INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
A CONCRETE MANUFACTURER
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY CRIMMINS HOWARD SOLICITORS)
Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham
1. Appeal under section 83 of the Employment Equality Acts, 1998 to 2011.
2. The Worker appealed the decision of the Equality Officer to the Labour Court on the 5th February, 2013. A Labour Court hearing took place on the 7th November, 2013. The following is the Court's Determination:
This is an appeal by a Worker against the decision of the Equality Tribunal in his claim of discrimination against a Concrete Manufacturer. The claim is one of discriminatory dismissal on grounds of disability.
In this Determination the Worker is referred to as the Complainant and the Concrete Manufacturer is referred to as the Respondent.
The Complainant commenced his employment with the Respondent in or about 17thJune 2009, in his capacity as a general operative. He last worked for the Respondent on 20thNovember 2009. The Complainant contends that he suffered an accident at work on or about 19thNovember 2009 in which he sustained a severe back injury. He claims that he was absent from work as a result of his injuries up to April 2010 when his employment was terminated.
His claim was heard by an Equality Officer of the Equality Tribunal who dismissed his claim. The Complainant appealed to the Court.
Both parties presented comprehensive written submissions. Evidence was taken from the Complainant and from Mr N, who is an accountant with the Respondent.
The Complainant, who is Polish, gave his evidence through an interpreter. He told the Court that on Thursday 19thNovember he was required to lift a heavy vibrating plate. In the course of this operation he suffered an injury to his back which caused him excruciating pain. He said that he lost consciousness and fell to the ground. He told the Court that he recovered sufficiently to continue working on that day. The witness first told the Court that he reported the accident to his supervisor. Later in his evidence he testified that he did not report the accident. He said that on the following day, 20thNovember 2009, he was assigned to light duties. He was asked to work on the next day (Saturday) but that he refused to do so. He said that on the Friday night he drove to Middleton Co Cork, some 117km from his home in Co. Limerick, to consult a doctor who is also a Polish national. The Complainant accepted that he had never previously attended this doctor but had seen a leaflet advertising her services. The weather was particularly severe on the night in question and there was heavy flooding in the Cork region. He told the Court that the electricity supplies were interrupted because of the flooding and that when he attended at the doctor’s surgery he was examined by candle light. He returned to the doctor on the following Monday, accompanied by his daughter. He obtained a medical certificate which he sent to the Respondent by registered post. The doctor continued to furnish the Complainant with medical certificates up to April 2010, which he sent to the Respondent. All of these certificates were in common form and simply stated that the Complainant was suffering from “right elbow and knee injury. Back pain”and was unable to attend work.
Documents were put in evidence to show that the doctor in question had been found guilty of professional misconduct by the Fitness to Practice Committee of the Medical Council and her name was removed from the register of medical practitioners in December 2012. However this arose from matters unrelated to the instant case.
According to the Complainant, his daughter went to the Respondent’s offices on Friday 27thNovember to collect his wages, which were paid one week in arrears. His daughter again went to the offices on the following Friday to collect some overtime payments owing to him. Finally, his daughter visited the Respondent’s offices on 18thDecember 2009 and obtained holiday pay to which he was due. The Complainant accepted that he did not visit his former place of employment or contact any of the Respondent’s management after he finished working on 20thNovember 2009.
The Court was told that on 15thApril 2010 the Complainant received by post a copy of his P45 and a statement of the income levy paid by him. However, one of these documents gave the date on which his employment terminated as being 20thNovember 2009 and the other as being 27thNovember. He said that he had consulted a solicitor who is also a Polish national, who, he understood, looked to obtain his P.60 around the time that these documents were furnished to him (that solicitor no longer acts for the Complainant and, according to the Complainant, he may be deceased). In July 2010, on foot of a subsequent request the Respondent furnished the Complainant’s current solicitors with another P45 document and income levy statement, both of which gave his termination date as 27thNovember 2009.
The Complainant denied that he had resigned from his employment on either date or at all. He claims that he was dismissed in on 15thApril 2010 and that the dismissal was on grounds of his disability arising from the accident at work on 19thNovember 2009.
Mr N, who gave evidence on behalf of the Respondent, told the Court that he is the company accountant and is responsible for the payroll and related matters. He confirmed that the Complainant’s daughter had called to the Respondent’s plant to collect monies due to the Complainant. He said that she requested his holiday pay and “his final papers”. He thought that this occurred on 18thDecember although he was unsure on that point. He paid her the outstanding amount owing to the Complainant in respect of holidays. He said that when the Complainant ceased to attend for work after 20thNovember 2009 he assumed that he had left the employment. The last wage payment made to the Complainant was on 27thNovember 2009, although he remained on the payroll until 18thDecember when he received holiday payments. He explained the difference in dates shown on the P45 and income levy documents by telling the Court that they were computer generated. This witness accepted that practically all employees who were due holidays in December were paid the amount owing as the plant was closing down for the Christmas holiday period.
Mr N told the Court that he was unaware that the Complainant had suffered an injury at work. He said that he had seen the medical certificates that the Complainant had submitted but he assumed that they were in relation to claims for social welfare payments. He believed that he had sent the Complainant his P45 and income levy certificate shortly after he last worked but he could not say when. He said that when he was asked for the Complainant’s P60 he reissued the documents that he had previously sent out. The witness explained that a P60 is only issued in respect of those currently in employment at the close of the tax year. Where an employee leaves the employment during the tax year a P45 is issued.
According to this witness he formed the view that the Complainant has resigned from his employment when he failed to attend for work after 20thNovember 2009. The witness’s attention was drawn to the assertion contained in the written submission filed on behalf of the Respondent that the Complainant’s daughter had informed him that her father wished to resign. He confirmed that he believed that the Complainant had resigned on 20thNovember 2009 when he left work without returning.
Issues in dispute
It appears to the Court that there are three net issues arising in this case, as follows: -
- •Was the Complainant a person with a disability at the time material to his claim? If that question is answered in the affirmative: -
•Was the Respondent on notice of the disability?
•Was the Complainant dismissed on grounds of his disability?
Section 2 of the Act defines the term “Disability” as follows: -
- (a)the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b)the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c)the malfunction, malformation or disfigurement of a part of a person's body,
(d)a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;
This is a broad definition which can encompass any injury or illness whether it is temporary or permanent, curable or incurable. However, it is to be assumed that the Oireachts did not intend that every injury no matter how minor, nor every short term illness that may inevitably occur in the course of normal living, can be classified as a disability. It is a question of degree, and in particular the extent to which the condition may hinder the full and effective participation of the person concerned in professional or working life on an equal basis with other workers.
Burden of proof
Section 85A of the Act provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the Respondent. InA Worker v A Hotel 21 E.L.R. 72 this Court held as follows in relation to the application of this provision: -
- The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination inMitchell v Southern Health Board  E.L.R. 201.That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.
In that case the Court went on to hold: -
- The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (see the determination of this Court inKieran McCarthy v Cork City CouncilLabour Court Determination EDA082 (December 16, 2008)).
There is, however, authority for the proposition that the mere coincidence of a protected characteristic on the part of the Complainant (in this case a disability) and the detriment relied upon (in this case dismissal) is insufficient, in and of itself, to shift the probative burden. The High Court so held (per O’Sullivan J) inMulcahy v Minister for Justice Equality and Law Reform and v Waterford Leader Partnership Limited ELR 12. A similar approach was adopted by the Court of Appeal for England and Wales inMadarassy v Nomura International plc IRLR 256.
In the instant case there are two primary facts that the Complainant must initially prove before s.85A of the Act could come into play, both of which are in contention. Firstly, he must prove that he had a disability at a time material to his claim. Secondly, he must prove that the Respondent was on notice that he had a disability. In his written submission to the Court, and initially in his oral evidence, the Complainant claimed to have informed his supervisor of his accident. Later in his evidence to the Court he accepted that he informed no one in the employment. Counsel for the Complainant now submits that the Respondent was on constructive notice of the Complainant’s disability by reason of the medical certificates that he submitted.
On the Complainant own admission the Respondent was not actually informed of the accident which he claims to have suffered nor of the injuries that he claims to have sustained. Nonetheless, he claims that the Respondent was on constructive notice of these facts by reason of the medical certificates that he furnished.
Constructive notice arises where a person is under a duty to make enquires which, if made, would have revealed the knowledge that he claims not to have had. InSomers v WIR 94 Henchy J aptly described the concept as follows: -
- When the facts at his command beckoned him to look and inquire further, and he refrained from doing so, equity fixed him with constructive notice of what he would have ascertained if he had pursued the further investigations which a person with reasonable care and skill would have felt proper to make in the circumstances.
The doctrine of constructive notice is founded in the law of equity. Consequently, in considering its applicability the Court should look at the reasonableness of both parties in their dealings with each another. In seems to the Court that where one party conceals from the other, without reasonable excuse, something that he or she had a duty to report (in this case an injury sustained in an accident at work) the doctrine should not apply.
Conclusion of the Court
Was the Complainant a person with a disability?
The Complainant contends that he suffered a severe injury arising from an accident at work. The only evidence that such an accident occurred was the Complainant’s own testimony. Medical certificates were put in evidence which merely recorded that the Complainant has symptoms arising from an injury. The representative of the Respondent objected to these certificates being received in evidence without being proved. The doctor who issued them was not available to give evidence.
The Court has made full allowance for the fact that the Complainant gave his evidence through a Court appointed interpreter and that some nuances in the questions and answers may have been confused in the translation. Nevertheless, the Court found the Complainant’s evidence unsatisfactory and in many respects incredible. He at first said that he had reported the accident to a colleague. He later accepted that he had not reported it. The accident was not witnessed by anyone despite its supposed occurrence in a public area of the Respondent’s plant. The Complainant claimed that he lost consciousness and fell to the ground. It seems unlikely that such an occurrence would not have been noticed by someone. Notwithstanding the claimed severity of his injuries the Complainant told the Court that he was able to drive, unaccompanied, some 117km to visit a particular doctor in was appears to have been appalling weather conditions and then return home. He made the same journey again two days later.
The Court notes the content of the medical certificates furnished by the Complainant to the Respondent. They provide no indication of the extent of the Complainant’s injuries. They do not disclose the nature or extent of the doctor’s examination. Nor do they discount the possibility that she formed her opinion solely on the basis of what she was told by the Complainant. These are matters that required evidence from the doctor who treated the Complainant and, as observed earlier in this Determination, that evidence was not tendered. Consequently, in the circumstances of this case, the Court must hold that the medical certificates furnished to the Respondent have little or no probative value.
Having found the Complainant’s evidence wholly unreliable the Court has come to the conclusion that he failed to prove, as a matter of probability, that the accident occurred as described and that he was suffering from a disability within the statutory meaning of which the Respondent was aware at any time material to the within claim.
Finally, the Court must consider the submissions made on the Complainant’s behalf that even if he was not suffering from a disability one was imputed to him. Suffice it to say that no evidence whatsoever was adduced which could lead the Court to such a conclusion.
In these circumstances the Complainant has failed to adduce an essential fact from which discrimination on grounds of disability could be inferred. Accordingly his claim cannot succeed.
Having so found, it is unnecessary for the Court to consider if the Respondent was on constructive notice that the Complainant was suffering from a disability. Nor is it necessary to consider the circumstances in which his employment came to an end. Nevertheless, for the sake of completeness, the Court has considered the submissions of the parties on both points. On the question of constructive notice, in normal circumstances where an employer is on notice of an employee’s illness that may amount to a disability, normal standards of prudence and reasonableness should cause the employer to make further enquiries before deciding to dismiss the employee. However, in the circumstances of the instant case the Court is satisfied that if the Complainant suffered serious injuries in an accident at work (and the Court has found that he probably did not) he had a duty to report what occurred to the Respondent. In circumstances where he failed to do so without reasonable excuse it would be inequitable to fix the Respondent with knowledge of that occurrence.
On the question concerning the circumstances in which the Complainant’s employment came to an end, the Court is satisfied that the Respondent acted recklessly in assuming that the Complainant had abandoned his employment. While that may well amount to an unfair dismissal that is not the issue in this case. In circumstance in which the Court has held that the Complainant has failed to establish that he had a disability it must follow that the Court could not hold that the dismissal, if a dismissal it was, could have been on grounds of disability. Moreover, as previously found in this determination there is no evidence before the Court from which it could be held that the Respondent imputed a disability to the Complainant .
For the reasons set out herein the Complainant’s appeal is disallowed and the decision of the Equality Tribunal is affirmed.
Signed on behalf of the Labour Court
13th November, 2013______________________
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.