Complainant

Respondent

Anonymised Parties

A worker

A retail Goods provider

Representatives

Peter Dunlea   Peninsula

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-00060736-001

24/12/2023

This hearing was conducted over the course of two days. The parties met in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

It should also be noted that the Complainant and Respondent witnesses were all agreeable to giving a formal affirmation that all evidence provided would be truthful. The giving of false statements or evidence is an offence. This is in line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to direct that all parties giving oral evidence before me, to swear an oath or make an affirmation as may be appropriate.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment 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…”. 

This matter came before the WRC on foot of a complaint set out in a workplace relations complaint form which issued out of the WRC on the 24th of December 2023.

This hearing had to be given a second day to complete evidence. In particular the Complainant was obliged to provide the Adjudication process some evidence as to her disability as this was a material part of the case the Complainant was presenting. Relevant medical records were provided in this regard.

The Complainant was not represented and made her own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the submission already outlined in the Workplace Relations Complaint Form. On the 3rd of March 2024 the Complainant forwarded supplemental documentary evidence in support of the Complainant’s case. This included a four-page statement prepared by the Complainant.  Additional evidence in the form of sworn evidence was also given. No objection was raised to any of the materials relied upon by the Complainant in making her case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that she was dismissed for a discriminatory reason which was that she had a disability.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had representation at this hearing. The Respondent provided me with a written submissions dated 22nd of March 2024. I have additionally heard from a number of witnesses for the Respondent including a Manager (G) and a company Director (T).  No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent was questioned by the Complainant.

The Respondent rejects that there has been a Discriminatory Dismissal and asserts that the Complainant was let go as not being a good fit for the company and /or not performing in line with expectations. In particular, the Respondent also emphatically denies any knowledge of any alleged disability in the lifetime of the employment.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to the evidence adduced in the course of this two days of hearing.

The Complainant commenced her employment with the Respondent company on or about the 6th of March 2023. The evidence demonstrated that the Complainant had initially done really well in this workplace. It is noted, for example, that the Complainant even got a pay raise while still in her probationary period. However, the Complainant stated that she was disappointed when she realised that she would not be getting very much Human Resource experience which was something that had initially attracted her to this position. It turns out that the Respondent was more inclined to outsource it’s HR issues and subscribed to a well-known Consultancy firm for this purpose.

The Complainant’s Line Manager says that she started to detect a falloff in the Complainant’s performance. The initial impression created by her was not being followed up. The Line Manager was perturbed to note that the Complainant was being unacceptably short and/or rude when on the phone with customers. This, she said, was a worrisome development when the Respondent company relies so heavily on its reputation for excellent service and after service. The Respondent Guarantee’s it’s work so the after service is as much a part of the sales process as the initial sale.

The Respondent gave further evidence of the complainant unsettling co-employees with her dissatisfaction in the workplace though these allegations were all denied by the Complainant.

Things came to a head in the week beginning the 4th of December 2023. The Complainant was being Managed by one of the Co-Directors (M) this week as her own line Manager and the other co-director were away from the workplace for a week. This appears to the first time that the Complainant was being managed by M. It seems that M and the Complainant did not hit it off for that week. The Complainant gave her account of how difficult this week had been for her. M seems to have had or seems to have used very little by way of people skills.

It seems clear that M became increasingly frustrated and annoyed with the Complainant and that he seemingly perceived the Complainant to be unmanageable and insubordinate – traits the Complainant emphatically denies.

On the return of her usual line Manager, the Complainant was hopeful that the toxic atmosphere that she believed she had been subjected to in the previous week could be put aside. I am satisfied that the complainant did inform her line Manager of the behaviour on the part of M which she believed to have been unacceptable. I am however, not convinced that, in the course of this conversation, the Complainant also made it known that she suffered with a disability that was triggered by stressful situations. I therefore do not accept, on balance, that the for the purpose of any of the actions thereafter taken, that the Respondent knew or ought to have known that the Complainant had a disability.

From the evidence it seems pretty clear that M had formed a view of the Complainant and had determined that the Complainant was not a good fit for this workplace. M thereafter pushed to have the Complainant’s employment terminated. I absolutely agree with the Complainant that M behaved unreasonably and arrogantly. It is regrettable that nobody else in the Respondent company stood up for the Complainant and instead the Complainant’s employment was terminated with payment in lieu of Notice. In particular it seems to me that the Line Manager and the second Co-Director seemed more concerned with placating M and protecting their ongoing professional relationship with M than with ensuring that the complainant was provided with a fair hearing and fair procedures.

I have no difficulty in acknowledging that the Complainant was subjected to a summary dismissal with no opportunity given to defend herself or even make sense of the spurious reasons given for the abrupt termination. This decision was made and executed without sentiment. Had the Complainant had 52 weeks of service under her belt, we would be dealing with a very different redress outcome. However, the Complainant does not have the required service which would have allowed her the protection afforded under the Unfair Dismissals legislation. It is further noted that the Complainant did not look to have this matter addressed through the Industrial Relations option.

I have to consider this dismissal in light of the claim that the Complainant was dismissed by reason of a mental health issue.

I confirm that the Complainant went to the trouble of having two of her medical advisors provide the WRC with written confirmation of the Complainant’s medical condition and the fact of a disability is not in doubt. The difficulty as I see it is the failure to provide evidence corroborating the assertion that the Complainant told her line Manager and which assertion is completely denied.

The Respondent led a comprehensive submission on this point as follows:

The respondent submits that they only become aware of any potential disability following her dismissal and as such at no point during the complainant’s employment did they possess knowledge that they may have a disability of any kind and as such they could not have discriminated against the complainant on the grounds of disability.

The respondent refers the court to the decision in Employer v Worker ADE/19/11 where a worker claimed to have been dismissed because of their disability. The court noted that:

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

The respondent also refers to Connacht Gold Co-Operative Society – v – a Worker EDA0822 ADE/08/18, where the claimant alleged the respondent dismissed on the basis of his disability. The employer was found not to have discriminated against the employee where they had no knowledge the employee was suffering from a disability. It was noted that there is an objective test for the state of knowledge required of an employer in order for an employee to infer less favourable treatment on the grounds of disability.

This decision is in line with a decision of the House of Lords in Lewisham London Borough Council v Malcom [2008] UKHL 43 where it was established that in order to establish unlawful discrimination on grounds of disability, it is necessary that the alleged discriminator had knowledge of the claimant’s disability.

Moreover, the respondent refers to the decision in A Complaint v A Food Processing Company [2006] DEC-E2012-064 where it was established that mere difficulties experienced by an employee are not sufficient to deem an employer is aware of a disability.

The respondent respectfully submits that there was no clear evidence offered by the complainant that indicated she suffered from a disability prior to her dismissal.

In the instant case, the respondent was not aware of the complainant’s disability prior to the dismissal. There were no indications or signs to alert the respondent to enquire about the claimants need for reasonable accommodation.

The respondent respectfully submits that the claimant has failed to establish a prima facia case of discrimination to show that she was:

a) Discriminating against her on account of a disability,

b) That her employer failed to provide reasonable accommodation for her on account of her disability.

In the circumstances, I find that there is no evidence to suggest that the Employer knew or ought to have known that the Complainant suffered with a disability and it follows therefore that the justifications for dismissing the Complainant (whilst spurious and reprehensible) were not grounded in any knowledge of a disability.

The Complainant has therefore failed to make out a Prima Facie case from which an inference of discrimination may be drawn.

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

CA-00060736-001 – The complaint fails in circumstances where the Complainant has not made out of Prima facie case of discrimination.