FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : KERRY FOODS / KERRY FOODS LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - EDUARDO KAVUNGU (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Doyle Worker Member: Mr Hall |
1. Appeal of Adjudication Officer's Decision No: ADJ-00002128.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on the 26 January 2018. A Labour Court hearing took place on the 24 July 2018. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Eduardo Kavungu (Complainant) against decision ADJ-00002128 of an Adjudication Officer in his complaint against his employer Kerry Foods Limited (Respondent). The complaint of discriminatory discrimination on the grounds of disability was made pursuant to the Employment Equality Acts 1998-2015 (the Act). The Adjudication Officer found that the complaint failed.
Background
The Complainant was employed with the Respondent from 2006 until his dismissal on the 1stSeptember 2015. On the 7th January 2015 the Complainant attended Occupational Health for a review and was deemed unfit for work. He was absent from work from the 8thJanuary and did not submit medical certificates. The Respondent contacted the Complainant by phone, ordinary post and registered post requesting that he comply with the company attendance and timekeeping policy and submit certificates from his doctor. When he failed to do so the Respondent wrote to him advising that he was on an unauthorised absence and requesting he make contact. No response was received. The Company finally wrote to him on the 21stSeptember 2015 advising that he had been deemed to resign with effect from the 1stSeptember 2015 as per previous correspondence and that if it was not his intention to resign he could appeal within seven working days. The Respondent heard nothing from the Complainant until 5th January 2016 when they received a letter from his solicitor stating it was not his intention to resign.
The Complainant’s claim was lodged with WRC on the 25thof February 2016. In accordance with the Act the cognisable period for the claim is 26thAugust 2015 to 25thFebruary 2016.
Complainant’s case
In May 2014 the Complainant was certified unfit to work and when he returned the Occupational Health Physician sought his consent to write to his GP which, consent he gave. On the 12thJune 2014 the GP wrote back and informed the Respondent’s Occupation Health Physician that the Complainant was complaining of headaches, poor sleep and depression. The GP advised that he had increased the Complainant’s depression medication. The Complainant was further certified unfit to work with headache and depression on the 28thOctober until the 11thNovember 2014. When the Complainant returned to work he met the Occupational Health Advisor who agreed to relocate him to a different area of work.
The Complainant was absent again in January and had another meeting with Occupational Health where he advised that he had a CT scan and that he was referred back to his GP. On the 14thJanuary the Complainant phoned Occupational Health and advised them that the CT scan showed chest abnormality. His GP wrote to Occupational Health on the 31st March stating “this young man is still quite distressed about his illness that is scaroidosis”. There then followed correspondence from Occupational Health internally advising that he was not fit for work but was fit to comply with the sick leave policy.
The Complainant does not deny that he spoke to Mr Kenneally on the phone in March 2015 and was advised that he was required to submit sick certificates in line with the company attendance and time keeping policy. Nor does he deny that he received letters from the company and that 3 of them were by registered post. The Complainant under Oath confirmed to the Court that he had signed for at least two of those letters. It is the Complainants’ case that he was not well enough to open the letters at the time he received them. It is also the Complainant’s contention that the Respondent was obliged to facilitate him with a reasonable accommodation. The Representative of the Complainant indicated that the reasonable accommodation required was that the respondent could have written directly to his Doctor, called to his house or send the Complainant a text messages. The Complainant’s Representative acknowledge that a lot of the issues raised occurred outside the cognisable period but argued that there was a continuum of discrimination.
Respondent’s case
It is the Respondent’s case that the Complainant had ample opportunity to liaise with the Company. It is the Respondent’s position that the Complainant when reminded of the requirement to submit medical certificates in line with the Companies attendance and timekeeping policy advised Mr Kenneally that he would not be sending any medical documentation to the company. This statement was not denied by the Complainant. Mr Kenneally on behalf of the Respondent then sent a letter confirming the details of the phone conversation on March 23rdand attached a doctor to doctor form which the Complainant was requested to complete and give to his doctor without delay. The Complainant did not respond. On the 31stMarch the Complainant’s doctor wrote to the Occupational Health Physician to advise that the Complainant had been diagnosed with sarcoidosis. The letter did not identify any other conditions that the complainant was suffering from. On the 27thApril Mr Kenneally on behalf of the Respondent advised the Complainant that he was in breach of his terms and conditions of employment by failing to submit medical certificates and therefore his absence was considered an unauthorised absence. No response was received to the letter. Further letters were sent on the 23rdJuly and 24thAugust. On the 20thAugust he failed to attend a medical assessment with the Occupational Health Physician.
On the 21stSeptember 2015 Mr Kenneally on behalf of the Respondent wrote to the Complainant advising “in light of your failure to contact the company… the company has deemed that you have resigned your position with Kerry Foods with effect from the 1stSeptember 2015” the letter went on to say if he was unhappy with that he could appeal within 7 working days. No response was received until the Respondent received a solicitor’s letter in January 2016. Mr Kenneally informed the Court that the registered letters had been delivered and signed for by the Complainant.
It is the Respondent’s position that the Complainant has failed to establish a prima facia case of discrimination on the grounds of disability.
The applicable law
Section 85A of the Act provides for the allocation of the probative burden as between parties. Subsection (1) of that section provides: -
- “(1) 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.”
- “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.
- “The type or range of facts which may be relied upon by a complainant may 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 of 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.”
The Complainants Representative submitted to the Court that the Complainant was unable to open the letters he received due to his illness. No medical or other evidence to support that contention was provided at any time in the process to the Respondent or submitted to the Court for their consideration.
As set out by the Court inSouthern Health Board v Mitchell[2001] E.L.R. 201cited above it is for the Complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. It is the opinion of the Court in the instant case, no such facts were established. As the Complainant, has failed to establish a prima facie case of discrimination on the grounds of disability the appeal must fail.
Determination
For the reasons set out herein, the Court is satisfied that the Complainant was not discriminatorily dismissed on the grounds of disability. The Complainant’s appeal cannot succeed and is dismissed. The Decision of the Adjudication Officer is affirmed.
The Court so decides.
Signed on behalf of the Labour Court
Louise O'Donnell
CC______________________
2 August 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.