St Margaret's Recycling & Transfer Centre Ltd (Represented by Adare Human Resource Management) v Ryszard Smoktunowicz (Represented by Hoban Boino, Solicitors)

 
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Labour Court (Ireland)

FULL RECOMMENDATION

ADE/16/67

DETERMINATION NO.EDA1822

DEC-E2016-098/MMcE

PARTIES:
St Margaret's Recycling & Transfer Centre Limited (Represented by Adare Human Resource Management)
and
Ryszard Smoktunowicz (Represented by Hoban Boino, Solicitors)
SUBJECT:
1

1. An appeal of an Adjudication Officer's Decision no. DEC-E2016-098/MMcE.

BACKGROUND:
2

2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on the 11 July 2016. A Labour Court hearing took place on the 7 March 2017. The following is the Court's Determination:

DETERMINATION:
3

This is an appeal by Mr Ryszard Smoktunowicz against the Decision of an Adjudication Officer/Equality Officer DEC-E2016-098/MMcE under the Employment Equality Acts 1998 – 2011 (the Acts) in a claim alleging discriminatory dismissal on the disability ground by his former employer St Margaret's Recycling & Transfer Centre Limited. He also submitted a claim alleging discrimination on the race grounds. The Adjudication Officer/Equality Officer held that (i) the Complainant had failed to establish that he had a disability within the meaning of the Acts and (ii) in relation to discrimination on the race ground he held that here was not sufficient prima facie evidence to support the claim. The latter claim was formally withdrawn. The Complainant appealed against the Adjudication Officer/Equality Officer decision.

4

For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Ryszard Smoktunowicz will be referred to as “the Complainant” and St Margaret's Recycling & Transfer Centre Limited, will be referred to as “the Respondent”.

5

The Complainant referred a complaint under the Acts to the Director General of the Equality Tribunal on 19 th March 2015. The Adjudication Officer/Equality Officer issued his Decision on 7 th July 2016. On 11 th July 2016, the Complainant appealed the Adjudication Officer's Decision. The appeal came before the Court on 7 th March 2018.

Background
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The Complainant was employed by the Respondent from 28 th January 2014 as a General Operative. He claimed that he was injured at work on 14 th October 2014 and as a result had to leave the workplace that day and attend a GP. He submitted a medical certificate with an expiry date of 28 th October 2014, indicating that he was suffering from “back pain lower back”. The Respondent furnished the Complainant with a P45 on 25 th November 2014.

Summary of the Complainant's Case
7

Mr Krystian Boino Solicitor, Hoban Bonino Solicitors, on behalf of the Complainant submitted that the Complainant was suffering from a disability at the material time and his dismissal was on the ground of his disability. He contended that the Complainant's disability came within the definition of Section 2 (c) of the Acts:-

Section 2 (c) the malfunction, malformation or disfigurement of a part of a person's body.

8

Mr Boino stated that the Complainant submitted a medical certificate and a Social Welfare Illness/Injury Benefit Form on 15 th October 2014, following an accident at work the previous day. These were furnished to the Respondent. The medical certificate indicated that he was suffering from lower back pain and the Respondent signed the Social Welfare Form. The Complainant obtained two further medical certificates which extended his sick leave for a further four weeks, he said that these were delivered to the Respondent. Mr Boino said that the Respondent refused to accept these documents, claiming that he did not work for them any longer.

9

Mr Boino referred to a medical report dated 28 th October 2015 from the Complainant's GP which stated that the Complainant had incurred an accident at work in an alternative employment on 17 th August 2013 during which he sustained a number of injuries. In this report the GP stated that the Complainant's injuries indicated on an x-ray carried out on 17 th October 2014 showed that he had L4/5 disc space reduction and possible C5/6 disc space reduction minor thoracic scoliosis concave to the right. The Report stated that he was absent from work from 14 th October 2014 until 28 th March 2015.

10

Mr Boino submitted that the Respondent could not rely on the premise that it was not aware of the Complainant's medical condition. He said it was irrelevant that the Respondent had no evidence or communication of any disability or injuries on the basis that it made no enquiries of the Complainant's medical condition. He submitted that when the injuries or disability occurred was of no relevance and the only relevant matter was that the Respondent dismissed the Complainant due to his disability. He said that it was clear that the disability did exist at the time of the dismissal, regardless of which occasion created the disability.

11

With reference to the issue of notification of the Complainant's disability, Mr Boino said the Complainant's medical condition was confirmed by medical certificate from his GP and the Respondent chose not to investigate the matter further and even refused to accept further medical certificates. He contended that the signing of the Social Welfare Form highlighted the fact of the existence of an injury.

12

Mr Boino contended that the Respondent failed to carry out any investigation or make any enquiries to verify the existence of any injury or to determine whether or not the Complainant was unfit to perform his duties.

13

In support of his position, Mr Boino cited the case of Donatellos Restaurant v A Worker [2005] 16 ELR 28 where the Court held as follows:-

“An employer should ensure that an employee is given fair notice that the question of his or her dismissal for incompetence/incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision. No such provision was afforded in this case.”

14

He also cited Niamh Humphries v Westwood Fitness Club [2004] 15 E.L.R. 296 where the Court held that the employer is “required to make adequate enquiries so as to establish fully the factual position in relation to employees' capacity”

15

Mr Boino referred to the Labour Court case of A Government Department v. A Worker Determination EDA094 , where the Court set out an analysis of the definition of “disability”. It stated as follows:

It is noteworthy that the definition is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal affect on the sufferer. This is clear from the definition which provides that it:-

“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”

16

It is now well settled that where a term used in a statute is defined by the statute itself a Court cannot look outside that definition in construing that term. As this Court stated in Gemma Leydon Customer Perceptions Ltd, Determination EED0317 and again in A Worker v A Government Department 17 ELR 225 :-

It is settled law that where a statute defines its own terms and makes what has been called its own dictionary, a court may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. (See the decision of the Supreme Court inMason v Levy [1952] I.R. 40.)”

17

He also referred to the Labour Court case of Gemma Leydon v Customer Perceptions Ltd, Determination EED0317 , where this Court considered the question raised by the respondent that because the complainant's condition was temporary in nature and relatively minor in terms of its debilitating effect, it could not be regarded as a disability. The Court referred to the view that the disability provisions in the Irish statute appear to be modelled on the Australian Disability Discrimination Act 1992. The Court concluded as follows:-

“Taking the ordinary and natural meaning of the term malfunction, (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is...

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