EMPLOYMENT EQUALITY ACTS
Decision No: DEC-E2016-019
Mr Robert Tkac
(represented by SIPTU)
AND
Queally Pig Slaughtering Ltd t/a Dawn Pork and Bacon
(represented by IBEC)
File reference No: EE/2014/261
Date of Issue: 26th January 2016
1 The Dispute
1.1 This dispute concerns a claim by the Complainant that he was treated in a discriminatory manner by Queally Pig and Slaughter ltd. on the grounds of disability and race contrary to Section 6(2)(g)(h) and Section 8 of the Employment Equality Acts. Furthermore, that the respondent failed to provide him with reasonable accommodation in accordance with section 16 of the Act, that he was victimised and his dismissal was effected in a discriminatory manner.
1.2 The Complainant referred his claim to the Director of the Equality Tribunal on the 28 August 2014 under the Employment Equality Acts. On the 17 September 2015, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Patsy Doyle, 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 hearing was held with both parties on October 8th, 2015 in accordance with Section 79(3) of the Acts. Both parties submitted written submissions in advance of the hearing. In advance of the hearing, the complainant sought an Interpreter and this was provided by the Tribunal. At the outset of the hearing, the claim for Victimisation was withdrawn by the complainant’s representative.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015
2 COMPLAINANTS' SUBMISSION
2.1 The Complainant commenced employment as a General Operative with the Respondent in November 2004 on a 40-hour week. He is a Slovakian national and his brother also worked at the company, which is a Meat processing factory. The complainant suffered a back injury whilst on holidays in Slovakia in June 2013 which necessitated a period of medically advised sick leave from July 2013 to July 2014. He submitted medical certificates to the respondent throughout this period and was paid social welfare but not sick pay.
2.2 On 8 July, 2014, the complainant visited the Factory to submit his sick cert when he was summoned to the Managers Office where Mr. Declan O Loughlin and Mr. Tom Geoff were in attendance. The complainant was informed that his job could not be kept open for him any longer. The complainant understood that this was influenced by his medical condition. He was asked to return to the company within the month to discuss further. He agreed to this.
2.3 On 24th July, 2014, the complainant was reviewed by his GP and a return to work on light duties was recommended.
“Could you please accommodate this young man with light duties. He has suffered low backache since 2007causing pain and he is keen to work but unable to do heavy duties”
2.4 On 28th July, the complainant went to the Factory to inform his Manager, Mr O Loughlin that he was fit to return to work on light duties. He was asked for a cert but had forgotten to bring it. Mr O Loughlin told the claimant that he didn’t need the cert as work would only be available if he was 100% fit. The complainant asked for light work but this was refused and he was asked to tender his resignation. Mr O Loughlin asked the complainant if he needed the support of Martina, an office worker to assist with translation. The complainant accepted this offer and stated that he told Mr O Loughlin that he did not wish to resign and wanted light duties in accordance with his medical advice.
2.5 The Complainant signed a bi lingual resignation form which was shared with the Tribunal. He contended that this was signed under duress. This indicated that the complainant completed work on 28th July 2014 and was witnessed by Mr O Loughlin. It was the complainants’ evidence that he handed the completed form to Martina after adding a Slovakian sentence:
Nevzdavam sa dobrovolone which translates as: I do not voluntarily resign
The complainant returned his keys and left the building. A P45 issued on August 1 which was incorrectly dated and had to be amended.
2.6 The complainant contended that his disability was totally disregarded by the respondent and that he was not afforded fair or proper procedures. The complainant submitted a comparator, MR X, who despite a mere 5-month employment history with the company, had received a far more transparent and fair process to deal with his absenteeism. Mr X was Irish. The complainant also submitted the case of Mr Z, a non national who did receive reasonable accommodation at the Factory for a shoulder Injury in May 2014.
2.7 The complainant did recall engaging in light duties when he had needed to in relations to other conditions he had and he understood that he had worked hard at the Factory since 2004. He had undertaken a range of duties over the years which were an expansion on the role of General Operative and at the time of his sick leave in July 2013, his job involved packing and filleting. He had also worked with making boxes at the factory. He had a strong belief that resignation was not necessary and he should have been accommodated in the Factory where he had seen others accommodated following illness/injury and he believed that he had been disadvantaged.
2.8 The Complainants representative submitted case law to support the claim
Campbell Catering Ltd v Aderonke Rasaq, EED 048, 2004
Bus Eireann v Mr C, EDA 0811 , 2008.
2.9 At the conclusion of the hearing, I sought a supplementary submission on the Back Care programme which the complainant was due to commence at the time of his discussions with the company. The complainant’s representative submitted further details on October 27th, which consisted of a letter from the GP who confirmed on 19 October 2015 that the complainant had been removed from illness benefit as heavy lifting had ceased for him. The complainant submitted a Physiotherapist report dated 21 January, 2014 which indicated the need for further tests. There was also a letter, dated 13 August, 2014 from a Dr Murphy at Waterford Regional Hospital which indicated that the complainant had been reviewed by them on June 30th, prior to the commencement of the Back Programme and discharged by them. The complainant also submitted proof of commencement of his new position in April 2015 and a series of pay slips to support a loss of earnings submission.
3 Respondents Submission
3.1 The respondent denied all claims of discrimination, and Discriminatory dismissal and wanted the Tribunal to know that a dismissal had not been effected by the Company. The respondent employs 280 to 300 employees across 10 nationalities. 50% of the workforce is non-national.
3.2 The respondent described the complainant as a loyal, enthusiastic and hardworking employee. The complainant had a long term history of back pain and had been transferred to different tasks over the years to accommodate this. An example of this was Box making. On 27th August 2012, the complainant was diagnosed with a heart complaint and was on sick leave for 5 months. During his annual leave in June 2013, the complainant reported that he had fallen off a ladder and availed of unpaid sick leave from 24 the June 2013 to 1st August, 2014. During this time the company maintained a log on the presentation of the sick certs by either the complainant or his brother.
3.3 In May 2014, the complainant called to the Factory. He told Mr O Loughlin, the Production/HR Manager and Mr Gough that he was awaiting a Specialist review as he wasn’t seeing an improvement in his condition. The complainant undertook to furnish the company with a copy of the Medical report.
On 12th June ,2014, he told Mr Tomas Gough that he was hoping to see a Specialist on June 30th. On 8th July, the respondent met with the complainant and submitted a contemporaneous note to file:
“ Robert Tkac called with a cert for one month. Discussed with Robert his long term absenteeism and the company would not be able to hold his position open indefinitely. Robert said he would discuss it with his Dr on when he would be available to return, if at all. If not, Robert said he would resign his position “
The respondent asked the complainant for his specialist medical report.
3.4 On 28th July, 2014, Mr O Loughlin met the complainant on an adhoc basis in reception and was informed that he was ready to resume work. The respondent requested a final certificate and access to the Medical report but was not furnished with same as the Complainant then stated that his Dr didn’t think that he would “ever be 100% fit to return to work”. Instead he asked for an easier job. The respondent recalled asking the complainant to specify what he had in mind as he believed that jobs on the factory floor were not easy. The complainant did not suggest an alternative and said he would resign.
Mr O Loughlin relocated the discussions to his Office and asked the complainant if he was happy to have the support of Martina Bodiova, an Office worker to assist in translation. The complainant accepted.
In the course of translation, the complainant, through Martina asked for easier work and when he was asked to specify he did not identify a suitable area and communicated his decision to resign. Mr O Loughlin secured the bi lingual resignation form and he recalled that the complainant looked for a payment at that point. This was refused and instead, Mr O Loughlin confirmed that any outstanding annual leave or monies owed would be paid. The complainant signed the resignation form and left it on the desk as Mr O Loughlin was on a call. Mr O Loughlin was clear that he did not notice an additional statement on the form and neither was it brought to his attention until the company began their preparation of their submission for the Tribunal.
3.5 The respondent did not have a sick leave policy and Mr O Loughlin confirmed in evidence that staff support was largely informal but consistently aimed at getting people back to work in a supportive framework. He recalled having informal discussions with the complainant and pointed the Tribunals attention to the log of dates where certs were submitted in 2014. He was clear that the complainant knew all jobs in the factory as he had rotated around them in the past, even working with the shop steward . The complainant was not replaced during his year long absence. Mr O Loughlin was clear that the company had no intention of terminating the complainant’s employment on 28th July 2014. The conversation was initiated on an ad-hoc basis by the complainant who repeatedly indicated his intention to resign and then communicated it in writing without dispute. The complainant was asked to sign the standard bi lingual form and was not treated differently. The respondent did not receive the specialist medical report.
3.6 The company made a number of gestures to meet with the complainant and his representative between October and November 2014 but this did not occur as it was the stated intention of the complainant to bring his case to the Tribunal.
4 Findings and Conclusions of the Adjudication/Equality Officer
4.1 I have to decide if the complainant was discriminated against on the ground of race and disability, denied reasonable accommodation and subjected to a discriminatory dismissal under the Acts. In reaching my decisions 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.
4.2. Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule
5 Conditions of Employment
5.1 Sec 6 of the Acts refers:” For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where—
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—
(I) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),
5.2 The complainant alleged that the management of his return to work post sick leave was treated in a less favourable manner than an Irish employee Mr PQ. Where the complainant was forced to resign his position during 2014, Mr PQ was managed in a supportive and structured manner which encompassed structured meetings and updates from a treating Consultant. This was against a back drop of much less service than the complainant. The respondent rejected this as an appropriate comparator as the company had actually extended Mr PQs’ probation period and had been compelled to make contact with the comparator as he had ceased contact with the company during sick leave. This was a performance issue, which was known as such by the Union. The process was managed through the Union and was in sharp contrast with the evolution of the complainants ‘case, where he had complied with the rule of submission of monthly certs and had maintained informal contact with the company throughout his one-year absence. The respondent had no issues with the complainant.
5.3 In my investigation, I was struck by the absence of a sick leave policy on behalf of the respondent. I acknowledged that sick leave was unpaid at the company but it would have assisted the process for all parties if a protocol/policy on sick leave was operational in a company of 300 employees. I was also struck by the apparent informality associated with the management of sick leave. However, I accept as evidence the respondent’s log of the reception of the sick leave certs by the complainant as they encompassed a much longer period which covered his previous sick leave periods in 2012/2013.
5.4 The complainant was extremely vague on his recollection of the encounters with his
Managers between May and July 2014. He understood that he was requested to attend structured meetings and was denied representation, yet the respondent was clear that both the May and July 8th encounters were initiated merely on foot of submission of sick certs by the complainant and were administrative discussions. The complainant was adamant that he had not attended discussions in May with the respondent.
On the other hand, the complainant presented to the company unannounced and unexpected on July 28th 2014 and sought “light duties” in the English language followed by the same question in assisted Slovak translation. The respondent Manager Mr O Loughlin had a clear recall of that day and emphasised that the complainant was not treated unfavourably due to his race or disability as the company had merely sought a specialist medical report similar to what the complainant had furnished them at the outset of his injury in July 2013.
5.5 I find that the circumstances as alleged applied to Mr PQ to be vastly different than those pertaining to the complainant and it is not a comparable situation.
I found throughout the hearing that the complainant had an extremely high proficiency in English language as on many occasions he responded to questions asked in English before interpretation had concluded, therefore I contend that his assertion that he was not offered a translator in good time or afforded representation to be unusual given the undisputed evidence of the respondent which pointed to the fact that the translation support of July 28th was initiated by the company. In addition, I am certain that the Union had good standing with the company as evidenced by the complainants past working relationship with the Shop steward, he was clear that he had been accommodated in a series of different roles within the factory when either his need or the company’s’ need dictated it .This pointed to a level of mutual respect of long standing .
5.6 I am struck by the undisputed background of support given to the complainant by the company through previous personal and health issues. Both parties were very familiar with each other over a 10 year working history. I appreciate that the complainant had medically certified back pain of long standing that necessitated him in taking a year off work. He was on medically advised sick leave up to August 1, 2014 when he made an impromptu visit to the factory on July 28th. This was not disturbed by the respondent. I cannot, however, adduce from any evidence submitted that the burden of proof necessary in this case of being treated less favourably on disability or race grounds has been satisfied. As this was the sole submission in relation to conditions of employment, the complaint of discrimination in terms of his conditions of employment cannot, therefore succeed.
6 Reasonable Accommodation
6.1 The Requirement to Make Reasonable Accommodation is set down in
Section 16(3) and (4) of the Act:
“(3) (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 needed in a particular case, to enable a person who has a disability—
(I) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—
(I) the financial and other costs entailed,
(ii) the scale and financial resources of the employer’s business, and
(iii) the possibility of obtaining public funding or other assistance.
(4) In subsection (3)—
‘appropriate measures’, in relation to a person with a disability—
(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;
6.2 In a recent Labour Court Appeal, Sodexo Irl Ltd v Michal Wojcik,[1] the Court referred to the findings of the CJEU in Ring v Dansk Almennyttigh Boligselskab and HK Denmark, acting on behalf of Werge v Danks Arbejdsgiverforening, acting on behalf of Pro Display A/S[2].The CJEU held that Directive 2000/78/EC (the equal treatment directive) must be interpreted in light of the UN Charter on the Rights of Persons with Disabilities. The Court pointed out at paragraph 53: -
“In accordance with the second paragraph of Article 2 of the UN Convention, 'reasonable accommodation' is 'necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms'. It follows that that provision prescribes a broad definition of the concept of 'reasonable accommodation'.”
6.3 I have examined the instant case with this in mind. I am struck by the undisputed careful adherence by the complainant on the submission of specialist reports and GP sick certs from the outset of the injury in June 2013 up until a dialogue commenced both informally and formally on the prospect of the complainant returning to work by August 2014 (as recorded on the last sick note). I am mindful of the log of the submission of the certificates and the initial medical report maintained by the respondent.
Once again, I am struck by the lack of a guidance document on sick leave management on the respondent side which may have set down a mutually agreed pathway to cover these situations. The role of the Company Doctor is also of concern to me and perhaps he/she should have reviewed the complainant during his year long absence. On questioning, it seemed that the role of the Company Dr was directed more towards the factory sustained injuries rather than the complainant’s acquired injury abroad. The Complainant did inform the Tribunal that he had visited the Company Dr on an annual basis, yet, neither party sought to rely on feedback from these reviews. However, I must examine whether “reasonable accommodation “as described in Sec 16 of the Acts has been afforded and if not, whether the respondent has access to a defense under the Acts?
6.4 In A Worker (Mr. O) v Employer (no 1) [3] The Labour Court set down a helpful test to guide deliberation in this regard and while the case is distinguished in part from the instant case. In Mr O, the complainant had been certified to return to work and the problem was that he was prevented from so doing. The test in Mr. O was based on the need for the Employer to commission a Risk Assessment to quantify the complainant’s capacity and to “make adequate enquiries so as to be in possession of all material information concerning the needs of an employee with a disability before taking decisions which are to the employee’s detriment”
6.5 In this case, I am satisfied that the respondent sought access to a specialist medical report from the complainant in advance of July 28th. The topic of the specialist report had been introduced by the complainant himself and it was never furnished. I note from the report of Dr Susan Murphy, back care co coordinator at Waterford Regional Hospital on August 14th, 2014, that while the complainant was referred to the programme on June 30th, 2014 he had not complied with the requested medical reports and he was discharged before the programme commenced. Throughout the hearing, the complainant appeared very uneasy when evidence on his back pain was tested by the respondent representative.
I find it highly unusual that a complainant who had experienced a year long absence from work would not comply with the furnishing of specialist medical reports or neglect to bring his GP note seeking “light duties “to his discussions with his employer on July 28th. I accept that he forgot it, but he was known at the company and could have returned within the time frame allowed under the medical certificate, August 1, 2014. I am also mindful that the complainant was not actually passed fit for work at the time of his resignation and I find that the GP note, therefore constituted an exploratory opener of possible return to work scenarios I am satisfied that the respondent did not have access to this note at the 28th July discussions. Sec 16 provides for the bi lateral involvement of complainant and respondent in “reasonable accommodation”.
6.6 Taking account of all of the foregoing, I find that while the complainant did have a back injury which warranted a careful back to work management programme. However, he did little to assist himself in furnishing key medical reports at the July 28th encounter, which could have objectively assisted his position. I find the respondent was aware of their responsibilities in terms of “reasonable accommodation” under the Act as they had already assisted the complainant and others in this regard. I find that the complainant jumped the gun in tendering his resignation, the nett effect of which resulted in negating an opportunity to formally address” reasonable accommodation” via risk assessment and material enquiries. I find that the respondent acted responsibly towards the claimant in this regard and discharged their responsibilities as outlined in Section 16.
7 Discriminatory Dismissal.
7.1 I have to decide whether the respondent dismissed the complainant in circumstances
amounting to discrimination on the grounds of disability and race in accordance with section
6(2) of the Act and in contravention of Section 8.
7.2 Section 2(1) of the Acts defines dismissal as including:
"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so ...."
The complainant in this case submitted that he was placed under pressure by the respondent which caused him to believe that he had no other option but to tender his resignation. He told the Tribunal that he was afraid that the Company had it in for him. I investigated this as a constructive dismissal.
7.3 In An Employer v A Worker (Mr. O No.2)[4],the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the above definition was practically the same as the definition of "dismissal" contained in the unfair dismissals legislation and held that the tests for constructive dismissal developed under that legislation - the "contract" test and the "reasonableness" test - were applicable tests under the Employment Equality Acts. In a recent Equality case[5], the Equality Officer applied the “contract test “to a similar case, I wish to apply the reasonableness test, as I believe it best suits the circumstances surrounding this case.
7.4 In Harrold v St Michael’s House [6]the determination quoted from Redmond, Dismissal Law in Ireland (2002):
“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”
7.5 In this case, I have reviewed all the evidence both oral and written and have drawn the following conclusions.
1 The issue of the complainant’s sick leave was not a contentious issue for the respondent. The leave was unpaid and eligible for social welfare payment. The complainant was not replaced during this period. I am satisfied that frequent updates were sought by the respondent and submitted by the complainant without incident up until July 2014.
2 I have to accept that that the complainant visited the Factory and linked in with either Mr Gough or Mr O Loughlin on an informal basis on 6th May and 12th June as this corresponded to the dates recorded on the sick certificates. It also ties in with the statement in Dr Murphy’s report dated august 14th 2014 regarding an imminent Specialist Medical review on June 30th.
3 I accept that the parties engaged on both the 8th July and 28th July and the topic of those discussions emanated from the complainant’s stated desire to resume work on “light duties” followed by the respondent’s stated need for access to medical reports aimed at guiding the process. This is evidenced by the undisputed conjoined decision to meet within the month of 8th July date. I accept that a conversation took place between the complainant and Mr O Loughlin which centred on the need for the complainant to be 100% fit on return to work. However, matters did not end there. The complainant is clear that he believed that there was no option open to him on July 28th, outside immediate resignation and I wish to make a short commentary on this turn of events.
7.6 I find that Mr O Loughlin was not booked to meet the complainant on July 28th. I accept that the complainant asked in English and Slovak for easier work from Mr O Loughlin and on being informed that there no easy job in the Factory tendered his resignation orally. I am aware of the diametrically opposed recollections of this by the respondent and the complainant. I am mindful of the break in discussions to relocate the matter to the Managers office and to secure the assistance of an employee who was cognisant of Slovak language. I have examined the Bi lingual resignation form and two matters strike me:
(1) The entire English component of the form was complied with, this covered the date, details of pension scheme and contact details of the complainant. Yet, the Slovakian part had 4 empty lines. I asked the complainant why he chose the English part of the form over the Slovakian part but he was unable to answer. The late insertion of the “I do not resign Voluntarily/Nevzdavam sa dobrovolne “caused me some concern as it is certainly a concrete unequivocal statement on the part of the complainant.
Martina, the translator was not available to the Tribunal and instead the respondent issued a signed note from her which supported two issues. One, that the comparator had asked for a payment on leaving and second, that Martina did not hear the complainant dispute his intention to resign.
(2) The complainant was initially extremely aggrieved at the incorrect date being placed on the P45. In addition, at the hearing the complainant shared with the Tribunal that there was a delay in him receiving job seekers benefit as the company had indicated that his job was open for him well into August and this complicated matters.
7.7 Taken all of the above into consideration I find that the respondent did not resolve to terminate the complainant’s employment on July 28th, Humphreys and Westwood distinguished. I find that the respondent acted on the cues given by the complainant and in the absence of medical reports accepted that an employee of 10 years standing knew his own mind regarding resignation. The complainant had not as yet been signed off with a final return to work certificate and was covered by the cert due to have expired on august 1. The conversation that took place between the complainant and Mr O Loughlin was anticipatory at best and curtailed by the written resignation from employment.
7.8 I find that the reference to duress inferred in the supplementary insertion on the resignation form should have formed the basis of direct dialogue either on the day or subsequently when Mr O Loughlin and Mr Reilly, Financial Controller sought to meet the complainant during October and November, 2014. An employment relationship is meant to be built on mutual trust and confidence. The onus was on the complainant to build on his assertions and the company should have noticed or queried the supplementary insertion on the resignation form long before Autumn 2015.
I cannot fault the complainant for wishing to take the direct route to the Tribunal. That is his undisputed right, however, there was an adequate grievance procedure open to the complainant and more importantly., he had worked in areas of lighter duties in the past successfully. There was no evidence adduced at the hearing which allowed me to conclude that immediate resignation was the complainants only option on July 28th. It is true that there are no stated time frames provided for in the Acts regarding an operational period for resolving issues of disagreement, this is the role of Managers and the complainants chosen representative, in this case the Trade Union.
7.8 In Michael Murray v Rockabill Shellfish [7] The EAT set down a fair test to be applied to cases of constructive dismissal which has relevance here .
(1) An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by an employee and all other reasonable options, including following the grievance procedure, must be explored.
(2) An employee was entitled to terminate his contract only when the employer was guilty of conduct which amounted to a significant breach going to the root of the contract or showed that the employer no longer intended to be bound by one or more of the essential terms of the contract.
(3) The respondent was guilty of conduct which amounted to a significant breach of the contract and the respondent failed to engage with the claimant to resolve the claimant's grievances. This amounted to a constructive dismissal
7.9 I find that the complainant was overly hasty in his resignation on July 28th 2014. The respondent was cogent at the hearing, stating that they had no desire to lose the complainant, who was a good worker. I accept that the respondent was prepared to enter discussions with the complainant on a potential for his return to work. I conclude that while the complainant did have a disability, he has not attained the necessary burden of proof that allows me to infer that discriminatory dismissal on the grounds of disability or race occurred in this case.
7.10 Throughout my deliberations on the facts of this case. I have made commentary on the absence of a Management of Attendance/Sick Leave Policy. I believe it would be extremely helpful for all parties if such a document was introduced immediately to guide on timeframes for engagement, need for medical reports and pathways for support on return to work post sick leave. I therefore recommend the respondent to introduce this policy as a matter of urgency.
8 Decision
8.1 This decision is issued by me, following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer on that date, pursuant to the continuation of my functions set out in S.83 of the Workplace Relations Act, 2015.I have made my decision in accordance with Section 79(6) of the Acts.
8.2 I find that the complainant has not established a prima facie case of discrimination on grounds of race and disability in relation to his conditions of employment as provided for in section 6(2) and in accordance with section 8 of the Acts.
8.3 I find that the respondent discharged their responsibility to the complainant in accordance with reasonable accommodation in accordance with section 16 of the Acts.
8.4 I find that the complainant has not proved that his termination of employment on July 28th, 2014 was due to discrimination on race and disability grounds.
________________________
Patsy Doyle
Adjudication Officer/Equality Officer
26th January 2016
Footnotes
[1] EDA 1517, Sodexo Irl ltd v Michal Wojcik, Labour Court November 2015
[2] C-335/11 and C-337/11 Hk Denmark (Ring) v Dansk Almenyhigh Boligseiskab /HK Denmark ( Werge) v Danks Aebejdsgiverforenig, Pro Display A/S.
[3] [2005]16 ELR 113
[4] EED 0410 ,[2005]16 E.L.R.132
[5] Dec-E2015-18 Stoneczna-Nowak v EMart ltd
[6] [2008]ELR 1 at 41
[7] UD 1832/2010 [2012]23 ELR 331