site. (Email exhibited at the hearing).

An initial meeting was held on the 17 October 2022 with Mr Ger Gleeson, General Manager of the Respondent, and Mr Paudie Murphy, Director of the Respondent, and the Complainant wherein he attended the office, and was formally made aware of the allegation made against him.  At the meeting the Complainant made several remarks Mr Murphy and Mr Gleeson deemed to be threatening, namely that if he was no given his contracted hours (which he himself had sought to reduce) that they would “see him up the steps of the court”. Further he said that if he was allowed to return from suspension for two days a week “there’ll be no more about it”. (The minutes of the meeting were exhibited at the adjudication hearing).

Accordingly, in line with the policies and procedures outlined in the employee handbook received by the Complainant, an investigation began. (The handbook was exhibited at the adjudication hearing).

The Complainant was notified by way of phone call from Mr Ger Gleeson, General Manager on the 26 October 2022 of a scheduled investigatory meeting on the 28 October 2022. (The minutes were exhibited at the adjudication hearing). In the meeting the Complainant makes no reference to his alleged condition of peptic ulcer, instead stating he “had a stomach bug with diarrhoea”, claiming the toilets (free and open for the Respondents’ drivers to use, and which the Complainant had admitted to using previously) were a far distance away. The Respondent submits that Ms Kelleher’s evidence would be that the timed distance from the truck to in the bathroom was 60 seconds. Ms Kelleher would also give evidence that the Complainant’s allegations that all toilets were locked for 12 months prior are entirely fabricated. At all times there was an unlocked toilet available for use.

The Complainant admitted he did cover up the excrement, did not make any attempts to clean the same up and did not notify any one on site nor in his employer about the incident at the time or at any point thereafter.

The Complainant went on to say he didn’t think the incident was “serious”. That he “didn’t think it was a big deal” to defecate on a client’s property. At no stage during this meeting did the Complainant show remorse, insight or offer an apology. He said he was “not denying it” and that he “didn’t think anything of it”.

When given an opportunity to explain or add anything further, the Complainant did not offer any medical issue as an excuse or explanation. He instead adopted a cavalier and nonchalant attitude to the entire matter.

As a result of the said meeting carried out by the Respondent, the Complainant was placed on paid suspension from week 40 of 2022 (the time at which the Respondent became aware of the incident). The Complainant received payment for weeks 41, 42 and 43 on the 26 October 2022 and every week thereafter until the outcome of the appeal.

On the 8 November 2022, the Complainant was invited to a disciplinary meeting on the 15 November 2022. The meeting was conducted by an external HR Consultant, Ms Fenton. (The invitation letter was exhibited at the adjudication hearing).

At the meeting, the Complainant admitted to knowing the location of the toilets and again failed to mention his alleged gastric condition until the end of the meeting. The Complainant also suggested that a dog may have entered the site, defecated in the same spot as the Complainant and covered the defecation again with the piece of wood. (The full minutes were exhibited at the adjudication hearing).

At the meeting the Complainant refused to allow Ms Fenton to view the letter from his GP. The Complainant was adamant that the defecation emanating from him was liquid, and not the solid faeces found a week later by Ms Kelleher. When queried as to why he would cover a liquid which could be “washed away in the rain” the Complainant offered no explanation. When asked whether he had attended the bathrooms subsequently to clean himself up, the Complainant advised he was “too weak” but was however fine 15 to 30 minutes later to drive the truck away. The Complainant in this meeting stated he cleaned himself up with tissues and did not wash his hands. When questioned if he would do anything differently, the Complainant again showed no remorse or insight and said he “probably” would, but this was only because a big deal was being made out of it. He then again said “they’re making a big deal out of it. How is Helen alive?” and “they (client) could have cleaned it with a toothbrush”.

When the independent consultant advised the Complainant that her concern was that he saw no issue with the act of defecation on a client’s premises whether it was emergency or not and commented that the Complainant appeared to be “quite ok with it?” the Complainant nonchalantly replied, “it’s no big deal”.

The Complainant then mentioned this alleged peptic ulcer disease and that on the day in question he had a flare up of symptoms.  The Complainant then made disparaging comments about Ms Kelleher before saying he was “too ill to talk” and report the matter to someone, but then when asked why he failed to report the incident the next day he stated he “didn’t think I needed to”.

The Complainant then said that he was in hospital treatment since he was “a small boy”. However, this was never mentioned at any stage during either medical questionnaire - there are approximately five areas where the Complainant could have and indeed should have disclosed a stomach/underlying/ongoing medical condition and didn’t (the questionnaires were exhibited at the adjudication hearing). Nor did the Complainant mention this to the Respondent at any stage prior to this meeting.

It is the Respondent’s position that this illness is being used as a retroactive fabricated excuse for his gross misconduct. The Complainant himself admits he did not have any symptoms for 30 years, whether this illness constitutes a disability is a matter for the Complainant to prove.

On review of the minutes of the said meeting, the Complainant then indicates that in fact he also had antibacterial wipes and hand sanitiser (which he failed to mention in the meeting).

The Complainant’s dismissal was ultimately upheld by the appeals process, the outcome of which was communicated to him on 29 December 2022.

Legal Submission

Dismissal

DHL Express (Ireland) Limited -v- Michael Coughlan UDD1783 where the Court cited the following:

“We have always held that [gross misconduct] applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer”.

It is submitted that the incident in question i.e., the defecation (a criminal act in and of itself under Section 5 of Criminal Justice (Public Order) Act 1994) together with failure to report nor show any remorse clearly constitutes gross misconduct.

Kilsaran Concrete -v- Vet UDD 11/2016 where the Court stated the following:

“However, there are certain fundamental requirements of fair procedures that cannot be dispensed with regardless of the particular circumstances that arise in an individual disciplinary matter. They include: The requirement to make the employee who is the subject of the investigation aware of all the allegations against him or her at the outset of the process; The requirement that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process; and In the event that an allegation against the employee is upheld, any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.”

It is respectfully submitted that in the instant case, it is clear that each of the above requirements were followed in accordance with fair procedures and natural justice.

Discrimination

The Respondent submits that the Complainant has not made a prima facie case of discrimination.

The Respondent refers to the case of Melbury Developments v Arturs Valpetters EDA0917 in which the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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 it be of sufficient significance to raise a presumption of discrimination. However, it 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 …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

On this matter the Respondent also refers to Southern Health Board v Mitchell, DEE011, [2001] ELR 201 where the Court stated:

“The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a Complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.”

The Respondent refers to the case of Margetts v Graham Anthony & Company Limited, EDA038, where the Court noted as follows:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

In Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this “Mitchell Test” was comprised of the following three steps :

“It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so he or she cannot succeed. If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination. If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent”.

There was no medical evidence presented by the Complainant to the effect that he suffered from a disability until the disciplinary meeting was held. In that respect, the Respondent would refer to A Worker -v- A Food Manufacturer (DEC-E2010-187) where the Equality Tribunal rejected a claim for disability discrimination on the basis that:

“ … no evidence whatsoever, either in the form of meaningful medical reports from relevant specialists, or the complainant’s GP, was adduced to prove that the complainant is disabled within the meaning of the Acts. The only documentation the complainant provided was an appointment with a consultant and a generic letter from the hospital to advise him how to prepare for his stay. The only other medical-related evidence submitted came from the respondent and consists of non-descript sickness certificates. However, I find that these are not numerous enough to infer the existence of a disability simply from their existence.”

The Respondent also refers to the case of Employer – v – Worker ADE/19/11 where a worker claimed to have been dismissed because of his disability. The Court noted in its decision that:-

“It seems clear to the Court that if an employer is to be expected to offer a reasonable accommodation to an employee, they can only be expected to do so in circumstances where either the disability concerned is self-evident or, alternatively, they are advised of its existence. It would be, in the view of the Court, entirely unreasonable and unrealistic to expect employers to engage in guesswork about whether or not medical complaints brought to their attention required further enquiry by them in order to establish if they indicated the existence of a disability that required them to take appropriate measures within the meaning of the Employment Equality Acts to assist an employee”. (Emphasis added)

In Hannon v First Direct Logistics Ltd DEC-S2011-066, the Equality Officer stated that “an employer had a duty under the Acts to obtain enough knowledge about an employees disclosed disability to ensure that their actions do not discriminate against a person whose disability may require the person to behave or act in a certain way”. (Emphasis added).

In Humphreys v Westwood Fitness Club EED037 the Labour Court hearing an appeal of an Equality Officer stated that;

“The employer must follow the following steps if they become aware that an employee has a disability that may impact their ability to perform their job” (Emphasis added)

It is submitted that in the instant case, the Respondent simply could not have dismissed the Complainant on the grounds of a disability because they were never made aware he was disabled prior to his disciplinary meeting.

Discrimination – Age

The Complainant seems to indicate that his hours were reduced, and he was also ultimately dismissed because of his age (somehow in addition to his disability). The named younger driver was hired as an artic driver, in comparison to the Complainant who was hired as a rigid driver- he could in no way be construed as a replacement but rather an addition.  The Complainant was in fact hired by the Respondent when he was aged 70 years of age (five years beyond the age of retirement). It is entirely refuted that the Respondent would suddenly adopt a discriminatory approach based on age.

In circumstances wherein the basis on the Complainants complaint of discrimination on the grounds of age are merely baseless assertions and declarations, and the hiring of a younger driver in and of itself prior to this incident, certainly does not raise a prima facie case of discrimination under this claim.

In her closing remarks, Ms Walsh said that there was no meaningful evidence of disability. She emphasised the expression “not numerous enough”  in A Worker v A Food Manufacturer. She asserted that the Complainant had no medical report, and the GP letter is a hearsay in any event.  Ms Walsh said that it was up to the Complainant to ensure that the Respondent was aware of his disability. The Complainant never made the Respondent aware of his condition prior to the disciplinary meeting. There was no request for reasonable accommodation at any stage. The Complainant provided no comparator except Mr A.

Ms Walsh said that should the Complainant showed a bit of cognisance of what had happened, the Respondent would have kept him.

Summary of direct evidence and cross-examination of Mr Wyspianski,  Transport Manager

The Witness said that he told the Complainant that things were quiet after he received a call from Mr Murphy informing him that an incident had happened and needed to be investigated.  The Witness said that from September 2020 to October 2022 there were four rigid drivers and four artic drivers employed. He said that the Complainant never said anything about his medical condition.

In cross-examination, the Witness was asked if he had a conversation about the incident with the Complainant and he said he did not, he did not know what had happened. He confirmed that he told the Complainant that things were quiet but the reason why the Complainant did not get any hours was because of the incident. He thought it was not his role to talk about the incident with the Complainant.

Summary of direct evidence and cross-examination of Ms Kelleher, a Driver

The Witness said  that she is a rigid truck driver and working with the Respondent since 2011. She confirmed that there are toilets on the site in question. The Witness said that one toilet is within a 1-minute distance from where the excrement was found, and there is another one some 1.5 minutes away.

The Witness said that she would have met the Complainant regularly and he had never mentioned his condition.

The Witness outlined the difference between the rigid and articulated truck. She also described the procedure of reversing into a loading bay. The Witness said that on the day in question she saw a piece of timber with nails, she was afraid that one of the drivers would get a puncture, so she picked it up. She saw excrement. One of the client’s employees told her that it could be health and safety risk and she should report it. The Witness said that she did not know who the excrement belonged to. It was solid, stuck to the piece of timber and more left on the ground.

The Witness said that, as part of loading/unloading, she would go inside the client’s premises.

In cross-examination, the Complainant’s representative asked the Witness to describe the consistency of the excrement on the spectrum of consistencies from absolutely liquid to absolute solid. Mr Wallace-O’Donnell BL asked if it would be the consistency of mash potatoes. The Witness said that she supposed it would.

It was put to the Witness that the Complainant accepted that there were toilets, but he objected that the Witness showed them to him. The Witness said that if there was anyone new there, she would make sure she told them.

Summary of evidence and cross-examination of Ms Murphy, Quality Manager

Ms Murphy said that there were some 7-8 drivers employed after September 2020. She confirmed that Mr A started his employment on 22 January 2022. Ms Murphy denied that the Complainant was dismissed, and Mr A replaced him because he was a friend d of hers and her husband’s.

Ms Murphy said that the Respondent was informed of the incident on 4 October 2022. They were shocked and upset as the Respondent had always had a great reputation. She said it was a serious blow. The Respondent was concerned about its employees if it lost the contract with the client. It caused a lot of distress for the Respondent.

Ms Murphy said that the Complainant would be known to her family. She said that she hoped that the Complainant would approach her, but he did not until he talked to Mr Murphy on 17 October 2022.

Ms Murphy said that she carried out the investigation meeting. She said that the Complainant was polite but he did not think it was a big deal, he could not understand what was the issue. He did say he had a stomach bug but did not mention any other issues.

Ms Murphy said that the Respondent followed the procedure that was outlined in the Handbook, which the Complainant confirmed he had a copy of. There was someone different at each meeting. The Respondent used an external HR consultant to deal with the matter .

Ms Murphy said that after the Respondent was informed of the incident, it immediately stopped the drives because of the serious nature of it. She said that between 4 October and 5 December 2022, five different drivers covered the route, the Respondent had to continue driving, it could not just park the truck. Ms Murphy outlined the number of days each driver covered the route, she said that it was not given to Mr A.

The Witness said that the Respondent had two medical questionnaires in its possession (first one was undated). There was nothing regarding the Complainant’s condition in either. She said that normally within a day or two, new employees are asked to complete the first one. The Witness said that the first questionnaire is assessing any medical issues, and the second is required for the purpose of insurance renewal.

The Witness said that the Complainant did not tell her anything about his medical condition.

The Witness said that if the Respondent lost the client’s contract it would affect other jobs that are connected, it would lead to job losses.

The Witness said that the Respondent has no issue with age of the Complainant, he was employed at 70,  he had more experience.

The Witness said that the decision to dismiss the Complainant was not based solely on the fact that the Complainant had defecated in the client’s loading bay but also the fact that he failed to clean up or report it to the client or the Respondent. She said that the Complainant could have come and disclose the incident, it would have been understandable, accidents happened. The Respondent then could have notified the client, it would have been cleaned up. The Respondent would have a discussion with the Complainant and that would be it.

In cross-examination it was put to the Witness that the Complainant meant no malice. The Witness said that accidents happen, but one reports them and cleans up.

It was put to the Witness that the Complainant did not think that it was as serious as the Respondent seems to think and that there were other options opened to the Respondent such as putting the Complainant on a different route. The Witness said that it was a very serious situation and the Complainant showed no remorse.

Mr Wallace-O’Donnell BL put it to the Witness that the Complainant “had to go” and “if you have to go, you have to go”. The Witness said that in this case no toilets are needed, even if an accident happened, one has to report it and clean up. The Witness said that, had the Complainant came and said what had happened it could have been reported to the client, someone would have gone to clean up, there would be no threat.

Summary of direct evidence and cross-examination of Mr Murphy, Director

The Witness said that he hired the Complainant. He was aware of the Complainant’s age before he offered him employment. The Witness said that age would not have any bearing on employment and that there are other drivers that are over the retirement age. The Witness said that, while he does not seek people over retirement age on purpose, if someone comes looking for a job and suits the business, they get a job. The Witness said that in terms of PRSI it is beneficial to hire a person over retirement age, albeit it is not the main reason to hire them.

The Witness said that on 17 October 2022 the Complainant asked why there was no work for him. The Witness told the Complainant about the incident. Mr Murphy said that initially the Complainant denied it was him. The Witness said that he wanted the Complainant to give a reasonable explanation but he gave the Respondent no option.

The Witness said that, if the Complainant had to go straight after driving, he would have gone on the right side of the truck. The Complainant walked around the truck to the left side. The Witness said that all he got was lies, he could not trust the Complainant.

The Witness said that the client in question and the Respondent’s other major client are linked. If the client terminated the contract, some 24 people’s jobs would be affected.

The Witness said that an ideal outcome was to have it resolved. He denied that he said that he might or might not have work for the Complainant. He told the Complainant that they would have to wait.

The Witness said that he had no involvement in the investigation and disciplinary meetings. He dealt with the appeal. He said that  the Complainant did not make him aware of a disability. The Witness said that the Respondent employs staff with both mental and physical conditions, they came to him and talked about reasonable accommodation. The Witness said that the Respondent wants to keep the staff, letting someone go is the last resort. He said that it is extremely difficult to find a driver.

In cross-examination, Mr Murphy was asked about the delay in talking to the Complainant. He said that the Respondent hoped that the Complainant would come and talk to the Quality Manager or the Director. He said that when he came, he was blasé and careless, it was all “I had to go” and “what’s the big deal”. The Witness was asked why he would doubt that the Complainant could not make it to the toilet. The Witness said that the Complainant did not show an understanding of the matter.

The Witness was asked why he conducted the appeal. He said that he was the most senior person in the company. It was put to the Witness that it should have been someone external, he disagreed. The Witness said that he considered the minutes of all meetings, reports and photos.

It was put to the Witness that the dismissal letter does not mention being blasé, failure to clean up, etc. The Witness said that the Complainant was dismissed because of the incident of defecation on the client’s premises and all issues around it. It was put to the Witness that he could have considered a lesser sanction. Mr Murphy said that the Complainant was given every opportunity to apologise and say it would not happen again. The Witness was asked if he had thought to look into the GP letter, checking, investigating. The Witness said that he did, and the Complainant said that he never had any issues and that he was fine. The medical condition was not an issue, it was the Complainant’s attitude. The Witness confirmed that the Complainant read out the letter to the external HR consultant, a copy was given to the Respondent on 29 November 2022.

In reaching my decision, I have considered all the submissions and evidence both written and oral presented to me.

The Complainant referred her claims under the Employment Equality Acts 1998, as amended to the Director General of the WRC on 25 October 2022 alleging that he was discriminated against by the Respondent in conditions of employment by reason of his age (CA-00053430-001) and that he was dismissed for a discriminatory reason i.e., by reason of his disability (CA-00055705-001).

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.”

In Hallinan v Moy Valley Resources DEC-S2008-25, a complaint taken under the Equal Status Act, 2000, the Equality Officer held that, in order to establish a prima facie case of discrimination, the following must be established:

1.          The complainant must establish that he or she is covered by the protected ground;

2.          Establish that the specific treatment has allegedly taken place;

3.          The treatment was less favourable than was or would be afforded to a person not covered by the relevant ground (a comparator) in similar circumstances.

There must be fact of “sufficient significance” to raise a presumption of discrimination. It is not sufficient to simply be a member of a protected group to render acts discriminatory, if for example no comparator exists or can be inferred, or the acts are transparently attributable to a non-discriminatory cause.

In Margetts v Graham Anthony & Company Limited EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such an inference can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

Section 6(1) of the Act 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) ...”.

Discrimination on the grounds of age - CA-00053430-001

Section 6(2) of the Act defines the discriminatory ground of age as

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

…

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

Section 8(6) of the Acts provide as follows:

“(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

The issue for consideration by me is whether or not the Complainant was subjected to discriminatory treatment on the grounds of age in relation to his conditions of employment. For the avoidance of doubt, the Complainant’s claim relates to the alleged reduction of hours only. The claim of the alleged discriminatory dismissal was referred to and is considered in the context of the Complainant’s claim of discrimination on the grounds of his disability.  In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.

The Complainant claims that he initially worked 5 days per week. In the WRC complaint referral form, the Complainant asserted that in August 2022, the Respondent hired a new, younger driver, Mr A, and reduced the Complainant’s work. The Complainant further asserted that from October 2022, the Respondent gave the Complainant no work at all. The Complainant’s written submission and the evidence proffered at the adjudication hearing assert that from the beginning of October 2022 the Respondent stopped assigning any work to the Complainant and that a recently hired younger driver took over the Complainant’s work. 

The Respondent disputes the claim. The Respondent submitted that Mr A was hired in January 2022. The Respondent further submitted that due to a disciplinary process that was conducted following an incident on 27 September 2022, the Complainant was put on suspension and subsequently he was dismissed.

There was no dispute that the Complainant’s hours of work were reduced by agreement in December 2020. There was nothing put before me to suggest that the Complainant’s hours were further reduced in August 2022. While the Complainant said in his direct evidence that he was given less hours i.e., 20 hours a week around September/October 2022 but he was not too upset over it, he then confirmed that his hours were reduced to 20 hours per week by agreement, albeit he was not sure whether the change took place prior to Mr A commencing his employment. There was no dispute that the Complainant was not being assigned any work after the Respondent had become aware of the incident on 27 September 2022. It is clear that the decision to not to assign any work to the Complainant after around 4 October 2022 was related to the incident of 27 September 2022 and had no connection whatsoever with the Complainant’s age.

Having regard to the totality of the evidence adduced, I am satisfied that the Complainant has failed to establish facts from which it could be inferred that a person of a different age was or would have been treated more favourably than the Complainant in relation to the matters which he has sought to rely upon in the context of the instant complaint. The Complainant has failed to adduce any significant evidence to support his claims that the alleged treatment was discriminatory on the ground of age but rather has essentially relied upon supposition and assertion in support of these claims. 

Discrimination on the grounds of disability - CA-00055705-001

The Complainant referred his claim pursuant to the Employment Equality Acts 1998, as amended to the Director General of the WRC on 24 March 2023.

The Complainant alleged that he was dismissed by the Respondent for a discriminatory reason. The Complainant alleged that he suffers from peptic ulcer disease. The Complainant submitted that on 28 September 2022 he suffered from a sudden bout of diarrhoea and had to go to the toilet immediately next to the trailer in a client’s loading bay. The Complainant argued that, despite having relevant medical evidence, the Respondent dismissed him.

The Respondent denies the claim. The Respondent asserted that no meaningful medical evidence was presented by the Complainant to the effect that he suffered from a disability. Furthermore, the evidence presented by the Complainant was not made available to the Respondent until the disciplinary meeting was held. The Respondent further argued that the GP letter relied upon by the Complainant is hearsay in any event.

Section 6(1) of the Act 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 Act 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".

The definition of disability in Section 2(1) of the Act 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 submitted that he suffers from peptic ulcer disease.

The definition of a disability has been interpreted in a broad manner in the past by the Courts, both within this jurisdiction and by the Court of Justice of the European Union (CJEU). Whilst it is clear 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 In Fag og Arbejde (FOA) v Kommunernes LandsforeningC-354/13 The European Court of Justice stated at paragraph 53 that:-

“…the Court held that the concept of ‘disability’ must be understood as referring to a limitation which results in particular from long-term 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.”

In A Government Department v A Worker EDA094 the Labour Court held that the definition of disability in the Employment Equality Act 1998 (as amended) does not refer to the extent to which the manifestation or symptoms must be present. The Court acknowledged that symptoms which are present to an 'insignificant degree" could be disregarded in determining whether the condition amounts to a disability. The Court held as follows:

“It is noteworthy that the definition is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal affect on the sufferer. This is clear from the definition which provides that it-"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"

It is well settled that for an employee to come within the protections of the of the Act, they will first have to show that they suffer from a disability. This issue was addressed by the Labour Court in the case of A Retail Company & A Worker EDA2012. In that case the Labour Court pointed out that the Court has no medical expertise and relies heavily on medical evidence in cases such as this to determine the existence of a disability or otherwise. The Court pointed out that it is necessary for the Complainant to show that he had a disability as defined above in the Acts.

In the within case,  the Complainant relies on a latter from his GP dated 11 November 2022 stating that he

“has a history of peptic ulcer disease and takes medication as required for this. Ned reports a flare of GI symptoms in September 2022. This was associated with GI cramping and diarrhoea and urgency to pass a bowel motion. Ned reports that he had to defecate at the [named] site next to his truck on one occasion due to diarrhoea.”

The letter provided is scant on detail. While the letter confirms that the Complainant has a history of peptic ulcer disease, no detail as to what the condition entails were provided.  No such details were offered at the adjudication hearing by the Complainant.

I note that the Complainant reported to his GP that he experienced cramping and diarrhoea and urgency to pass a bowel motion at some stage in September 2022. This is reflected in the GP’s letter. However, neither the letter nor the Complainant himself provided clarity as to whether these symptoms are linked to peptic ulcer disease. In fact, the Complainant’s own evidence was that he initially attributed the incident of diarrhoea to a stomach bug. Therefore, even if the Complainant’s evidence as to the consistency of the excrement discovered was accepted, there was not sufficient evidence proffered to conclude that cramping and diarrhoea in this case were manifestations of peptic ulcer disease or were symptoms of a different condition, or were an incident of a stomach bug.

I am guided by the Labour Court determination A Retail Company v A Worker EDA2012 and I find that the Adjudication Officers of the WRC, similarly to the Labour Court have no medical expertise and rely on medical evidence presented to them to determine the existence of disability or otherwise. It is not the role of an Adjudication Officer to research or second guess whether a named illness falls within the definition of a “disability” pursuant to section 2(1) of the Act.

In light of insufficient evidence provided it is not possible for me to determine that the Complainant had a disability at the relevant time. Consequently, I find that the Complainant has not established a prima facie case of discrimination on the grounds of disability.

CA-00053430-001  - I declare this complaint to be not well founded.

CA-00055705-001 - I declare this complaint to be not well founded.

Discrimination – age – disability – no prima facie case