Complainant

Respondent

Parties

Mr Enda  Fox

Gabriel O'Brien Crane Hire Limited

Representatives

Richard Stapleton Richard Stapleton Solicitors

Self-Represented

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00052814-001

14/09/2022

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

CA-00052814-002

14/09/2022

These matters came before the WRC dated 14/09/2022 as complaints submitted under section 7 of the Terms of Employment (Information) Act, 1994 and under section 77 of the Employment Equality Act, 1998. 

The Complainant at all material times was employed as a Site Supervisor in receipt €20 euro per hour for a week that averaged between 40 – 60 hours.  The Complainant was employed by the Respondent from 05/05/2022 until 01/08/2022.    

The Respondent is a crane hire company.

CA-00052814-001

This is a complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994 where the Complainant states he did not receive a statement in writing on his terms of employment.

CA-00052814-002

This is a complaint pursuant to section 77 of the Employment Equality Act, 1998 where the Complainant claims he has been discriminated against by reason of his disability.  The Complainant claims the Respondent treated him unlawfully by discriminating against him in victimising him.  The Complainant claims the Respondent failed to give him reasonable accommodation for a disability.  The Complainant claims the Respondent dismissed him for discriminatory reasons.  

The Respondent denies all claims.

The Complainant filed a written submission.  There were no submissions filed by the Respondent despite an adjournment having been granted by a colleague at a previous hearing of these matters in order to provide the Respondent with the opportunity to file submissions.  The Respondent company was not legally represented and stated at the outset that they were saving the legal representation for the “next round” as this “was only a hearing whatever that is.”   

I requested the Complainant representative to read his written submission into the record at the commencement of hearing.   

As per written submission

Claimant was employed as a Site Supervisor with the Respondent commencing in or around 5th May 2022.  In or around the 30th June 2022, Claimant sustained a left pelvic fracture on site resulting in him requiring extensive medical treatment.  The Claimant submitted medical certificates over the period of his work absence and was in regular contact with the Respondent throughout.  Claimant submitted a claim form to the Respondent to complete to allow him claim sick pay under a sick pay scheme operated by The Construction Workers Sick Pay Trust.  Without notice or consultation with the Claimant, the Respondent completed the relevant section of the form and indicated that the Claimant’s employment was terminated on the 1st August 2022.

Terms of Employment (Information) Act 1994

Respondent failed to provide a statement of terms and conditions of employment as provided for by said Act and in a particular compliance with Section 3(1A) which is set out hereunder.

Day 5 Statement of Terms (Section 3(1A) Statement)

An employer must notify each new employee, in writing, within five days of commencement of employment, of the following core terms of employment:

1. the full names of the employer and the employee;

2. the address of the employer or of the principal place of business in the State;

3. the place of work, or where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;

4. the title, grade, nature or category of work for which the employee is employed or a brief description of the work;

5. the date of commencement of the contract of employment;

6. the duration and conditions relating to a probationary period, if applicable;

7. the expected duration of the contract, in the case of a temporary contract, or the end date if the contract is a fixed-term contract;

8. the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act, 2000;

9. the number of hours the employer reasonably expects the employee to work per normal working day and per normal working week;

10. any terms and conditions relating to hours of work (including overtime);

11. If applicable, the employer’s policy on the manner in which tips or gratuities and mandatory charges are treated.

Written Statement of Terms (Section 3(1) Statement)

 An employer must also provide each new employee with a written statement of terms of employment within one month of commencement of employment. The written statement must include the following:

• The full names of the employer and the employee

• The address of the employer

• The employee may request a written statement of the average hourly rate of pay

• Whether pay is weekly, fortnightly, monthly or otherwise* • Terms or conditions relating to paid leave (other than paid sick leave)*

• Any terms or conditions relating to incapacity for work due to sickness or injury*

• Any terms or conditions relating to pensions and pension schemes*

• Periods of Notice or method for determining periods of notice*

• A reference to any collective agreements which affect the terms of employment

• A reference to any appliable REA or ERO and where the employee may obtain a copy of same

• The training entitlement, if any, provided by the employer

• If the employee is a temporary agency worker, the identity of the user undertakings

• If the work pattern is entirely or mostly unpredictable, the statement must state:

Ø  that that work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours

Ø   the reference hours and days within which the employee may be required to work

Ø   the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with Section 17 of the Organisation of Working Time Act 1997, and

Ø  where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.

EQUALITY COMPLAINT Definition 

The definition of disability contained in the EEA initially appears to be based on the medical definition of disability as it sets out a list of broad categories of impairments within the definition 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 definition of disability in the Acts sets out in general terms the broad nature of conditions or impairments which could give rise to a disability for the purposes of the Acts.  The definition does not require that a disability meet a threshold of severity for the condition or impairment to meet the definition for the purposes of the legislation although a recent decision has imparted a limited threshold.  This was expressly acknowledged by the Labour Court in A Government Department v. AWorker EDA094, where it noted that the definition of disability in the Employment Equality Acts 1998-2011 does not refer to the extent to which the manifestation or symptoms must be present. That said, 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 definition includes temporary disabilities, imputed disabilities, past disabilities and future disabilities.  Both the Labour Court and Equality Tribunal have held that disabilities which are of a temporary nature can come within the ambit of protection of the Acts.  The definition has been held to include a temporary malfunction due to physical injury in the shoulder, back and neck after a road traffic accident; a period of hospitalisation after a kidney infection; alcoholism; acute anxiety and stress attributed to work related stress, depression, post-traumatic stress disorder and diabetes.  The primary reason relied in these decisions is the express reference within the definition to disabilities which “previously existed but no longer exists” in section 2 of the Acts. In Customer Perception Limited v. Leydon [2004] 15 ELR 10, the complainant was involved in a road traffic accident which resulted in reduced movement in her shoulder, back and neck.  The Labour Court held that the injury at issue came within the meaning of paragraph (c) of the definition of disability.

The Claimant submits that the injuries sustained by him constitute a disability as per paragraph (c) of the definition of disability.

The claimant had submitted medical certificates during his period of disability and had been in contact with his employers throughout. At all times, the Respondent was kept fully appraised of the claimant’s injuries.

Section 16(1) of the EEA recognises the fact that there is no legal obligation of an employer to retain an employee who even with the provision of reasonable accommodation is not able to perform the essential functions of their jobs.

However, where reasonable accommodation does render them able to do their duties, any purported dismissal would be considered unlawful.  Section 16(1) can provide a full defence to a claim of discriminatory dismissal or to less favourable treatment given that an employer is entitled to have capable and competent employees who are able to perform the roles attached to the position.  However, any reliance on section 16(1) is contingent on the obligations of reasonable accommodation being adhered to in full by the employer prior to the termination of employment. Any assumptions about the ability of the employee to continue in employment due to their disability in the absence of any medical or occupational assessment will render the dismissal a discriminatory dismissal.

Section 16(3) of the EEA imposes the obligation of reasonable accommodation on employers for employees and prospective employees. Section 16(4) of the Acts then sets out the type of accommodations which could be made by an employer and these measures are referred to as appropriate measures.  Such appropriate measures include adaption of premises or equipment, patterns of working time, distribution of tasks and the provision of training.

In the present case, it is submitted that the dismissal of our client arose primarily from the respondent’s belief that it would impair his ability to carry out his duties and that the dismissal was prima facie discriminatory under section 8 of the Employment Equality Acts 1998.

It is submitted while there is a complete defence under Section 16 of the Employment Equality Act 1998 to such a claim of discrimination on the grounds of disability under Section 8 but the failure of the respondent to make adequate enquiries to establish fully the factual position in relation to the claimant’s capacity renders completely undermines such a defence.  The claimant relies heavily on the case of Humphries v Westwood Fitness Club [2004] 15 ELR 296 in that regard where the respondent failed to make the necessary enquiries as to the claimant’ capacity to carry out their duties.

It is clear that the Respondent made no attempt to verify the position in relation to the claimant’s capacity to carry out his role and as such, the dismissal of the claimant constitutes a serious breach of the Employment Equality Acts 1988 and such a breach should be marked with the maximum award for compensation payable under the Acts.

The Claimant reserves to make further submission as the hearing of said complaint.

Summary of direct evidence of the Complainant under oath

The Complainant states he worked as a supervisor 12 hours per day 6 days per week.  The Complainant states he was hired for the job by CO’B.  The Complainant states on the day of the accident he was working on a wind farm and the last of the turbines was going up.  There was a small crew working on the day and one of the crew members was sick.  The Complainant states he phoned CO’B and he was told by him to get the job done.  He set about this and fell from the back of a crane 10 to 12 feet on to the ground. 

One of his colleagues drove him to Tullamore hospital where he was declared ok and they returned to the site but when he went to get out of the vehicle he could not stand up.  The Complainant returned to the hospital where he remained bed bound for 2 weeks and he was confined to a wheelchair for 7 – 8 weeks after that.  He was in contact with the company safety officer throughout that time.  On the day the accident happened he phoned CO’B and the Complainant states he (CO’B) “lost the head with him and fucked him out of it.”

The Complainant states he did not know he had been dismissed until the form from the Construction Workers Sick Pay Trust was returned to him which stated his employment with the Respondent was terminated on 01/08/2022. 

The Complainant states he wasn’t coming after the Respondent looking for money he just wanted him to complete the form.

Summary of cross examination of Complainant

There was little by way of cross-examination of the Complainant by the Respondent apart from a trading of mutual insults across the table accompanied by foul and abusive language and accusations that the Complainant was to blame for the workplace accident all of which was rapidly called to a halt in the interests of the orderly conduct of the hearing.   

The Respondent did not file a written submission.

Summary of direct evidence of CO’B Respondent witness on oath

The Respondent’s defence would appear to be that if the Complainant is disabled then they did not know this when they hired him. 

The Respondent admits there was no contract and CO’B states he hired the Complainant in Supermac’s in Edenderry where he told him what he would be getting paid and “he couldn’t see a need for a contract.” 

CO’B states the Complainant told him to fuck off and not phone him again after the accident and he states that is why he did not contact the Complainant throughout whilst on the other hand he (CO’B) states he made several attempts to call the Complainant and he wouldn’t take his calls. 

The Respondent states the Complainant did not contact them at all since the accident. 

CO’B states he did ask the Complainant to fill in on the job on the morning of the accident in order to get the job done and states he would have known this was his role.  He said there was no incident form filled in and no safety report from the site.   CO’B states he made several attempts to contact the Complainant, but he states he lost interest to be honest. 

He states they did receive sick notes but one of them was not signed and he states he thought this was a farce.  CO’B states again he lost interest in the Complainant and states “C’est la vie off you go and if he had answered his fucking phone to me he would still have a job.”

Summary of cross-examination of CO’B Respondent witness

It was put to the witness that as the Complainant was confined to bed in hospital how could be complete an incident report.  It was put to the witness that as his employer they made no contact whatsoever with the Complainant which elicited the response “we do not baby sit – we do cranes not babies.”

In conducting my investigation and in reaching my decision, I have reviewed the relevant submission and supporting documentation presented to me.   I have carefully considered the oral evidence adduced at hearing.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

CA-00052814-001 Terms of Employment (Information) Act 1994

The Respondent accepts that the Complainant did not receive a statement of his terms of employment as provide for under the Terms of Employment (Information) Act 1994.

I find the Respondent has contravened section 3(1A) and section 3(1) of the 1994 Act respectively for failure to provide the 5-day statement in terms of the former and for failure to provide the particulars of employment pursuant to the Act in terms of the latter.

Accordingly, I decide that this complaint is well-founded.  Having regard to the totality of the evidence presented, I order the Respondent to pay to the Complainant compensation in the amount of €4,000.00 being the equivalent of four weeks’ pay which is the maximum payable under the Act.  This calculation is on the basis of the evidence of the Complainant, undisputed by the Respondent, that he worked between 40 – 60 hours per week at €20 per hour (€20 x 50 average hours per week x 4 weeks = €4000). 

For the avoidance of doubt, this award is for the infringement of the Complainant’s statutory rights and is not subject to deductions for PAYE, PRSI or USC.  Payment of compensation ordered should be made within 42 days of the date of this decision

CA-00052814-002 Employment Equality Act, 1998

The issues for consideration by me in the within complaint are as follows:

(1)    whether or not the Complainant was subjected to discriminatory treatment on the grounds of his disability contrary to section 8 of the Act;

(2)    whether or not the Complainant was subjected to victimisation contrary to section 74(2) of the Act;

(3)    whether as a person as with a disability within the meaning of section 2 of the Act, the Respondent has failed to provide the Complainant with reasonable accommodation contrary to section 16(3) of the Act; and

(4)    whether or not the Complainant was dismissed for discriminatory reasons. 

(1)    Claim of discrimination on grounds of disability:

The Relevant Law:

Section 6 of the Employment Equality Act, 1998 states:

6.—F14(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

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

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

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

(g) that one is a person with a disability and the other either is not or is a person with a different

disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

The within complaint is made pursuant to the Employment Equality Acts on the disability ground.  Discrimination on grounds of disability occurs where a person with a disability is treated less favourably than another is, has been or would be treated, where the other person is a person without a disability or a person with a different disability. 

The Burden of Proof

Section 85A (1) provides as follows:

—(1) “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This requires a 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 so doing, then, and only then, is it for the respondent to prove the contrary.  The Labour Court has consistently held 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 a respondent.  “Prima facie” evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.

In Margetts v. Graham Anthony & Company Limited [EDA038] the evidential burden which must be discharged by a 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 inferences 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.”

The Labour Court in the case of Melbury v. Valpeters [EDA0917] held as follows in its consideration of section 85(A):

“…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 speculations, 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 line with the well-established Labour Court authorities of Mitchell v. Southern Health Board [2001] ELR 201 and Valpeters v. Melbury Developments [2010] ELR 64, what constitutes something of such significance to raise an inference of discrimination varies according to the relevant factual matrix in each case. 

The Equality Officer in Minaguchi v. Mr Ray Byrne T/A Wineport Lakeshore Restaurant [DEC-E/2002/20] stated as follows:

“It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

·       That s/he is covered by the relevant discriminatory ground(s).

·       That s/he has been subjected to specific treatments; and

·       That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

Applying the provisions set out above, it is necessary to establish if the Complainant has a disability and consequential protection within the meaning of the Acts. 

Disability:                                                                                                

The interpretation section of the Employment Equality Act, 1998 provides the following definition of disability:

“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 withoutthe 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;

It is well settled that for an employee to come within the protections of the Act, they will first have to show that they suffer from a disability.  The definition of disability in the Acts sets out in general terms the broad nature of conditions or impairment which could give rise to a disability for the purposes of the Acts.  The definition includes temporary disabilities, imputed disabilities, past disabilities and future disabilities.  Both the Labour Court and Equality Tribunal have held that disabilities which are of a temporary nature can come within the ambit of protection of the Acts. 

In the instant case I accept that the Complainant has a disability within the meaning of section 2 the Employment Equality Acts 1998-2015 (the “Acts”).  I find the fact the Complainant suffered a fractured pelvis clearly constitutes a disability within the meaning of section 2 (1) (c) of the Acts.  

The Relevant Facts

It is common case the Complainant was involved in a workplace accident on or around 30 June 2022.  This is the only fact that is not disputed in the instant case.  For the avoidance of any possible doubt the Respondent claimed on numerous occasions at hearing that the workplace accident was the fault of the Complainant and the Respondent had to be reminded more than once that the workplace accident or any investigation into same was not the subject of this hearing and that nothing turned on whose fault it was or was not as the case may be.  It had to be explained to the Respondent the instant case is being heard in the WRC under the Employment Equality Acts and was not an investigation by any other authority and the fault attributable to the workplace accident is not considered for the purpose of this decision.   

As a result of the aforesaid workplace accident the Complainant suffered a left pelvic fracture and thus was unable to attend work.  Medical certificates were submitted by the Complainant as appropriate to the Respondent up until 30 September 2022.  I am satisfied the Respondent was aware of and on full notice of the Complainant’s disability at all material times.  I find that these facts are of sufficient significance to raise a presumption of discrimination. 

On the basis of the aforesaid facts, I am satisfied that the Complainant has raised a prima facie case of discrimination on the grounds of disability, such that the burden of proof shifts to the Respondent in accordance with section 85A.   

2. Victimisation

The Complainant alleges victimisation in his WRC complaint form albeit this claim was not canvassed at hearing and the Complainant did not lead any evidence on this element of the complaint.   The focus of the case as presented was that the Respondent failed to provide reasonable accommodation and that the Complainant was dismissed for discriminatory reasons. 

For the sake of completeness I address this claim hereunder on the basis of the evidence adduced at hearing as there was a significant degree of overlap in evidence in relation to all elements of the complaint. 

The Relevant Law:

Victimisation is defined at s.74(2) Employment Equality Acts as follows:

(2) For the purposes of this Part 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 Labour Court has held that the definition of victimisation contained in that section contains essentially three ingredients and in the case Department of Defence v Barrett [EDA 1017] the Court held that in order to make out a claim of victimisation under the Act it requires that: -

“(a) the Complainant had taken action of a type referred to at section 74(2) of the Acts (a protected act),

(b) the Complainant was subjected to adverse treatment by the Respondent, and,

(c) the adverse treatment was in relation to the protected act having been taken by the Complainant.” 

Victimisation is a stand-alone cause of action which requires specific proofs in that there must be evidence that the alleged adverse treatment occurred as a reaction to any of the situations listed at (a) to (g) of section 74(2). 

Having carefully considered the three components that must be present for a claim of victimisation as set out by the Labour Court, I am unable to find that the Complainant took any action which could be construed as a protected act within the ambit of the legislation.    

I find that the complaint for victimisation as advanced by the Complainant does not meet the requirements of section 74(2). 

3. Failure to provide reasonable accommodation

Turning now to the Complainant’s complaint of the failure to be provided with reasonable accommodation for his disability. 

16.—

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

The obligations which flow from section 16 and the efforts which an employer should make to enable the Complainant to continue in his employment have been set out in the Supreme Court judgement of Nano Nagle v. Marie Daly [2019] 30 ELR 221.

MacMenamin J in paragraph 89 of his judgment in Nano Nagle v. Daly,after extensive discussion of the obligations of employers arising pursuant to section 16 of the 1998 Act, summarised by stating that section 16(3) of the Act placed a “mandatory primary duty” on an employer to provide reasonable accommodation, unless this would impose a disproportionate burden on an employer. 

It is clear from the Supreme Court’s decision in Nano Nagle that an employer must engage in some form of exploratory action to ensure compliance with its duties under section 16.  This may involve consultation with the employee, independent assessment or some other step for compliance. 

On the basis of the facts as presented to me I am satisfied the Respondent took no action whatsoever to discharge its obligations in the instant case.  There was no attempt whatsoever by the Respondent to comply with its duty to the Complainant in any shape or form.  I am satisfied there was no referral to occupational health.  I am satisfied the Respondent made no effort to contact the Complainant apart from the phone calls the Respondent alleges he made to the Complainant which he alleges remained unanswered.  When it was put to the Respondent that he could have contacted the Complainant by letter or email the Respondent’s reply was “who writes letters nowadays.” 

When it was put to the Respondent that in situations such as this the HR function will write such letters ensuring contact is maintained with an employee and arranging for occupational health assessments and return to work discussions and any measures to facilitate same to which the response was “if he had answered his fucking phone he would still have a job.” 

There was no evidence before me of the Respondent having engaged with the Complainant during the time the Complainant was submitting medical certificates as appropriate.  The Respondent asserts in direct evidence that the Complainant had made no contact with the Respondent either.    However, he was disabused of this notion when it was pointed out to him that the continued provision of medical certs was indicative of the continuing engagement by the Complainant with the Respondent. 

I accept the Complainant did not respond to the phone calls and refused to engage with CO’B but this must be considered against the conduct of the Respondent, namely the phone call the Complainant made to him on the day of the accident when the Complainant states that CO’B “lost the head with him and fucked him out of it.”

On the evidence before me I find the Complainant was discriminated against by reason of the Respondent’s abject failure to discharge its responsibilities under section 16 of the Act.  There is no evidence of consideration of or the provision of reasonable accommodation for the Complainant. 

4. Whether or not the Complainant was dismissed for discriminatory reasons

On the evidence before me I find the Respondent discriminated against the complainant in respect of discriminatory dismissal contrary to section 8(6) of the Acts.  I find the Complainant was subject to a discriminatory dismissal on the grounds of disability in the absence of any evidence whatsoever presented to me by the Respondent that would suggest the contrary where the Complainant’s employment was terminated by the Respondent in a manner that was egregious and completely lacking in any procedures not to mention fair procedures while the Complainant was recovering from a pelvic fracture.  I find the Respondent failed to employ even the most rudimentary modicum of fair procedures.   

Having carefully considered the evidence adduced at hearing I would make the observation that the procedural void together with the lack of compliance with employment legislation and with employer obligations in the instant case is quite simply beyond belief in this day and age.  

I find that the Complainant, on the balance of probabilities, has established a prima facie case of discrimination for the purposes of this Act on the grounds of disability in relation to him. 

I find the Complainant has discharged the burden of proof which leads to a presumption that discrimination has occurred and I am satisfied the Respondent has not rebutted this presumption.

Redress

Further to my findings above, I consider an award of compensation to be appropriate in the circumstance of this case. 

In accordance with section 82(1)(c) of the Acts, I award compensation of €10,000.00.   This sum is awarded not only to compensate the Complainant for the effects of the discriminatory treatment but also to dissuade the Respondent from discriminatory acts into the future.  This award is not in respect of remuneration or arrears of remuneration. 

CA-00052814-001 Terms of Employment (Information) Act 1994

I decide this complaint is well-founded.  I order the Respondent to pay to the Complainant compensation in the amount of €4,000.00 being the equivalent of four weeks’ pay which is the maximum payable under the Act.  For the avoidance of doubt, this award is for the infringement of the Complainant’s statutory rights and is not subject to deductions for PAYE, PRSI or USC.  Payment of compensation ordered should be made within 42 days of the date of this decision.   

CA-00052814-002 Employment Equality Act, 1998

For the reasons set out above I find the Complainant was discriminated against on the grounds of disability and he was subjected to a discriminatory dismissal on the grounds of disability.   I decide this complaint of discrimination on the ground of disability is well-founded.   In accordance with my powers of redress under section 82 of the Employment Equality Act, 1998 I order the Respondent to pay the Complainant compensation of €10,000.00 for the effect of that discrimination.  For the avoidance of doubt, this award is for the infringement of the Complainant’s statutory rights and is not subject to deductions for PAYE, PRSI or USC.  Payment of compensation ordered should be made within 42 days of the date of this decision.   

Discriminatory dismissal; failure to provide reasonable accommodation; failure to provide contract of employment; procedural void;