Swan O Sullivan Accountants & Registered Auditors (Represented by Mr Padraig Lyons, B.L.; Instructed by Lavelle Solicitors) v Seamus Counihan (Represented by Ms Sharon Dillon Lyons, B.L.; Instructed by Cogan Daly Solicitors)
Labour Court (Ireland)
1. Appeal of Adjudication Officer's Decision
2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts 1998 to 2015. A Labour Court hearing took place on 9th January, 2018. The following is the Determination of the Court:
This is an appeal by Mr Séamus Counihan against the decision of an Adjudication Officer in a claim that his former employer Swan O'Sullivan Accountants & Registered Auditors had discriminatorily dismissed him on the ground of disability contrary to the Employment Equality Acts 1998 to 2015 (“the Acts”). The Adjudication Officer found that the complaint was not well founded and dismissed the complaint under the Acts.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Séamus Counihan will be referred to as “the Complainant” and Swan O'Sullivan Accountants & Registered Auditors will be referred to as “the Respondent”.
The Complainant referred his claim under the Acts to the Workplace Relations Commission on 25th February 2016, a hearing was held on 10th August 2016 and the Adjudication Officer's Decision was issued on 7th November 2016.
The Complainant commenced employment as an Audit/Accounts Semi-Senior on a traineeship with the Respondent on 10th March 2015 and was dismissed on 31st August 2015.
The Respondent is a small accountancy practice, which practices mainly in the preparation of non-audited and audited accounts, tax returns and some insolvency work primarily for SME's and general sole traders.
The Complainant was represented by Mr Padruig Counihan, AGNA, at the hearings held on 17th May and 6th September 2017. He was represented by Ms Sharon Dillion Lyons, B.L., instructed by Cogan Daly Solicitors, at the hearing held on 9th January 2018.
Mr Counihan on behalf of the Complainant stated that the Complainant suffered from epilepsy. He contended that the Complainant's dismissal was on grounds of his disability and amounted to unlawful discrimination. He disputed the Respondent's contention that the dismissal was for performance reasons. Furthermore, he disputed the Respondent's contention that it was unaware that the Complainant suffered from epilepsy.
Mr Counihan told the Court that on 17th April 2015 the Complainant suffered a seizure while at work. He was hospitalised the following day, diagnosed as suffering from epilepsy and discharged from hospital on 21st April 2015. He returned to work on 29th April 2015.
The Complainant's representative said that the Complainant had ongoing discussions with members of management about his health and that his work colleagues were more than aware of his medical condition.
Mr Counihan submitted that the Complainant had never been advised that his performance was an issue. He assumed his performance at work had been satisfactory, therefore, the only conclusion he could reach was that the Respondent did not want to continue his employment because of his epilepsy.
Mr Padraic Lyons, B.L., instructed by Lavelle Solicitors on behalf of the Respondent submitted that the Complainant was dismissed because the Respondent was not satisfied with his performance and he was not successful in his probation, which was not in any way connected to any illness, absence or disability as alleged by the Complainant. Mr Lyons contended that the Complainant has failed to establish facts from which it may be presumed that he suffered unequal treatment by reason of a disability and therefore his appeal must fail. He had failed to tender any medical evidence of a diagnosis of epilepsy or the existence of other persuasive evidence of a relevant disability.
The Respondent was simply not aware that the Complainant suffered from epilepsy as alleged. Mr Lyons said that the Complainant had not, despite numerous requests from management, delivered a certificate in relation to his absence following the episode in April 2015. The Respondent was never made aware, formally or otherwise, up until the time that the Complainant's employment was terminated, of the nature of his illness and the Respondent has never at any stage had sight of any evidence or certification, that he suffers from epilepsy or otherwise. Therefore the Respondent could not have discriminated against him in circumstances where it was not aware of the alleged disability.
In these circumstances Mr Lyons submitted that the Complainant allegations amount to nothing more than a mere assertion of discrimination, and therefore submitted that the Complainant had failed to discharge the onus of proof resting upon him.
The Complainant told the Court that on the evening of Friday 17th April 2015 he felt unwell at work. He was given a lift home from work and retired to bed. The following morning when he woke, he realised from bruising on his body that he must have had a seizure and he attended at St Vincent's University Hospital Emergency Department. He said that on admittance medical staff suspected that he had had an epileptic seizure. He had a CT scan and an EEG to eliminate symptoms such as a stroke or a brain tumour. The EEG confirmed that he was in a post-seizure state. He was informed that he would require follow up tests, such as an MRI and would need to have an appointment with a neurologist. He was given anti-epileptic medication.
He said that he received a text message from management on the Friday enquiring as to his well-being. He responded on Saturday and said that he had had some sort of seizure on Friday night and was having tests to determine what was wrong.
He was absent from his employment for seven working days, from 20th until 29th April 2015. On his return to work, he had a meeting with a member of management and informed him that he was on medication; he said that he had inadvertently given the incorrect name of the medication. He called it “Keppro” instead of “Keppra”. He said that the manager was empathetic towards him and assured him in relation to his workload. He said that at a later meeting with this manager he confirmed the correct spelling of the medication and he was of the view that the manager had “googled” it.
In his evidence the Complainant said that he had had several conversations with management about his medical condition. He said that he often suffered from insomnia and headaches as a result of the medication. On such occasions he was asked if he wished to go home but decided not to as he was still capable of doing his work.
In cross-examination, the Complainant was asked when and by whom was he diagnosed as suffering from epilepsy. The Complainant said that it was a default diagnosis, as other symptoms had been ruled out, e.g. a stroke and/or a brain tumour. In such circumstances, he said that it was normal in a post-seizure state, to prescribe anti-epileptic medication as a precautionary measure, pending further tests. When pressed further on the question, he said that he had been given a provisional diagnosis by Dr E. Kelly, Acute Medical Physician, before he left the hospital. He said that following his discharge from hospital he attended Dr. C. McGuiggan, Primary Care Physician for out-patients. However, the Complainant could not be clear as to when he was diagnosed as having epilepsy, or by whom. He said that it was obvious from his seizure and the medication he was on. He said that his family, friends and work colleagues understood that he had the condition.
The Complainant was questioned about medical certification of his condition. He accepted that he had not supplied the Respondent with certification of his absence from work contrary to his contract of employment. He denied that he had been asked for medical certification, he said that if he had been asked to produce such evidence he would have done so.
Mr Counihan wrote to the Court seeking a witness summons for Ms Lynda Davison to be subpoenaed to the Court to give evidence. The request was granted. The Court made it clear to Mr Counihan that in doing so she would be appearing as a witness on behalf of the Complainant .
Ms Davison told the Court that she has been employed by the Respondent since 2000 and as an Audit Manager since 2012. She continues in that role.
When the Complainant commenced, she was appointed as his Line Manager, responsible for his day to day activities. The witness was directed to notes she compiled as part of assessments she carried out into the Complainant's performance. She stated that the Complainant's performance was not great, he did not take direction well, his manual work was skimmed over and not done correctly. She said that he did not follow up on outstanding work. She said that when giving him direction he...
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