EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-162
PARTIES
Tomasz Andruszkiewicz
(Represented by Diarmuid Murphy B.L. instructed by Maguire McClafferty Solicitors)
AND
Musgrave Limited
(Represented by IBEC)
File reference: EE/2009/294
Date of issue: 27 November 2012
HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Disability - Race - Conditions of Employment - discriminatory dismissal - failure to provide reasonable accommodation - equal pay
1. DISPUTE
1.1 This dispute concerns a claim by Mr Tomasz Andruszkiewicz that he was discriminated against by Musgrave Limited on the grounds of disability and race contrary to section 6 (2) of the Employment Equality Acts in relation to conditions of employment and discriminatory dismissal in terms of sections 8 of the Acts, that the respondent failed to provide him with reasonable accommodation in accordance with section 16 of the Acts and that he performs "like work", in terms of section 7 of the Employment Equality Acts with two named comparators and is entitled to equal remuneration in accordance with section 29 of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 7 May 2009 under the Employment Equality Acts. On 25 April 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. Submissions were received from both sides. In accordance with Section 79 (1) of the Acts and as part of my investigation I proceeded to a hearing held on 23 July 2012. This hearing was adjourned to allow new evidence to be considered and concluded on 16 October 2012.
2. COMPLAINANTS' SUBMISSION
2.1 The complainant started working for the respondent on 31 March 2006. He submits that from 29 September 2008 to 14 November 2008 he was unfit to work because of a hernia. On 17 November 2008 his doctor certified him fit to return to work for light duties only but the respondent refused to let him return to work.
2.2 On 19 November 2008 the complainant submits that he was dismissed because the respondent made no attempt to accommodate his injury and he was told "there are no roles which could be defined as light duties". The complainant submits there were numerous duties in the category of light duties to which he could have been assigned and would have allowed him to return to work. These include: invoice release, forklift driver, stock counting, goods inwards, telesales, goods outwards, cleaning and housekeeping. He claims he was trained to perform all these duties and had carried them out at various times. Furthermore, all persons performing these duties are employed at the same General Assistant grade as the complainant.
2.3 The complainant submits that he worked in a cold environment (-22ºC) most of the time but he did not receive "freezer pay". He submits that only Irish employees got the freezer pay of €41 per week. He named two comparators who he submits received the freezer pay but worked out of the freezer a lot of the time.
3. RESPONDENT'S WRITTEN SUBMISSION
3.1 The respondent submits that the complainant started working for them on 28 December 2005 in Blanchardstown. On 29 September 2008 all staff in Blanchardstown moved to their Ballymun premises after a takeover. The complainant worked alternate weeks on the day shift and then the evening shift. On the day shift his duties were preparing for evening picking and replenishment of pick faces. He used a forklift and sometimes handled stock of 10kg - 15kg. On the evening shift he prepared and loaded orders, including bulk pick sheets and pallet trucks. This changed in 2006 when all orders were put into cages and this involved handling boxes of up to 15kg.
3.2 The complainant received sick pay from 29 September 2008 to 14 November 2008 in accordance with the respondent's sick pay scheme. On 17 November 2008 the complainant telephoned Ms A in HR and stated that he was fit to resume work on light duties. On 19 November 2008 the complainant was advised in writing that in his role "as General Assistant there are no roles which would be defined as light duties. Due to these circumstances you are unable to return to work in your role as general assistant until your doctor has certified you as fully fit to resume your current role."
3.3 On the 24 November 2008 Mr A met the complainant, at his request, and the respondent submitted a contemporaneous note of the meeting. The complainant was told that as there were no specific light duties available he would have to wait until he was certified fully fit by his doctor before he could return to work in his current role. The respondent submits that the complainant confirmed he understood the position but he wanted to resign. Ms A advised the complainant there was no need for him to resign, that his job remained open and he could wait until he had the surgery on his hernia. The complainant said he needed to resign because the only way for him to have the operation without having to paying for it, would be if he was not working. The complainant voluntarily wrote his resignation letter at that meeting.
3.4 In relation to the alternative duties which the complainant said he could undertake the respondent responded as follows: invoice release was already undertaken by an employee on a full time basis, forklift driving also requires heavy lifting, stock counting is a day shift job and needs 6-12 weeks training, goods inwards requires heavy lifting and manoeuvring of goods, there were no vacancies for telesales and it requires 4-6 weeks training, goods outwards is an extremely physical job needing heavy lifting and manoeuvring of 'combies' into the rear of articulated lorries, the cleaning and housekeeping work is outsourced.
3.5 The respondent submits that the complainant did not use their grievance procedures in relation to his return to work.
3.6 The respondent submits there is no discrimination in relation to 'freezer pay'. It was the subject of a trade dispute which resulted in a Labour Court Recommendation. The recommendation involved a group of workers and made no distinction on the ground of race.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the respondent discriminated against the complainant in relation to conditions of employment, if the respondent failed to provide him with reasonable accommodation, if he was dismissed in a discriminatory manner on the grounds of race and if he has a claim for equal pay on the grounds of race. 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.
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."
The complainant's doctor's certificate of 13 November 2008 confirms the complainant "is currently awaiting surgery for an Inguinal hernia, and will be unfit to carry heavy loads until this is repaired" and this amounts to a disability within the meaning of the Acts.
Provision of Reasonable Accommodation
4.3 The assessment in the medical certificate made it clear that the complainant would not be able to carry out his duties as he had previously until he had an operation and had recovered from it. The complainant contends the medical certificate means he was fit to return to work on lighter duties. 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."
4.4 The complainant contends that he would have been capable of carrying out a job at his level if the respondent had altered the "distribution of tasks" in a way that would allow him to avoid lifting heavy weights and he further contends that the respondent did not fully consider his request. The respondent contends they did not have duties which would not require him to lift heavy loads. 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 is 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."
4.5 The factual position was clear when the complainant submitted a medical report which stated he was "unfit to carry heavy loads" until he had surgery on a hernia. This meant he was not capable of carrying out the job he had been doing. The complainant met his manager (Mr B) who told him that he would not be able to return to work until fully fit. At the hearing Mr B gave evidence that he had previously considered a number of requests from people working in the same area as the complainant to return to work on light duties. However, the respondent contends the nature of the work means that people have to be able to lift boxes and therefore the work did not allow for such an accommodation. Although they were not individually considered when the complainant asked for lighter duties Mr B went through the tasks put forward by the complainant as being lighter duties in which the respondent could have accommodated him. I am satisfied that it would not have been feasible to accommodate the complainant with light duties in the short term and I find that no discrimination took place in relation to the provision of reasonable accommodation.
Conditions of Employment
4.6 In November 2008 the complainant was unable to inform the respondent when he would be fit to return work after his operation. However, the respondent gave evidence at the hearing that he was considered a good worker and was reassured that his job would be held open until he returned. The complainant asked the respondent to sign a claim for sickness benefit. Mr B said he could not sign the form as it indicated that the injury was caused at work and he was unaware of any injury suffered by the complainant at work. He suggested to the complainant that he change that part of the form. The complainant said in his own evidence at the hearing that he could not change it as it had been written by the doctor. However, in cross examination at the hearing the complainant clarified that he had completed that part of the form himself but had done so from what the doctor had told him. He gave evidence that he had told his immediate supervisor (Mr C) of the injury at work. Mr C contradicted this evidence when he stated that he had never been aware of any injury to the complainant at work and no such injury had been recorded.
4.7 I accept the respondent's evidence that they were not aware that the complainant's injury was caused at work. I therefore find it reasonable for Mr B not to sign the sickness benefit form. I also accept that Mr B would have had no problem signing the form if it did not state that the injury was caused by an accident at work. I conclude that the respondent did not discriminate against the complainant in relation to conditions of employment.
Dismissal
4.8 When the respondent would not sign the sickness benefit form as presented the complainant decided to resign as he considered this the best way forward for himself. The respondent told him his job remained open. If the complainant had changed the form then the respondent would have signed it and he should have been eligible to receive sickness benefit until he was fit to return to work. I conclude that the complainant was not forced to resign in a manner that could be considered a constructive dismissal.
Equal Pay
4.9 The claim of equal pay relates to the payment of 'freezer pay'. The respondent presented evidence that four members of staff working in Ballymun, including the two named comparators were designated to work in the freezer area and were paid a freezer allowance. The complainant and a number of other staff worked for a company which was taken over by the respondent. Their terms and conditions of employment were consolidated but none of them received a 'freezer allowance'. The respondent argued that the 'freezer allowance' became red circled for the four workers. The non payment of this allowance and a disturbance allowance later became an industrial relations dispute which was settled by the Labour court in June 2010. A number of workers then received this payment, which was backdated to the date of the claim in 2008. The complainant had left the respondent's employment by the time the Labour Court recommendation was issued and therefore received no payment. This allowance was originally not paid to all the members of a group of workers. There was no distinction between this group according to their race and the complainant was treated the same as all the workers who transferred from Blanchardstown to Ballymun at that time.
4.10 I accept the evidence of the respondent and find, in accordance with section 29 (5) of the Acts that "nothing in this Part shall prevent an employer from paying, on grounds other discriminatory grounds, different rates of remuneration to different employees". I therefore find that any difference in pay was for reasons other than race and the complainant has failed to prove his claim of equal pay in relation to the two named comparators.
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 not discriminate against the complainant in the provision of reasonable accommodation,
- the respondent did not discriminate against the complainant in relation to conditions of employment,
- the respondent did not dismiss the complainant in a discriminatory manner, and
- the complainant has failed to establish a prima facie case of equal pay on the basis of the race ground and the complaint fails.
____________________
Hugh Lonsdale
Equality Officer
27 November 2012