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Friday 21 September 2018

Brazilian-born worker wins €5k for sick note discrimination by pub

The Merchants Arch refused to accept medical certificate, the Labour Court was told. Photo:
The Merchants Arch refused to accept medical certificate, the Labour Court was told. Photo:

A popular Temple Bar pub has been ordered to pay €5,000 to a Brazilian-born 'sandwich board man' for racially discriminating against him.

Felix Guerrero alleged at the Labour Court that after he handed in a medical certificate from Mater Hospital ED registrar Dr Andrew Ngaditiono, his boss at the Merchants Arch refused to let him return to work "until he got a cert from a proper doctor stating that he was fit to return to work".

This was disputed by the Merchants Arch Restaurants Company.

However, the court found the firm racially discriminated against Mr Guerrero in refusing to accept his certificate that he was fit to return to work.

Odious

Awarding him €5,000, the court stated: "Discrimination on the grounds of race is a very serious infringement of the law and cannot be treated lightly.

"Treatment at work cannot vary with the nationality of the person involved.

"Such discriminatory treatment is odious, unacceptable and cannot be tolerated."

Represented by lawyer Richard Grogan in the case, Mr Guerrero made a number of claims under workplace legislation against the Merchants Arch, which is located opposite the Ha'Penny Bridge, and has been awarded €10,650 in total.

His main duty was holding an advertising sign on the street inviting passers-by into the bar.

On April 13, 2016, Mr Guerrero collapsed at his home and was brought to the ED at Mater Misericordiae Hospital.

On April 20, he presented a medical certificate from Dr Ngaditiono, a senior registrar doctor in emergency medicine at the Mater, to his boss.

However, according to Mr Guerrero's evidence, his boss "refused to allow him to return to work until he got a certificate from a proper doctor".

Mr Guerrero returned to the Mater seeking a different certificate but said the hospital told him it had already provided him with one and could do no more.

The boss denied telling Mr Guerrero to get a note "from a proper doctor" and denied receiving the medical certificate dated April 19.

He told the court that had he received the cert, he would have returned Mr Guerrero to work but could not say why he did not keep a copy of the April 19 certificate and admitted that he would normally file such notes.

Mr Guerrero did not return to his Merchants Arch job and has since got other work.

The court ruled that the evidence put forward by the employer "lacks credibility and is not consistent with the documents adduced in evidence".

Compelling

It added that it found Mr Guerrero's evidence more compelling than the employer's and that Mr Guerrero's evidence was consistent with the text messages on which both sides relied.

The court also stated that the employer's case "stretches credibility".

Mr Guerrero said that he was treated in this way because he was a foreign national and that an Irish person would not have been treated in such a manner.

After the ruling yesterday, Mr Grogan said: "Racial discrimination undermines the dignity of workers.

"It has no place in a modern progressive country. Racial discrimination sends out the wrong message.

"The message from this case is clear. Discrimination has no place in any modern workplace.

"This case, however, exhibits a worrying attitude of this employer, and unfortunately they are not alone."

A spokesman for the Merchants Arch said yesterday that the business would not be making a comment on the Labour Court ruling at this time.

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