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WRC awards €16,640 for victimisation rather than discriminatory dismissal

On 6th October 2017, the Workplace Relations Commission (“WRC”) issued a decision (ADJ- 00005899 – An Employee v. A Transport Company) that although there was no discriminatory dismissal on the ground of disability, the dismissal was victimisation under the Employment Equality Acts (the “Acts”) and awarded €16,640. It is an interesting case that the employer managed to prove that it met the obligations of reasonable accommodation but lost the case due to having dismissed the employee so soon after it lodged its appeal to the Labour Court of the WRC’s decision in the discriminatory treatment case on the ground of disability and did not even wait for the Labour Court hearing.

Background
The Complainant had issued a previous claim in January 2016 for discriminatory treatment on the ground of disability. The WRC’s decision in favour of the Complainant was broken down into two parts, A.) The Complainant was to be returned to the Respondent’s payroll for a period of six months in which time the Respondent should engage in direct and meaningful discussion with the
Complainant and his trade union representatives in an “effort to arrive at a reasonable, sustainable and definitive resolution of the matter” and B.) awarded the Complainant €15,000 in compensation for the effects of the act of discrimination.

Facts of the case
The Complainant was employed as a Gate Keeper for the Respondent Company from 4th November 2004 to 11th October 2016. He was diagnosed as suffering from epilepsy in 1997. The medication prescribed to the Complainant has controlled the symptoms of this condition to a high extent with the Complainant has not suffered from an epileptic fit since 2001. Despite two instances in which The complainant had an opportunity to disclose his condition to his employer, he did not declare that he had a pre-existing disability.

In January 2015 he was certified as unfit to work in a health matter which was completely unrelated to his disability. During this absence, he advised the Medical Officer of his condition and the medication he was taking. He was subsequently declared fit to return to work but was not allowed to return to the Company. Accordingly, the Complainant issued a complaint to the WRC under the Acts in January 2016 for discriminatory treatment.

Following the WRC determination, the Complainant was dismissed by the Respondent. The Complainant asserts this was a direct result of his disability which the Complainant deems is victimisation under the Acts. The Respondent submits that no discrimination occurred, that the A complainant was dealt with purely on his ability to carry out his role and on his ability to carry our alternative duties which the Respondent concluded after a lengthy trawl to identify alternative duties for the Complainant.

The Complainant also brought a claim for minimum notice and payment in lieu thereof. In a letter dated the 6th October 2016, he was given notice of his impending dismissal and the effective date of his dismissal was 11th October 2016. The Complainant had worked for the Respondent Company for 12 years at the time of dismissal which would, therefore, entitle him to 6 weeks’ notice or payment in lieu thereof. The Respondent submitted that the matter was a retirement issue and the provisions of the Minimum Notice & Terms of Employment Act 1973, therefore, did not apply.

Decision
The WRC referred to the decision of the Labour Court appeal which found that no accommodation for the Complainant’s disability would render him capable of undertaking the work for which he was employed. The Labour Court had also noted that the Respondent had made attempts to secure alternative duties for the Complainant but had failed to find any suitable alternatives. As no further evidence was produced in relation to discrimination, the WRC found that there was no discriminatory dismissal.

However, the WRC found that the Respondent had victimised the Complainant in terms of section 74 (2) of the Acts in terms of his dismissal. The Adjudicator looked at the chronology of events from the decision of the previous WRC case to the Complainant being medically examined, the Respondent lodging an Appeal and then terminating the Complainant’s employment. The basis for the decision was that the Respondent was found to have moved to finalised the employee’s employment situation in circumstances where the outcome of the appeal was not known and the Respondent was held of have pre-empted the situation. The Respondent was ordered to pay €16,640 compensation in respect of the victimisation.

The claim under Minimum Notice & Terms of Employment Act 1973 was also decided in favour of the Complainant and he was awarded €3,840 which was the statutory entitlement of six weeks’ pay in lieu of notice. The Court determined that notice of termination was received by letter on 6th October and this period did not comply with the responsibilities of the Respondent.

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