EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012 - 132
A Worker (represented by O'Callaghan Daly, Solicitors)
File References: EE/2010/332
Date of Issue: 22nd October 2012
1.1. The case concerns a claim by a worker, Ms A, that her employer, Mr B., discriminated against her on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2008, in terms of harassment, and also victimised her contrary to S. 74(2) of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 29 April 2010. A submission was received from the complainant on 8 October 2010. No submission was received from the respondent. On 21 August 2012, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 1 October 2012. The respondent did not attend the hearing of the complaint. The respondent was written to by regular and registered post first by the Equality Tribunal secretariat, in respect of a planned hearing on 14 September 2012, but both of those letters returned to the Tribunal. I then postponed the hearing and wrote to the respondent again, on 17 September 2012, by registered and regular post, at two different addresses supplied by the representative of the complainant, to notify him of the hearing date on 1 October 2012. The registered letters were returned to the Tribunal as "not called for", however, the letters sent by regular post to either address were not so returned. I am therefore satisfied that every effort has been made to notify the respondent of the hearing of the complaint, and to give him the opportunity to defend the case.
2. Summary of the Complainant's Written Submission
2.1. The complainant suffers from depression. She had been employed by the respondent since just before her 16th birthday. She trained and qualified as a hairdresser and continued in the respondent's employment in that role.
2.2. In March 2009, her condition deteriorated to the point where she needed to avail of in-patient hospital care for two weeks. The complainant returned to work immediately after her discharge, and continued to take medication thereafter. She made her manager aware of her condition.
2.3. When her manager left on maternity leave in the summer of 2009, the complainant had more direct contact with the respondent. She was also appointed as interim manager, but notes that she did not receive a top-up in salary for taking on these duties.
2.4. The complainant submits that the respondent undermined her authority as interim manager through excessive supervision, and by interfering with her decisions with regard to staff rotas and similar.
2.5. The complainant states that on one occasion, the respondent accused the complainant wrongly of being ill with swine flu and passing it on to clients. According to the complainant, the respondent was not appeased when she produced a certificate from her GP the next day, to confirm that she did not suffer from swine flu.
2.6. On 29 October 2009, the respondent approached the complainant and told her that he did not want her on the shop floor any longer. He stated that he had been talking to the complainant's colleagues and had thus learned that the complainant was taking medication to control her depression. The respondent said to the complainant that he did not want her "doped out of it" on the shop floor and sent her home. The next day, the respondent terminated the complainant's employment; however, this is subject to separate proceedings under the Unfair Dismissals Acts and not before this Tribunal.
3. Summary of the Respondent's Written Submission
3.1. The respondent did not engage with the Tribunal in any way.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was harassed on the ground of her disability, and/or victimised within the meaning of the Acts.
4.2. The complainant gave direct evidence during the hearing. In her evidence, she stated, and then expressly confirmed, that it was on 28 October 2009, that the respondent made the comment that he did not want her to be "doped out of it on the floor". As her complaint was received in the Tribunal on 29 April 2010, this brings her complaint outside of the time limits specified in S. 77(5) of Acts. As no application for an extension of time was received at any point of the investigation, either, I find accordingly that I lack jurisdiction to investigate this matter.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that I lack jurisdiction to investigate whether Mr B harassed Ms A on the ground of her disability contrary to S. 14(7) of the Acts, because the complaint was brought outside the time limits set down in S. 77(5) of the Acts.
22 October 2012