DECISION NO: DEC-E/2012/070
(REPRESENTED BY REIDY STAFFORD - SOLICITORS)
GREENLINE PALLETS LTD
File No: EE/2009/453
Date of issue: 8 June, 2012
Headnotes: Employment Equality Acts 1998- 2008 - sections 6 & 8, discriminatory dismissal - disability.
This dispute involves claims by Mr. John Whyte (hereafter called "the complainant") that he was dismissed by Greenline Pallets Ltd (hereafter called "the respondent") in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998 - 2008 and contrary to section 8 of those Acts.
2.1 The complainant, who is profoundly deaf, commenced employment with the respondent as a General Operative in late April, 2009. He states that his work performance was never raised with him by, or on behalf of, the respondent during his period of employment. He adds that his employment was terminated by the respondent on 18 June, 2009, less than two months after he commenced employment with it and asserts that his dismissal amounts to discrimination of him on grounds of disability contrary to the Acts. The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 8 July, 2009. In accordance with his powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 2 December, 2011 - the date the complaint was delegated to me.
2.2 Both parties had filed submissions with the Tribunal in advance of the complaint being delegated to me and both had legal representatives on record. On 14 December, 2011 I informed these legal representatives (in writing) of the Hearing arrangements. On 1 February, 2012 the solicitor on record for the respondent advised that the respondent had ceased trading and that his firm was no longer instructed in the matter. He furnished the Tribunal with postal details it has previously used for corresponding with the respondent and written notification of the Hearing arrangements was sent to this address by registered and ordinary post. The registered letter was returned to the Tribunal marked "gone away". Subsequently, the Tribunal was contacted by a firm of Accountants acting for the respondent. It confirmed that it was on notice of the Hearing, that the respondent had ceased trading in September, 2011 and would not re-commence trading and that the respondent would neither be present nor represented at the Hearing. I was satisfied that the Tribunal had made all reasonable efforts to put the respondent on notice of the Hearing arrangements and proceeded to Hearing on 15 February, 2012. The complainant and his representative attended. The respondent neither attended nor was it represented at the Hearing. However, as the respondent had filed a submission with the Tribunal the contents of same was put to the complainant (as necessary) in the course of my investigation of the complaint.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is profoundly deaf, states that he commenced employment with the respondent as a General Operative on 29 April, 2009. He adds that he secured the employment with the assistance of personnel in the Kildare Coalition of Supported Employment Ltd. ("KCSE") - which is an organisation established to promote employment opportunities for people with disabilities in county Kildare - and FÁS. He further states that he was never given any formal training or instruction of the duties he was to perform and merely followed his supervisor and colleagues' demonstrations of the tasks involved and relied on lip reading. The complainant states that during his period of employment the issue of his "poor performance" was never raised with him adding that Ms. X - an employee from KCSE - informed him on one occasion that he was doing well. The complainant rejects the respondent's assertions in its submission that (i) his hourly output "was about 20% of his colleagues", (ii) he refused to carry out certain instruction or tasks during his employment and (iii) he attended a meeting with representatives of the respondent and KCSE on 8 June, 2009 during which his productivity and performance was discussed. He adds in respect of this last issue that he did not even know one of the individuals named as being in attendance.
3.2 The complainant states that at around 4.45pm on 18 June, 2009 Mr. B called him and asked to speak with him. The complainant adds that Mr. B told him "he was too slow" and they were letting him go. He further states that Mr. B offered no further explanation for his dismissal and just handed him a cheque and said goodbye. The complainant states that his deafness was never mentioned as an issue by either the respondent or Ms. X during his employment although he felt they were worried about health and safety issues.
3.3 It is submitted on behalf of the complainant that the respondent never raised any concerns with him about his performance and gave no indication to him that his position was at risk. It is further submitted that such treatment falls well below the standard that one might expect from a reasonable employer and seeks to rely on a number of authorities in this regard . In addition, it is argued on behalf of the complainant that this alleged lack of engagement was as a result of his disability and submits that such treatment is unlawful in terms of the Acts. In this regard the complainant seeks to rely on the Decision of this Tribunal in Kehoe v Convertec Ltd and the Determination of the Labour Court in McGrory Scaffolding v A Worker
4. SUMMARY OF RESPONDENT'S CASE
The respondent neither attended nor was represented at the Hearing. However, it had filed a submission with the Tribunal in response to the complainant's submission. This submission was copied to the complainant's representative at the time of receipt and the contents of same were put to the complainant by the Equality Officer (as necessary) in the course of the Hearing. The complainant's representative also had the opportunity to put whatever elements of this submission it wished to its client.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998 - 2008 and contrary to section 8 of those Acts. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998- 2008 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 that he was treated unlawfully contrary to the Acts. 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. If the complainant does not discharge the initial probative burden required his case cannot succeed.
5.3 The complainant's evidence at the Hearing was that Mr. B approached him on the evening of 18 June, 2009 and informed him the respondent was terminating his employment because "he was too slow". This is entirely consistent with the contents of the respondent's submission furnished to this Tribunal and the response to the Statutory Questionnaire (pursuant to section 76 of the Acts) which was provided by the respondent's representative to the complainant's representative on 6 August, 2009 - a copy of which was opened to the Tribunal. However, the complainant disputes other elements of the asserted interaction between him and the respondent about his performance and I accept his evidence on these matters. I further accept the arguments advanced on the complainant's behalf that his dismissal might be unfair and unreasonable and falls well below the standard that one might expect from a reasonable employer. However, this is not a complaint of unfair dismissal, but one of discriminatory dismissal and consequently the authorities cited on behalf of the complainant on this point have no relevance to the instant case.
5.4 In addition, whilst the respondent's explanation for the dismissal of the complainant may be subjected to criticism, this does not mean that it should be rejected. This was made clear in Mulcahy v Waterford Leader Partnership Ltd when the High Court (O'Sullivan J), in dealing with an appeal on a point of law from a decision of the Labour Court to accept an explanation for the employee's dismissal which the Labour Court had acknowledged to be unfair and unreasonable, stated as follows:
"I do not, in fact, agree that it is erroneous either in law or in logic to say that because a person offers a bad reason this necessarily means that the bad reason is not the real one. Rather that seems to me to be a commonplace observation: one may well truly give as one's reason for dismissing an employee the fact that one doesn't like her. This 'bad' reason may well be repugnant, precisely because it is the real reason. In my view that is all the Labour Court in saying in the sentence under analysis.".
5.5 In the course of the Hearing the complainant stated that his disability was never mentioned to him to be a source of concern for the respondent by either the respondent itself or any person involved with KCSE. Moreover, he also stated that he just had a feeling his disability was a factor in the respondent's decision to terminate his employment. In my view this merely amounts to an assertion on the part of the complainant. As stated at paragraph 5.2 above the statute places the initial probative burden of establishing that his dismissal was tainted by the impugned discriminatory ground on the complainant. In Melbury Developments v Arturs Valpetters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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 speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
5.6 The parties agree on the thrust of the reason given by the respondent for the termination of the complainant's employment. Whilst this reason may be unfair and unreasonable I cannot conclude that it is discriminatory. Moreover, the complainant has failed to present any evidence that would support his assertion that the respondent's perception of him was linked to his disability. In light of my comments in this and the preceding paragraphs I find, on balance, that the complainant has failed to establish a prima facie case of discriminatory dismissal contrary to the Acts and his complaint cannot therefore succeed.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of disability contrary to the Acts and his complaint cannot therefore succeed.
8 June, 2012