Complainant

Respondent

Anonymised Parties

A Worker

A Company

Representatives

Tom O’Donnell BL

Barry O’Mahony BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00064229-001

21/06/2024

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

CA-00064229-002

21/06/2024

In or around the end of October 2023, the complainant entered into a verbal agreement for the sale of fuel from his yard for the respondent. Towards the end of December 2023, he attended a rehabilitation centre for alcohol addiction. Before he attended treatment, his brother phoned the local manager of the respondent and informed him that he did not want the complainant working from the yard. The local manager and senior manager met with the complainant on 18th December 2023 to end the working arrangement. It was later agreed that the complainant would continue up to the end of the year to wind up matters. The complaint is that he was discriminated against due to his disability (alcohol addiction) when he was dismissed from his employment.

The respondent representative submitted a preliminary issue that it was a commercial arrangement and that the complainant was not employed as an employee. Without prejudice to the preliminary issue, the respondent denies in full that discrimination occurred.

Summary of Complainant’s Evidence

The complainant described the location of the yard where he worked and that it had been in the family for three generations. He had a friendly relationship with the local manager and when either was running short on goods they would help each other out.

For personal reasons, he discussed selling the business to the respondent. He forwarded accounts although no sale was agreed. He then raised being a PAYE worker, and this was discussed with the local manager.

They agreed verbally that he would be paid €20 per hour, for a 40 hr week. The hourly payment included operating from his own yard. The busy season was April to May and when the first season was completed the arrangement was to be reviewed. He said he expected to do other work with the respondent from their premises on a reduced hourly rate of €13.50 into the future. It was agreed he needed the odd day to do other work which he was committed to, outside of the busy fuel season. He had sold his delivery truck and all supplies were delivered to his yard by the respondent. He was provided with a card machine for payments and the local manager would arrive on a daily basis to pick up the takings.

He confirmed that the description of his role as per the respondent submission was accurate although he was never asked to issue a formal lease for the use of his yard.

He said the respondent did not open Sundays. Occasionally, he would open Sundays to sell christmas trees and wreaths. He said these were the respondent’s stock.

He confirmed that he started on 23rd September 2023 and it went well until he had a hernia complaint. He went to doctor in early November 2023, was examined and was prescribed medication. As he needed to have a scope in the local hospital he did some deliveries that morning with the local manager who dropped him to the hospital. He was back in the yard at 12 oclock that day and the local manager was aware of his hernia issue.

Around this time, he had lost weight and he could not easily swallow food. He said it was easier for him to eat after having a few drinks. He was absent the odd day although the local manager did not raise formally with him.  

Around this time, he was encouraged to seek treatment for alcohol addiction by his brother and his brother’s wife. He decided to attend rehabilitation. In or around this time, he texted the local manager to inform him he was going for treatment. He said the local manager knew he was drinking as he would have seen him on at least one occasion in the yard under the influence of alcohol.

He attended rehabilitation on 12th December 2023 for a 28 day programme. He told the local manager that the normal person for cover was not around. The local manager put up a sign on the yard gate to redirect customers.

He left the rehabilitation programme on 16th December 2023, as he was concerned about his job and he was not comfortable in the treatment centre. He said the detox had gone well and he felt much better after 4 days.

After leaving treatment, he left a message on the local manager’s phone that he would open the yard on Monday. The local manager told him that he was not to open the yard and said that ‘if he had a drink problem last week then he had one this week.’ A meeting was held with the two managers on the Monday. He had met the senior manager previously although all his dealings were through the local manager. At this meeting, he was informed that the arrangement was being terminated due to his brother’s phone call alerting them of an issue with the yard. He said he believed he was sacked due to his drink problem and due to what he was told by the local manager that ‘if he had a drink problem last week then he had one this week’.

At the meeting, at his request, he was allowed to continue working for the coming days to facilitate customers with fuel up to Christmas. He was later handed a letter of termination on 2nd January 2024.

As there was still stock in the yard, it was agreed that he would sell the stock and pay the respondent as he sold it. In or around 4th January 2024, he asked the local manager to reconsider the decision to terminate the working relationship. Although it was raised with the senior manager, there was no reconsideration of his position. All the stock was cleared on 24th January 2024.

Leading up to 24th January, as he owed the respondent monies for deliveries he put the local manager on the insurance of his recently purchased truck as a quid pro quo. He said he is now still working from the yard selling garden sheds and working for some days in construction.

He was offered to be paid holiday pay although he refused this payment based on advice he received. He had worked for three months and had not been given any holidays. He said he was not given a contract of employment with his terms and conditions of employment.

In relation to the phone call to the respondent from his brother, he said there was no family dispute on the use of the yard. In March 2024, he asked his solicitor to send a letter to his brother so there would be no confusion over his right to work from the yard. This was important if another firm wanted to work with him from the yard in the future.

Under cross-examination, he was asked about his business dealings, before, during and after the relationship with the respondent. It was put to him that the relationship was a commercial one and was solely for the winter season. He replied that he was an employee and a PAYE worker. The materials were all supplied and he did no other substantive work other than with the respondent over the 3-months. He expected the situation to be reviewed after the first season and he would continue to work for the respondent.

On his health issues, he confirmed that he did not submit medical information to the respondent. He said the local manager was aware of his hernia complaint and his attendance for treatment. He confirmed that on one occasion he did not open the yard and this was raised with him by the local manager and he replied ‘what day was yesterday’.

On the agreement of €20 per hour, it was put to him that the local manager would deny it would revert to €13.50 if he moved out of the yard.

He was asked about his other occasional work and he replied that the local manager was fully aware of this. It was put to him that insuring the local manager on his vehicle was insignificant as the respondent company had their own transport vehicles.

It was put to him that he opened the yard at his own discretion. He replied that the local manager was always aware of when the yard was open as he collected the takings.

It was put to him that the local manager was not aware of his alcohol addiction until just before he attended treatment. He was asked why he left treatment early as the discharge documents did not mention a return to work. It was also put to him that the local manager will give evidence that he did not make the statement ‘if you had a drink problem last week, you have one this week.’

It was put to him that the reason for the termination was clearly explained at the meeting and was followed up by a letter explaining the reason as the family dispute about the yard.

He was asked about the phone call from his brother in December 2023 to the respondent and the solicitors letter in March 2024 warning his brother to keep out of his affairs. He replied that there was no family dispute and he did not discuss the issue with his brother too much afterwards.

Summary of Complainant’s Brothers Evidence

The complainant’s brother gave evidence that he was aware of his employment with the respondent as he wanted to leave self-employment. He confirmed that he rang the local manager in December 2023 as he did not want his brother or anyone else to have an incident in the yard. He understood his brother would be moving out of yard after one season. He did not ask for his brother to get sacked and this was not the reason for his phone call. He said he was not angry on the call and he agreed with the local manager that there would be a wind down of the use of the yard up to the end of the year.

Himself and his wife were concerned about his brothers drinking and encouraged him to attend for treatment. He did not respond to the letter from his brother’s solicitor and it was not discussed with him too much afterwards.

Under cross-examination he was asked why he made the phone call to the respondent at that time as his brother had agreed to attend a 28-day treatment programme. He replied that right up to the day before, he did not know if his brother would attend the treatment.

Despite the phone call and solicitor’s letter, he disagreed that there was a family dispute about the ownership or use of the yard. He thought his brother was permanently employed and would be working elsewhere with the respondent after moving from the yard.

Summary of Closing Submission

It was submitted that although there was a lack of formality, there was still a verbal employment agreement. The important aspect was what was happening in practice which matched the verbal agreement. The complainant paid tax and was set up on the payroll system. It was submitted that he was dismissed due to his disability (alcohol addiction).

Summary of Local Manager’s Evidence

The local manager outlined how he knew the complainant. The respondent decided not buy his business as his customers were mostly walk-ins and there would be no long term benefit to the business.

There was a verbal agreement approved by the senior manager that the complainant would provide his yard and work not more than 40 hours per week. This was for the first season and then it would be reviewed. He understood the complainant owned the yard.

He confirmed that he dropped the complainant to the hospital for a scope. He said there were never any medical reports submitted to him by the complainant.

He was aware the complainant was absent occasionally due to the orders and takings.

On 31st October, 2023, there was an absence and when he raised this with complainant he replied ‘what day was yesterday’.

On 23rd November, 2023, he was to collect a christmas tree from the yard. He met a stranger in the yard who had no float or card machine. He was asked to buy cigarettes for the complainant and he left them in the yard. He said he did not meet or see the complainant on that occasion.

He was unaware of the complainant’s drink problem until a week or two before the treatment programme. Around this time, he received a phone call from his brother who was angry. His brother informed him that the complainant did not own the yard and he did not want him working from there. As his brother calmed down he then agreed to allow things to wind down until the end of the year.

On 12th December 2023, when the complainant went into treatment, there was no cover available. He put up a sign to redirect customers which had the complainant’s business name.

He made the senior manager aware of his brother’s phone call about the use of the yard. He said this was the reason why the working relationship ended, and that it did not relate to the complainant being in treatment.

He was surprised  to pick up a message that the complainant had left treatment early and he intended opening the yard that Monday morning.  He had a discussion with the senior manager. It was decided that he should be told not to open and that a meeting would take place. He denied saying to the complainant that ‘if he had a drink problem last week, he had one this week.’

He said the complainant was informed at the meeting that the arrangement was being terminated as the senior manager did not want to get involved in a family dispute over the use of the yard. It was agreed that he would continue up to Christmas to sell stock. On behalf of the complainant, he asked the senior manager to reconsider the termination. The decision remained and he gave him a termination letter written by the senior manager in early January 2024.

As there was still €3,500 worth of stock, the complainant was indecisive as to whether he was continuing in business. Eventually, it was agreed he would continue to sell the stock and pay the respondent as he sold it.

On the holiday pay, it was not sorted out as the complainant did not accept payment.

There were payments for deliveries outstanding as the complainant had no truck at this time. He agreed to go on the complainant’s truck insurance although he said the cost was insignificant.

He said the complainant did not respond to the termination letter.

Under cross-examination the local manager confirmed the verbal agreement with the complainant and that he was put on the payroll system. He confirmed that it was agreed with the senior manager that the complainant would receive €20 per hour.

It was put to him that outside of the ‘employment’ all other payments were charged to him by invoice which indicated he was in employment for the relevant period. He confirmed the respondent supplied all the materials and card payment system. He accepted that he collected the takings daily. It was put to him that as a payment for holidays was discussed that this indicated an employment relationship.

He was asked whether he suspected that the complainant had a drink problem. He replied he was unaware until before he went for treatment. He did not meet the complainant when he went to the yard to collect the christmas tree.

When asked about his brother’s phone call, he said he was angry at first and his brother then agreed that the yard could remain open up to Christmas.

He denied making the statement that ‘if he had a drink problem last week then he had one this week’. He said the arrangement was for the winter season and that there was no discussion that he would revert to €13.50 per hour.

Summary of Senior Manager’s Evidence

The senior manager outlined the history of the business. He reviewed the complainant’s accounts and saw no added value in purchasing his business. He said the arrangement agreed was informal particularly as the fuel business was in decline. He understood the arrangement was to facilitate the complainant to exit the business. There was no prospect of the complainant becoming a staff member as he had no vacancies.

He was aware in or around the 8th December 2023 that the complainant had a drink problem and was going for treatment. He said this could have been before the local manager told him of the phone call from his brother on the use of the yard. He did not want to be involved in a family dispute and this was the reason for ending the arrangement immediately. He did not want to get between brothers arguing about the yard.

At the termination meeting, he shook hands with the complainant on the basis that he could continue till Christmas.

Under cross-examination, he confirmed the local manager dealt with the complainant on most matters. He approved the arrangement the local manager entered into with the complainant. He confirmed that there was no contract. He said the complainant was offered holiday pay and refused. The reason there was no contract was that the relevant person was on sick leave.

He said the complainant could have clarified the legal ownership of the yard yet he took no steps to clarify matters. He said the complainant was fully aware that this was the reason for the termination.

Summary of Closing Submission

It was submitted that the complainant was paid for his time and the use of the yard. The preliminary issue of whether there was employment status needed to be examined having regard to Revenue Commissioners v. Karshan [2023] IESC 24.

The decision to end the arrangement was due to the complainant’s brothers intervention on the ownership of the yard. The local manager supported the complainant and the ending of the relationship was not related to the complainant’s alcohol addiction. There was no medical documents submitted during the relationship with the respondent. The case law demonstrated that there was an onus on the complainant to put the respondent on formal notice of his disability.

Findings

Preliminary Issue

Status of Employment

I have reviewed the submissions made by the legal representatives and the testimony given over the course of the hearing.

The respondent case is that the complainant worked on a commercial/agency basis. He operated in business from his own yard before, during, and after the business arrangement with the respondent. There were prior discussions for the sale of the business to the respondent. Although there was no sale, the verbal agreement reached was that the complainant would be paid €20 euro per hour for a 40-hour week during the winter season. This arrangement included the use of the complainant’s yard. The complainant worked his own hours and there were no strict arrangements on opening or closing. When the yard was closed, a sign was erected which stated the complainants name as the business. The nature of the working arrangements indicated a commercial relationship.

The complainant’s case is there was a contract of service and he was an employee. The evidence indicated he was an employee as he was on the respondent’s payroll system. His payslips were put into evidence to show he paid tax as an employee. Some respondent communications indicated an acceptance that he was due holiday pay and was entitled to a contract. He sold the respondents materials and used the respondents card payment system. The respondent local manager collected the takings each day and the complainant did not engage in any other substantial business outside of this employment.

Based on the evidence, and the particulars of this case, I decide as follows:

·       There was remuneration for the work carried out by the complainant.

·       The complainant carried out the work himself. The respondent was aware of cover arrangements on all but one occasion over the relevant period.

·       The respondent exercised sufficient control over the complainant for the three months the yard was used. The takings were collected on a daily basis.

Along with the above reasons, it is well established that the term ‘contract of employment’ is given a broader meaning under the Employment Equality Act than other employment enactments.

For the reasons outlined, I decide he was an employee for the purposes of the Act.

I will proceed with the substantive complaint.

Findings

Discriminatory Dismissal Complaint

Discrimination for the purposes of this Act. 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) ……

(b)……

(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”).

It is accepted through case law that alcohol addiction is a disability. The complainant’s disability was not contested by the respondent. I am satisfied from the testimony that the respondent was only aware of the disability in or around 8th December 2023.

Section, 85A, into the Employment Equality Acts 1998 – 2015 states:

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The responsibility is on the complainant to show primary facts that he has been discriminated against because of his disability.

In Mitchell v Southern Health [2001] ELR 201, the ‘Mitchell’ test set out that a standard must be reached before a fact in issue can be accepted as proved. This was re-enforced by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, when commenting on the onerous nature of the burden of proof:

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The complainant outlined in detail the circumstances under which his employment was terminated. The employment was terminated shortly after the respondent became aware of him attending rehabilitation.  I find that the complainant has established sufficient facts from which discrimination may be inferred.

The case proceeded for the respondent to rebut the inference of discrimination.

Respondent Rebuttal

The respondent evidence was consistent and convincing that the reason the employment terminated was due to the phone call from the complainant’s brother. His brother raised what must have been a serious issue for the respondent in that there was a question over the ownership of the yard from where their products were being sold. As the rate of pay was tied to the use of the yard, a question about ownership would naturally cause the respondent to reconsider the arrangements. At this time, the complainant did not take any steps to alleviate the respondents concern about the legitimate use of the yard.

There was a conflict in evidence as to whether the local manager said ‘if you had a drink problem last week then you have one this week’. Even if these words or something similar was spoken, I do not see this as sufficient evidence that the employment was terminated due to alcohol addiction. Although the local manager mainly dealt with the complainant, it was the senior manager who approved the hiring and then the termination. The testimony during the hearing indicated a supportive relationship between the local manager and complainant. If spoken, any words, could have been a concern for his personal welfare considering he had exited treatment after a few days. I am satisfied from the consistent evidence of both managers that the inference of discrimination has been rebutted. I find the reason for the termination related to the use of the yard and not the complainant’s disability (alcohol addiction).   

For the reasons outlined, I decide the complainant was not discriminated against due to his disability when he was dismissed.

CA-00064229-001- Industrial Relations Act Complaint

This complaint was withdrawn.

CA-00064229-002- Employment Equality Act Complaint

I decide the complainant was not discriminated against due to his disability when he was dismissed.

Discriminatory dismissal, Disability