EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-082
PARTIES
ATTILA BACSO
-v-
WAREHOUSE 39 LIFE WARES LIMITED T/A W39 SERVICES)
File reference: et-154215-ee-15
Date of issue: May 2016
HEADNOTES: Employment Equality Acts, Section 6, Disability – Failure to provide reasonable accommodation.
1 DISPUTE
1.1 This dispute concerns a claim that the complainant was discriminated against by the Respondent on the grounds of disability contrary to section 6 (2)(g) of the Employment Equality Acts when they allegedly dismissed him from his employment.
1.2 Pursuant to Section 16 of the Workplace relations Act, 2015 the Director General delegated to me, a duly appointed Adjudication officer of the Workplace Relations Commission the power to investigate, hear and issue a decision on this matter referred to by the Commission on the 31st March, 2016. The matter proceeded to hearing on the 8th April, 2016.
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 started work with the respondent on the 14th April, 2008.
2.2 On the 24th April, 2014 the complainant suffered a personal injury during the course of his employment.
2.3 He provided medical certificates to the respondent monthly from the date of the injury. The certificates were handed into the respondent by a colleague of the complainants. He states that he did send sick certificates into the respondent for the months April, May June, July and August, 2014.
2.4 He changed address on the 22nd April, 2014 and gave the new address to the respondent by e-mail that week.
2.5 He received no further correspondence from the respondent until the 15th September, 2015. He denies receiving a letter dated the 19th August, 2014 wherein the respondent requesting he contact them to discuss his absenteeism (without certification) since July, 2014 and the sick leave policy. He stated that a colleague told him that the respondent wanted to send him a letter and that is why he wrote the e-mail of the 15th September, 2014.
2.6 On the 15th September, 2014 the complainant received a letter stating that due to the lack of engagement with the respondent his employment would terminate on the 20th September, 2014.
2.7 The complainant accepts that the sick leave policy was with his contract of employment and that he signed for same. He stated that he did not understand them.
3 RESPONDENT'S SUBMISSION
3.1 The respondent runs a facilities service and employs over 65 non nationals.
3.2 All employees are given a contract of employment and an employee handbook when they commence their employment. The office manager who is also a non national translated/ explained the documents in detail for the complainant in Hungarian, his first language.
3.3 The complainant, following an accident at work went on sick leave from the 24th April, 2014. He submitted sick certificates monthly despite the sick leave policy specifying that they should be submitted weekly. The certificates were left on the operations manager’s desk.
3.4 No certificates were furnished after July, 2014. The respondent wrote the complainant on the 18th August, 2014 requesting that he make contact with the respondent. Following that letter the respondent received a sick certificate dated the 18th August, 2014.
3.5 The respondent was not informed of the complainant’s change of address until the 15th September, 2014 which said e-mail was send approximately one hour after the respondents letter of even date was sent.
3.6 The respondent waited for a number of weeks after the letter of the 15th September 2014 to give the complainant an opportunity to explain himself but he failed to do so. He merely requested his P45.
3.7 Following receipt of his P45, the complainant sent in sick certificates for September and October 2014.
3.8 The respondent was never informed of a return to work date by the complainant or any of his medical doctors.
3.9 The respondent didn’t ask the complainant to see their company doctor because he had not yet been certified fit to return to work by his own treating doctor.
3.10 The issue of reasonable accommodation did not come up as the complainant was never certified fit to return to work.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant was the subject of discrimination on the grounds of his disability. In reaching a 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 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.”
Less favourable treatment
4.3 Section 6(1)
“For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated”
(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”),
The complainant did not identify any comparators.
Provision of Reasonable Accommodation.
4.4. Section 16.
“Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
(2) In relation to—
(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,
(b) he offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and
(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body.
subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.
(3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
Having heard the evidence from both parties, I am satisfied that the complainant did suffer a personal injury during the course of his employment and was certified unfit to work for a period of time. I am satisfied that the plaintiff’s injury amounts to a disability pursuant to Section 2 of the act. However, I am not satisfied that the employee was in fact dismissed from his employment. The respondent has a very clear sick leave policy for which the complainant was or should have been fully aware. The complainant, in breach of that policy, did not submit sick certificates weekly but submitted them monthly. The respondent didn’t take issue with that until the complainant ceased sending in the certificates. I am satisfied that the complainant was in receipt of the respondent’s letter dated the 19th August, 2014 despite his evidence to the contrary. I base my conclusion on the fact that he sent in a medical certificate following receipt of that letter and he addressed the matter in his e-mail of the 15th September, 2015. His explanation that a colleague told him that the respondent wanted to send him a letter is not a credible one. Furthermore, in the respondent’s letter of the 15th September, 2014 it stated
“ We are writing to you following our letter sent concerning your absenteeism dated 19th August, 2014” The complainant did not request sight of that letter nor did he ask the content of that letter. I can only conclude the reason for that is because he did in fact receive that letter.
I am satisfied that the reason the complainant’s employment ceased was due to his failure to engage in a meaningful way with the respondent and his failure to comply with the company sick leave policy. He never furnished the respondent with a return to work date and never address them on what accommodations may or may not need to be made to facilitate his return to work. In all of the circumstances the respondent was entitled to conclude that the complainant had no intention of returning to work and had by his own inaction frustrated his contract of employment.
No evidence in relation to reasonable accommodation was proffered. The respondent’s submission, that reasonable accommodation is not relevant to this case, due to the fact that the claimant was never certified fit to work, is a good one.
The complainant has failed to establish a prima facia case of discriminatory dismissal on the grounds of disability.
5. DECISION
5.1 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 on grounds of disability.
· The respondent did not discriminate against the complainant in the provision of reasonable accommodation.
· The complainant frustrated his contract of employment.
· The complainant’s case fails.
_____________________________
Niamh O’ Carroll Kelly BL
Adjudication Officer/Equality Officer