EQUALITY OFFICER'S DECISION NO: DEC-E/2013/129
(REPRESENTED BY CARLEY AND CONNELLAN - SOLICITORS)
WINCANTON IRELAND LTD.
(REPRESENTED BY IBEC)
File No: EE/2010/904
Date of issue: 8 October, 2013
Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 8 and 16 -disability equal treatment - conditions of employment - disciplinary process - reasonable accommodation
This dispute involves a claim by Mr. Phillip Molloy (hereafter called "the complainant") that he was (i) discriminated against by Wincanton Ireland Ltd (hereafter called "the respondent") on grounds of age and disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts when it applied its Disciplinary Policy to him in August, 2010 and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of age and disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts. The complainant also contends that the respondent failed to provide him with reasonable accommodation in accordance with section 16 of the Acts as regards the manner in which it operated and applied its disciplinary process to him.
2.1 The complainant, who has a hearing impairment, was employed by the respondent as a HGV Driver of petroleum trucks. He states that he was involved in two separate incidents in mid-August, 2010 when discharging his normal duties as a result of which the respondent applied its Disciplinary Policy to him and subsequently terminated his employment. The complainant submits that the actions of the respondent constitute unlawful discrimination of him on the grounds of age and disability contrary to the Acts. The complainant further submits that the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Acts as regards the manner in which it operated and applied the disciplinary process to him. The respondent rejects the complainant's assertions in their entirety.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998- 2008 to the Equality Tribunal on 14 December, 2010. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 9 January, 2013 - the date the complaint was delegated to me. Submissions were received from both parties and a Hearing on the matter took place on 17 April, 2013. At the outset of the Hearing the complainant's representative confirmed that the dismissal element of the complaint had been dealt with by the Employment Appeals Tribunal under unfair dismissals legislation; that that Tribunal had issued its Determination in the matter on 8 January, 2013 and consequently the complainant was statute barred (in terms of section 101(4) of the Employment Equality Acts, 1998-2008) from seeking redress in respect of the element of the complaint before the Equality Tribunal. The complainant's representative also stated that all aspects of the complaint on the age ground were withdrawn.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that he commenced employment with the respondent on 30 August, 1998 as a HGV Driver. He adds that he was primarily employed driving trucks delivering petroleum fuel to petrol stations throughout the country. He further states that in 2005 he suffered a hearing impairment which resulted in hearing loss in each ear, although this loss could be rectified by the use of hearing aids and when using the hearing aids his hearing impairment posed no issues for him performing his job. The complainant states that he was involved in an incident on the evening of 17 August, 2010 which resulted in the truck he was driving being damaged. He states that he took a photograph of the damage on his personal mobile phone and sent it via text message to his Supervisor. He adds however, that he entered the wrong telephone number and his Supervisor did not receive the text. In the course of the Hearing the complainant stated that he was aware of the protocol operated by the respondent which required him to use the phone in the truck to report the incident. He confirmed that he had not followed the protocol and stated that he believed it was better to use his own phone. The complainant states that he returned to the depot that night but there was nobody there from Management to report the incident to, although he did mention it to the mechanic on duty. He adds that the next day when he came on duty he made efforts to report the incident to Management but they were on lunch.
3.2 The complainant states that the phone in the truck is a fixed unit and he had no difficulty operating it. In the course of the Hearing he stated that he could operate it without his hearing aids - he merely asked people to speak up and he could increase the volume of the speakers in the cab if necessary. He added however, that he did not like using the truck phone when he did not have his hearing aids and that he did not have them on 17/18 August, 2010 as they were being repaired. In the course of the Hearing the complainant stated that during the internal investigation into the incident he did not inform the respondent that he did not have his hearing aids that day, adding that he was never asked by the respondent if his hearing impairment was a causal or contributory factor during that investigation. In the course of the Hearing the complainant accepted that he used the truck phone on a number of occasions on the same day (17 August, 2010) as evidenced by the phone bill submitted to the Tribunal by the respondent.
3.3 The complainant states that he was involved in a second incident on 18 August, 2010. He adds that on that day he arrived at a petrol station to deliver a consignment of fuel and there was already confusion on the forecourt due to an earlier fuel spill. The complainant states that manager of the petrol station erroneously furnished him with the wrong documentation and he (the complainant) did not notice this error. He adds that he engaged in conversation with a man who was involved in the clean- up operation and was distracted and as a result he commenced pumping the wrong fuel type into the storage tanks. He adds that although he quickly noticed this error it resulted in a second contamination on the site that day. The complainant states that he complied with the respondent's protocol that day and reported the matter to Management immediately via the truck phone. In the course of the Hearing the complainant stated that responsibility for ensuring the correct product is pumped rests with him. He states that as a result of this incident and the incident mentioned at paragraph 2.1 above the respondent applied its Disciplinary Policy to him.
3.4 It is submitted on behalf of the complainant that (i) he did not have his hearing aids on either day and (ii) the respondent never enquired if this was the case and did not consider whether or not his hearing impairment could have been a factor in either/both incidents and consequently its application of the Disciplinary Policy to him amounts to less favourable treatment on grounds of disability. It is further submitted that the respondent has a positive obligation to provide reasonable accommodation to the complainant and that the aforementioned approach does not comply with that requirement. Consequently, it is contended that the respondent has failed to provide reasonable accommodation to the complainant pursuant to section 16(3) of the Employment Equality Acts, 1998-2008.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. The respondent states that the complainant was recruited as a HGV Driver in August, 2008, that his primary responsibility involved the delivery of petroleum fuel to petrol stations throughout the country and that he was fully trained in the performance of the tasks associated with this activity. The respondent adds that it was aware of his hearing impairment and that this impairment could be rectified with the use of hearing aids. It further states that the complainant's hearing impairment had never previously required a reduction in his work or the range of tasks to be performed by him as part of his position.
4.2 The respondent states that the complainant was involved in two separate incidents, one on 17 August, 2010 and the other the following day. The respondent adds that the incident on 17 August, 2010 involved damage to the truck the complainant was driving. It states that instead of using the truck's internal mobile phone to report the incident, the complainant took a photograph of the damage on his personal mobile phone and asserts he sent it via text message to his Supervisor. The respondent further states that this text message was never received by the Supervisor because the complainant sent it to the wrong phone number. It states that the actions of the complainant are contrary to the Driver's Agreement between it and SIPTU agreed between them in 2004 and which details, inter alia, the protocol to be followed by a driver in cases of accidents, damage to the truck, spillages and contaminations. It further states it was unaware that the complainant had not got his hearing aids at this time. It adds that the complainant never raised this matter during the course of the investigation process, save at a meeting on 13 September, 2010 when in response to a question about what tone the phone in the truck made when he asserted he tried to use it following the incident on 17 August, 2010, he replied "I don't remember and my hearing aids were getting fixed". The respondent states that moreover, the complainant was able to use the truck phone on 17 August, 2010 and produced documentation to the Tribunal in support of this.
4.3 The respondent states that the complainant was involved in a further incident on 18 August, 2010 which resulted in the wrong fuel product being pumped into a tank at a garage (details supplied) causing a contamination at the site. It states that he reported this incident immediately via the truck telephone in accordance with the protocol set out in the Driver's Agreement. The respondent further states that as a result of these two incidents it decided to invoke its disciplinary process against the complainant. It adds that this process comprised an investigation meeting on 24 August, 2010 and a disciplinary meeting on 13 September, 2010, following which the complainant's employment was terminated. The respondent states that the complainant appealed this decision in accordance with the Disciplinary Policy and the decision to dismiss him was upheld following a meeting on 11 November, 2010. The respondent further states that during this entire process neither the complainant nor his solicitor ever raised the point that there was a causal link between his hearing impairment and the incidents. It submits therefore that it was unaware the complainant's hearing impediment was an issue to be considered by it and that it operated on the basis the complainant was fully competent and capable of performing his duties in similar fashion to how he had previously discharged them. The respondent argues that it treated the complainant no differently to any other employee in similar circumstances and it did not therefore discriminate against him on grounds of disability, or at all.
4.4 The respondent rejects that it failed to afford the complainant reasonable accommodation in terms of the disciplinary process. It states that it was totally unaware the complainant required any appropriate measures during the meetings comprising the various elements of the process as he never indicated he had such a requirement at any stage. It submits that the obligation does not apply to it until it is aware of same and that there is a responsibility on the complainant to furnish that information in the first instance.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant 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 respect of the decision to apply (in the first instance) its Disciplinary Policy to the complainant and thereafter the manner in which it did so and (ii) failed to provide the complainant with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998 - 2008. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented 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 provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove, on balance of probabilities, the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, 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 required his case cannot succeed.
5.3 I shall first examine the issues surrounding the respondent's decision to apply its disciplinary process to the complainant. The disciplinary process is set out at Section 3 of the Driver's Agreement (hereafter referred to as "the Agreement") which was negotiated and agreed between the respondent and SIPTU in 2004. The relevant sections of the Agreement for the purposes of this case are as follows. Section 3.2 of the Agreement provides that -
"3.2.1 No disciplinary action will be taken against an employee without investigation to establish the facts.
3.2.2The employee will be invited to attend an investigation meeting at which he may be represented. He will be informed of the nature of the issue and will be given the opportunity to state his case.
3.2.3 The employee will be informed of the outcome of the investigation".
Section 3.6.6 provides that "Failure to report to the Company any spillage, contamination, vehicle accident or customer complaint" shall amount to Gross Misconduct. Section 3.7 provides for a right of appeal of any decision under the Policy and sets out the conditions for same. Section 5.3.3 provides that a driver's main responsibilities include a requirement to "Report any damage to tanker or trailer, including paintwork to Supervisor". Finally, section 5.4.2 provides that "Drivers must report all known incidents, no matter how minor, such as spills, contamination, accidents, damage to property .... to their supervisor immediately by phone....". It is common case that the protocol within the respondent company is that drivers must use the phone in the truck when making this contact.
5.4 The complainant confirms that he was aware of this protocol and accepts that he did not use the phone in the truck on 17 August, 2010 to report the incident when the truck he was driving was damaged. Consequently he arguably breached a number of provisions of the Agreement and I am satisfied that in the circumstances it was reasonable for the respondent to invoke its disciplinary process against him. The complainant submits that in reaching this decision the respondent did not consider that his hearing impairment may have been a contributory factor to his failure to comply with the protocol. It is common case that the complainant never mentioned on the day, or at any time during the investigation meeting on 24 August, 2010 (convened in accordance with section 3.2 of the Agreement), that this was an issue. The complainant usually wore hearing aids which rectified his hearing impairment and had done so for several years without any problem. The respondent was aware this was the case. In those circumstances it was reasonable for the respondent to assume that he was wearing them on 17 August, 2010. Any obligation on the respondent to take such an issue into consideration must be triggered by the complainant and I am satisfied that he failed to mention that he was not wearing them on the day in question. Moreover, the records for the truck phone (which were opened to the Tribunal) clearly show that the complainant used this phone on six occasions during his shift on 17 August, 2010 - one call lasted just under nineteen minutes and the complainant confirmed at the Hearing that this was a personal call. This clearly indicates that his use of the truck phone on the day was not affected by him not having his hearing aids. The respondent decided to investigate this incident under its disciplinary process and advised the complainant of same in writing on 18 August, 2010.
5.5 It is common case that the complainant was involved in another incident on 18 August, 2010 where he pumped the incorrect fuel into a storage tank at a petrol station which resulted in a contamination on the site. The complainant states that when he arrived at the location there had already been an earlier spillage and the scene was somewhat chaotic. He adds that the manager gave him incorrect documentation - a fact he did not realise at the time. He further states that he was distracted by a person with whom he engaged in conversation and that the combined effect of these factors contributed to him inadvertently pumping the incorrect fuel. In the course of the Hearing the complainant confirmed that it was his responsibility to ensure that the correct fuel product was pumped into the correct tank. Having carefully considered the foregoing it is abundantly clear that the complainant did not discharge his duties with the required level of care and diligence that day and his actions directly caused the contamination. It is common case that the complainant complied with the protocol in the Agreement and reported the incident immediately to his Supervisor using the truck phone. It is therefore clear that the complainant's hearing impairment (or lack of hearing aids) did not prevent him from engaging in conversation that day or from using the truck phone. The respondent decided to investigate this incident under its disciplinary process (along with the incident the previous day) and confirmed this to the complainant in its letter of 18 August, 2010. I am satisfied that it was entitled to adopt this course.
5.6 Having considered the foregoing I am of the view that there were legitimate factors, unconnected to the complainant's hearing impairment, which the respondent was entitled to consider in reaching its decision to apply its disciplinary process to him in respect of these incidents. Moreover, the respondent was unaware the complainant was not wearing his hearing aids on either day. I am satisfied that in these circumstances the complainant was not treated differently to the way any other employee would be treated in a similar situation. Consequently, I find that the complainant has failed to establish a prima facie case of discrimination on grounds of disability contrary to the Acts as regards this element of his complaint and it fails.
5.7 The complainant contends, notwithstanding his assertion that the respondent's decision to apply its disciplinary process amounts to less favourable treatment of him on grounds of disability contrary to the Acts, that the manner in which it subsequently applied that process to him (once that decision was made) also amounts to discrimination of him on the same grounds. I have given careful consideration to the evidence adduced by both parties on this issue and I am satisfied that the following facts have been established.
- The complainant was notified in writing by letter dated 18 August, 2010 that he was suspended on pay pending an investigation into the incidents on 17 and 18 August, 2010.
- The complainant was advised by letter dated 23 August, 2010 that the investigation meeting into the incidents would take place on 24 August, 2010. He was requested to attend and advised he could bring a trade union representative. The details of the incidents were provided to him and he was advised that they may be classed as Gross Misconduct under the Disciplinary Policy.
- The complainant attended the investigation meeting on 24 August, 2010 and was accompanied by his trade union representative. The respondent was represented by its Transport Team Leader and HR Manager. During the course of this meeting the complainant never mentioned that he did not have his hearing aids on either of the days in question or that his hearing impairment was a factor contributing to either incident.
- The respondent wrote to the complainant on 7 September, 2010 advising that the matter was progressing to the next stage of the process and that a disciplinary meeting was scheduled for 13 September, 2010. It advised who would attend from Management (and their roles). It further advised (a) the issues under consideration and copies of the documentation on which the respondent intended to rely on at the meeting were enclosed, (b) that the complainant could be accompanied by a trade union representative or colleague, (c) that the complainant would have an opportunity to state his case and (d) that he could face possible disciplinary action in certain circumstances.
- The complainant attended the disciplinary meeting on 13 September, 2010 accompanied by his trade union representative. The respondent was represented by its Operations Manager and Regional HR Manager. The complainant was given an opportunity to respond to all matters raised. The only reference he made to his hearing was when asked what tone the phone in the truck made when he asserted he tried to use it following the incident on 17 August, 2010, he replied "I don't remember and my hearing aids were getting fixed". At the conclusion of the meeting the complainant was advised his employment was being terminated.
- This decision was confirmed to the complainant in writing on 15 September, 2010.
- The complainant states that he did not have his hearing aids at the investigation meeting on 24 August, 2010 yet he never raised it (at that time) as an issue for him engaging in the process. He confirmed that he was wearing his hearing aids on 13 September, 2010.
- The conclusions of the disciplinary meeting (and the reasons for same) were communicated to the complainant in writing on 15 September, 2010. The complainant was also advised of his right of appeal of the decision.
- The complainant exercised his right of appeal. The appeal meeting took place on 11 November, 2011 and was conducted by the respondent's National Operations Controller. The complainant was accompanied by his trade union representatives. The complainant never made any reference to his hearing impairment either being an issue for him engaging in the process or a contributory factor to the incidents on 17/18 August, 2010. The decision to terminate his employment was upheld and this was communicated to him (with the reasons for same) in writing on 23 November, 2010.
5.8 In light of the facts detailed in the previous paragraph I am satisfied that the complainant was treated in accordance with the Disciplinary Policy and that in that regard he was not treated any differently to any other employee who would be subjected to the process in similar circumstances. The complainant did not mention, at any stage, that his hearing impairment posed any difficulty for him engaging in the process, indeed for the meetings on 13 September, 2010 and 11 November, 2010 he was wearing his hearing aids. Having carefully considered the evidence adduced by both parties I find that the complainant has failed to establish a prima facie case in respect of this element of his complaint and it cannot therefore succeed.
5.9 The complainant submits that the respondent failed to provide him with reasonable accommodation in terms of section 16(3) of the Acts in respect of the manner in which it applied and operated its disciplinary process against him. His legal representative stated that this component of the complaint was premised on the assertion that the respondent took no account of his hearing impairment at any stage during the process and did not consider whether or not his disability may have been a factor in his behaviour on 17/18 August, 2010. In my view this is an incorrect interpretation of section 16(3) of the Acts. It is well established in the caselaw of this Tribunal and the Labour Court that this provision of the Acts places a positive obligation on the respondent to provide reasonable accommodation. However, this obligation, in the first instance, extends to providing a person with a disability with "appropriate measures" or "reasonable accommodation" to render that person fully competent and capable to undertake the full range of duties associated with his/her role. No such issue arises in the instant case. The obligation to provide reasonable accommodation also requires an employer to make a bone fide and informed decision concerning the capability of an employee with a disability to perform the tasks associated with his/her role before concluding whether or not that employee in able to perform those duties before terminating that person's employment1. No such issue arises in the instant case as the complainant withdrew his original complaint of discriminatory dismissal as it was statute barred.
5.10 Section 16(3) also obliges an employer to provide reasonable accommodation to a person with a disability to have (i) access to employment, (ii) participate or advance in employment and (iii) undergo training. None of these scenarios arise in the instant case. In my view the essence of the complainant's case as regards this component of his complaint is identical to that advanced on his behalf in terms of his assertion that he was treated less favourably on grounds of disability detailed above. Whilst I accept that the obligation to provide reasonable accommodation could apply to the operation of a disciplinary process by an employer, I am not satisfied that the respondent failed to do so in the instant case. The complainant had performed his daily tasks without problem for several years with the assistance of hearing aids and the respondent was aware of this. Consequently, it was entitled to rely on this and when it decided to apply its disciplinary process to the complainant it was not obliged to immediately assume that his disability was a causal factor in either or both of the incidents - indeed to do so might have left it exposed to a claim of discriminatory treatment. The complainant stated that he did not offer this information as a reason for his behaviour on either day- even when faced with the prospect of dismissal - because he was not specifically asked the question by respondent. I find this comment incredible to the extreme. In light of the foregoing I find that the complainant has failed to establish a prima facie case of discrimination in respect of this element of his complaint and it must therefore fail.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2011 I issue the following decision. I find that -
(i) the complainant has failed to establish a prima facie case of 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 respect of the manner in which the respondent firstly, decided to invoke its disciplinary process against him in August, 2010 and thereafter the manner it which it applied that process to him.
(ii) the complainant has failed to establish a prima facie case that respondent failed to afford him reasonable accommodation, in terms of section 16 of the Employment Equality Acts, 1998-2008 in respect of the manner in which the respondent operated and applied the disciplinary process to him in August/September, 2010
and his complaint fails in its entirety.
8 October, 2013
1 See Shannon Regional Fisheries Board and A Worker EDA 1318