Complainant

Respondent

Parties

William  Drislane

Cavanagh's of Fermoy(Ashequay) Ltd.

Representatives

Michael Kinsley B.L., instructed by   Bruce St.John Blake & Company Solicitors

 Frank Hogbin, Managing Director

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-00059006-001

25/09/2023

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

CA-00059006-002

25/09/2023

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

CA-00059006-003

25/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00059006-004

25/09/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses for the respondent undertook to give their evidence under affirmation.  Cross examination was facilitated.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The complainant took three separate complaints under the discrimination and equality legislation and he took an unfair dismissal complaint.  One of the equality complaints related to discriminatory dismissal. The WRC wrote to the complainant on 11 June 2024 indicating that where there were parallel complaints regarding dismissal under both the Employment Equality and Unfair Dismissals Acts, a complainant could elect to proceed with the Employment Equality complaint. He was informed that in the absence of electing to pursue an equality complaint, the equality dismissal complaint would be deemed withdrawn and only the Unfair Dismissals complaint would proceed. As no correspondence was received within the allotted time frame, the discriminatory dismissal was deemed withdrawn and the dismissal aspect of this complaint preceded under the unfair dismissals act alone.

The respondent submitted that it was not aware of the complainant's disability in that the certificates governing his sick leave simply indicated that he was unfit for work. The first that the respondent was informed of the existence of a disability was on the morning of the first hearing of these complaints. It was noted that their response was based on what is fair and reasonable in all the circumstances that they were aware of.

The respondent submitted that the complainant's absence from work began on 23 September 2021. The following December the respondents wrote to him to indicate that his absences have simply been certified as unfit for work. They sought to obtain his consent to attend a meeting with the company’s nominated occupational health specialist and thereby sought to have access to any subsequent medical report. From their perspective the complainant did not comply with this, and they repeatedly tried to engage with him, as they felt obliged to. As he has not signed consent forms to enable a medical assessment, the company then proceeded to let him go with immediate effect. He was also notified that he could appeal this decision.

In a subsequent meeting on 19 December 2022, the complainant agreed to attend an occupational health specialist and agreed to the company getting a copy of the report. They proceeded in that fashion. The company gave the complainant until 6 January 2023 to comply with these conditions.  He did so but subsequently withdrew his consent for the sharing of his medical report with the respondent.

Witness evidence:

The first witness for the respondent (the Managing Director) noted that they had repeatedly tried to contact the complainant to ascertain the nature of his disability in order to assess how to proceed with matters. He noted that the complainant was not engaging with the respondent. He noted that these attempts to engage with the complainant went on for more than a year. He noted that he needed the complainant back at work.

Under cross examination he made reference to the time when the company gave the complainant parental leave but there were allegations that he was working. These allegations could not be substantiated at the time and they moved on. He noted that when he was engaging with the complainant he offered to step aside if the complainant had issues with him and to hand matters over to other senior staff members. However, he noted that the complainant never accepted this offer. He noted that prior to going off sick the complainant had looked for a pay rise. He stated that he couldn't justify giving him a pay increase based on his underperformance.

As regards the respondent’s engagement with the complainant despite his request not to do so, the witness stated that the company had an obligation to remain in contact with the complainant when trying to ascertain the breath and nature of his illness.

The witness noted that as regards the consent form for the occupational health assessment, this was provided for in employment handbook and it was a straightforward request. He noted that the complainant could have come back and asked a question but didn't do so. It was put to him that he sent an e-mail seeking the extent of the information to be sought but the witness noted that he did not organise the occupational health process and so was not aware of the nature of the information being sought. He noted that in subsequent correspondence it was clarified for the complainant that the only information being sought related to the complainants return to work and, when and if this would happen. The witness noted that the respondent was entitled to receive the occupational health report and that they had gone out of their way to accommodate the complainant.

The witness then outlined that the only option open to the company in the absence of the consent by the complainant, to move the process along and against a backdrop of non-engagement was to proceed with his dismissal. He noted they tried to engage with him repeatedly. He was offered a final invitation to engage but refused to return the signed consent form. Accordingly, the dismissal went ahead. He reiterated that in the absence of any meaningful engagement by the complainant the company was left with no other option.

The witness outlined that the complainant had an entitlement to appeal and appealed the decision. The decision was stayed pending his engagement with the occupational health professional. The complainant was due to return to work in March but failed to do so having engaged in a piece meal fashion with the occupational health professional. The decision was made to uphold the original termination decision. He confirmed that the dismissal was due to the complainant lack of capability to undertake the role and/or his ill health. He reconfirmed that the company sought to engage with the complainant, but the complainant did not do so.

The second witness for the company was the person who looked at the appeal. He noted that he had a working relationship with the complainant for a number of years and although the appeal was upheld he put ‘a stay of execution’ on the decision pending the complainants signature of the consent form and engagement with the occupational health specialist.

Under cross examination the witness outlined that he was appointed to hear the appeal by the managing director. When asked did he know anything about what was going on he said that it had been discussed at board level, so he was aware of the matter. He stated that he was aware that the issue was around the signing of the consent form.

The witness confirmed that he had not been involved in decisions previously but noted that the complainant was welcome to come back if he engaged with the occupational health professional and subject to the recommendations of that professional.

When asked did he look at the handbook regarding appeal procedures he said no he didn't, he stated that he looked at all the information regarding the situation. He stated that at any stage the complainant could have changed his mind and returned to work he noted that this was not the end of the procedure.

It was put to the witness that the complainant complied with the conditions of the appeal. It was also put to the witness that the complainant met with the only conditions that were imposed on him, engaging with the occupational health specialist.

The complainant submitted that he was dismissed from his employment with the respondent on 25 April 2023, having previously been dismissed but the decision was not pursued following discussions at appeal stage.

The complainant submitted that he feels as though he has been discriminated against in his workplace. He submitted that he was penalised for not agreeing to sharing medical evidence and coerced into having to change his approach in regard to his employer. He stated that his employer failed to deal adequately with his condition/disability and behaved inappropriately and oppressively in respect of that disability.  He submitted that he was harassed, unfairly treated and dismissed due to his health issues.

The complainant submitted that he has worked at the respondent’s premises since 2015 and in 2021 submitted a grievance when he found out that there was inappropriate behaviour taking place. He submitted that he was out sick since 2021. He was asked when he was coming back to work; and noted that he had no problem in submitting to a medical assessment.  However, he stated that in December 2022 he found himself dismissed. He stated that his employer was aware of his disability and although this is disputed, he said that he submitted certificates to cover his illness.

Complainant evidence:

The complainant stated that he worked for the respondent since 2015.  He submitted that differences occurred between himself and the manager in 2021. He stated that he subsequently suffered from work related stress and he didn't feel that he could meet with the manager. He said that this was covered in his medical certs and stated that he didn't attend for work while he was under medical care. The complainant stated that his employer knew that he was off work with work related stress and he didn't feel comfortable sharing his medical records with his employer. He stated that “it's private”. He also stated that he had no difficulty at attending therapist but had a difficulty with the report being returned to the employer. He stated that his employer was seeking information regarding whether he could return to the workplace and whether he was medically capable of returning to the workplace. He noted that he attended with an occupational health specialist in February 2023. The witness noted that his termination was stayed while the process of meeting with the medical specialist was on going. He stated innate that in April 2023 his employment was terminated, and he was not provided with an appeal.  He noted that he has largely  not been working since and that he is in receipt of illness benefit up until November 2024.

He stated that the nature of his condition was that he was suffering from work related stress.

Under cross examination, the complainant stated that he had enjoyed a fairly good relationship with his former manager and that he told him he had a disability in a meeting with him in October 2022. He noted that he had been feeling unwell for several months prior to 2021. The complete the complainant stated that he had mental health issues, and he stated that he was on medication. When asked what his diagnosis was, he stated that he didn't recall and couldn't remember

The complainant stated that when he sought parental leave, he was denied it as the company could not justify it. However, he did get some form of parental leave, and it was put to the witness that he was working while on parental leave, working on a farm.  Although the witness had made a complaint to his employer, he decided not to pursue that complaint.

The respondent put it to him that it made efforts to ensure that he came back to work and the witness agreed. It was also put to the witness that there was still an ongoing vacancy but that he had not taking the opportunity. It was put to him that he had not availed of the company's serious illness policy and the witness confirmed that he had availed of Social Security instead. It was mentioned that accessing the company's serious illness policy could have mitigated his losses.

The complainant argued that he had a disability that falls within the legislative provisions of the Employment Equality Act.  He suggested that he had submitted a number of medical certificates to his employer, in support of this contention.  The respondent accepted that they had received medical certificates regarding the complainant’s absence from work but noted that these certificates simply indicated that the complainant was unfit for work, rather than identifying any particular disability or condition from which the complainant suffered.

The Act defines the meaning of disability as follows:

“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 accepted that perhaps a disability as outlined by the complainant at the hearing might amount to a disability under the legislation, but it was submitted that they were not notified of the existence and nature of the disability while the complainant was in employment.

Having regard to the disability outlined by the complainant at the hearing of these matters, I am satisfied that in certain circumstances, it would comply with the definition of a disability for the purposes of the Act.  However, in order to benefit from the protections of the Act, an employee must notify an employer of the existence and nature of the disability.

The Act outlines the obligations that fall upon an employer arising from the notification of the existence and nature of a disability.  One of those obligations requires the employer to consider an employee’s disability and, if he or she is unable to fulfil the duties associated with the employment, the employer is required to consider what accommodations they could make to the role, or to the tasks, such as to enable an employee to undertake their role and duties to a sufficient level.  This places the onus on an employer to ascertain the nature and scope of the disability, to consider the requirements of the job, and to make such accommodation as is ‘reasonable’ in all the circumstances.

Section 16(1) of the Act states as follows:

16.—(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

Section 16(3) and (4) of the Act state as follows:

3) (a) For the purposes of this Act 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.

(b) 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.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

(4) In subsection (3)—

"appropriate measures", in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

In this case, the employer engaged an Occupational Health professional to provide a report on the complainant’s fitness to work.  The complainant was required to give his consent for the assessment and for the provision of his medical records to the company to consider its position and options regarding the complainant’s continued employment.

Although the complainant agreed to the assessment, he refused to give his consent to the provision of his medical records to the respondent.  His position is that he should not have been required to provide all his medical records to the respondent.

The respondent’s position is that the complainant refused to provide his consent to an Occupational Health assessment.  In the absence of the Occupational Health assessment, they were unable to determine whether they could retain the services of the complainant.  Accordingly, they proceeded to dismiss him as they were not able to establish his capacity to work.

The complainant was initially dismissed by the respondent on 7 December 2022 with an appeal of that decision set to take place on 19 December 2022.  On 20 December 2022 the complainant was notified that although his appeal had failed, he would be allowed further consideration of the decision following an Occupational Health assessment.  He was required to provide consent for that assessment by 6 January 2023.

The complainant agreed to undertake the Occupational Health assessment.  However, he subsequently withdrew his consent for the report to be provided to the respondent.  Ultimately it appears that the complainant met with the Occupational Health specialist who informed the respondent that

-          (the complainant’s) recovery may be aided by some form of counselling but that he feels that the cost of such counselling may be prohibitive

-          And that (the complainant) still have unresolved work concerns and it may be advantageous to engage in dialogue with the company in order to discuss these concerns.

The respondent offered to pay for counselling and offered to meet with the complainant to discuss matters further.  The complainant did not accept the offer and did not engage with the respondent further.  On 25 April 2023, the respondent confirmed its earlier decision to dismiss the complainant.

Complaints under the Employment Equality Act:

The complainant submitted that he was discriminated against under the family status and disability grounds.  He also submitted that he was discriminated against when he was not afforded reasonable accommodation for a disability he suffered.

The complainant did not offer any evidence regarding discrimination on the family status ground.

Under section 85A of the Act: “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 complainant has not established any facts regarding his submission that he was discriminated under the family status ground.  Accordingly, I find that he was not discriminated against under this, the family status, ground.

The complainant submitted evidence to the initial hearing regarding his disability.  However, the respondent noted that it was not made aware of the nature of his disability while he was in employment.  The respondent submitted that it could not discriminate against a person under the Act when it was unaware of the nature of the disability.

The respondent also submitted that it unsuccessfully tried to ascertain the nature of the complainant’s disability to tried to address the issue of reasonable accommodation.  Its efforts were unsuccessful.  Furthermore, it submitted that it did provide accommodation along the lines of the recommendations by the Occupational Health expert, but this offer was not accepted by the complainant.

The complainant submitted that he did provide medical certificates to the respondent notifying them of his disability.  He provided copies of these certificates to the Tribunal at various points throughout the three hearing days and subsequent to those hearings.  However, none of the medical certificates provided to his employer during his employment, as provided to the Workplace Relations Commission indicate a disability as defined under the Act, they merely indicate that he was not fit to work.  No evidence has been provided to back up the complaiaint’s assertion that he orally notified his manager of the existence of his disability in 2021/2022.  He was also unable to recall what his diagnosis was.  Accordingly, I am satisfied that the respondent was not made aware of the nature and scope of the complainant’s disability.

Under section 85A of the Act: “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 complainant has not established any facts regarding his submission that he was discriminated under the disability ground.  He has not established that his employer was aware that he had a disability, nor were they aware of the nature and scope of that disability.  Therefore, I find that the complainant did not disclose the nature of his disability to the respondent, thereby hindering the employer’s ability to fulfil their obligations under the provisions of the Act.  Accordingly, I find that he was not discriminated against under the disability ground.

As to the issue of reasonable accommodation, notwithstanding my finding above that the respondent was not aware of the nature of his disability, having regard to the evidence provided by the parties, I am satisfied that the respondent attempted to ascertain the nature of the complainant’s disability and to provide the accommodation recommendations outlined by the Occupational Health specialist.  That the complainant did not avail of the offer relating to reasonable accommodation does not diminish that offer.  Accordingly, I find that the complainant was not discriminated against under the Act.

The complainant did not pursue his complaint of discrimination under the Family Status ground.

Unfair Dismissal complaint:

The complainant was initially dismissed by the respondent on 7 December 2022 with an appeal of that decision set to take place on 19 December 2022.  On 20 December 2022 the complainant was notified that although his appeal had failed, the respondent put a stay on the dismissal to allow the complainant to engage with an Occupational Health assessment.  He was required to provide consent for that assessment by 6 January 2023.

The complainant agreed to undertake the Occupational Health assessment.  However, he subsequently withdrew his consent for the report to be provided to the respondent.  Ultimately it appears that the complainant met with the Occupational Health specialist who informed the respondent of his recommendations.  The respondent reached out to the complainant regarding those recommendations, but the complainant did not engage with the respondent at that time.  The respondent followed this up on 25 April 2023 with confirmation that in the absence of any engagement from the complainant, the original decision to dismiss him on the grounds of ill-health and/or capacity still stood.  The complainant was provided with his final payment, including another payment in lieu of notice, on 27 April 2023.

At no point was the complainant informed that his dismissal was rescinded.

The respondent submitted that the complaint regarding the Unfair Dismissal was made outside of the timeframe permitted under the Act.

Section 1 of the Unfair Dismissals Act provides the following guidance relating to the date of a dismissal:

“date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of the expiry or cesser;

Section 8(2) of the Act deals with the timeframe for submission of a compliant under the Act.  It states:

(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

and a copy of the notice shall be given by the Director General … to the employer concerned as soon as may be after the receipt of the notice by the Director General.

The complainant received the notice of his dismissal on 7 December 2022. That notice indicated that the complainant would receive his contractual notice by way of payment in lieu.  His contractual notice amounted to four weeks’ pay, which was greater than the statutory notice provided for in the Minimum Notice and Terms of Employment Act, 1973.  The notification of the termination of employment included a note that he would be paid any outstanding monies four weeks later on 5 January 2023.  Six months from that date is 4 July 2023.  The respondent submitted that the complaint was made outside of the six-month time frame provided for in Section 8(2)(a) of the Act,

The complainant submitted that Section 8(2) (b) was applicable as he was prevented from submitting the complaint due to a reasonable cause – that the complainant was offered the opportunity to meet with an Occupational Health specialist.  The complainant had the benefit of legal advice at the time when he submitted his complaint to the Workplace Relations Commission.

The reason put forward by the complainant’s representative as to his being prevented from submitting a complaint was that he was engaging with the Occupational Health expert nominated by the respondent.  I note that the respondent reached out to the complainant as per the Occupation Assessment recommendations, but they received no response.  I am not satisfied that this engagement prevented the complainant from lodging his complaint in accordance with the six-month timeframe outlined in the Act.  Accordingly, I find that the complaint falls outside the six-month timeframe, i.e. the compliant should have been submitted on or before 4 July 2023, as provided for in the Act.

Employment Equality Complaints:

Having regard to all the written and oral evidence provided by the parties in relation to this complaint, my decision is that the complainant was not discriminated against und the Act.

Unfair Dismissal

Having regard to all the written and oral evidence provided by the parties in relation to this complaint, my decision is that the complainant was not lodged within the timeframe laid out by the Act.

Employment Equality – No notice of a disability to respondent – discrimination not established – Reasonable accommodation was provided but not availed of – Unfair dismissal – outside of legislative timeframe