Tesco Ireland Ltd T/A Tesco Coonagh Limerick (Represented by Irish Business and Employers' Confederation) v Marek Pawlisiak (Represented by Colette Hannon B.L. Instructed by Tina Hills Solicitor)

JurisdictionIreland
Judgment Date03 April 2018
Judgment citation (vLex)[2018] 4 JIEC 0301
Docket NumberFULL RECOMMENDATION DETERMINATION NO.EDA1823 ADJ-00000581 CA-00000815-001
Date03 April 2018
CourtLabour Court (Ireland)

Labour Court (Ireland)

FULL RECOMMENDATION

ADE/16/66

DETERMINATION NO.EDA1823

ADJ-00000581 CA-00000815-001

PARTIES:
Tesco Ireland Limited T/A Tesco Coonagh Limerick (Represented by Irish Business and Employers' Confederation)
and
Marek Pawlisiak (Represented by Colette Hannon B.L. Instructed by Tina Hills Solicitor)
DIVISION:

Chairman: Mr Haugh

Employer Member: Mr Murphy

Worker Member: Mr McCarthy

SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011

SUBJECT:
1

1. Appeal of Adjudication Officer Decision No. ADJ-00000581.

BACKGROUND:
2

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on the 22 June 2016. Labour Court hearings took place on the 11 May 2017 and 21 March 2018. The following is the Court's Determination:

DETERMINATION:
Background to the Appeal
3

This is an appeal brought on behalf of Tesco Ireland (‘the Respondent’) against a decision of an Adjudication Officer under the Employment Equality Act 1998 (‘the 1998 Act’) bearing reference number ADJ-00000581 and dated 19 May 2016. The Respondent's Notice of Appeal was received by the Court on 22 June 2016. The Court heard the appeal over two days: on 11 May 2017 in Limerick and on 21 March 2018 in Dublin.

4

The Adjudication Officer upheld Mr Pawlisiak's (‘the Complainant’) complaints that the Respondent had failed to make reasonable accommodation for his disability and had victimised him within the meaning of the 1998 Act. She ordered compensation of €16,000.00 in compensation for each of the two grounds of complaint (i.e. €32,000.00 in total) and also directed the Respondent to conduct a review of its employment policies and procedures to ensure their compliance with the 1998 Act.

5

The Adjudication Officer's decision at first instance was predicated in large measure on her finding that the Complainant's then employer – Noonan Services Group Limited – is an employment agency within the meaning of section 2 of the 1998 Act. The central plank of the Respondent's appeal is that, as a matter of law and of statutory interpretation, the Adjudication Officer's finding in that regard was incorrect.

The Facts
6

The relevant factual background to the within appeal can be set out very briefly. It is not disputed that the Complainant suffers from a knee complaint. He was, at all material times, a security guard employed at the Respondent's store in Coonagh, Limerick. He was originally employed by G4S until that company lost the contract in 2014 to...

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