ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000751

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 20th January 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

The Complainant has been employed as a Mushroom Harvester since 27^th February 2003, by the Respondent who are a limited liability Company growing and supplying mushrooms.

The complaint was presented to the Workplace Relations Commission on 18^th November 2015

The Hearing of the complaint took place in the Cavan Crystal Hotel, Dublin Road, Cavan on 20^th January 2016.

Both parties made detailed submissions.

Summary of Complainant’s Submissions and Presentation:

The Complainant was submitting that because of bringing and winning a complaint/claim under the Act the Respondent was penalising her as defined under the Act by not allowing her to return to work after a period of sick leave.

The Complainant said that she was on certified sick leave from 20^th October 2014.   She was medically certified as fit to return to work on 14^th July 2015 and she submitted that Medical Certificate to the Respondent.  

The Complainant said she met with the Respondent who sought that she attend with their own Doctor/Medical Advisor, which she complied with and it appears that the Respondent’s Doctor had an issue with her working at heights and suggested that she should only work at ground level.

The Complainant returned to her own Doctor who, in a Medical Certificate dated 27^th November 2015, contradicted this and stated:

“To whom it concerns,

This ….. lady is a patient of this practice.

She had 1 episode of syncope in Oct 2014 – this was extensively investigated with CT Brain, 24hour holter, ECHO, EEG all of which were normal.

As a result, she is now medically fit to return to work both on the ground and upstairs as her diagnosis is vasovagal syncope (faint).”

The Complainant said that despite this the Respondent still did not allow her to return to work.

The Complainant said that this refusal to allow her to return to work was an ongoing act of penalisation by the Respondent in retaliation for, or because of the fact that she had taken successful complaints under the Act against the Respondent, Determination No.DWT1570 [WTC/15/19] refers.  

The Complainant said there was no good and valid reason for the ongoing refusal of the Respondent to allow her to return to work and she submitted that it was clear, flagrant and a deliberate breach of her rights and entitlements and a breach of Section 26 of the Act.

The Complainant sought redress in accordance with the provisions of the Act and in particular that the Respondent be directed to allow and facilitate her immediate return to work and that she be properly and adequately compensated for the breach of her rights under the Act and the loss of wages suffered by her because of this penalisation.

Summary of Respondent’s Submissions and Presentation:

The Respondent was denying that there was any penalisation of the Complainant by them in retaliation for or because of the fact that she had taken previous complaints under the Act, some of which were successful and some of which were not.

In relation to Labour Court Determination No. DWT1570 [WTC/15/59] the Respondent said the Labour Court for stated reasons determined as follows:

• Section 11- Daily rest period

This complaint is not well founded

• Section 12 – Rests and intervals at work

This complaint is well founded.   However the Claimant made a significant contribution to this contravention in not taking the breaks to which she was entitled.   The Court measures the compensation that is fair and equitable in respect of this contravention at €750

• Section 13 – Weekly rest periods

This complaint is not well founded

• Section 14 - Sunday premium

This complaint is not well founded

• Section 15 - Weekly working hours

This complaint is not well founded

• Section 17 - Information on working hours

This complaint is well founded.   The Court measures the compensation that is fair and equitable in respect of this contravention at €750

• Section 19 - Annual leave

This complaint is well founded.   The Court measures the compensation that is fair and equitable in respect of this contravention at €1,500

• Section 26 - Penalisation

This complaint is well founded.   The Court measures the compensation that is fair and equitable in respect of this contravention at €5,000

The Respondent said that the Complainant had a blackout at work, she was unconscious for one hour and was taken away in an ambulance; she then went off work on certified sick leave.

The Respondent said that when the Complainant submitted that she was medically fit to return to work she was sent by them to their own Company Doctor for a full risk assessment, which took place on 4^th August 2015 and his Report was issued by letter of 5^th August 2015.

The Respondent submitted that based on the contents of that Report it was not reasonable or practicable to allow the Complainant return to work, particularly as her work involved holding and using a knife.

The Respondent said that this was the sole and only reason for them being unable to allow the Complainant return to work; they said this was a valid reason and a fair and reasonable decision by them.

Based on the foregoing and the facts and circumstances of the matter the Respondent submitted that the complaint was not well founded and that it should be rejected; and they sought a finding and decision to that effect.

In response to questions the Respondent confirmed there were no insurance issues with the Complainant’s return to work, their insurance provider had not been contacted

Findings and Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I am required to decide if the Complainant’s complaint of penalisation as defined in Section 26 of the Organisation of Working Time 1997 is or is not well founded.   In that respect I must decide if the refusal by the Respondent to allow the Complainant to return to work on and since 14^th July 2015, was and is an act of penalisation by them against the Complainant in breach of Section 26 of the 1997 Act, in retaliation for or because of the fact that the Complainant had taken complaints against the Respondent in a previous case under the 1997 Act.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I note that the Respondent, in their refusal to allow the Complainant to return to work since 14^th July 2015, relies solely and entirely upon a Medical Report prepared for them by their own Doctor/ Medical Adviser on 5^th August 2015, following a return to work medical assessment carried out by him on the Complainant on the previous day, 4^th August 2015.  

This Report states that the Complainant “suffered a collapse while at work on 10^th October 2014.   She reports loss of consciousness lasting up to 15 minutes.   There were no reports of irregular jerking of the limbs or incontinence during the incident.   Following the incident she has undergone extensive investigation which she reports to me, has failed to determine the specific cause of the collapse.

The Report then states that the Complainant has undergone investigations in respect of (a) brain imaging, (b) Holter Monitor, (c) EEG and (d) blood investigation all of which are normal. It further states there was a review of her medical history, medication, physical fitness with a physical examination and a risk assessment all of which were normal or in relation to her heart rate ‘excellent’.

The Report then makes general recommendations as follows:

• Avoid work at height where it is reasonably practicable to do so;
• Where work at height cannot be avoided, prevent fall using either an existing place of work that is already safe or the right type of equipment;
• Minimise the distance and consequences of a fall, by using the right type of equipment where the risk cannot be eliminated
• Do as much work as possible from the ground:
• Ensure workers can get safely to and from where they work at a height;
• Ensure equipment is suitable, stable and strong enough for the job, maintained and checked regularly:
• Make sure you don’t overload or overreach when working at height
• Take precautions when working on or near fragile surfaces;
• Provide protection from falling objects;
• Consider your emergency procedures

The Report goes on to state:

“Following assessment today it is my opinion [the Complainant] is fit to return to work as described to me (the Doctor’s emphasis).

The Report concludes stating the following:

“While the exact cause of her collapse cannot be determined it would be prudent to make necessary risk assessment and workplace adjustments to mitigate any risk should another incident occur.

Further risk assessment can be carried out after 6 months.”

Plainly there is nothing in this Report that would justify or cause any reasonable person to conclude there was any medical justification for refusing to allow the Complainant return to work; indeed the reverse is the case.   There is nothing in the recommendations in the Report that would not and should not apply to all employees and it is nothing more than recommendations for good practice and commonsense in relation to safety and health for all employees (indeed there are references to workers,employees and they in the Report).   However of even more significance is that the Company’s own Doctor is stating, and is emphasising in bold and underlined words that the Complainant is “fit to return to work”

I further note that when to Complainant produced a further confirmation letter from her own Doctor on 27^th November 2015, that unambiguously confirmed that she was fit to return to work both on the ground and upstairs as her diagnosis is vasovagal syncope (faint), the Respondent sought no clarification, further medical opinion, nor took any action to confirm the medical position or facilitate in any way the Complainant’s return to work.

The Respondent’s evidence in this respect is illogical and does not make sense; it is inconsistent with established facts and it is rejected by me.

I find and declare that the refusal of the Respondent to allow the Complainant return to work was not due to any medical advice available to the Respondent; indeed the reverse is the case the Respondent was unambiguously informed by two separate medical advisors, including the Respondent’s own medical advisor that the Complainant was medically fit to return to work.   I have concluded and I find that the reason why the Complainant was not allowed to return to work since July 2015 is in retaliation for or because of her having made the complaints under the Act that were the subject of Labour Court Determination DWT1570 in the same month and that this refusal to allow the Complainant return to work constitutes penalisation in breach of the provisions of Section 26 of the Act.   I note that this penalisation has had serious consequences for the Complainant, unnecessarily depriving her of work and wages for a period of 6 months at the date of the Hearing.

In accordance with the provisions of Section 27 of the Organisation of Working TimeAct 1997, I declare that the complaint under Section 26 of that Act in relation to penalisation is well founded and it is upheld in full.   I require the Respondent to facilitate the return to full normal working by the Complainant within two weeks of the date of this decision.   I measure the compensation that is fair and equitable in respect of this contravention as €9,500.00c and I require the Respondent to pay the Complainant that amount within 6 weeks of the date of this decision.

Dated: 11 May, 2016