Complainant

Respondent

Parties

Laura  Amos

Geraldine Quigley trading as Cos Clubs  

Representatives

Cleary & Co Solicitors

 JOHN M JOY & CO LLP

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-00048407-001

28/01/2022

The complainant was employed as a childcare worker by the respondent and commenced employment on 08/09/2020. Her employment was terminated on 1/09/2021.  The complainant worked 19 hours per week on average and was paid a gross wage of €240.00 per week.

On the 28/01/2022, the WRC received a complaint form pursuant to the Employment Equality Acts 1998- 2015 as amended (the Acts).

Preliminary Issues-

·       Application to amend the title of the Respondent.

On the first hearing day Counsel for the complainant applied to change the title of the respondent as noted in the complaint form, from “Cos Clubs” to “Geraldine Quigley trading as Cos Clubs”. This application was grounded upon confirmation from Ms Quigley that “Cos Clubs” had closed and had been taken over by a limited company. Ms Quigley indicated that she had been a sole trader and “Cos Clubs” was the business name. I adjourned the proceedings on the first hearing day, to facilitate the respondent obtaining legal advice on this matter and to allow the complainant to file a supplemental submission.   The WRC received a supplemental submission from the complainant setting out various grounds to support their application to change the name of the respondent to “Geraldine Quigley trading as Cos Clubs”.

·       Application to expand my jurisdiction to include a complaint of failure to provide reasonable accommodation further to Section 16 of the Employment Equality Act 1998-2015.

 Counsel for the complainant made an application on the second hearing day, to include a complaint of alleged failure by the respondent to provide reasonable accommodation further to Section 16 of the Acts, on the basis that the complaint form did not include such a complaint. Counsel for the complainant referred to a letter dated 14/2/2021 by Cleary and Co. Solicitors to the WRC which set out a complaint of alleged failure to provide reasonable accommodation, wherein it was alleged that no factual assessment was conducted by the respondent under Section 16 of the Acts. 

Substantive Matter 

The complainant contends that at the times material to this case she was dismissed because of a disability, a stress related injury, that the respondent discriminated against her by reason of her disability in failing to provide her with reasonable accommodation and dismissing her. The following is a summary of the complainant’s evidence written and oral submissions.

Summary of Complainant’s evidence, Ms Laura Amos

The complainant stated that she was employed as a childcare worker with the respondent and ended up working in the kitchen of the respondent’s creche. She worked part time hours from 2:00 to 6:00 pm Monday to Friday. The complainant confirmed that she preferred working in the kitchen than as a childcare worker and that two of her own children attended the creche in addition to her her sister's children. She stated that she loved working in the creche, and everything was fine until the 1/6/2021. 

The complainant stated that on the 1/6/2020, she met with Ms Quigley who told her that her son had kicked her sister's child and fractured her chest. She stated that there was a dispute between Ms Quigley and her sister regarding the accident, and that Ms Quigley stated that her sister was a liar.

The complainant stated that by the middle of June 2021 she was getting dirty looks from Ms Quigley and that Ms Byrne was writing things in her book about her. The complainant confirmed that she sought a meeting and met with Ms Quigley and Ms Byrne in mid-June 2021 and told them that she was very upset coming into work, and that she had problems sleeping. She stated that she told them that she felt like “there was a black cloud over my head” and that regularly she was sitting in her car crying before she went into work. The complainant stated that Ms Quigley and Ms Byrne told her that everything was in her head and that they were treating her the same as everyone else. She stated that she felt that Ms Quigley didn’t want her working there anymore even though when she started, she got on well with her. She stated that their relationship deteriorated and Ms Quigley stopped talking to her and started sending people into the kitchen to get her food instead of coming in herself.

She stated that things got worse, and both her sisters took their children out of the creche. The complainant stated that her children said that they felt that they were being bullied by Ms Quigley. She stated that she had another meeting in July when she told Ms Quigley and Ms Byrne that she felt the same way and that she was “bringing the black cloud home” with her. She stated that she was not sleeping or eating, that she was bringing her job home and that her family suffered as a result. The complainant further stated that she didn't go to see her doctor at this time as she was hoping that her symptoms would improve.

The complainant rang her GP  on the 30/8/2021 a Monday, and had a telephone consultation,as it was during the Covid 19 pandemic and she told her GP that she was having problems at home with certain neighbours, and that she was suffering from stress in her job.   The complainant confirmed that she received the doctor's certificate on the 30/8/2021 certifying her as unfit to attend work for a week to the 3/9/2021 based on a “SRI”. She stated that her doctor told her that she needed to take a week out of work due to stress and prescribed anti-depressant medication for her.

The complainant stated that she collected the medical certificate on the 30/8/2021 and rang Ms Quigley that day and told her that she would be out of work due to difficulties with her mental health. She stated that she was advised by Ms Quigley that there was a meeting in work that day which was mandatory regarding a confidentiality agreement. The complainant stated that she attended the meeting in work on the 30/8/2021 and all employees were given a confidentiality agreement to sign. She stated that she was not in a fit state to read it and brought it home with her.

The complainant stated that she gave the medical certificate to Ms Quigley on the 30/8/2021 before the meeting and told her that her illness was stress related and that she was suffering from a “SRI” because of the way she was made to feel in work.  After the meeting the complainant told Ms Quigley and Ms Byrne that she felt the same way in terms of the symptoms of stress and they told her that it was all in her head.

The complainant stated that she was contacted by Ms Byrne on the 31/8/2021 and was told that Ms Byrne and Ms Quigley wanted to meet her.  The complainant met them on the 1/09/2021 and Ms Quigley told her she was dismissed, no reason was provided for her dismissal. She stated that the meeting lasted 10 /15 minutes and she was informed if there was any money owing to her, she would get it and that she would receive a glowing reference. The complainant stated that she did not receive any documents at this meeting. The complainant referred to a letter dated the 2/9/2021 signed by Anna Byrne exhibited at the hearing and stated that this letter was handed to her, she wasn't sure when. The complainant referred to another letter undated and signed by Anna Byrne, exhibited at the hearing, which she received further to her request for a P45 and pay slips.  The complainant stated that while on certified sick leave she was required to attend work three times during five days.

The complainant confirmed that her doctor prescribed her anti-depressant medication which she took for one week. The complainant stated that when she was dismissed, she felt relieved, and started to feel better afterwards, her eating and sleeping improved and she felt she didn't need to continue with her medication and stopped taking it after a week.

The complainant confirmed that the first time she was told that she was dismissed was by Ms Quigley at a meeting on the 1/9/2021.  Counsel exhibited at the hearing a letter dated the 20/7/2021 attached in the respondent’s submission. The complainant confirmed that she had not received this letter and the first time she saw it was the day before the second hearing day.  Referring to the letter the complainant stated that it lists as a reason for her dismissal her unwillingness to sign the confidentiality agreement however she stated that she was not given this agreement until the meeting on the 30/8/2021. The complainant reiterated that she never received this letter. 

The complainant confirmed that she had never received any of the letters dated the 7/3/2021, 18/4/2021, and 20/6/2021, contained in the respondent’s submission, exhibited at the hearing.  It was put to the complainant that the respondent in a letter dated the 8/2/2022 to the WRC set out various allegations against the complainant, that various clients made complaints against her including a written complaint from a parent (Ms A). The complainant confirmed that she never received any complaints from Ms Quigley and the first time she saw the complaint from Ms A was through her solicitor. The complainant confirmed that her pay was not deducted for absences on the 10th and 14th June 2021.

The complainant confirmed that she did not receive any written warning from the respondent in August 2021 as referred to in the letter dated the 8/2/2022.  The complainant confirmed that Ms Quigley never brought up any complaints from parents or staff with her during her employment. 

In cross examination it was put to the complainant that the evidence of Ms Quigley will be that she never had a conversation with the complainant regarding an accident which happened on the 1/6/2021 between her child and her sister's child as alleged.  It was put to the complainant  that the evidence of the respondent would be that Ms Quigley and Ms Byrne met with the complainant  on the 25/6/2021 and the issue of her lack of punctuality was discussed, that prior to the meeting the complainant  was advised that she could bring someone with her to  the meeting and during the meeting the complainant  advised them that there was a serious matter going between herself and her neighbour.   The complainant confirmed that she couldn't recall this meeting.

It was put to the complainant  that the respondent raised with her that she had been late for work by one hour and that the complainant  disclosed to Ms Quigley and Ms Byrne that she was having serious problems of a criminal nature with her neighbour, that the Gardai were involved and that  the rear window of her house was broken into and she was in fear that her house would be burned down. In reply the complainant stated that she was having a dispute with her neighbour and she had stopped all contact with her, and she didn't like her boyfriend, as he had broken her car window. The complainant stated that she was in fear of her neighbour's boyfriend and the Gardai were investigating the matter.

It was put to the complainant whether some of her stress or “black cloud” that she had referred to could be related to this matter. The complainant denied this and stated that she had made a statement to the Gardai regarding this matter, and it had not affected her.

It was put to the complainant that Ms Quigley will state in her evidence that she did not receive the medical cert from her on the 30/8/202 but on another day.    It was put to the complainant that Ms Quigley will state in her evidence that there was no staff meeting held on the 30/8/2021. It was put to the complainant that Ms Byrne will state in her evidence that she texted her (text read out) on the 31/8/2021 asking her to ring her and that the complainant did not reply until the 2/9/2021. The complainant stated that she spoke with Ms Byrne on the 31/8/2021.

It was put to the complainant that Ms Byrne will state in her evidence that that there was no staff meeting held on the 30/8/2021 and that she did not speak with the complainant over the phone on the 31/8/2021, the complainant disputed these assertions.

It was put to the complainant that there was an issue with her punctuality which was set out in a letter dated the 7/3/ 2021, the complainant denied that she was late for work as alleged. The complainant stated that all employees were paid in cash on a Friday and that she didn't receive any payment when she called into the office on the 3/9/2021 nor did she receive any payment in lieu of holiday pay. The complainant further stated that she never received pay slips. It was put to the complainant that Ms Quigley's evidence will be that the complainant never mentioned a “black cloud” to her that they were not aware that she had a disability, and the only mention of stress was in relation to the dispute with her neighbour. The complainant confirmed that she collected her prescription for her medication on the 2/9/2021.

It was put to the complainant that Ms Quigley will state in her evidence that all letters exhibited in the respondent’s submission were posted to her. The complainant replied that in relation to the letter dated the 18/4/2021 regarding the signing of a confidentiality agreement it is stated that “I have been notified by my assistant manager Anna Byrne that you have refused to sign our confidentiality agreement in work today.” The complainant stated that the date 18/4/2021 was a Sunday and therefore it was difficult to reconcile that with the reference to “in work today”.

Legal Submissions

It was submitted that the complainant commenced working with the Respondent as a childcare worker on 10/9/2020.  The complainant was advised she was being terminated on 1/9/2021 and was entitled to one month's notice pursuant to the terms and conditions of her employment.

It was submitted that the complainant was on certified sick leave at the date of her notice of termination on 1/9/2021, did not work thereafter with the Respondent and was not paid her minimum notice entitlement of one month.

It was submitted that around the 1/6/ 2021 an incident arose whereby the complainant’s son and the complainant’s sister’s daughter, were playing on the trampoline and her son kicked the  complainant’s  sister's daughter in the chest causing her to fracture her chest bone. It was further submitted that the Ms Quigley contacted the complainant by phone the next day accusing the complainant’s sister and her children of lying about the accident and asking the complainant to get involved which the complainant  refused to do.

It was submitted that Ms Quigley's attitude towards the complainant changed dramatically following this incident. As a result of the accident and injury, the complainant’s sister’s family and solicitors got involved and sought an explanation from the respondent as to the circumstances surrounding the accident. It was submitted that the respondent initially denied that any accident had happened at all on the premises until this became untenable.

It was submitted that thereafter, Ms Quigley commenced a sustained and orchestrated campaign of ostracising the complainant, making accusations against her, sustained staring at the complainant from her office and the complainant felt thereafter she was walking on eggshells. It was submitted that the complainant began suffering from stress, anxiety, and panic attacks as a result of the respondent's changed attitude towards her.

It was submitted that around mid-June 2021 the complainant’s other sister removed her three children from the service as her eldest daughter reported that Ms Quigley was treating her very badly.

It was submitted that in late June 2021 the complainant confronted Ms Quigley and Ms Byrne regarding their constantly watching her every move, ignoring her, staring, and making angry faces towards her. It was submitted that the complainant told them it was clear they did not want her working there anymore and they should just tell her as the constant watching and staring was stressing her out and affecting her mental health. It was submitted that they denied any wrongdoing and claimed it was all in her head. It was further submitted that the complainant found this extremely frustrating as they did not in any way acknowledge or accept that she was suffering psychologically and merely denied matters and tried to make the complainant feel she was going mad.

It was submitted that the deterioration in the relationship between the complainant and Respondent resulted in the complainant finding it extremely difficult and painful to go to work, she would sit in her car crying and found the environment toxic and stressful. It was further submitted that the impact reached its height when the complainant was compelled to go and see her doctor to address her stress and anxiety. The Complainant’s GP diagnosed her with a stress related injury and signed her off work for one week and was prescribed anti-depressants.

It was submitted that despite being on sick related leave, the complainant was instructed to come in on 1/9/2021 and was terminated on that day and told she would get an excellent reference. On 2/9/2021 the complainant texted Ms Byrne requesting a letter setting out the reasons for her termination.

It was submitted that no consideration was taken of the complainant’s certified sick leave and the respondent did not seek to have the complainant attend the respondent’s nominated doctor prior to her termination. It was submitted that the respondent terminated the complainant’s contract because of her stress related injury and for furnishing a medical certificate for one week. It was further submitted that the respondent failed to entertain her disability or sick leave and therefore failed to provide her with any reasonable accommodation and dismissed her without any consideration of her disability.

It was submitted by Counsel that the complainant was discriminated against on the grounds of her stress related injury which comes within the definition of disability set out at Section 2 of the Act. The complainant placed reliance on the decision of the Labour Court in a Customer Perception Limited V Leydon (EED0317) where the Court held that a temporary injury constituted a disability within the meaning of the Acts. Reliance was also placed on the decision of Ms B V A Newsagents and Deli (DEC-E2013-149) where the complainant’s GP certified her as being unfit for work due to work related stress and she was prescribed anti-anxiety as well as sleeping tablets and subsequently dismissed the following week. The complainant also placed reliance on the decision of the Labour Court in Government Department v A Worker (ED 094) where the disability concerned a “work related illness” or “work related depression/stress”.

It was submitted that the complainant’s colleagues of no disability or with a different disability were not treated in the manner in which the complainant was treated, and it was contended that the complainant was treated less favourably on the grounds of her disability. It was further submitted that the complainant has established a prima facie case of discrimination and has discharged the onus of proof on her.

In summation Counsel clarified that the complainant was relying on Section to 2 (e) of the definition of disability. It was submitted that on the 30/8/2021 the complainant handed Ms Quigley a medical certificate stating that she was suffering from stress which was both work related and related to a situation with her neighbours.  It was further submitted that no effort was made by the respondent to reasonably accommodate the complainant in light of her disability. Counsel further submitted that the complainant has established a prima facie case of discrimination based on the medical certificate submitted and the complainant’s direct evidence.  It was further submitted that there is no distinction between work related and non-work related stress, whether the stress was caused within work or outside of work, the condition is considered a disability for the purposes of the Acts.

Counsel submitted that several documents were sent by the respondent after the complaint was lodged with the WRC which did not include a termination letter dated the 20/7/2021.Therefore, it was submitted that the Respondent’s defence lacks credibility on the basis that this document was never referred to previously and the first time it appeared was a day before the second hearing day.

Preliminary Issues-

·       Application to amend the title of the Respondent.

The respondent did not object to the complainant’s application to change the name of the respondent to “Geraldine Quigley trading as Cos Clubs”.

·       Application to expand my jurisdiction to include a complaint of failure to provide reasonable accommodation further to Section 16 of the Employment Equality Act 1998-2015

The respondent’s representative stated that it was not clear from the complaint form that the complainant had lodged a complaint alleging a failure by the respondent to provide reasonable accommodation pursuant to section 16 of the Acts.  The respondent’s representative accepted that the letter dated the 14/2/2021 was sent to the WRC and further confirmed that the respondent was not opposing an application to include a further complaint under the 1998 Acts.

Substantive Matter 

The respondent denies the claim on the basis that they were not aware that the complainant had a disability and that the complainant  was dismissed for reasons unrelated to her disability as at the time of dismissal the respondent was not aware that she had a disability.

Summary of evidence, Ms Geraldine Quigley, Manager and Owner of the Respondent

Ms Quigley confirmed that she is the owner and manager of the respondent. The witness confirmed that the complainant started as a childcare worker and upon her request agreed to her working in the kitchen. Ms Quigley stated that all went well at the start. Ms Quigley said that there were numerous incidents with the complainant being late for work and that she didn't show up for her shifts sometimes. She stated that there had been complaints about the complainant throwing out people's food - lunches were thrown out by her. Ms Quigley stated that she sent her a letter dated the 7/3/2021 and further to her letter the complainant rang her and promised her that she would not be late again.

Ms Quigley stated that she sent her a letter on the 20/6/2021 and she had a meeting with her at the end of June. Around this time, she stated the complainant came to her to tell her that she was having problems with her neighbour.  Ms Quigley stated that she told the complainant that she couldn't get involved in any matter concerning her neighbours children and the fact that her children were playing with them in the creche, and that she could end the contract with four weeks’ notice if it was not working out.

Ms Quigley stated that in July the complainant’s son had an accident and she started missing days from work, he was in hospital, and she texted her several times to show her support. She further stated that she sent her a letter on the 20/7/ 2021 as there was no response from the complainant in relation to this letter, she filled her position in the kitchen. She said that the complainant never turned up for work in August and that the creche was closed from the 22- 27th August for a clean-up.

Ms Quigley stated that she did not have a meeting with the complainant on the 30/8/2021, that staff collected their wages on the 27/8/2021 and that the complainant collected her wages on that day and left. She confirmed that she had no conversation with the complainant on the 30/8/2021. Ms Quigley stated that she saw the complainant on the 3/9/2021 and paid her all wages in cash to include 13 hours overtime, a week's wages and four weeks wages in regard to her notice money.

Ms Quigley stated that the first time she was made aware that the complainant had a disability was on the 3/9/2021 when the complainant gave her a medical certificate on that day. She further stated that she didn't know what “SRI” meant as she is not a doctor. She said that she asked the complainant to come in on the 3/9/2021 as she wanted to personally give her the monies owing.

In cross examination Ms Quigley stated that there had been complaints from different colleagues regarding the complainant which related to her throwing out lunches, sneering at staff, ignoring certain staff members and she asked staff to put these issues in writing. Ms Quigley stated that she addressed the complaints with the complainant, in that she would sit down with the complainant and try and work it out with her at a meeting. Ms Quigley stated that she had lots of verbal meetings with the complainant and that she called into her once a week.

Ms Quigley confirmed that she didn't send any complaints from other staff members to the complainant as she would not send information relating to third parties in writing to anyone. It was put to Ms Quigley that the termination letter dated 20/7/2021 did not mention any staff grievances and she said that the complainant was aware of these. Ms Quigley confirmed the reason for the complainant's termination included punctuality, absenteeism and her relationship with staff members.

Ms Quigley denied that her attitude to the complainant changed after the incident involving her sister's children and that the complainant’s termination was unrelated to it. Ms Quigley denied that she had a meeting with the complainant in the middle of June 2021 when she advised her of the symptoms of her stress. Ms Quigley stated that she never saw the complainant crying at work. She stated that she was aware that the complainant was having issues with her neighbour as she didn't want her children playing with her neighbours’ children in the creche. 

Ms Quigley confirmed that she was never aware that the complainant was suffering from stress, she said that the complainant had fallen out with her best friend who is her neighbour and that was the cause of the stress. Ms Quigley denied that she spoke with the complainant on the 30/8/2021 or that the complainant handed her a medical cert on this day, she stated that she didn't come into work that day and wasn't aware that she would be out for a week on sick leave.

Ms Quigley stated that the complainant knew in July 2021 that her position was terminated and that she would finish on the 1/9/2021. She stated that she discussed with her the letter she sent her dated the 20/7/2021 and confirmed that the letter was sent by post by Ms Byrne.

Ms Quigley denied that she had a discussion with the complainant on the 2/6/2021 regarding her sister's children being involved in an accident in the creche. It was put to Ms Quigley that the complainant had stated in evidence that she did not receive the letter dated 20/7/2021, she confirmed that they had a discussion regarding the letter and that she could only assume that she had received it.

Ms Quigley confirmed that she had taken a note of all meetings with the complainant and that she had given her three verbal warnings. It was put to Ms Quigley that there were no exhibits/ documentary evidence for any of the verbal warnings or written warning allegedly given to the complainant in August and she replied, “I don’t know.” It was put to Ms Quigley that it was very unusual not to exhibit any letters or documentation regarding the verbal and written warnings and she replied, “I don’t know.”

It was put to Ms Quigley to explain, why, she would give the complainant a written warning in August 2021 as set out in her letter, even though she had already provided notice of termination in July 2021.  Ms Quigley replied that she had spoken to the complainant on numerous occasions and that she was reiterating that the employment relationship was over. Ms Quigley explained the reason why all letters in the respondent’s submission were provided the day before the hearing was because she was representing herself. Ms Quigley reiterated that she was never told by the complainant that she had an illness or a disability.

Summary of evidence, Ms Anna Byrne, Assistant Manager

Ms Byrne confirmed her role as assistant manager with the respondent which involved assisting Ms Quigley with typing up of letters. She confirmed that the complainant worked well for a long time. Ms Byrne stated that there were issues with the complainant as she was late starting shifts and was absent for various reasons which placed the kitchen under pressure. She stated that there was some animosity between the complainant and other staff in the kitchen.

Ms Byrne confirmed that she typed up all the letters that were sent to the complainant. In regard to the meeting at the end of June between herself Ms Quigley and the complainant she stated that it was obvious that the complainant’s position was untenable as she was unreliable. Ms Byrne denied the allegation that she was following the complainant taking notes she stated that 95% of her role involved being hands on with the children.

Ms Byrne stated that the complainant attended the creche on the 3/9/2021, and gave Ms Quigley a medical certificate, and she was handed an envelope with her pay and reference.

In cross examination Ms Byrne confirmed that she had no recollection of a meeting in the middle of June with the complainant and Ms Quigley. She denied that she told the complainant that it was all in her head. Ms Byrne stated that when she saw the medical certificate she didn't understand what “SRI” meant. Ms Byrne confirmed that she hadn’t observed the complainant with a low mood but qualified that by stating that she wouldn't have seen her a lot as she had no reason to go into the kitchen.

Ms Byrne confirmed that she had typed the four letters included in the respondent’s submission. Ms Byrne confirmed that regarding the letter dated the 7/3/ 2021 that it was a Sunday. It was put to Ms Byrne that the letter dated the 18/4/21 was also a Sunday and this did not make sense in relation to the reference in the letter which stated, “in work today”. Ms Byrne confirmed that she typed up letters on a Sunday as she was so busy looking after the children and other admin matters during the week.

Ms Byrne confirmed that she had never seen the complainant stressed in work. She said that the main reason that the complainant’s contract was terminated was because she refused to sign a confidentiality agreement, and this was a major issue for them. Ms Byrne confirmed that she was not part of any staff meeting on the 30/8/2021 and no meeting was held on this date.

Ms Byrne stated that she sent the complainant a text message on the 31/8/2023 asking her to ring her or to come into the office. She stated the complainant rang her and asked her if it was ok if her partner’s mother could collect her wages. Ms Byrne stated that Ms Quigley informed her that the complainant needed to attend in person, and she met her on the 3/9/2021 with Ms Quigley.

Legal Submissions

It was submitted that the complainant commenced working with the respondent as a childcare worker on the 10/9/2020 and her contract of employment was terminated on the 1/9/2021.

It was submitted that in March 2021 the respondent was required to the write to the complainant by letter dated the 7/3/2021 regarding her lack of punctuality. It was further submitted that on the 8/4/2021 the complainant was written to by the respondent regarding her failure to the sign the confidentiality agreement which is in place for all employees. The complainant was urged to re-consider signing the said confidentiality agreement and if she had any concerns in relation to same, she was advised to approach the respondent directly.

It was submitted that the complainant also did not attend work on the 10/6/2021 and 14/6/2021 and no explanation was given to the respondent in respect of her absence, and this was advised to the complainant by letter dated the 20/6/2001.

It was submitted that the Respondent met with the complainant on the 25/6/2021 and with Ms Bryne. The complainant was invited to bring another person with her to the meeting but declined to do so. The complainant was asked in relation to her absence from work without notifying the respondent, the complainant advised that she was having a difficulty with a neighbour and that the matter was reported to the Gardai.

It was further submitted that the respondent by letter dated the 20/7/2021 advised the complainant that her contract would be terminated on the 1/9/2021 and she would receive any monies due to her including any outstanding holiday pay. It was submitted that further to the above letter the respondent terminated the complainant’s contract on the 1/9/2021.

The solicitor for the respondent submitted at the oral hearing that Ms Quigley was not aware that the complainant had a disability. It was submitted that the only medical evidence relied upon is a medical certificate referring to “SRI” and that the decision to terminate the complainant’s contract was taken prior to the to the receipt of the medical certificate by the respondent.

In summing up the respondent’s representative disputed that the complainant’s disability was work related and submitted that his client was advised that the stress was not work related. It was further submitted that the medical certificate was received after the complainant’s employment was terminated on the 1/9/2021. It was further submitted that the only evidence the complainant is relying on, is the medical certificate from Dr. Cheasty and no medical report was submitted regarding the disability. It was submitted that there is a lack of medical evidence in that no medical report or records outlining the doctor's diagnosis or details regarding a consultation between the doctor and the complainant were provided.  

Preliminary Issues-

·       Application to amend the title of the respondent.

I note the evidence of Ms Quigley, who confirmed that the entity “Cos Clubs” had closed and was taken over by a limited company. Ms Quigley confirmed that she was and still is a sole trader. I further note that the respondent has no objection to the name change to reflect the correct title of the respondent as “Geraldine Quigley trading as Cos Clubs”.

Based on the evidence of Ms Quigley and the submissions of the parties, I am satisfied that the respondent suffers no prejudice or injustice by the name change and that in the circumstance of this case it is reasonable to amend the title of the respondent to reflect the correct title as  “Geraldine Quigley trading as Cos Clubs”.

·       Application to expand my jurisdiction to include a complaint of failure to provide reasonable accommodation further to Section 16 of the Employment Equality Acts 1998-2015.

In considering whether to expand my jurisdiction to include a further complaint pursuant to Section 16 of the 1998 Act, I have noted the judgement of McKechnie J. in the Supreme Court case of County Louth VEC –v- The Equality Tribunal [2016] IESC 40 where it was held that: “As is evident from the aforegoing (para. 19 supra), the initiating step for engaging with the provisions of the 1998 Act is that an applicant “… seeks redress by referring the case to the Director” (s.77 (1) of the 1998 Act). In the absence of any statutory rules to facilitate such a process, the Tribunal itself, in the form of guidelines, has drafted and published what is an appropriate form to use in this regard …… I agree with the view that there is nothing sacrosanct about the use of an EE1 Form to activate the jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purpose; in fact, the Tribunal itself has so held in A Female Employee v. A Building Products Company DEC-E2007-036. Indeed, it is arguable that even a verbalised complaint would be sufficient to this end.”

I note that this judgement related to a claim under the Employment Equality Acts, I am satisfied that the reasoning of McKechnie J. in relation to the referral of complaints to a quasi-judicial body using a non-statutory form is applicable to the present case. The on-line complaint referral form used by the WRC is not a statutory form, and therefore, a complainant is not legally obliged to use this form when referring a complaint to the WRC.

I am satisfied that it was clear from the narrative of the letter dated the 14/2/2021 to the WRC that the complainant was seeking redress in relation to an alleged failure by the respondent to provide reasonable accommodation further to Section 16 of the Acts.  Furthermore, I note that a copy of this letter was forwarded to the respondent shortly thereafter, therefore, I am satisfied that the respondent was fully aware of the nature of the alleged contraventions underpinning the proceedings well in advance of the oral hearing. I further note that the respondent did not object to this application.

In the circumstances, I am satisfied that I have jurisdiction to inquire into the present complaint in accordance with the provisions of Section 16 of the Acts. 

The Legal Framework

Definition of Disability

The issue for determination is whether the Respondent discriminated against the complainant on grounds of her disability in terms of Section 2(1) of the Employment Equality Acts 1998-2015 as amended, (the Acts) and whether the respondent failed to provide the complainant with reasonable accommodation in the form of appropriate measures and dismissed her in circumstances amounting to discrimination contrary to the provisions of the Acts.

In determining this case I am required to address three key questions. Firstly, did the Complainant have a disability within the meaning of the Acts?

Section 2(1) of the Acts defines “disability” in the relevant part as;

disability” means—

“(e) a condition, disease or illness 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 evident from the case law of the Labour Court and the WRC/former Equality Tribunal that this broad definition has generally been interpreted liberally with a non-exhaustive list of conditions being found to fall within the scope of the definition of disability.

As cited by Counsel for the complainant the Labour Court in A Government Department V A Worker EDA094, found that work related depression amounted to a disability, where the complainant had submitted medical certificates for absences relating to “work related illness” or “work-related depression/stress”. In reaching this finding the Court expressed the view that there needed to be a certain minimum level of symptoms manifest in the condition suffered by the complainant to be considered a disability. The Court stated 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 of which it is 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.”  The Court further stated regarding the definition of disability.

“The court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness(see Bank of Ireland V Purcell [1989] IR 327).”

I note that Counsel for the complainant submitted that her disability, a stress related injury which Counsel confirmed was both work and non-work related, falls within the definition of the Acts. The Labour Court and the WRC/former Equality Tribunal have considered the question of whether stress falls within the scope of the definition of disability. 

Bolger Kimber and Bruton in Employment Equality Law (2022 3rd Edition) address this question and relying on a decision of the Labour Court in Mr. A V A Charitable Organization DEC-E2011-049 state that this decision for the first time establishes that there must be a minimum level of symptoms of a particular condition present for the condition to amount to a disability and receive the ascribed protection provided by the Acts. They further state that should a complainant only have symptoms of a condition which are of an insignificant or lower extent, it appears that they would not meet the threshold established relying on the decision of O’Rourke v JJ Red Holdings Ltd t/a Dublin City Hotel DEC-E2010-045.

In Ms B -v- A Newsagents & Deli (DEC-E2013-149) the complainant's General Practitioner certified her as being unfit to work due to “work-related stress” and she was prescribed an anxioltic drugs (anti-anxiety) as well as sleeping tablets and was subsequently dismissed. The Equality Officer was satisfied based on the evidence of the complainant and the medical certificate submitted that “work-related stress” did come within the remit of the definition and stated the following regarding the definition of disability. 

"The respondent submits that 'work-related stress' is not a disability within the meaning of the Acts. In the context of these Acts, disability must be looked at 'in the round'. It cannot be reduced to a game of bingo where a complainant's doctor labels a condition on the medical certificate in a certain way and the disability provisions automatically apply and s(he) calls it something else and the disability provisions do not apply. The complainant  gave cogent evidence at the hearing that, prior to the submission of the medical certificate, she told Mr Z that she was not sleeping and suffering panic attacks. Having received the medical certificate and in possession of this information, a prudent employer would have sought a second medical opinion before dismissing her. ….Therefore I am satisfied that the complainant's condition is a disability within the meaning of Section 2 (e) of the Acts. "

In a more recent decision of Liam McMullan v Inspire Wellbeing ADJ-00032530 an Adjudication Officer considered that a sick leave absence based on “stress” did come within the definition of a disability and grounded his finding based on “the evidence of all parties that the complainant was acutely stressed during these events…”.

The complainant submitted that she was suffering from a disability at the date of her dismissal on the 1/9/2021 and is relying on Subsection (e) of the definition.   The respondent disputes that the complainant’s condition comes within the definition of disability on the grounds that no medical report was submitted, and that the condition is not work related.

In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. 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 the respondent.

The complainant  gave clear and cogent evidence that she was suffering from stress in June 2021 and described her symptoms as having problems sleeping, feeling upset coming into work,  she  felt like “there was a black cloud over my head” , that she was regularly sitting in her car crying before she went into work, and informed Ms Quigley and Ms Byrne at a meeting in mid-June 2021 that she was suffering from the effects of stress as described.

I accept the complainant’s evidence that she informed her doctor on the 30/8/2021 that her condition was related to stress caused by work and relating to a dispute with her neighbour, and received a medical certificate for a week from 30/8/2021 to 3/9/2021 certifying her as unfit for work due to a “SRI”. I accept the complainant’s evidence that her doctor told her that she needed to take a week out of work due to stress, she was prescribed anti-depressant medication and that she handed the medical certificate to Ms Quigley on the 30/8/2021 and told her that her illness was stress related and that she was still suffering from the symptoms of stress.

The above facts are disputed by the Respondent. I found the complainant’s evidence to be credible and cogent and, on the balance of probabilities, I prefer the complainant’s evidence over the respondent’s which I found to be inconsistent in many respects. I will set out below when addressing the discriminatory dismissal aspect my reasoning in preferring the complainant’s evidence.

I am satisfied based on the complainant’s evidence, the medical certificate from her GP dated 30/8/2021 certifying her as unfit for work due to “SRI” andthe fact that she was prescribed anti-depressant medicationthat she was suffering from a stress condition both work and non-work related at the material time of this complaint. I further note that the complainant was certified as unfit to work for a week and prescribed anti-depressant medication by her GP, which suggests to me that these symptoms were of sufficient significance to warrant her GP prescribing same and therefore it is my view that her symptoms were not of an insignificant or lower extent.

I appreciate that there was a lack of detail in the medical certificate which refers to the complainant’s condition as “SRI” and note Ms Quigley’s evidence that she did not understand what “SRI” meant. However, considering the complainant’s evidence that she informed Ms Quigley as early as mid-June 2021 that she was suffering from the symptoms of stress and informed her again when she gave her the medical certificate on the 30/8/2021 that her condition was stress related, I am satisfied that it was apparent that the complainant’s condition of “SRI” was related to a stress condition.  It is my view that a prudent employer would have taken steps to inform themselves by way of referral to an occupational health doctor, of the full extent of the complainant's condition and or to clarify any matter relating to the condition itself.

It was submitted by the Respondent that as the complainant’s disability a stress condition or “SRI” was not work related it does not fall within the definition of disability. I note that at subsection (e) of the definition it refers to “a condition, disease or illness” and there is no distinction between a work and a non-work-related condition or illness. I am mindful that the definition of disability should be looked at in the round, bearing in mind the objective of the Acts, as stated by the Labour Court “..as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness….. “.  Accordingly, I am satisfied based on the complainant’s evidence, the medical certificate from her GP, the fact that she was prescribed anti-depressant medication, and the absence of any medical evidence to the contrary, that the Complainant’s stress related condition constitutes a “condition or illness” which affects “a person's thought processes, perception of reality, emotions or judgement “ and falls within the ambit of subsection (e) of the definition.   

Knowledge of disability

The second question I am required to address is whether the respondent was aware of the complainant’s disability at the material time? The respondent denies the claim in full on the basis that Ms Quigley was not aware that the complainant had a disability. Ms Quigley stated in evidence several times that she was not aware that the complainant was suffering from stress or that she was aware that the complainant had a disability. This evidence is supported by Ms Byrne who also denied any knowledge that the complainant had a disability.

It was submitted that the decision to terminate the complainant’s contract was taken prior to the receipt of the medical certificate by the respondent on the 3/9/2021 two days after the termination of the complainant’s contract on the 1/9/2021.

Ms Quigley denied that any meeting took place with the complainant in mid-June 2021 when the complainant allegedly informed her that she was suffering from the symptoms of stress. Ms Quigley further denied that there was a staff meeting on the 30/8/2021 and that the complainant handed her a medical certificate on this date and informed her that she was suffering from stress.  Ms Quigley stated that she sent a letter dated the 20/7/2021 by post to the complainant providing her with notice of termination of her contract on the 1/9/2021. It was submitted that further to the above letter the Respondent terminated the Complainant’s employment contract on the 1/9/2021.

I found the Complainant’s evidence to be clear and cogent. On the balance of probabilities, I prefer the Complainant’s evidence  that she did inform Ms Quigley and Ms Byrne at a meeting in mid-June 2021 that she was suffering from the effects of stress as described above and  that there was a staff meeting on the 30/8/2021 which she attended and that on this date she handed Ms Quigley a medical certificate certifying her as unfit to work due to “SRI”  and informed her that she was suffering from stress.

On the balance of probabilities, I prefer the complainant’s evidence over the evidence of Ms Quigley and Ms Byrne on the basis that I found their evidence to be inconsistent with the documentary evidence which was submitted.  I make this finding for the following reasons.

The Complainant’s submission contained a letter dated 11/3/2022 to Cleary and Co Solicitors from Ms Quigley which stated, “Laura produced one sick certificate to us while employed; this did not mention any disability or any specific illness”. This admission by Ms Quigley that she had received a medical certificate while the complainant was still employed is in direct contradiction to her evidence that she received the complainant’s medical certificate on the 3/9/2021 after the complainant’s employment was terminated on the 1/9/2021.

It is my view that this letter and admission by Ms Quigley supports the complainant’s evidence that she handed Ms Quigley her medical certificate on the 30/8/2021 the date of a staff meeting. It is evident from this letter that Ms Quigley was aware that the complainant had a disability and had received the medical certificate prior to the 1/9/2021, but that she was unclear as to the “specific illness” of the complainant as the certificate did not mention “any disability or any specific illness”.

Furthermore, I prefer the Complainant’s evidence that there was a staff meeting on the 30/8/2021 and on this date handed Ms Quigley a medical certificate and informed her she was suffering from stress.

I note that Ms Quigley sent a submission dated the 11/3/2022 to the WRC and it included supporting documentation including a confidentiality agreement which the complainant submitted that she was asked to sign on the 30/8/2021. I note that the heading of the agreement states “Cos Clubs Confidentiality policy and Agreement        30th August 2021 “.   The fact that the agreement is dated 30/8/2021 suggests to me that a meeting was held on this date which supports the complainant’s evidence in this regard. 

Considering that the complainant was certified unfit to attend work from the 30/8/2021 to the 3/9/2021 I do not consider it plausible, or credible, that the complainant would wait until the final day of her certified sick leave on the 3/9/2021 to inform her employer that she was unfit to attend work and provide her with the certificate.

For the reasons set out above and based on the evidence of the complainant, I am satisfied that the respondent had received the complainant’s medical certificate on the 30/8/2021 which stated she was suffering from “SRI” and was aware that the complainant was suffering from the symptoms of a stress condition prior to that date. Therefore, I find that the respondent was on notice that the complainant had a disability at the material time and prior to terminating her contract of employment.

Duty to Provide Reasonable Accommodation / Discriminatory Dismissal

Section 6 of the Act, dealing with discrimination and less favourable treatment, provides:

6.— (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) …(f) …

(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”),

Section 8 of the Act, provides:

8.— (1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Section 16 of the Act provides the following concerning the nature and extent of an employer’s obligations in certain cases:

16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

(2) …(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.

(4) In subsection (3)— ‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself:

The third question I am required to address is whether the respondent failed to provide the complainant with reasonable accommodation in the form of appropriate measures and dismissed her in circumstances amounting to discrimination contrary to the provisions of the Acts?

Section 16 of the Acts can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant was not fully capable of performing the duties for which he or she were employed. The Labour Court has stressed, however, that, before coming to that view, the employer would “normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity” as established in  Humphries v Westwood Fitness Club [2004] 15 E.L.R. 296, 300, which decision was upheld on appeal by Judge Dunne in the Circuit Court. The Court stated the following.

“The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she is in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. “

The Labour Court in the above decision established that before deciding to dismiss an employee with a disability because of their incapacity, an employer is first obliged to establish the factual position concerning the nature and extent of the employees’ condition and it's likely duration. If it is believed that the employee is not capable of performing the duties of their job the employer must consider what if any special facilities or appropriate measures could be provided to allow the employee to continue in employment.

The Supreme Court in Nano Nagle School v Daly[2019] IESC 63 found that s.16(3) of the Acts places a “mandatory primary duty” on an employer to take appropriate measures where required in a particular case to enable the employee, to continue in employment, unless this would impose a disproportionate burden on the employer.  However, it was stated that an employer is not required to create an entirely new job to facilitate an employee remaining in employment.

Section 85A of the Acts states that where 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.  I am satisfied that the complainant has established that she had a disability at the material time of this complaint, and that the Respondent was aware of this. 

There is a sharp difference in the evidence given by the witnesses for the respondent and the complainant in respect of nearly all factual matters in this case. I do not consider it necessary to resolve all those conflicts and shall only address those conflicts that I consider relevant to my findings. It is therefore necessary for me to carefully evaluate all the evidence adduced to reach findings of fact on several critical points.  

It is disputed by the respondent that the complainant was dismissed on the grounds of her disability firstly on the basis that they were not aware at the time of her dismissal that she had a disability, and secondly it was submitted that there were other factors, not related to her disability which justified her dismissal. Ms Quigley stated in evidence that she sent a letter dated the 20/7/2021 by post, exhibited at the hearing, to the complainant providing her with notice of termination of her contract on the 1/9/2021. It was submitted that further to the above letter the respondent terminated the complainant’s employment contract on the 1/9/2021.

The letter dated 20/7/2021 cited the following reasons for not renewing the complainant’s contract, due to “a number of issues that have arisen throughout the year namely your unwillingness to sign the Confidentiality agreement, your absenteeism and your punctuality. Your contract will be terminated on 1st September 2021 where any monies due to you will be paid in addition to any outstanding holiday pay.” Ms Byrne stated in evidence that she typed the letter and sent it by post.

I accept the complainant’s evidence that she never received the letter dated the 20/7/2021 and the first time that she saw the letter was the day before the second hearing day. Furthermore, I accept the complainant’s evidence that she didn't receive any of the letters dated 7/3/2021, 18/4/2021 and 20/6/2021 as exhibited at the hearing.

I prefer the complainant’s evidence on the basis that I found her evidence to be cogent and more credible, over the evidence of Ms Quigley and Ms Byrne which I found to be less credible and at times inconsistent with documentary evidence which was submitted.  I make this finding for the following reasons.

I note that the letters of the respondent contained in their submission were sent to the WRC on the 5/10/2023, the day before the second hearing day. Ms. Quigley did not provide any of the letters prior to this date, notwithstanding that Ms. Quigley sent two submissions dated 8/2/2022 and 11/3/2022 with supporting documentation to the WRC. Ms Quigley wrote to the complainant’s solicitor by way of letter dated 11/3/2022 and forwarded documentation including the medical certificate and cited the reason for her termination as “The main reason wasthe complaints we received from multiple members of staff that she was rude too. We have attached multiple letters regarding her behaviour towards children and staff members that were deemed inappropriate.”

Ms Quigley wrote to the Complainant’s solicitor by way of further letter dated 20/4/2022 and cited the reason for the non-renewal of her contract,” we did not renew her contract due to her conduct in the workplace and her foul behaviour. She also bullied staff which I full written statements in relation to saying so when her year contract was up and seeking full legal advice we did not renew her contract. “

I note in the decision of Ms B -v- A Newsagents & Deli (DEC-E2013-149) where a similar situation arose, the Adjudication Officer accepting the complainant’s evidence that a letter had not been received noted the following.

“Before turning to the substantive issue, at the hearing the complainant vehemently denies receiving a letter on 10th March 2020 4/20/11 from the respondent offering to conduct an investigation into the stress factors in her employment. On the balance of probabilities, I am satisfied that the complainant is telling the truth. The respondent did not send this letter by registered post even though this would have been the prudent thing to do. …. No mention whatsoever is made to this letter in the first submission by the respondent even though logically this should form the bulwark of their defence. Nor is it referred to in any subsequent correspondence to the complainant.”

Considering that the letter dated 20/7/2021 is the bulwark of the respondent’s defence, I would consider it logical and a matter of common sense that the most significant letter would be included in any submission from the respondent. I do not consider Ms Quigley’s explanation, that she was representing herself, as adequate to explain the omission of this letter from earlier submissions. I agree with Counsel for the Complainant’s submission, that the inclusion of the various letters on the day before the second hearing day suggests a lack of credibility.  I further note that the respondent did not send this letter by registered post despite the significance of the letter. Accordingly, I find on the balance of probabilities, that it is unlikely that the letter dated 20/7/2021 and other letters included in the Respondent’s submission were sent by the respondent.

The respondent relies on the reasons set out in the letter dated the 20/7/2021 which related to the complainant’s unwillingness to sign the confidentiality agreement, absenteeism and lack of punctuality as reasons for the termination of her contract.  Ms. Quigley sent two submissions to the WRC dated 8/2/2022 and 11/3/2022 which referred to a reason for the non-renewal of the complainant’s contract as “Laura received a written warning from C.O.S clubs in August 2021 also”.

I accept the complainant’s evidence that she did not receive a written warning in August 2021. I note that Ms Quigley stated in cross examination that she was reiterating that the employment relationship was over, to explain why she would issue a written warning in August 2021 when she had already provided notice of termination on the 20/7/2021.  I further note that no corroborative evidence was provided to support this assertion given that it was a written warning, and Ms Quigley could not explain the absence of an exhibit in this regard under cross examination.

I do not consider this explanation to be adequate or plausible on the basis that as a matter of logic if a notice of termination was provided in July 2021 as alleged, it does not make sense to issue a written warning in August 2021.

I note and accept the complainant’s evidence that she did not receive three verbal warnings as alleged by Ms Quigley and note that despite Ms Quigley stating that she took a note of all meetings with the complainant she was unable to support this assertion with any documentary evidence. 

I note that different reasons for the Complainant’s dismissal were provided by Ms Quigley in different documents/submissions. I note that the termination letter does not refer to any staff complaints or complaints from parents however the earlier submissions from Ms Quigley and in her letter to Cleary and Co she refers to numerous complaints from staff and parents and refers to the complainant’s conduct and her “foul behaviour”. I note that different reasons for the Complainant’s dismissal were provided by Ms Quigley and Ms Byrne in their direct evidence. Ms Quigley referred to three reasons to justify the complainant’s dismissal and did not mention the complainant’s refusal to sign a confidentiality agreement. Ms Byrne stated in her evidence that in her view the main reason for the complainant’s dismissal was her refusal to sign the confidentiality agreement.

Regarding the complainant’s dismissal, I accept the complainant’s evidence that she met with Ms Byrne and Ms Quigley on the 1/09/21 when Ms Quigley told her that she was dismissed and that no reason for her dismissal was provided.

I accept the complainant’s evidence when she referred to a letter undated and signed by Anna Byrne, exhibited at the hearing, which she stated she received after her dismissal, further to texts from her seeking clarification regarding her dismissal. I note she stated that she received this letter while on certified sick leave.

I note that the letter states “You asked a number of questions by text message today and I hope this letter helps to clarify all you have inquired about. Firstly, you will have to log on yourself to MyGov.ie in order your P45 filling in the date you finished with us. I have attached a copy of your contract as per your request. Secondly, you asked the reason for your contract not being renewed, it is mainly because we found you to be quite unreliable, not turning up for kitchen duties a couple of times lately. “

The letter further cited as reasons for the non-renewal of her contract the fact that it was reported that the complainant contacted staff and some parents of staff outside of work hours which is considered a breach of the confidentiality policy. Further reasons are provided for the non-renewal of the complainant’s contract in the letter.

It is my view that if the respondent had provided a notice of termination by way of letter 20/7/2021 where clear reasons were provided for the termination of the complainant’s contract, I find it strange and implausible that the respondent would issue a further letter explaining the reasons for the termination and provide other reasons not referred to in its earlier letter of the 20/7/2021. In my view this undated letter signed by Ms Byrne supports the complainant’s evidence that she was dismissed at a meeting on the 1/09/21 and was not provided with any reason for her dismissal at that meeting, that she sought clarification for the reasons for her dismissal and this letter was provided further to her request. 

I note that the complainant  stated in her cross examination regarding the respondent’s letter dated the 18/4/2021 which stated that “I have been notified by my assistant manager Anna Byrne that you have refused to sign our confidentiality agreement in work today.”, that the date 18/4/2021 was a Sunday and therefore it was difficult to reconcile that with the reference in the letter to “in work today”. I note that Ms Byrne stated in her cross examination that she regularly typed up letters on a Sunday. However, upon confirming that the 18/4/2021 was in fact a Sunday, which day the complainant did not work, I do not consider Ms Byrne’s explanation to be sufficiently plausible.

I accept the complainant’s evidence that she never received any complaints from staff or parents from Ms Quigley while employed, and the first time she saw the complaint from Ms A was through her solicitor. 

I am satisfied based on the clear and cogent evidence of the complainant that she provided a medical certification to Ms Quigley on the 30/8/2021 and that she dismissed her at a meeting on the 1/09/21 and no reasons were provided to her at this meeting. I am satisfied that the Respondent dismissed the complainant during a period of certified sick leave on the basis that she had a stress condition described as “SRI” and she was not provided with any reasons at the time of her dismissal. I am satisfied that the complainant has established facts from which it may be presumed that she was discriminated against on the grounds of her disability.

In those circumstances it is for the respondent to prove the contrary.  Considering the reasons set out above outlining the numerous inconsistencies in the evidence provided by the witnesses for the respondent, I am satisfied that the letter of the 20/7/2021 relied upon by the respondent to justify the complainant’s dismissal was neither received by the complainant and in in my view I have doubts as to whether it was sent.   I am also satisfied that the complainant did not receive any verbal or written warnings as alleged, nor were any complaints from staff or clients of the service put to the complainant.  I am also satisfied that none of the reasons set out in the letter undated from Ms Byrne sent after the complainant’s dismissal, were ever put to the complainant.

The respondent dismissed the complainant at a meeting on the 1/09/21 while the complainant was on certified sick leave and no reasons justifying her dismissal were provided to her at this meeting. The dismissal was also not preceded by any process or procedure.  

It was clear to me that the relationship between the complainant and Ms Quigley was deteriorating from June 2021 onwards due to various factors including an incident involving the complainant’s sisters’ children and from the correspondence it appears a possible legal action. I find as a fact that the complainant raised health issues, specifically issues relating to her mental health and symptoms of stress which were not taken on board by the respondent. Following the submission of a medical certificate dated the 30/8/2021, the complainant was dismissed. I am satisfied that the respondent has failed to rebut the onus of proof to demonstrate that the complainant was dismissed on grounds not related to her disability.

Based on the evidence of the complainant I am satisfied that the respondent did not make adequate enquiries to establish the factual position in relation to the complainant’s capacity, and any limitations arising from her disability, as established in  Humphries v Westwood Fitness Club [2004] 15 E.L.R. 296, 300. The respondent did not refer the complainant for an independent occupational health assessment or seek clarification from the complainant’s GP regarding the diagnosis of “SRI”.  I am satisfied that the respondent discriminated against the complainant on the disability ground in failing to conduct adequate enquiries upon receipt of the medical certificate prior to her dismissal and thereby failed to provide reasonable accommodation to the complainant to ensure that she remained in employment.

I am satisfied the complainant was discriminatorily dismissed from her employment on the disability ground. I find the respondent acted in breach of Sections 6, 8 and 16 of the Acts and that the complainant is entitled to compensation for the effects of the discriminatory treatment suffered by her and discriminatory dismissal.

I note the complainant’s remuneration was €240 gross per week.  In deciding the award of compensation, I have considered the effects on the complainant of her discriminatory treatment and dismissal and the requirement for the sanction to be effective, proportionate, and dissuasive. In all the circumstances of this case I award the complainant compensation of €10,000 for the effects of the acts of discrimination.

For the reasons set out above, I find that the respondent discriminated against the complainant on the grounds of her disability and subjected her to a discriminatory dismissal in breach of the Employment Equality Acts 1998-2015 as amended, and I award redress of €10,000 as compensation.

Disability definition- stress-reasonable accommodation – discriminatory dismissal