The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2014-049
(Represented by Burns Nowlan Solicitors)
File reference: EE/2012/050
Date of issue: 9 July 2014
HEADNOTES: Employment Equality Acts Sections 6 and 8 – Family Status & Disability - Discriminatory dismissal.
1.1 This dispute concerns a claim by Ms Natalia Wozniakthat she was discriminated against by Alexej Tuleya on the grounds of family status and disability contrary to section 6 (2) of the Employment Equality Acts in relation to discriminatory dismissal in terms of sections 8 of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 16 January 2012 under the Employment Equality Acts. On 29 April 2014, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 2 May 2014 and final information was received on 20 May 2014.
2 COMPLAINANTS' SUBMISSION
2.1 The complainant started work for the respondent on 18 December 2010 and her employment ended on 23 November 2011.
2.2 The complainant submits that she was dismissed when on medical leave after having an operation for a rupture. She also contends she was dismissed because she has a family and a child.
2.3 She was not made aware of her dismissal as she was on sick leave. She only found out when her husband went into the salon and he was given her P45.
3 RESPONDENT'S SUBMISSION
3.1 The respondent states that the complainant started working for him on 10 February 2011 in Monica’s Hair Salon.
3.2 The respondent submits that the complainant took more holidays than she was entitled to and had other days off and also took sick leave. Also, she wanted her wages anytime she asked for them, even though there was a set day, she was rude to customers and was caught on CCTV closing the salon before the official closing time.
3.3 The complainant told the respondent she had a bad back and on 17 August 2011 she went to Poland to see her doctor. During this time she also went to Spain for a family holiday. On 29 September 2011 she came back to work for 10 days before returning to Poland for a back operation. The respondent expected her back for Christmas but the complainant called to say she would not be back until the middle of January.
3.4 The respondent submits that their other employee was scheduled to be on leave over the busy Christmas period. As they could not close the salon during this time they took on another stylist.
3.5 The respondent submits that the complainant was not very flexible in the days that she would work. She chose the days she would work and was sick more than she worked. Before the back operation there was a staff meeting and the complainant was told that if she will not work the days she was contracted to work and will not accept the rules then she will be dismissed
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant was dismissed in a discriminatory manner on the grounds of disability and family status. 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.
4.2 Section 2 of the Acts states: “‘‘disability’’ means—
(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.”
The respondent had an operation on her back on 26 October 2011 and was certified as being unfit to return to work until at least 31 December 2011. It is clear that the back problem and subsequent operation meant that the complainant had a disability within the meaning of the Acts. This was not disputed by the respondent.
4.3 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
4.4 At the hearing the complainant gave evidence that after a visit to the Accident and Emergency Department in Naas on 17 October 2011 she was diagnosed with a hernia of the spine and a dislocated disc. She immediately made arrangements to have an operation on her back in Poland. She informed the respondent’s partner (Ms A) who ran the salon before she left for Poland on 19 October 2011. She had the operation on 26 October and went back to the doctor for an assessment on 15 November and was told that she was not allowed to return to work before 31 December 2011. The following day she told Ms A of this assessment and said she had a medical certificate and asked if she wanted a copy of it, and if she wanted it translated. Ms A said she would get back to the complainant about this but never did. The complainant contends that she arranged for medical information to be passed to her doctor in Newbridge and he issued a certificate stating the complainant would be off sick until 31 December 2011. The husband of the complainant gave evidence that he dropped this certificate into the salon about one week after the operation.
4.5 The complainant’s husband also gave evidence that on 23 November 2011 he went to the salon for a haircut and saw someone new working there. He asked who the new person was and was told by the respondent that he had replaced the complainant who had left her position. The husband contends he explained that the complainant had not left her position but had been unable to return to work because of her operation. He was asked to take her P45 but refused to do so. It was posted to the complainant a few days later.
4.6 The respondent denied that they received the medical certificate from the doctor in Newbridge which stated that the complainant was not fit to work until 31 December 2011. The respondent also gave evidence that the complainant rang them on 16 November 2011 and said she would not be fit to work until January 2012 and that she wanted to be let go. Consequently they recruited a new stylist as they were approaching the busy Christmas period.
4.7 When questioned about the difference in evidence as to whether the complainant said she did or did not intend to return to work the respondent said there was a misunderstanding about the words used. The complainant was speaking Polish and whilst they understood a lot of Polish they are from Slovakia and Slovakian is their first language and they must have misunderstood what she said. I note that the respondent’s written submission makes no reference to the complainant deciding to leave work; only that she would not be returning until January. The respondent says this conversation took place on 16 November and the P45 was issued on 18 November 2011. The respondent was not clear on the exact date but contends that the replacement started working for them at the beginning of December.
4.8 I accept the evidence of the complainant’s husband that he dropped in a medical certificate to the salon stating she was not fit to return until 31 December 2011. Whilst there is some confusion over the exact dates it is clear that the replacement started shortly after the complainant informed the respondent she was on sick leave until at least 31 December 2011. I found the evidence of the respondent and his partner to be unreliable and I do not accept that there was a misunderstanding as to whether the complainant intended to return to work or give up her job. I, therefore, conclude that they recruited a permanent replacement for the complainant even though they knew she was on sick leave and had given no indication that she was resigning her position.
4.9 I conclude that the complainant’s dismissal was directly related to her disability and was therefore discriminatory.
4.10 In relation to her claim in relation to family status the complainant referred to a letter which was sent by the respondent with her P.45. The translation reads “With this employee we have no problems, he does not have a family and he can come to work whenever I phone him.” This is a clear reference that the respondent considered the complainant to be inflexible regarding her hours of work. As such, it appears that the flexibility of the complainant’s replacement was clearly a factor for the respondent in his recruitment. However, I do not consider that it was a motivation in her dismissal and conclude that the complainant was not dismissed on the grounds of family status.
5.1 I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
· the respondent did dismiss the complainant in a discriminatory manner on the grounds of disability, and
· the respondent did not dismiss the complainant in a discriminatory manner on the grounds of family status.
5.2 I order the respondent to pay the complainant €12,000 in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
9 July 2014