The Equality Tribunal
Employment Equality Acts
(Represented by Hennessey & Perrozzi Solicitors)
- V -
Emerald Facility Services
(Represented by Management Support Services (Ireland) Ltd.)
File reference: EE/2006/211
Date of issue: 05 August 2009
Keywords - Employment Equality Acts – Discriminatory Dismissal – Failure to provide Reasonable Accommodation – Disability – Prima Facie case
1.1 This dispute concerns a claim by Mr Noel Flynn that he was subjected to discriminatory dismissal by Emerald Services Ltd on the grounds of disability in terms of section 6(2) of the Employment Equality Acts and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 22 June 2006 under the Employment Equality Acts. On 27 May, 2008, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to the undersigned Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were sought and received from the parties. As part of my investigation, I proceeded to hearing on 24 February 2009. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he started employment with the respondent in October 2002 as a contract cleaner. In or about June 2005, the complainant was issued with a written warning from the Area Manager in respect of being drunk at work. Prior to this, the complainant submitted that he had been “upbraided and cautioned on a number of occasions by his supervisors”. The complainant was given verbal warnings by his supervisors about the smell of alcohol and was told that a different facilities company had made complaints about him.
2.2 The complainant submitted that he told his two supervisors that he had a problem. He submitted that he repeatedly told the respondent that he had drunk too much and this was why he smelt of alcohol. The claimant further submitted that by this time he was visibly showing signs of alcoholism – a flushed face and shaking hands.
2.3 The complainant submitted that notwithstanding the plain signs that he was having severe difficulties coping with substance abuse, the respondent did not take remedial action but instead resorted to disciplinary action.
2.4 The complainant submitted that on 9 December 2005, he attended work suffering the effects of alcohol excess. He was told to go home because he smelt of alcohol and was still under the influence. He received a call from his manager telling him not to come in to work for the following two days. When the complainant attended work on the Monday, he found two co-workers doing his work. He rang his supervisor who asked him to leave the workplace and return in the afternoon when the Area Manager would be there. The Area Manager informed him that he had been getting calls about the complainant being drunk. When asked by the Area Manager, the complainant admitted that he had been suffering from the effects of alcohol. The complainant submitted that the respondent was clearly not satisfied with his responses, asked for his security pass and keys and told the complainant that he would get a final warning letter sent to him in writing.
2.5 The complainant submitted that he was therefore dismissed in circumstances where no effort was made on the part of the respondent to engage with the complainant’s difficulties with alcohol. He submitted that he received his P45 on 3 January 2006 but did not receive his final payslip or final warning letter.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submitted that the complainant worked for it as a cleaner at Dublin Airport and was one of a number of employees assigned to that contract. The respondent submitted that the complainant confirmed that he had received a written warning from the Area Manager in June 2005, and had received cautions previously from his supervisors.
3.2 The respondent denied being advised by the complainant that he had an alcohol problem or that it formed the view from his demeanour that he was an alcoholic. The respondent contends that on occasion, employees do attend work smelling of alcohol, but it would not immediately signify that an employee had a problem with alcohol.
3.3 The respondent submitted that on 9 December 2005 one supervisor received a phone call from another supervisor asking him to escort the complainant off-site as the client had reported that the complainant was drunk at work and that it wanted him removed and not allowed back onto the site again. Although the respondent could not find the complainant when he came on site, it informed the complainant by phone that he should not report to work on the Saturday or Sunday.
3.4 The respondent submitted that on the Monday morning, it was explained to the complainant that there was to be a disciplinary meeting in the afternoon regarding the incident of the previous Friday and that he could be accompanied by an representative or colleague. At that meeting the complainant confirmed that he had been drinking all night, finishing at about 6.00 a.m., reported late for work, and was still drunk when he reported to work. The respondent further submitted that the complainant did not make any reference to having an alcohol dependency problem
3.5 The respondent submitted that as the complainant was no longer working on that site, he was requested to return his airside ID card. It was also explained to him that he would be relocated to a different site and the respondent offered him the option of a full-time position on a site in Clondalkin. The respondent submitted that the complainant declined the offer as it would be too far for him to travel. It was further submitted that the respondent would continue to seek an alternative full time position for the complainant. An additional site was also suggested but the possibility of employment there did not materialise.
3.6 The respondent submitted that the complainant requested his P45 himself and therefore was not dismissed.
3.7 The respondent submitted that the complainant is contending that there is an absolute obligation upon the company to provide reasonable accommodation for him because he was suffering from a disability and that disability was alcoholism. It further submitted that at no time did the complainant ever indicate to any member of the management that he was suffering from any form of a disability. The respondent submitted that it recognised that it has a responsibility to facilitate employees with reasonable accommodation where that person is suffering from a disability, however, for that to happen it is essential that the company is aware that a disability exists in the first place.
3.8 The respondent denied that the complainant ever informed it that he was suffering from a disability
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent dismissed Mr. Noel Flynn on grounds of disability, in terms of section 6 of the Employment Equality Acts, and contrary to section 8 of those Acts.
4.2 In the course of the hearing, the respondent raised the issue of timelimits and queried whether this matter was outside the scope of the timelimits envisaged by Section 77 of the Acts. During the hearing the complainant gave evidence that he got through Christmas and then requested his P45. Although the respondent disputed this version of events, no convincing alternative timeline was offered. On the balance of probabilities, I accept that the date the complainant was notified of finishing up with the company was when the P45 was issued (dated 30 December 2005). As 26 June 2006 was the date on which the complaint submitted his complaint form to the Tribunal, I find that the complaint falls within the timeframe envisaged under Section 77 of the Acts.
4.3 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.4 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc  IRLR 246, stated that “… the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent …”. In considering evidence submitted by both the complainant and the respondent, a number of points emerge:
· On 9 December, 2005, the complainant was told to go home from work because he smelt of alcohol. This arose following a complaint from the respondent’s client.
· The complainant received a call from his manager telling him not to attend work on the following two days.
· On the Monday thereafter, the complainant was requested to attend a disciplinary meeting that afternoon and that he was allowed to bring a representative if he desired.
· The complainant attended the meeting where he was informed that the client did not want him working on the site again and was requested to return his ‘airside ID card’.
· The complainant was offered work on an alternative site but declined the offer as it did not suit him.
· The respondent indicated that it would keep trying to find something else, and suggested one location, but an anticipated vacancy did not arise.
· Within three weeks of the disciplinary meeting, the complainant requested his P45 in order to ‘regularise his social welfare entitlements’ and the employment relationship came to an end.
4.5 During the course of this investigation, the complainant stated that he suffered from a disability in that he suffered from alcoholism. I consider that the complainant is covered by the disability ground because I am satisfied that he did, in fact, suffer from alcoholism but having considered the evidence presented to the Tribunal at the oral hearing, I am further satisfied that he had never stated this to the respondent or asked for reasonable accommodation to be granted.
4.6 Having considered this matter and the manner in which the employee-employer relationship came to an end, I am satisfied that there is not sufficient evidence to find that a dismissal took place. Accordingly, the complainant has not established facts upon which he can rely in asserting that he suffered discriminatory treatment. Therefore this complaint fails.
5.1 I have investigated the above complaint and make the following decision in accordance with section 79(6) of the Employment Equality Acts. The complainant has not established a prima facie case. Accordingly, I conclude this investigation and find against the complainant.
05 August 2009