SECTION 77, EMPLOYMENT EQUALITY ACT, 1998
VALERIE CASCELLA AND ANTONIO CASCELLA TRADING AS
(REPRESENTED BY PATRICK J FARRELL & CO SOLICITORS)
- AND -
(REPRESENTED BY THE EQUALITY AUTHORITY)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr. Somers
1. Alleged unfair dismissal under S77 of The Employment Equality Act, 1998.
2. The Labour Court investigated the above matter on the 13th January, 2004. The Court's determination is as follows:
The Complainant’s Case:
The complainant had been employed with the respondent as a waiter from Sunday 24th March, 2002 until Saturday 6th April 2002. He stated that he is a diabetic. At the time he was employed, his employer made no enquiries concerning his state of health or medical history.
On the night of Friday 5th April, 2002 while working in the restaurant he became disorientated due to low sugar levels and had to be helped to the back of the restaurant where after taking some food and drink to restore his sugar levels, he recovered and was prepared to go back to his duties. He explained to staff what had happened to him and that it was because of his diabetes. His manager told him to go home and to return early the following day. Before the commencement of his duty the following day, his manager dismissed him.
He claims that when the disability was disclosed, his manager made an immediate decision to dismiss him, thus discriminating against him on the grounds of disability in breach of Section 6 (1), 8 (1) and 16 (3) of the Employment Equality Act, 1998 (the Act). The Complainant brought a claim for dismissal in circumstances amounting to discrimination under Section 77(2) of the Act.
The complainant contends that at recruitment his employer stated that he would commence on a one-week trial period, however, after two days he was told that he was to be made “full-time”.
He submits that he was never given any indication that a decision had already been made before 5th April 2003 to dismiss him nor was he given any indication that there was dissatisfaction with his work. He rejects any suggestion that he was given “verbal warnings” about his timekeeping.
The complainant stated to the Court that as a sufferer of diabetes for over 17 years he is completely familiar with the r�gime of taking medication and with coping with any signs of falling blood-sugar levels and has had no difficulty working while controlling his diabetes before. However, he was not given any opportunity to explain this to his employer, after the incident on 5th April 2002 and before his dismissal. Accordingly, he claims that he was not afforded the same treatment in relations to his conditions of employment as would be afforded to another employee. He maintains that he was dismissed without notice immediately following the discovery by his employer that he had a disability.
When the employer became aware of his disability, it is submitted that the employer’s obligations under section 16(3) of the Act, became operative and the employer was obliged under the provisions of Section 16(3)(b) of the Act to do all that was reasonable to accommodate the needs of the complainant. Section 16(3)(b) provides that an employer must do all that is reasonable to accommodate a person with a disability by providing special treatment or facilities.
The complaintant alleges that the employer made no attempt to ascertain the nature or characteristics of the complainant’s disability or the requirements if any, which he had for “reasonable accommodation”. In fact the proprietor of the restaurant told him on the day he was dismissed that his own brother in Italy “suffered from epilepsy and could not work in the business either” thereby indicating that he had no knowledge or interest in identifying the particular characteristics or requirements of the complainant’s specific condition.
A witness was called who had previously worked with the complainant at a number of major functions. The witness had himself worked previously with some of the major hotels in Dublin, had owned his own hotel and had lectured in Cathal Brugha Street. He testified as to the complainant’s competence and suitability whilst working with him as a waiter.
The Equality Authority, who represented the complainant, referred to a conversation they had with the respondent’s accountant following notification of the processing of this complaint by the Authority. It was submitted that in that conversation the respondent’s accountant said that the respondent thought that the complainant was epileptic and that under Health and Safety Regulations he would not be fit to work in a restaurant.
The Respondent’s Case
The respondent denies that it is guilty of any discrimination contrary to the terms of the 1998 Act. It is submitted that, as was their normal practice in the restaurant, the complaintant was not hired as a full time waiter but rather was on a two-week trial period for the purposes of establishing whether the employer would offer him permanent employment. He was not offered permanent employment because his timekeeping was bad, and his skills, which were not of the standard required by the restaurant. The respondent stated there had been a number of complaints during the trial period and that there had been cause to give him verbal warnings. Therefore, the respondent states that a decision had been made in the first week of his trial not to employ the complainant in a permanent position at the end of the trial period.
The owner of the restaurant, when giving evidence told the Court that she left the day-to-day management of the restaurant to the newly appointed manager whose duties involved taking responsibility for the hiring and management of floor staff. The manager had told the respondent that he had come to the conclusion that the complainant was not suitable for the job and that he proposed to inform him of that decision. The respondent agreed. However, she was of the view that the complainant should be allowed to finish out his trial period before being informed of the decision.
On 6th April, 2002 the manager informed the complainant of the respondent’s decision not to give him the position as a full-time waiter.
The manager no longer works with the respondent and is not available to give evidence.
Counsel for the respondent submitted that the complainant’s disability was not a factor in the decision not to employ him. Counsel added that had the complainant been found suitable and of the appropriate standard, his diabetes would not have affected his ability to do the job of a full-time waiter and that all necessary accommodation would have been made in terms of his diabetic condition.
Another employee of the respondent, who suffered from asthma, gave evidence of the concern which the respondent had shown towards her, the assistance which he had provided to her in dealing with her illness and of the respondents concern for employees’ welfare, particularly at Christmas time.
A number of witnesses called by Counsel for the respondent testified as to the complainant’s unsuitability for the job and indicated that they were aware, prior to the incident on 5th April 2002, that he was not going to be hired for the full time position at the end of his trial period.
Evidence was given that the respondent did not know of the complainant’s medical condition prior to 5th April 2003. Following his collapse that night, the respondent explained that the manager sent the complainant home and asked him to return early the following day. This was for the purposes of informing him that his trial was unsuccessful and he was not been given the position of full time waiter. It had been intended to do this at the end of his duty on Friday 5th April; however, due to his collapse the respondent explained that they felt it was more appropriate to do it the following day.
Upon being informed of the decision the respondent stated that the complainant became abusive and threatening both to the manager and the proprietor, to such an extent that it was necessary to telephone the Garda Siochana to report the matter. It was denied that the proprietor told the complainant that he had a brother in Italy who suffered from epilepsy and could not work in the business either. He did however, say that he had a brother with diabetes and was familiar with the condition. This was said to reassure him that his diabetes was not a factor in the decision not to hire him and to highlight that fact that the respondents had first hand experience of the condition and would not make a decision not to hire someone on the basis of diabetes. It is also denied that the proprietor told the complainant’s wife that the reason he was being fired was because he was a diabetic.
Court findings :
The Court was hampered in its investigation by the absence of one of the key person directly involved in the termination of the complainant’s employment, i.e. the manager of the restaurant. A signed statement was presented to the Court on his behalf.
Burden of Proof:
It is now the established practice of this Court in all cases of alleged discrimination under the Act to apply a procedural rule similar to that prescribed in the case of gender discrimination by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (S.I. No. 337 of 2000). Hence, where facts are established from which discrimination may be inferred it is for the respondent to prove the contrary on the balance of probabilities.
The Court is satisfied that the primary facts established in this case do raise an inference of discrimination. Consequently, the probative burden of establishing that the complainant’s dismissal was unrelated to the disability from which he suffered rests on the respondent.
It was submitted on behalf of the respondent that there was no dismissal as the complainant had not been hired for the position but rather was on a two-week trial, to ascertain whether or not he was suitable, for permanent employment. The respondent states that there was no dismissal, merely an expiration of a trial period.
Having considered this point the Court is satisfied that under the Act a dismissal occurs where there is a termination of a contract of employment. It was accepted by the respondent that the complainant was an employee for the purposes of referring a claim under the Act. The Court has no hesitation in accepting that the circumstances in which the complainant’s employment terminated amounted to a dismissal.
The respondent’s evidence was that the decision to dismiss the complainant was taken by the manager. On the basis of the uncontested evidence the Court accepts as a fact that the manager told the complainant that he was being dismissed because the business was not busy enough. However, the respondent admitted to the Court that this was not a true account of the reason for the dismissal but was the explanation proffered so as not to offend the complainant by telling him the real reason for the dismissal - his bad timekeeping, inadequate skills and general demeanor. The respondent must prove that the latter, and not the complainant’s disability, was the operative reason for the dismissal.
A number of witnesses called by the respondent testified that it was well known among the staff that the complainant was not working out and that he would not be rehired following his trial period. The difficulty arises with these witnesses's evidence is that when the complainant was in fact dismissed, the reason given did not in fact relate to his unsatisfactory performance of his duties. The Court does accept the complainant's evidence that no complaints were made to him about his performance.
Taking the evidence as a whole the Court cannot accept that the proximity in time between the complainant’s diabetic incident and his dismissal within 24 hours was mere coincidence. The Court is satisfied that the correct inference to be drawn from the facts established on the evidence is that the decision to dismiss the complainant was triggered by that incident. The Court accepts the complainant's evidence that no complaints or warnings were ever issued to him concerning his work performance and that at no stage was it indicated to him that his position was in jeopardy. In addition the evidence of the Equality Authority concerning the conversation with the respondent’s accountant raises serious questions about the respondent's attitude to the complainant as a result of his disability. While this evidence was refuted by the respondent as an unauthorised personal view by the accountant, the Court accepts that in that conversation he was responding on behalf of the respondent to the allegation made, and it does in the Court's view indicate that the complainant's disability was at least a factor in the decision to dismiss him.
An employer should ensure that an employee is given fair notice that the question of his or her dismissal for incompetence/incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision. No such provision was afforded in this case.
In the circumstances, the Court does not consider that the evidence advanced by the respondent is sufficient to discharge the probative burden placed upon it.
Decision of the Court
The Court is satisfied that the said dismissal constituted discrimination on the disability ground contrary to Section 8 of the Employment Equality Act, 1998.
The Court considers that the appropriate redress in this case is an award of compensation. Having regard to all the circumstances to the case, the Court believes an award of €4000 is appropriate and the respondent is ordered to pay compensation to the complainant in that amount.
Signed on behalf of the Labour Court
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.