ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000187

Complaint for Resolution:

Date of Adjudication Hearing: 11th March 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

1.1 On the 14th October 2015, the complainant made a complaint to the Workplace Relations Commission pursuant to the Employment Equality Acts. The complaint relates to discrimination on grounds of disability, in particular with regard to reasonable accommodation and conditions of employment. The disability is a psychiatric illness. The complainant was a shift manager and the respondent is a fast food franchisee.

1.2 The complaint was scheduled for adjudication on the 11th March 2016. At the time the adjudication was scheduled to commence, it became apparent that there was no appearance by or behalf of the respondent. I verified that the respondent was on notice of the hearing and having been satisfied of this, I proceeded with the adjudication in the absence of the respondent. The complainant attended in person.

1.3 In accordance with the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

2.1 In the complaint form, the complainant states that he was discriminated against on grounds of disability, specifically with regard to reasonable accommodation he had sought and with regard to his conditions of employment. He states that his wage is €800 fortnightly. The complainant commenced working for the respondent on the 1st July 2013 and during this time, he was promoted from the post of crew trainer to the role of shift manager. He had had a previous spell of working for the respondent. Shift managers would work an early shift, a day shift or the close shift. The close shift commenced at 5pm and ended at 1am. The restaurant was open all night on Fridays and Saturdays, but this shift was generally done by one particular shift manager, who was willing to do this shift.

2.2 The complainant received a diagnosis of psychiatric illness when he was 14 years of age. He said that he had informed the store manager of this and commented that he had a good relationship with this colleague. He outlined that he had a bad spell in January 2015, leading his doctor to prescribe new medication for him. The course of medication was due to start in February 2015 and his doctor strongly advised that the complainant could not work immediately having taken the medication. The complainant was prescribed to take the medication at 10pm or 11pm and was expected to go to bed immediately having taken the drug. The doctor wrote a letter to the complainant's employer to say that the complainant could not work late nights for a short period while he got used to the medication.

2.3 The complainant outlined that at this time, his colleague who worked the weekend overnight shifts returned to his native country for one month, leading to these shifts being allocated among the other shift managers. The complainant was rostered to work one weekend of these shifts in February 2015. He met with the store manager and later the owner to discuss the contents of the medical letter, and asked that he not have to work the two overnight shifts and that in other (close) shifts he would finish early. He said that this was a short-term measure in order for him to get used to the new medication. The owner replied that it was not fair to ask other shift managers to cover this work. The complainant said that he responded by saying that he did not ask to be sick. The owner offered to demote the complainant to either the posts of crew trainer or area manager, so that he could work mornings. The complainant said that he replied that this was not fair and that he had worked for the respondent for a number of years.

2.4 The complainant said that he worked the two overnight shifts because the respondent did not relent. This was two consecutive nights, a Friday and Saturday over the weekend of either the 7th and 8th February or the 13th and 14th February; he was not sure which. This led to him being extremely unwell in the following days, where he had mood swings and depression. Some days later, he was at work and broke down. He said that it all became too much for him and informed his store manager that he could no longer work. The owner was also in attendance and they spoke for 30 minutes. The complainant said that he wrote his letter of resignation there and then and left the respondent's employment. Some days later, he returned his uniform and collected his P45.

2.5 The complaint was referred to the Workplace Relations Commission on the 12th November 2015. In pre-adjudication correspondence, the complainant outlines that he was heavily medicated in the months that followed the end of his employment with the respondent. He states that during this time, his priorities were dealing with his mental health, coping with the side effects of the medication and reducing the stressors in his life. He also supplied a letter from his consultant psychiatrist regarding his care. This provides as follows: “Due to the nature of the shift work, this appeared to have an unsettling effect on [complainant]'s mood. He experienced significant emotional dysregulation and struggled with the demands of work. He engaged in self-harm and felt depressed, with strong suicidal ideation, decreased energy and concentration. His capacity for enjoyment was significantly reduced.”The complainant said that he had worked a number of retail jobs after working for the respondent, but resigned from these posts as he could not cope. In August 2015, he went on a social welfare payment based on a medical certification of his inability to work. He said that he was very unwell in this period and was hospitalised after an attempt to take his life. In the summer of 2015, he concentrated on getting well and attended group therapy. By November 2015, he had made great progress and was able to end the course of medication. He now had a clear head and was able to consider what happened while working for the respondent. He then referred this complaint.

3.         Respondent’s Submission and Presentation:

3.1 There was no attendance by or behalf of the respondent. The respondent was circulated with the complainant's letter of the 11th November 2015 regarding the late submission of the complaint and asked for comment. The respondent did not make a submission on this issue.

4.         Findings and reasoning:

4.1 The complainant claims discrimination on the grounds of disability, specifying that the respondent failed to provide reasonable accommodation in the allocation of working time and he raises the issue of his conditions of employment. The respondent did not make submissions regarding the claim and did not attend the adjudication.

4.2 The first issue to address is whether the complainant has established reasonable cause to allow the extension of time for the claim to proceed. In Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425, the Labour Court considered “reasonable cause” in the following terms:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

4.3 Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held as follows:

“It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in [O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30], a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

4.4 Applying the test outlined by the Labour Court to the facts of this case, I find that the complainant has shown reasonable cause to allow the extension of time for his complaint. I do so for the following reasons. The complaint was submitted on the 12th November 2015. The complainant’s evidence was that he was required to work an overnight shift on either weekend of the 7th and 8th February or the 13th and 14th February. He resigned shortly thereafter. I find as fact that the event of being required to work the overnight shift represents the last act of discrimination. The complainant had provided medical certification relating to his unfitness to work any late shift; the respondent required him to work the more onerous overnight weekend shift. The complainant was not sure which weekend in February it was. Whichever date is the actual latest date of discrimination, the expiry of the six-month period following the last act of discrimination fell sometime in the month of August 2015. Between February and August, the complainant gave evidence of his ill health and his inability to hold down various retail jobs. He supplies verifying documentation from a consultant psychiatrist. In August 2015, the complainant began claiming an illness-related social welfare payment. The complaint was made three months later. Taking this together, it is clear that the complainant suffered from psychiatric illness during 2015; the course of treatment prescribed by his psychiatrist contraindicated night work. Despite this, it is the complainant’s uncontroverted evidence that he was required first to continue working close shifts but also to work overnights. His evidence was that his health declined. He was deemed eligible for a disability-related social welfare payment and his recovery commenced. By November 2015, his health had recovered and at this time, he referred the within complaint. In conclusion, the complainant has established the facts and causation required to show that his illness intervened to prevent the complaint being made within time.

4.5 Addressing the substance of the claim, the complainant alleges that he was discriminated against on grounds of disability, in particular with regard to the failure to provide reasonable accommodation and with regard to the conditions of his employment. The claims relate to the complainant’s request, on medical grounds, not to work close shifts and to being required to work overnight shifts. The complainant gave evidence that after completing the two overnights shifts, he had to resign from his employment with the respondent as it became too much for him. Section 16(3) of the Employment Equality Acts provides: “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. b) The employer shall take appropriate measures where need in a particular case, to enable a person who has a disability … (ii) to participate or advance in employment.” Appropriate measures are defined in section 16(4) and provides that this “means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned.” Subsection b) explicitly includes “patterns of working time” within the scope of appropriate measures.Section 8 of the Employment Equality Acts provides for discrimination in relation to conditions of employment.

4.6 In this case, the complainant requested a change in his patterns of working time for the period he was on a particular medication. This request was supported by medical documentation. The complainant was otherwise capable of performing his role as shift manager. The medical advice was that he had to take the medication in the late evening and that he would not be able to work afterwards. The complainant was in a position to work either of the two earlier shifts and could have worked a restricted close shift. This was a temporary modification of his working pattern. Coincidentally, the manager who worked the weekend overnight shifts was on annual leave in February 2015. The complainant’s evidence was that he was required to work two overnight shifts over one weekend. The complainant’s evidence was that he was unable to work at all after this point.

4.7 Having assessed the written and oral evidence and submissions before me, I find that the complainant was subjected to discriminatory treatment with regard to his conditions of employment and the failure of the respondent to provide reasonable accommodation to his disability. He requested a modification of his hours on a temporary basis, but was otherwise available and fit for work. The request was pursuant to medical advice received by the complainant and related to medical treatment prescribed to him. Despite the medical basis of the request, the respondent did not accede to it. It further required the complainant to work overnight shifts, despite the certification not to work late evenings or nights. Taken together, these facts amount to discriminatory acts on the grounds of the complainant’s disability, that is his diagnosed psychiatric illness. In relation to redress, I note the effects the discriminatory acts had on the complainant. I note that the respondent could have accommodated his working time needs on a temporary basis in order to facilitate a course of treatment. I further note the requirement placed on the complainant to work more onerous overnight shifts, to his detriment. Taking account of these findings, I make an award of €17,000 as redress for the discrimination incurred by the complainant.

5.        Decision:

5.1 Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. Pursuant to this and the findings above, the respondent shall pay to the complainant the amount of €17,000.

Dated:   10^th August 2016