ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00045072
Parties:
| Complainant | Respondent |
Parties | Aoife McGarry | Temperature Ltd |
Representatives |
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Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00055869-003 | 30/03/2023 |
Date of Adjudication Hearing: 07/11/2023
Workplace Relations Commission Adjudication Officer: David James Murphy
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
I have taken the time to carefully review all the evidence both written and oral. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
Background:
The Complainant joined the Respondent on the 19th of September 2022. She was dismissed on the 27th of March 2023 for failing to submit a medical certificate while on sick leave. Both parties were put on notice of their right to request that the matter be heard in private and neither party made such a request. |
Summary of Complainant’s Case:
The Complainant attended the hearing and gave evidence under affirmation. She submitted written evidence also. |
Summary of Respondent’s Case:
The Respondent made detailed written submission. Steward McIntosh General Manager, Fiona Forde HR Manager and Caitia Sousa the Complainant’s former Manager all gave evidence under affirmation. |
Findings and Conclusions:
The Employment Equality Acts The Employment Equality Acts prohibit discrimination of employees under specific grounds. Section 6(2)g outlines that one of those grounds is disability. Disability is defined by the section 2 of the acts as to 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, Section 8 (6) states that an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one— (c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, Section 85A of the EEA provides that 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. Findings When the Complainant first began her role working for the Respondent she suffered a family tragedy. The Complainant provided evidence that she notified the service desk manager at the time that she suffered from depression. That manager left the employment of the Respondent shortly before the Complainant’s dismissal. There is no other evidence that the Complainant notified anyone else in the Respondent of any diagnosis of any condition. The Respondent has indicated that they were entirely unaware of the Complainant’s condition and therefore could not have discriminated against her. They accept that the Complainant was suffering mental health problems but that this was related to the grief of losing a family member and not associated with any condition. The Complainant provided evidence that she had her probationary meeting on the 16th of March 2023. She was told that her probation was being extended a further two months. She was then given negative feedback on her performance. She broke down and the meeting could not continue. She called her manager and let her know that she could not complete the days work. The following day, Friday was St Patrick’s day. On Monday the 20th the Complainant emailed the Respondent first thing in the morning outlining that she was not available for work as she had suffered a breakdown and was seeking medical help. She notified the Respondent that this was the second breakdown she had suffered in two weeks. She then outlined some of her grievances regarding the tasks she was given and her feedback. Ms Forde replied and referred the Complainant to the grievance procedure. A week went by and then the Respondent wrote to the Complainant dismissing her. The reason give was the failure to provide sick certs that week. The Complainant provided evidence that she tried to text Ms Sousa a picture of a sick cert. The message failed to go through and Ms Sousa did not receive it. It is accepted that neither Ms Sousa nor Ms Forde or any other Respondent manager got in touch with the Complainant to request a sick cert or put her on notice that she was at risk of dismissal. The Respondent’s evidence is that because of this absence the Complainant’s failure to follow policy they changed their position regarding the Complainant and decided to dismiss her. That explanation is not reasonable by any objective standard. The only thing I can see that changed between the Complainant’s dismissal and the Respondent’s initial decision to extend her probation was that she had a breakdown. While the Complainant did not notify the Respondent that she had a mental health condition she did suffer breakdowns in front of them on multiple occasions and had been on sick leave previously. I am satisfied that they had constructive knowledge that the Complainant had a condition, illness or disease which affected her thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour. Applying the above findings to the Section 85A I am satisfied that the Complainant had made out a prima facia case of discrimination. She was in difficulty with the Respondent, but they had decided the best course of action was to extend her probation. She broke down in the meeting where this was outlined to her and she went on sick leave. This breakdown and absence were likely symptoms of her disability. After this event the Respondent’s position towards the Complainant changed. They were no longer interested in improving her performance through the extended probation period. Instead, they moved to dismiss her. I am satisfied she would not have been treated in this manner if she had not had a breakdown in the probation meeting and had been too ill to attend work. Redress Section 82 provides that I can make an order for compensation for the effects of acts of discrimination or victimisation which occurred. Such an order can be up to 104 weeks renumeration. The Complainant’s salary was €2500 per month. To the credit of the Complainant, despite her set back with the Respondent, she sought and gained work a month after her dismissal. The effects of a discriminatory dismissal are not just limited to the pure financial loss related to the dismissal. I am also mindful of my obligations in EU law under the case of n the circumstances compensation of €10,000. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find that the complaint is well founded and direct the Respondent to pay the Complainant €10,000 in compensation. |
Dated: 23rd May 2024;
Workplace Relations Commission Adjudication Officer: David James Murphy
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