THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2013 – 147
Mr Piergiorgio Picciau (represented by Mr Chris Short, B.L, instructed by Gary Mathews Solicitors)
Salthill Court Hotel Ltd (represented by Ms Rebecca McCann, B.L., instructed by Kennedy Fitzgerald Solicitors)
File References: EE/2011/273
Date of Issue: 12th November 2013
Keywords: Parallel proceedings – Right Commissioner decision under Unfair Dismissal Acts – S. 101(4)(b) – no jurisdiction
1.1. The case concerns a claim by Mr Piergiorgio Picciau that Salthill Court Hotel Ltd discriminated against him on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2008, in terms of dismissing him without notice two weeks after he sustained an injury in the workplace.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 7 February 2011. A submission was received from the complainant on 28 July 2011. A submission was received from the respondent on 14 October 2011. On 10 September 2013, 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 25 September 2013. Additional submissions were requested from both parties at the hearing and received on 3 October 2013 and from the respondent on 14 October 2013.
2. Summary of the Complainant’s Written Submission
2.1. The complainant worked for the respondent as a chef, starting on 7 February 2010. On 9 July 2010, he suffered an accident at work. He had been asked by a colleague to help move a very heavy dough mixer, so that the area underneath could be cleaned. The complainant estimates the weight of the machine at 120 kgs. Both men informed their manager that the machine was too heavy to be moved safely, but according to the complainant, the manager insisted it be moved for cleaning nevertheless. When the two men were lifting the machine, the weight of it caused the complainant to lose his balance and fall backwards, while the machine fell across his pelvis and pinned him to the floor.
2.2. Initially the complainant’s pain was mild and he finished his shift. He was not directed to see a medical practitioner or attend a hospital. However, the complainant’s pain worsened, and in particular standing or bending forward aggravated it greatly. Accordingly, the complainant went on sick leave and attended medical professionals for diagnosis and treatment. He also consulted a solicitor about the injury.
2.3. When the complainant contacted the respondent on 20 August 2010 to enquire about his wages, he was met by the respondent’s accountant and another man unknown to the complainant and told that the respondent had received his solicitor’s letter regarding the injury. The complainant was then dismissed with immediate effect. No reasons for his dismissal were provided.
2.4. By summer 2011, the complainant continued to suffer from his injury, with gait and mobility both affected to the degree that he was unable to drive or do anything but very light activities.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies that the complainant’s injury is a disability within the meaning of the Acts; that it dismissed the complainant in the manner described by him, or that it dismissed him because of his injury/disability. It does not elaborate on these points.
4. Conclusions of the Equality Officer
4.1. At the hearing of the complaint, the respondent submitted that since the complainant had previously brought a complaint before the Rights Commissioner, the Tribunal is barred from investigating the complaint, pursuant to S. 101(4) of the Employment Equality Acts. The complaint was brought against the same respondent as in the within proceedings, under the Unfair Dismissals Acts. It was heard on 28 January 2011 in Galway. On 7 February 2011, the within complaint was filed with the Equality Tribunal. The Rights Commissioner issued his decision on 10 March 2011 and found that because the complainant lacked one year continuous service with the respondent, he lacked jurisdiction pursuant to S. 2(1)(a) of the Unfair Dismissals Acts.
4.2. S. 101(4) of the Employment Equality Acts provides that
An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if –
(b) in exercise of powers under the Unfair Dismissals Acts 1977 to 1993, a rights commissioner has issued a recommendation in respect of the dismissal,
4.3. In light of the fact that only the respondent raised this point, and only at the hearing of the complaint, I invited additional submissions from both parties on the issue of the Tribunal’s jurisdiction.
4.4. Counsel for the complainant observed that S. 101(4)(b) only bars a complainant to seek redress under the Employment Equality Act after a Rights Commissioner has issued a recommendation. He further states that that this applies only to Rights Commissioner recommendations in respect of the dismissal, which he takes to mean that it excludes recommendations, like in the instant case, in which a Rights Commissioner declines jurisdiction and that therefore, the complainant continues to be entitled to seek redress under the Employment Equality Acts. To find otherwise, counsel submitted, would be to prejudice the complainant.
4.5. Counsel for the respondent submits that it would have been open to the complainant to withdraw his complaint before the Rights Commissioner prior to seeking redress with the Tribunal. She notes that the complainant had a window of time from 28 January 2011 to 10 March 2011 to do so, but nevertheless did not withdraw his complaint under the Unfair Dismissals Acts.
4.6. I prefer the arguments of the respondent in this case. The complainant is legally represented. The complainant and his representative had nearly five weeks in which to conduct a review of the relevant statutes and rectify their approach. All that was necessary was to withdraw the complaint before the Rights Commissioner before 10 March 2011. Accordingly, I cannot accept the proposition that the complainant is prejudiced. Furthermore, I am satisfied that the Rights Commissioner recommendation of 10 March 2011 was a recommendation in respect of the dismissal, just as Tribunal decisions in which Equality Officers have to decline jurisdiction because of technical faults are still Tribunal decisions.
4.7. I therefore find that I lack jurisdiction to investigate the within complaint pursuant to the provisions of S. 101(4)(b) of the Acts.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that I am lacking jurisdiction to investigate the within complaint, due to the fact that an earlier Rights Commissioner decision issued in the matter under the Unfair Dismissals Acts 1977-1993, pursuant to the provisions of S. 101(4)(b) of the Employment Equality Acts.
12 November 2013