ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001769

Complaints for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00002384-001	18/01/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00002384-002	18/01/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00002384-003	18/01/2016

Venue: WRC, Tom Johnson House, Haddington Rd, Dublin 4.

Date of Adjudication Hearing: 14/07/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 79 of the Employment Equality Act, 1998, under Section 28 of the Safety, Health & Welfare at Work Act, 2005 and under section 13 of the Industrial Relations Act, 1969 following the referral of the complaints/disputes to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background

The Complainant is employed as a Warehouse General Operative since February 2005. He is paid €11.89 per hour and works full time. He has claimed under the Employment Equality Act that he has been discriminated against on grounds of disability, under the Safety, Health & Welfare at Work Act he was penalised and under the Industrial Relations Acts he was bullied and harassed.

1) CA-00002384-001 Employment Equality Act

Complainant’s Submission and Presentation:

He stated that he suffers from Plantar Fascitis (PF). This is a foot condition making standing or walking very uncomfortable. This is a progressive disorder which involves the gradual flattening of the arches, Achilles tendon problems and steadily increasing levels of heel pain. This is not a disability but a progressive disorder. It was first identified as a disorder by the Respondent’s Physiotherapist on 11^th November 2015. In April 2015 he sought verbally from management that he would be rotated to other activities. HR responded that he must be fit to do his job and Health & Safety stated that if he had a medical problem they would look into it. On 28^th October 2015 he requested job rotation due to pain. He was given two hours in training and then returned to floor work. He went to First Aid as there was swelling. He was advised to go to his GP. That same day he spoke to his Supervisor about rotation of duties but was told that there was nothing else available. There were other tasks available but he was not given them such as, goods inwards, cleaning toilets, cleaning floors. He was not sent home due to absence at work in the warehouse. He became suspicious that the Respondent was forcing him to go absent. On 28^th October 2015 he took voluntary sick leave for three days. He went to his GP and was certified fit on 2^nd November 2015. Upon his return to work he attempted to use a trolley to reduce the walking time but was refused by his Supervisor due to lack of space. He was told that if he had a problem he was a risk. He and his union representative met with Health & Safety. He was referred to the Respondent’s Physiotherapist on 11^th November who determined that he had a disorder and recommended rotation of jobs. The Respondent did not place him on rotation. He was offered long term absence but he declined. Now that it was identified that he had a disorder which was progressive he requested a risk analysis. This was declined. On 26^th November he was issued with a final written warning for absence. In 2015 he had 10-11 days absent. On 11^th December 2015 he had a performance review and he was told to walk faster and if he was fit to work then he should work. On 16^th December 2015 he took a claim under the Safety, Health and Welfare at Work Act but he withdrew it due to time limits. He was convinced that the Respondent had a policy of getting him into trouble and they were not willing to rotate his duties. On 18^th December 2015 HR told him that all tasks involved walking and standing. They confirmed that a risk assessment would take place and they promised Fork Lift training in the New Year. He has confirmed his satisfaction with the rotation of his duties since after February 2016. On 14^th January 2016 he was reprimanded for the manner of selecting boxes, this was done by a person who was not as Supervisor. He saw this as a personal issue. He tabled a bullying and harassment grievance.

His complaint under the Employment Equality Act is that he was being denied rotation of duties despite his disorder. He was on a final written warning so he took a claim.

He is seeking a determination that the Respondent did not provide reasonable accommodation for his disorder.

Respondent’s Submission and Presentation:

The Respondent stated at the outset that they have a concern that the Complainant had made three separate complaints which are essentially the same. He had previously done the same under the Safety, Health and Welfare at Work Act. It is an enshrined principle of law that a complaint cannot be brought a second time or third time under various pieces of legislation. The doctrine of double recovery is enshrined in law and as such the claimant must be prevented from attempting to seek recovery from three different pieces of legislation.

The Complainant is employed as a Warehouse Operative. He can be assigned to any work in the warehouse. He does not have an automatic entitlement to drive a fork lift truck. He has been given training/coaching regarding his role and duties. He has received a number of disciplinary warnings over the past number of years ranging from a coaching sanction to verbal, to written and to final written warnings for health and safety, productivity, accuracy, attendance and carelessness breaches.

In August 2015 he approached HR about his sore feet. He was requested to submit a medical certificate and they would deal with it. He failed to produce the certificate. On 5^th November the H&S Manager met with him to discuss his sore feet and conducting a risk assessment. He was advised that a risk assessment would only be done upon receipt of a medical assessment and they offered that he attend the Company Occupational Doctor. He refused. He attended the Company Doctor on 11^th November after it was clearly explained that the Respondent required a medical report. The Doctor’s report stated that the Complainant “appears to be suffering from a mild PF in both heels, the left worse that the right…. Rotation of his task to alleviate this is recommended. All warehouse staff are required to be fit to carry out all duties. In April 2014 he refused training on a PPT (a self pulling automated cart). As a result this meant that the Company could not include him on rotation to a PPT. On 16^th December 2015 he was advised in writing that he could be rotated back onto a fork lift truck if he agreed to undertake re-training and because of his performance issues they would require him to take part in a performance improvement plan. Given the time of year coming up to Christmas it was planned to do so in the New Year. This was done on 29^th February 2016.

He has complained that he has been discriminated, harassed and victimised because of his disability. This is denied. They have denied trying to get him to take long term absence. He has not discharged any burden of proof that he has been treated differently because he has a mild case of PF.

Sec 85A provides for the allocation of the probative burden between the parties. No prima facie case has been established by the Complainant. They cited Mitchell v Southern Health Board [2001] ELR 201 in support. It is only if the initial burden is discharged that proving there was no infringement passes to the Respondent. The first recorded absence due to tendonitis was on 9^th October 2015 and this was self-certified. Following a number of absences he attended the Company Doctor and it was determined that he “may be” suffering from PF. There is no medical documentation to back up his claim. Upon receipt of the Doctor’s report he was advised that a risk assessment would be carried out. Due to the busy Christmas period this was done in February 2016. The outcome was that it recommended that he would be rotated between Bay Off and Goods In areas. These still require a certain amount of walking. In 2014 he had declined to operate the PPT truck. Fork Lift Drivers are selected from high performers and attenders. The Complainant has had performance and attendance issues in the past and so was not considered suitable. However they have retrained him on fork lift driving and he is used when required. Article 5 of the Directive creates an obligation for employers to make reasonable accommodation for persons with disabilities. The Labour Court in [2005] ELR 113 sets out its reasoning for employers considering reasonable accommodation. The test requires the employer to take into consideration medical evidence. In this case the Respondent had to cajole him to attend the Occupational Specialist in November 2015 and the Respondent then carried out the risk assessment and implemented rotation of duties in February 2016 after the Christmas rush was over. Managing an employee’s performance is not harassment or victimisation or bullying. This complaint is rejected in its entirety.

Issues for Decision:

I note Sec 2 of the Employment Equality defines “disability” as —

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,

(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;


In this case the Complainant has confirmed that he does not have a disability but he has a disorder. I note that the Occupational Health Specialist, not Physiotherapist, as alleged by the Complainant stated in the medical report that he ““appears to be suffering from a mild PF in both heels, the left worse that the right”. I find that the medical evidence has not established with certainty that he is in fact suffering from PF, rather the report states he “appears” to be suffering…. Therefore I find that the medical report does not establish a disability. In that case I find that a possible mild form of PF is not a disability within the meaning of this Act. Therefore I must find that as he has not established that he has a disability therefore he does not have “locus standi’ (the right or capacity to bring an action) under this Act. It is clear that in order to succeed with a complaint of discrimination of grounds of disability it is necessary in the first instance to establish the existence of a disability. In this case the medical report has not established a disability and the Complainant has accepted that he has not got a disability but in fact may have a mild disorder.


Section 85 A of this Act provides for the allocation of the probative burden between the parties. In this instance the Complainant must in the first instance establish a ‘prima facie’ (A fact presumed to be true unless it is disproved) that discrimination (in this case) on grounds of disability has occurred.
Once that has been established the onus then switches to the Respondent to prove the absence of discrimination. For the sake of completeness I found that the Respondent requested a medical report once the Complainant raised the matter of foot pain. I note the Complainant’s reluctance to get a medical report and eventually the Respondent convinced him to attend the Company Doctor. I find that once the Respondent received this report they confirmed that they would carry out a risk assessment. However because this was immediately prior to Christmas it was deferred to after that peak trading period. I note that this was done in February 2016 and they have implemented the Doctor’s recommendation to rotate duties and despite his refusal to be trained on PPT they have trained him on the Fork Lift truck and the Complainant has confirmed at the hearing his satisfaction with his duties at present. I find that the Respondent in the spirit of the Act has provided reasonable accommodation for his situation. I find no basis for his complaint. I find that the Complainant has failed to establish a ‘prima facie’ case of discrimination on grounds of disability.

Decision:

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

For the above stated reasons I have decided that the Complainant has not established a prima facie case of discrimination.

I have decided that pursuant to Sec 79(6) of the Acts the Respondent did not discriminate against the Complainant on the grounds of disability contrary to Sec 8(1) and (6) of the Acts.

2) Safety, Health and Welfare at Work Act CA-00002384-002

Complainant’s Submission and Presentation:

In addition to his statement under the Employment Equality Act as set out above he has stated that on 11^th August 2015 there was a near miss report. Following this he returned to unsafe conditions. He believes that he was penalised by the Respondent by their failure to respond to his disorder and by them trying to get him to take long term absence.

Respondent’s Submission and Presentation:

The Respondent stated that the complaint must be presented within the requisite six months time limit, that he conducted one of the specified actions as set out in Sec 27(3) of the Act, that he incurred “penalisation” as specified in Sec 27(1) and (2) and that such penalisation was casually linked to the action conducted under Sec 27(3).

1) Time limit

They stated that the Complainant referred to events that have occurred over a two year period. They also referred to a previous complaint also under this Act that was withdrawn because it was outside the time limit. They are unclear what the time line is for his alleged complaints.

2) Penalisation

They referred to the definition of penalisation in Sec 27(3). The Complainant has never raised any form of grievance relating to his safety health or welfare at work. He has been disciplined for breaches of the company’s health and safety procedures. No penalisation as defined in Sec 27(2) has taken place. No action has occurred that could be in retaliation to him doing any of the specified action in the Act. They rejected the allegation that they tried to force him to take long term absence. The burden of proof has to be discharged. This complaint is without merit and is rejected.

Issues for Decision:

1) Time limit

I note that the Complainant is referring to an alleged incident that occurred on 11^th August and subsequent to that.

I note that this complaint was presented to the Commission on 18^th January 2016 therefore as per Sec 28(4) of this Act the period that may be adjudicated upon is 19^thJuly 2015 to 18^th January 2016.

Therefore as the alleged contraventions occurred within that time frame this complaint is in time and may be adjudicated upon.

2) Penalisation

I find that there was no evidence of making a complaint / representation concerning unsafe conditions at work.

I found no evidence to support the allegation that the Respondent tried to force him to take long term absence.

I found no evidence that the Respondent failed to respond to his feet disorder issue. In fact I found in the Equality judgement above that once they received a medical report they acted upon it and implemented rotation of duties, despite his disciplinary warnings concerning performance and attendance and his refusal to be trained on the PPT machine.

I find that penalisation can only be established if conduct or omissions which are included in the statutory meaning of the term penalisation arise and as a consequence of an act protected in subsection 3 and but for the protected acts of subsection 3 the claimant would not have suffered the detriment complained of.

So in order to succeed with a complaint of penalisation the Complainant must be able to establish that they did one or more of the actions as set out in Sec 27(3) and that the Respondent in retaliation for them doing that act(s) did one or more of the actions as set out in Sec 27(2).

I have found no evidence that the Complainant did any of the actions as set out in Sec 27(3) or that the Respondent in retaliation did any of the actions set out in Sec 27 (2).

I find that there is no basis for this complaint.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints/disputes in accordance with the relevant redress provisions under Schedule 6 of that Act and under Section 28 of the Safety, Health & Welfare at Work Act, 2005 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

As per Sec 28 (3) (a) I declare that the complaint is not well founded.

3) CA-00002384-003 Industrial Relations Act

Complainant’s Submission and Presentation:

The Complainant advised the hearing that he had not raised and exhausted the grievance procedure at local before referring a complaint under this Act to the Workplace Relations Commission.

Respondent’s Submission and Presentation:

The Respondent confirmed that this complaint had not been pursued and exhausted through the grievance procedure at local level.

Issues for Decision:

Complaints under this Act should be raised and exhausted at local level through the company grievance procedure.

I find in this case that this did not occur.

The Workplace Relations Commission should not be the first port of call when a person has a grievance under the Industrial Relations Act.

I note in the Labour Court case INT1014 it stated” The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed.”

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act, and under section 13 of the Industrial Relations Act, 1969.

I have decided that I am not prepared to adjudicate on a matter that has not be raised and exhausted at local level.

Dated: 28^th September 2016