Complainant

Respondent

Anonymised Parties

A Driver

 A Garden Centre

Representatives

James McEvoy Work Matters Ireland

Andrea Montanelli Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062802-001

14/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00062802-003

14/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00062802-004

14/04/2024

The Complainant was employed as a Customer Service assistant from 24th January 2024 until 1st February 2024.

CA-00062802-001

The Complainant alleges discrimination on the grounds of his disability, in relation to his conditions of employment and failure to provide reasonable accommodation by the Respondent.

He informed his employer about his disability and was immediately removed from scheduling and asked not to come to work. He was dismissed for poor performance on 1st February 2024 but there was no issue with his performance in the role. The Complainant believes he was dismissed due to his disability.

CA-00062802-003

The Complainant was not provided with any breaks when he was working. He was not made aware of his legal breaks.

CA-00062802-004

The Complainant was contracted to work 3 days of 7.5 hours. He worked three days of 9.0 hours with no break, totalling 27 hours. He was only paid for 22.5 hours and is owed 63 euro.

The Respondent raises a preliminary point that the Complainant has not set out a prima facie  complaint of discrimination. The Respondent relies on the Labour Court decision in Melbury Developments v A Valpeters [EDA 0917].

“Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.

The Respondent says the Complainant has not outlined evidence of less favourable treatment on the grounds of his disability which he alleges, nor provided a comparator. He has not set out how he alleges he was not provided with reasonable accommodation.

The Respondent relies on the decision in Able Security Ltd v Hardjis Langsteins DWT1319 and says basic information has not been provided in order for them to defend the claim.

The Respondent relies on the rulings in K Stapleton v Acushla Limited [ADJ-00037399 ], Guerin v SR Technics Ireland Limited UD969/2009 and others that the Adjudication Officer should make a decision on the preliminary issue.

The Respondent carries on the business of supply and installation of horticulture. The Complainant was employed as a Driver from 24th January 2024 with his last day of work being 26th January 2024. It strenuously denies the complaints.

The Complainant was taken on directly by the owner as he was near to the owners age, and he tried to help him. The Complainant was provided with a safety statement. He was contracted to work three days a week, Wednesday to Friday. The Complainant was training for the first week. As there was not much work after Christmas, the Complainant was told not to come in for work on 29th to 2nd February 2024. On 30th January the Complainant told a member of staff he had a social welfare benefit and the contract would need to be drafted in a specific way.

The Respondent then contacted the Complainant to clarify the situation and his fitness for work in a driving role. The Complainant would be driving a van for the Respondent which is a risk to himself and others, so it needed the information in order to provide any accommodations required for the role. However, the Complainant did not disclose the information requested.

The Respondent sent the Complainant two emails on 30th and 31st January 2024 requesting the information on his conditions in order to accommodate him into a suitable role, but he did not respond to the questions asked. The Respondent had no option but to terminate the Complainants employment on 1st February 2024 as he could pose a risk to others.

The Respondent has a number of disabled employees working on the premises, one who works there for 22 years. The Respondent has never discriminated against any person  or terminated their employment for this reason.

The Respondent relies on the ruling in the Southern Health Board v Mitchell, DEE011, [2001] ELR201 where the Court stated:

 “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 Respondent refers to the case of Margetts v Graham Anthony & Company Limited, EDA038, where the Court noted as follows:

 “The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discriminationhas occurred.

The Complainant did not disclose his disability, so the Respondent was not aware that he had any alleged disability. He was dismissed due to the lack of work in January and his failure to provide information and documentation regarding his fitness for work.

CA-00062802-003

The Complainant took all of his breaks. All staff are notified to take their breaks. He was training for three days that he worked with the organisation. At all times he was with another member of staff who took his breaks, and the Complainant was given his breaks at the same time. The complaint should be rejected.

CA-00062802-004

On 24th of January 2024, the Complainant registered that he worked from 9am to 5pm (8 hours minus 1 hour break = 7 hours). On the 25th of January, the Complainant registered that he worked from 7:40am to 4:15pm (8 hours and 35 minutes minus 1 hour break = 7 hours and 35 minutes) On the 26th of January, the Complainant registered that he worked from 7:45am to 4:10pm (8 hours and 25 minutes minus 1 hour break = 7 hours and 25 minutes)

The Respondent disputes the claim, and says the Complainant was paid all money owed.

I heard and considered the submissions of the parties, their evidence and that of their witnesses.

Due to the nature of the Complainant’s medical condition, I am anonymising the identities of the parties to the complaints.

The Complainant alleges that he has been (i) discriminated against in terms of S6 (2) (g) of the Employment Equality Acts 1998-2015 on the grounds of disability (ii) other discrimination and (iii) that the Respondent failed to afford reasonable accommodation for his disability pursuant to S16 of the Employment Equality Acts 1998-2015.

The Complainant was training as a Driver with the Respondent from 24th January 2024 until 1st February 2024.

The burden of proof is set out in Section 85A(1) of the 1998-2015 Acts which provides:

“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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned.

S16 of the Acts provides that a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as appropriate measures) being provided by the person’s employer. The employer shall take appropriate measures, where needed in a particular case to enable a person who has a disability-

(i)                  To have access to employment.

(ii)                To participate or advance in employment, or

(iii)               To undergo training,

unless the measures would impose a disproportionate burden on the employer.

The Complainant gave evidence that he found out about the part-time job through Employability which places people with disabilities in employment. He met the owner for an interview and told him about his heart condition following a heart attack in 2016.

The Complainant trained with another Driver from 24th to 26th January 2024. He sent a text message to N asking for a letter clarifying the amount of money he is earning and hours which he needed for the Department of Social Welfare due to his disability allowance. He said a few hours later he got a message from N that the roster and work was cancelled and not to come into work. He said he called N as he could not understand why he could not come in. She said it was the owner’s decision and she would revert.

The Complainant was provided with the Company’s Health and Safety Statement by email. At page 23 of the Health & Safety Statement it states:

“Employee Welfare

All employees shall be made aware of the following points:

Any person who is under medical supervision, or on prescribed medication and who has been certified fit for work, should notify Employer Management of any known side effects or temporary physical disabilities, which could hinder their work performance and which may be a danger to either themselves or others”.

On 30th January 2024, the Complainant was asked to confirm he read and fully understood this, which he confirmed.

The Complainant was asked by accounts on 30th January 2024 to provide information regarding his disability, a document relating to his disability, medication or routine treatments, and any fitness for work report. He did not provide the information. The Complainant was informed by email on 31st January 2024 the information was required to arrange a suitable position and working hours for him in the company. The Accounts representative replied “Once he provides the information, it will be evaluated and he will be informed of the outcome.” The Accounts representative gave evidence that he was not aware of the Complainants health condition. He wanted to clarify the Complainant was fit for work as a Driver and if not the Complainant could work in the Garden-Centre. He denied being aggressive and rude as the Complainant alleged, and said he had no reason to be. The Accounts representative said his English is poor and he would have difficulty explaining on the telephone.

On 31st January 2024 the Complainant asked what information was required.

The Complainant did not provide the information requested. He said he felt threatened and bullied, as soon as he notified N about his disability he was removed from the roster. A representative from accounts tried to call the Complainant by phone but he would not take the call.

The Complainant received a letter of dismissal on 1st February 2024. The Respondent owner gave evidence the Complainant was let go as he was not answering questions and they needed to know he was suitable to be a driver for insurance cover. There were other roles available as well. However, a number of jobs were cancelled, and work was down at end of January. The owner said he felt let down by the Complainant as he was helping him to get a job and the Complainant was being uncooperative. He employs a number of staff with disabilities.

I have considered this complaint carefully. The events happened in a short-time frame. A prima facie case of discrimination on the grounds of disability has not been shown. The Complainant was requested to provide information regarding his disability and fitness for work by the Respondent. He did not do so. There is no adequate explanation for his failure to do so. This information is reasonably required by an employer for health and safety purposes. I find there was no discrimination, nor failure to provide reasonable accommodation, as reasonable accommodation was never requested by the Complainant.  The complaint is dismissed.

CA-00062802-003

The Complainant complains that he did not receive his breaks on two days. Evidence was given by a Driver who trained him on 25 and 26th January 2024 that the breaks were taken in the van which I accept. I find the complaint is not well founded.

CA-00062802-004

The Complainant is seeking payment for hours owed for breaks. Please see the finding in CA-0062802-003. I find the complaint is not well founded.

A prima facie case of discrimination has not been shown. There was no failure to provide reasonable accommodation. The complaint is dismissed.

CA-00062802-003

The complaint is not well founded.

CA-00062802-004

The complaint is not well founded.