EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-147
PARTIES
Tomasz Lesniak
(Represented by Diarmuid Murphy B.L. instructed by Maguire McClafferty Solicitors)
AND
Farringtons Agri Limited (in liquidation)
(Liquidator Declan McDonald of PricewaterhouseCoopers)
File reference: EE/2010/396
Date of issue: 7 November 2012
HEADNOTES: Employment Equality Acts - Sections 6, 8 and 16 - Disability - discriminatory dismissal - provision of reasonable accommodation.
1. DISPUTE
1.1 This dispute concerns a claim by Mr Tomasz Lesniak that he was discriminated against by Farringtons Agri Limited on the grounds of disability contrary to section 6 (2) (g) of the Employment Equality Acts in relation to discriminatory dismissal in terms of sections 8 of the Acts and that the respondent failed to provide him with reasonable accommodation in accordance with section 16 of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 24 May 2010 under the Employment Equality Acts. On 18 July 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. A submission was received from the complainant. Since the claim was referred the respondent had gone into liquidation and Mr Declan McDonald of PricewaterhouseCoopers appointed as Liquidator. Mr McDonald provided a written submission which had been prepared by the former Managing Director of the respondent. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 2 October 2012. The Liquidator gave notice in advance that he would not be attending the hearing.
2. COMPLAINANTS' SUBMISSION
2.1 The complainant started working for the respondent on 31 March 2006 in the packing area. He had the first occurrence of a back injury in November 2008. He went for an MRI scan in August 2009 which showed that he had disc prolapse. The complainant submits that he went to his doctor on 29 august 2009 and he wrote a certificate on the basis of the findings of the MRI scan. This said that the complainant could work but was limited in terms of movement and carrying objects over 5kgs. The complainant submits that he spoke to the Managing Director about the medical report and he said he would try and accommodate him but it might not always be possible to find someone else to carry out the heavy work.
2.2 The complainant submits he was moved to a new area where his duties were lighter and he had no problems whilst carrying out these duties. In October the respondent formalised what was already happening when they brought in a Health and Safety Consultant to look at his work. The respondent then drew up a list of duties which would allow him to avoid lifting heavy weights or would cause him to move in a way that would put pressure on his back.
2.3 The complainant submits that he was from time-to-time moved back to his old job in the packing area where he could not avoid lifting sacks as there was often not someone around who could help him. He reminded the supervisor of his medical situation each time he was moved. He was told there was no one else to do the work and it was at the authority of the Managing Director. The complainant contends there were other people who could have moved into the packing area instead of him.
2.4 The complainant submits that on 5 November 2009 he had a relapse of his back problem following the respondent's non-adherence to the agreement for him to carry out lighter duties. The complainant's representative wrote to the respondent on 9 November 2009 advising the respondent that they would initiate an application to the Personal Injuries assessment Board unless they admitted liability for the complainant's injury. The complainant submits that their attitude to him hardened after this letter.
2.5 The complainant submits that the respondent did not allow him to return to work on or after 16 November 2009. He was certified fit to return and his own doctor provided a report on 5 January 2010 which certified him as fit to return to work "however, as I wrote previously it is inadvisable for him to perform such activities that significantly strain the spine and may cause a sudden crump and thus exacerbate the disease." The respondent referred him to a Consultant Neurosurgeon who wrote a report on 4 February 2010 which stated "It is my professional opinion that Tomasz Lesniak can return to work and engage in the practices as outlined in the correspondence of 28/10/2009." These two medical reports (one commissioned by the respondent) confirmed he was fit to return to work to undertake the duties described in the document of 28 October 2009, which he had carried out with no problems. The complainant submits that despite these reports and many requests form him to be allowed to return to work the respondent did not let him to return to work.
3. RESPONDENT'S WRITTEN SUBMISSION
3.1 In the submission prepared by the former Managing Director of the respondent it was confirmed the complainant started working for the respondent in March 2006 as a general operative in the feed mill. His duties included bagging bulk feed into 25kg bags. On 16 November 2008 following a phone call from the complainant's wife, who was upset because of the complainant's back pain, the respondent arranged for him to see a doctor. He was medicated and able to return to work after a reasonable period. On 28 November 2008 the complainant informed the respondent's Health & Safety Officer that the cause of his pain was not work related.
3.2 On 28 August 2009 the complainant handed in a letter stating he could no longer do his job as he had a hernia on his spine which would need an operation. Following this the complainant attended a manual handling course on 10 September 2009. The respondent engaged a health and safety consultant and on 22 October 2009 the Managing Director carried out a risk assessment with the consultant and the complainant. The respondent then drafted a document dated 28 October 2009 which set out a "job description to ensure your health, safety and welfare prevails while at work". This document was signed by the respondent and the complainant.
3.3 The complainant returned to work on 28 October 2009, as a Cuber man which entailed only having to lift up to 12.5kg. On 5 November 2009 he was temporarily transferred back to his old job but told by his supervisor to ask for help if needed and not to lift anything. The complainant ignored all advice and lifted some bags which resulted in further pain and sick leave. The submission included a written statement from the supervisor confirming this account.
3.4 On 15 January 2010 the respondent received a report from the complainant's doctor which stated that the complainant's current condition did not allow him to return to work. Previously the complainant's doctor had also stated the complainant was unable to lift 12.5 kg bags as was required under his new work duties. This was at variance with the contentions of his legal representative. On the advice of the respondent's legal representative the complainant was sent to a consultant neurosurgeon on 4 February 2010. His opinion was that could return but only doing light duties. The submission contended that this role did not exist as the respondent could not risk the complainant doing more damage to his back. The respondent considered the complainant needed full doctor's clearance regarding lifting before recommencing working for them.
3.5 The respondent was experiencing financial difficulty and they started a cost cutting programme which resulted in redundancies. The complainant was included in the final programme of redundancies in July 2010, with all other staff members.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the respondent failed to provide the complainant with reasonable accommodation and if he was dismissed in a discriminatory manner. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing. It is the usual procedure of the Equality Tribunal that written submissions are made before the hearing and these may be tested by the oral evidence of the complainant, witnesses for the respondent and any witnesses called by either party at the hearing. In this case there were no witnesses for the respondent at the hearing who could give direct evidence or be cross-examined. I am aware of my responsibilities for fair procedures as set out in Kiely v Minister for Social Welfare No.2 (1977) IR 276 S.C. "Tribunals exercising quasi-judicial functions are frequently allowed to act informally - to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like, but they may not act in such a way as to imperil a fair hearing or a fair result." I have borne this in mind in giving the submission made by the liquidator and prepared by the former Managing Director of the respondent its due weight.
Disability
4.2 This is a claim in relation to disability and Section 2 of the Acts states: "''disability'' means --
(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and 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."
I am satisfied that the complainant's doctor's certificate of 29 August 2009 and subsequent medical reports confirm a back condition that amounts to a disability within the meaning of the Acts.
Provision of Reasonable Accommodation
4.3 Section 16 (3) of the Acts states:
"(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as "appropriate measures") being provided by the person's employer."
Appropriate measures are defined in section 16 (4) of the Acts:
"(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself."
The medical certificate of 29 August 2009 was given to the respondent and arrangements were made for him to carry out light duties, accordingly. These arrangements were formalised at the end of October when a risk analysis was undertaken by the then Managing Director with the complainant and a safety consultant. A list of suitable duties was drawn up in a document signed by the Managing Director and the complainant. The complainant's evidence was that he was able to carry out these duties and he had no relapse whilst so doing.
4.4 The complainant contends that he was told to go back to his old job in the packing area on a number of occasions. The respondent's written submission did not refer to any other occasions but it did complainant that the complainant was temporarily transferred back to the packing area on 5 November 2009. The supervisor's states that the complainant told him he could not lift any bags and that he, the supervisor, told him "just to sit at bagger and label bags going through sealer." When the complainant reported having a back pain the supervisor's statement says "he said he had lifted a few bags off the belt that hadn't been sealed properly". This is broadly in line with the complainant's evidence. The supervisor goes on to say "In my opinion this problem should not have arisen if he stopped the belt when the un-sealed bags were on it" and it was therefore the complainant's own fault that he lifted the bags. The complainant in direct evidence at the hearing said he could not just stop the line as this would create a problem for the bagging machine as it might get damaged if it was left for any time with the heat from the sealer. Also the bags on the belt would have too much feed in them and needed to be lifted off before starting the line again. He further gave evidence that no one was available to help him lift the bags. The supervisor did not comment in his written statement as to whether anyone was available to assist the complainant with the lifting.
4.5 The Labour Court in A Health and Fitness Club v A Worker (EED037) (and upheld on appeal in the Circuit Court) sets out an approach which can be used when an employer is considering whether an employee is or is not fully competent to undertake their duties and does or does not require reasonable accommodation to do so. The Labour Court approach was; "before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions."
4.6 The respondent satisfied this approach in acting on a medical report, consulting with a safety expert, carrying out a risk assessment and agreeing duties with the complainant which would ensure he avoided heavy lifting. I accept the complainant's evidence that he had no problems with his back whilst carrying out these duties. However, the respondent then asked the complainant to move back to his former job which included the heavy lifting. They said he was told to avoid lifting and that he caused the relapse himself by lifting unnecessarily. However, the complainant states there was no one around to do the lifting when there was a problem with the bag sealer. The complainant also contends there were other people working for the respondent who could have worked in the packing area on a temporary basis. It is clear to me that the complainant was asked to go back to the packing area because of his previous experience there and he was a willing and co-operative worker. Equally his previous experience gave him a good knowledge of the packing machinery and I am convinced by his evidence that he felt that he had to pick up the bags and get the belt running again because of the problems he foresaw and there was no one else immediately available to carry the bags off the belt.
4.7 The medical certificate dated 5 January 2010 stated that the complainant "is fit to work, however as I wrote previously, it is inadvisable for him to perform such activities that significantly strain the spine and may cause a sudden crump and thus exacerbate the disease. It is dangerous for him to make any rapid, energetic movements accompanied by flexion and rotation of the spine, to climb up (e.g. the ladder, especially with a load or to carry heavy objects (occasionally he can lift cans which weigh 12.5 kilos." It appears the respondent sought clarification on this and a second certificate was sent to the respondent which said, "I believe that the patient's current condition does not allow for him to return to work and carry out all work activities. Should it happen that the patient does indeed return to work, this might result in significant aggravation of the symptoms and his medical complaints." The report concluded that the complainant should be referred to a Neurosurgery Consultant. The Consultant Neurosurgeon wrote a report dated 4 February 2010 which stated: "It is my professional opinion that Tomasz Lesniak can return to work and engage in the practices as outlined in the correspondence of 28/10/2009. However he has a significant underlying degenerative disc at the L3/4 level. This disc at any time could collapse further with or without provocation." It appears that the respondent again sought clarification and in a further report dated 11 February 2010 the Consultant Neurosurgeon stated: "If you say that part of Mr Lesniak's practices require him to flex his back suddenly and carry out sudden rotational movements then it would be my view that such activities could put him at risk." On this basis the respondent did not allow the complainant return to work.
4.8 The complainant contends that the respondent sought clarification on both reports in order to find reason for him not to return to work, particularly after he had submitted a Personal Injuries claim. The respondent could not clarify the position as they could not give direct evidence at the hearing, but their submission stated that there was no role for the complainant to return to and only carry out light duties. They could not risk the complainant doing more damage to his back.
4.9 I conclude that the respondent initially provided the complainant with reasonable accommodation but failed in this duty by returning to his old job on 5 November 2009 which required the lifting of heavy bags. I accept the complainant's evidence that in the circumstances described he could not avoid lifting heavy bags and this lead to further injury and time off work. I find that making the complainant return to old job, even on a temporary basis, amounts to a failure to provide reasonable accommodation.
4.10 When the complainant wanted to come back to work in January he wanted to do so to carry out the duties set out in the document dated 28 October 2009. Whilst the consultant considered he could return on this basis he added: "This disc at any time could collapse further with or without provocation." The respondent sought clarification and the consultant stated: "If you say that part of Mr Lesniak's practices require him to flex his back suddenly and carry out sudden rotational movements then it would be my view that such activities could put him at risk." I conclude that the reports of the consultant put the respondent on notice that the complainant had a condition that could deteriorate at any time. From all the evidence available I accept that the respondent considered the available medical evidence and came to the view that the complainant could not safely carry out the duties agreed in the document of 28 October 2009 and there was no other work available. The complainant was not involved in the process but he had been the previous October and none of the duties being considered had changed. The only change was the consultant's view that the complainant's condition could deteriorate at any time. I find that the respondent was unable to provide the complainant with reasonable accommodation when he wanted to return to work from January 2010 onwards.
Dismissal
4.5 At the hearing the complainant accepted that he was made redundant in July 2010 as part of the respondent's cost saving programme that ultimately lead to them going into liquidation.
5. DECISION
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
- the respondent did discriminate against the complainant in not providing him with reasonable accommodation when he was returned to his old job in November 2009, and
- the respondent did not dismiss the complainant in a discriminatory manner.
I order the respondent to pay the complainant €5,000 in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
____________________
Hugh Lonsdale
Equality Officer
7 November 2012