ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002898

Complaint for Resolution:

Date of Adjudication Hearing: 09/08/2016

At: Workplace Relations Commission, Dublin 4.

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 79 of the Employment Equality Act, 1998, and 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.

Background. 

The Complainant has been employed by the Respondent since 20^th November 2000. He worked as a Warehouse Team Member but he has been on certified sick leave from March 2015. The Complainant was paid €436.00 gross per week and he worked 39 hours a week.

The Complainant referred a complaint to the Workplace Relations Commission on 21^st April 2016 alleging the Respondent had discriminated against him on the basis of his disability and had not provided him with “reasonable accommodation”.

Summary of Complainant’s Position.

The Complainant advised the HR Department by letter dated 24^th November 2014 that he was experiencing on-going hip problems and that he could not stand or walk for too long when it went. The Complainant is on a waiting list for an operation at Cappagh Hospital since December 2014.

In January 2015 the Respondent sought to amalgamate two functions into one position. The Complainant worked on one of these positions. The Respondent was aware that the Complainant could not carry out this amalgamated role. The position was advertised and the Complainant applied for the position but was unsuccessful as set out in a letter dated 15^th January 2015.

The Complainant lodged a grievance on 18^th May 2015 and a meeting was held on 25^th June 2015. The Complainant was seeking that he be assigned to part of the amalgamated role that he had previously done. His grievance was not upheld on the basis the neither amalgamated roles were full-time roles. The Complainant appealed this and the Appeal was heard on 11^th August 2015. The outcome was that the Complainant could not be accommodated in this position but a proposal was made to the Complainant and the Complainant advised that he would seek medical advice.

The Complainant attended his Doctor who advised that he would “have difficulty and experience significant pain on standing for a prolonged period of time”. The Respondent was advised of this by letter dated 18^th August 2015. By letter dated 19^th August 2015 the Respondent rejected the Complainant’s wish to be placed back on his original position.

This was appealed by the Complainant’s Solicitor on 4^th September 2015 and the Respondent responded on 23^rd October 2015 rejecting the proposal to return the Complainant to the original position.

The Complainant asserted he had been discriminated against by his Employer when the Respondent amalgamated his role with another role and secondly by refusing to maintain his role and accommodate him.

Summary of Respondent’s Position.

The Complainant was employed from 2000 and for 8 years he was part of the Warehouse Team and operated the counter balance truck for moving stock in the yard. Under his contract of employment he could be asked to work in any area of the Warehouse.

In November 2014 the Company reviewed its operations in the Warehouse and decided there was not sufficient work to maintain two positions of CBT and a full-time maintenance role. It was decided to amalgamate the two positions. The new role was advertised in November 2014. There were six applicants, including the Complainant. During the Interview the Complainant stated he had a fear of heights and as working at heights was an essential part of the role he could not be considered for the position. The successful candidate refused the position and it was offered to the second candidate. The Complainant was then transferred to his new role in a part of the Warehouse.

The Complainant contacted the HR Manager on 2^nd February 2015 and informed her that he would not be able to work in the Warehouse due to hip problems which made it difficult for him to stand for long period. Due to his fear of heights he refused an offer to be trained on a Very Narrow Aisle Truck (VNA) fork truck. He requested that he be trained on a Power Pallet Truck (PPT). Training was organised but the Complainant failed the training on two separate occasions. As he had refused to work on certain trucks because of his fear of heights and he had failed two training tests the only available position available was in the Warehouse.

The Complainant undertook this work up to 12^th March 2015 when he commenced annual leave but he failed to return to work after his leave and he has been on certified sick leave since 18^th March 2015

The Complainant lodged a grievance and this was heard on May 2015. At this meeting he informed the Respondent that he required a Hip Replacement but that this would take up to 18 months to 2 years as he had to loose significant weight before he could be considered for a hip replacement.

The issue of whether there was a full-time position in the yard was investigated and it was concluded that no such post existed any longer in the YARD. This was appealed by the Complainant and at the Appeal Hearing on 11^th August at which the Complainant was represented by SIPTU the Respondent was requested to investigate if there was CBT wok available for 1 or 2 days a week. This was investigated and at a meeting with the Complainant and his Representative on 14^th August he was informed there was no part-time CBT role available due to the scheduling of work as this is determined by the volume of work on each particular day. However the Respondent did agree to bring the Complainant back on a Part-time basis to be trained on PPT. However the Complainant’s Doctor advised that this would not be stable. A doctor’s certificate was provided.

The successful candidate for the amalgamated position resigned in January 2015 left the Company and the position was advertised but the Complainant did not apply. The Solicitor for the Complainant wrote to the Company on 4^th September 2015 and makes reference of a referral to the Equality Tribunal. The Respondent wrote to the Complainant with the outcome of his final appeal on 23^rd October 2015 confirming its decision that a part-time CBT role could not be facilitated.

The Respondent raised a preliminary issue in relation to the Time limits. They argued that the alleged discriminatory act occurred in November 2014 when the CBT role was amalgamated into a combined role. It was implemented in February 2015. They referenced a decision of the Labour Court in Berkeley Court Hotel v Ms G (EDA 052) which held there was a difference between the tangible result of the act and the act itself.

The Respondent stated there was no dispute but that the Complainant did have a disability but his medical condition places restrictions on what roles the complaint can do in the Company. They accepted there is an obligation on the Respondent to provide “reasonable accommodation” to facilitate a person with a disability. The Company engaged with the Complainant and his SIPTU Representatives on a number of occasions and they considered some 12 positions but seven were deemed unsuitable due to being medically unfit to stand or walk for long periods. One the Complainant declined due to his fear of heights and he failed the training assessment on one more while he was deemed unsuitable for two positions due to poor literacy skills and there was no part-time position on the CBT truck. However the Complainant continuously sought to return to his previous position which no longer existed.

Preliminary Issue – Time Limits.

A complaint of discrimination must be lodged within the period of six months of the alleged act of discrimination or the most recent act of discrimination.

I do not accept the Respondent’s position that the first alleged act of discrimination took place in November 2014 when the role performed by the Complainant was amalgamated into a combined role. This amalgamated role was filled by the successful candidate following an interview process in which the Complainant participated but was unsuccessful. The Complainant was assigned to a new role which he worked in until he went on annual leave on 12^th March 2015 and he commenced certified sick leave on 18^th March 2015 and has not returned to work since. It was only when the Complainant lodged a formal grievance complaint on 18^th May 2015 that the Respondent became aware that the Complainant was unable on medical grounds to perform his duties in his new position while acknowledging that the Complainant did write to the Respondent by letter dated 24^th November 2014 informing the employer that he was having problems with his hip and was awaiting a scan and an appointment to see the specialist.

Therefore I find that the first alleged act of discrimination occurred on 18^th May 2015.

Section 77 (5) of the Act provides that a complaint must be lodged with the Director within a period of 6 months from the date of occurrence of the discrimination or the date of its most recent occurrence.

I accept the position of the Complainant that the date of the most recent occurrence was in fact the 23^rd October 2015 when the Respondent sent correspondence to the Complainant confirming that he could not be accommodated in a Part-Time position as a CBT.

Findings

The principal facts in relation to this complaint are not in dispute between the Parties.

Section 8 (1) of the Act prohibits discrimination of an employee by his employer on any of the grounds specified in Section 6 of the Act in relation to access to employment, conditions of employment etc.

Section 28 (1) of the Act requires the Employee making a complaint to Name a comparator (f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with a different disability”.

The Complainant and his Representative have failed to name a comparator and have failed to provide any evidence in relation to less favourable treatment by the respondent.

The Complainant and his Representative also allege that the Respondent discriminated against the Complainant by failing to provide him with reasonable accommodation in relation to his disability. Sections 16 (3) and (4) of the Act sets out the requirement on the Employer to make reasonable accommodation.

The Act of 1998 gives effect in domestic law to the European Union Directive 2000/78/EC of 27^th November 2000 and it is well accepted that domestic courts, including Adjudication Officers, are obliged to interpret and apply domestic law as far as possible to produce the results envisaged by the Directive. This principle was initially set out in the Court of Justice of the European Union in the Marleasing case C-106/89. In two conjoined cases in 2011 the CJEU in the cases of C-355/11 and C-337/11 has held that that the Directive quoted above must also be interpreted in light of the UN Charter on the Rights of Persons with Disabilities when the CJEU held as follows – “reasonable accommodation is necessary and appropriatemodifications and adjustments, not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exerciseon 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”

Both Parties confirmed at the Hearing that the Complainant had been offered a number of alternative positions within the employment. Due to the Complainant’s medical condition and disability he was unable to accept some six different alternative positions. The Complainant also failed two training sessions to enable him to take up another position. The Complainant himself declined to accept two positions offered on the basis that he had a fear of heights. The Complainant was very clear that the only position he would accept was the position of CBT which had been amalgamated into another position and both Parties confirmed that although the Complainant applied for this position when it was advertised originally in November 2014 he was unsuccessful. However he did not apply for this position when it became vacant again in September 2015 and the Complainant was unable to offer any explanation as to why he did not apply for the position which did include duties on the CBT combined with other duties.

Decision CA-00004006-001 

For all the reasons set out in my Findings above I decide that the Respondent has discharged its duty to the Complainant in respect of providing “reasonable accommodation”.

In accordance with Section 79 of the Act I declare the complaint is not well founded.

Date: 28^th September 2016