ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030065
Conor O'Connell , Construction Industry Federation, Cork Branch, South Region
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 08/02/2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC  IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties.
Full cross examination of Witnesses was allowed.
Due to Covid 19 difficulties the publication of the Adjudication finding was delayed.
As regards an issue as to whether or not the Complainant was technically “an employee” and eligible to take a case under the Employment Equality Act,1998 I took the view as Adjudicator, that as he had been formally included in the induction process and had received written employment documents he was qualified to take a complaint under the Act. The Parties also accepted that MSL Engineering was the correct Respondent.
The issue in contention concerns the alleged Discriminatory treatment of the Complainant, a Mechanical Fitter, on the Employment Equality Act,1998, grounds of Disability and Discriminatory dismissal. The employment began and ended on the 13th July 2020. The employer was an Engineering Support Company to a large Pharmaceutical site in Cork.
The rate of pay was €900 for a proposed 39-hour week.
1: Summary of Complainant’s Case:
The Complainant made a lengthy Oral Testimony and a supporting written submission.
He had been offered a six to eight-week Mechanical fitter placement via MSL on the Pfizer site in Cork. As required he attended the site on the 13th July 2020 to begin work. He attended the required site induction meetings. Pfizer is a major pharmaceutical plant and detailed safety inductions were paramount especially in the midst of Covid.
The first session was with Mr. P, Safety Officer, in his cabin. The door was marked for “Three Persons” but actually seven individuals were crowded in. Another worker, a Mr. F, was apparently unwell and was coughing and sneezing. He was not wearing a face mask. The Complainant asked him, publicly in the meeting, to show “respect to his fellow workers” and at the very least put on a mask or cover his mouth. Mr. F reacted negatively to his and some words were exchanged.
After Mr. P was finished with his presentation the workers were moved to Mr. W, MSL Site Manager, to collect individual Oxygen monitors. The issue of Safety Footwear arose. The Complainant expected MSL to supply these and said so to Mr. F and Mr.W. However, it was explained that the individual worker was expected to bring his own boots.
At this stage the Complainant and some colleagues went back to their cars in the car park to collect their safety boots. Mr. W accompanied the Complainant to the Car Park. He instructed other workers to move back to the Plant. He then told the Complainant that he would not be starting work as he was a Diabetic. Mr. W had a duty of care to staff and he was not going to allow a Diabetic on to the Pfizer site. The Complainant protested that being a Diabetic was not an issue. Covid regulations did not prevent Diabetics from working and he was simply being completely discriminated against. Being a diabetic is a recognised Disability and the law expected that he would be treated fairly.
Mr. W did not change his mind and the Complainant went home. He subsequently sought a MSL Headed letter from the Company to allow him to receive the PUP. This never arrived.
The Complainant was at the loss of some eight weeks wages and was also at the loss of the money he had paid for rented accommodation in Cork.
Supporting oral evidence was given by a colleague, Mr. B, who was present on the day and a witness to nearly all events. He confirmed much of the Complainant’s account save for the verbal exchanges in the car park with Mr. W where he was out of earshot.
2: Summary of Respondent’s Case:
The Respondent made an Oral Testimony. There was no question of any MSL discriminatory policy against Diabetics -they were many other diabetics on the Pfizer site including some senior Managers.
Key evidence was given by Mr. W, the MSL Manager. The Pfizer contract was a major Company contract. His responsibility was to ensure that all MSL sourced contractors were a “Good fit” for the Pfizer site.
Following his initial meeting with the Complainant and verbal reports from his fellow Managers especially regarding the incidents at the Induction meeting involving Mr. F, he had come to the view that the Complainant would not be a “good fit” for Pfizer. On this basis he had decided not to proceed with the Complainant. He was aware from the Medical questionnaire that the Complainant was a diabetic, but this had nothing to do with it.
As a responsible experienced Site Contracting Manager he had made a decision regarding the overall unsuitability of the Complainant for employment on the site.
Supporting evidence was given by Mr. P, the Safety Officer regarding the Induction Meeting and the incidents involving Mr.F.
The Respondent Representative Mr. O’Connell from the Construction Industry Federation queried legally if the Complainant had an actual qualifying disability and if the complaint was soundly based. He cross examined the Complainant on all his Oral evidence.
3: Findings and Conclusions:
3:1 Legal Issues – Burden of Proof in Equality Cases – Disability – Discriminatory Dismissal
Section 85 A of the EE Act,1998 states
Burden of proof.
85A.— (1) Where in any proceeding’s 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.
(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant.
(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary.
(4) In this section ‘discrimination’includes—
( a ) indirect discrimination,
( c ) harassment or sexual harassment,
( d ) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.
(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 ( S.I. No. 337 of 2001 ), in so far as they relate to proceedings under this Act, are revoked.
In plain language this means that a Complainant has to establish an inference or reasonable grounds to raise the question that there was Discrimination. It is also necessary to establish that the Complainant suffered from a Disability as defined in Section 2(1)(a) of the Act.
There is extensive and detailed legal Case Law precedent in this area.
Accordingly, and as each cases rests of its own facts and particular evidence it is necessary to examine the Oral and Written evidence presented.
It is useful to examine this evidence in the light of key questions in this case.
1. Was the Complainant suffering from a qualifying Disability -in this case Type One Diabetes.?
2. Was the Complainant subject to Discriminatory Treatment -i.e. treated differently and unfavourably to a person without the Disability.?
3. Did a Discriminatory Dismissal take place?
As almost all the evidence concerns the morning of the 13th July 2002 it will have to be a particular focus.
3:2:1 Question One - Qualifying disability – Type One Diabetes
All the evidence presented accepted that the Complainant was a diabetic. The Labour Court have decided as far back as 2005 in a A worker v an Employer  ELR 159 that diabetes is a qualifying disability. The Complainant is qualified to make his claim.
3:2:2 Discriminatory Treatment. – The meetings /exchanges of the morning of the 13th July 2002.
Considerable Oral evidence was given here by all Parties and it largely focused on the exchanges between the Complainant and his fellow worker, Mr.F. Unfortunately, Mr. F was not present to give evidence. Key parties present who gave evidence regarding the first Induction meeting were Mr. P, the Safety Officer, the Complainant and his witness, fellow worker, Mr.B..
It was clear that the Complainant had directly made it publicly clear to Mr. F that, “out of respect” to fellow workers and their dependants/contacts he should cover up his face. It was not denied that he, Mr. F, was coughing and sneezing. A difference in recollection arose as to how much the exchanges were seasoned with the F word. The induction meeting was in an area marked out as suitable for three persons but seven were present. It was clear from all evidence that the Complainant was forceful in his public interventions concerning Mr.F.
The Complainant pointed out that a duty of care existed for any employer and Mr. F should have been approached by the Employer regarding his coughing and sneezing.
Covid was in full progress at the time and obviously, anxieties were heightened.
The next issue was with the Safety Shoes. nothing really passed on this although the Complainant did express surprise that he was asked to provide his own boots.
The activity then moved to the Car Park where a conversation took place between the Complainant and Mr. W, the MSL site Manager. Recollections differed as to what was exactly said by Mr.W.
Both Mr. W and the Complainant were very capable and excellent witnesses. On the balance of probability, it was hard not the see the evidence pointing to Mr. W at very least referring to the Complainant’s diabetes as a reason for non-allowing him to start. It was a very difficult call for Mr. W, responsible for a Pharmaceutical site, and he appeared to err on the side of caution by excluding the Complainant. However, it was agreed and stated in evidence that there were, already, diabetics on site with no issues.
There was certainly an element in the evidence that Mr. W did not need the “headache” of a forceful diabetic on site querying the Covid safety rules. The issue of “a good fit” was interesting here. The Equality issue is that a person with a disability or any other special condition is unlikely, in the normal run of events to be seen by Operating Managers a “good fit” and thereby needs the protection of the Employment Equality Act,1998.
The question was really one of whether or not the Complainant was not a “Good fit” because he was a forceful employee at the Induction meeting or simply because he was a diabetic. A reasonable observer might ask was the disability used as a convenient means of addressing the first issue?
In addition, it appeared, on a reasonable assumption from the exchanges, that if the Complainant, a publicly acknowledged diabetic, had not so openly confronted Mr. F at the Induction session, there might not have been a problem.
On balance and from listening to all the Oral testimony, the demeanour of the witnesses and conscious of the Burden of Proof requirements in an Employment Equality case the evidence has to sway in the Complainant’s favour.
If he had not been a Diabetic the balance of probability indicates he would have been employed. Mr. W may have acted for the very best motives in the midst of a Corvid crisis, but his actions cannot escape the conclusion that a discriminatory act took place.
In a Disability/Equality Discrimination case it is a very high bar for any employer to successfully defend a dismissal as being for unconnected reasons while acknowledging that the worker has a Disability. Taking the reports from the Car Park of the exchanges between the Parties, all under Oath, diabetes was mentioned as a reason for a non-start of work.
The Complainant was discriminated against because of his Disability.
3:2:3 Discriminatory Dismissal.
As the evidence points to Discriminatory treatment the dismissal or in this case the Non-Starting of Work was also discriminatory.
4: Decision: CA: 00040127-001
Section 41 of the Workplace Relations Act 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the cited Acts.
Discrimination has been satisfactorily proven on both complaints submitted by the Complainant -namely Disability Discrimination and Discriminatory Dismissal.
Under Section 82 (c) of the Employment Equality Act,1998 I order Compensation for the effects of acts of discrimination in the amount of €5,400. (This equates to approximately a sum close to six weeks wages that the Complainant was left short of due to the Discriminatory Acts.)
For the benefit of clarity this is a Compensation award and not any form of renumeration.
Workplace Relations Commission Adjudication Officer: Michael McEntee
Disability, Diabetes, Unfair Dismissal.