A former lifeguard redeployed to a county council’s traffic department when the pool where he worked closed has had a claim he was discriminated against and victimised by his employer when that role too became redundant rejected by the Labour Court.
Edward Bourke was appealing a decision of the Workplace Relations Commission, which had previously decided his complaints, taken under the Employment Equality Acts and the Workplace Relations Act, were not well founded.
Bourke had worked for 16 years as a lifeguard and fitness instructor for Kilkenny County Council before being redeployed in 2009 as a cash collection and frontline maintenance officer in the traffic department, a role the Labour Court heard was created for him. He was graded as a roads foreman for salary purposes.
When the council subsequently sought in 2022 to replace all of its coin-operated parking meters with those accepting electronic payments only, he was offered a job as a traffic warden but refused it. He argued that dealing with family and friends in the course of his work would be too stressful and that he was well known in the area due to having had a very successful handball career.
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Bourke argued he was treated differently to his supervisor, whose role he initially believed was also to be made redundant but this did not happen.
He subsequently took prolonged sick leave and was certified by his GP as having “work-related stress”. He told the court he was also suffering from anxiety, panic attacks and depression.
He said his employer was aware of his health issues and he wanted them to provide the reasonable accommodations required to allow him return to work.
During his absence, some engagement over alternative roles continued, mainly with his union, Siptu. However, some of the alternative roles mentioned required qualifications he did not have while he considered others would have involved an effective demotion, a suggestion the council denied as, it said, his pay and conditions were preserved or “red circled”.
Bourke said he wanted to be offered upskilling but that this did not happen. There was the suggestion of a driving role for which training would be provided but he was initially told he would have to return to work and start the traffic warden role before this offer could be taken up.
The requirement to return to work as a traffic warden was later dropped by the council during a mediation process.
In evidence, he accepted that his employer was not notified of his anxiety and panic attacks, which he said fell under the umbrella of work-related stress.
Marie Phelan, who took over the role of HR manager dealing with Bourke’s case during the period involved, said she had been unaware he was suffering from depression and had not been aware he was a qualified swimming instructor and coach.
She said she made his union aware of some vacancies as they arose but was informed options offered should involve comparable roles. The union then said its member was being discriminated against on grounds of disability.
In its decision, the court, chaired by Katie Connolly, said it found Bourke to be ”a credible and genuine witness who articulated his serious concerns about redeployment to roles that he perceived to be demotions.
“The court, however, does not find that the complainant was subject to less favourable treatment by the respondent because of his stated disability”.
It said Phelan had given “cogent explanations as to why certain roles were offered and others were not” and it believed the council had been genuine in its efforts to engage with and accommodate their employee but that Bourke’s request for a job he considered to be suitable was not a reasonable accommodation as envisaged in the Act.
The court said it was satisfied Bourke had “failed to elevate his claim of victimisation beyond the level of mere assertions”.
