ADJ-00001632

ADJUDICATION OFFICER DECISION 

Adjudication Decision Reference: ADJ-00001632

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

The complaint under the Industrial Relations Act was withdrawn at the hearing on the 31^st.May2016

Date of Adjudication Hearing: May 31^st 2016 and Oct.25th. 2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea 

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] 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).

Attendance at Hearings: 

Complainant’s Submission and Presentation:

The claimant has been employed as a Machine Operator with the respondent since 1996 – he complains that the respondent treated him unlawfully by discriminating against him in failing to give him reasonable accommodation for a disability and by discriminating against him in conditions of employment.

It was submitted that the claimant was currently on enforced sick leave as he was certified unfit for work in the absence of the provision of modified duties due to a permanent heart condition. It was submitted that the respondent had refused to accommodate the claimant in the provision of reasonable accommodation. The union charted the history of the claimant’s career within the company – his current position remains in ‘bellows assembly’.” As part of the claimant’s role in the bellows assembly operation he was required to assemble a ‘seal’. This was by way of combining an ‘insert’ into a’ shell ‘ to make the finished product. The claimant used a ‘pneumatic press’ to complete this task. This process also required the claimant to lift components into place as part of the process. The claimant was off sick for 3 months and returned to his normal duties with no issue. In early 2014 , the claimant learned that the respondent intended to alter the equipment he was using – he discovered the new tooling was significantly heavier than the previous tooling and he advised his manager that he was unable to cope with the new tooling with reference to his own safety. In Christmas of that year , the heavier tooling was introduced - this resulted in the 2 machines which the claimant operated – the fly wheel press and the pneumatic press – becoming significantly more difficult to operate. The components were much heavier and the claimant raised the matter with his manager. The new tooling became fully operational in March 2015 – the claimant made a number of suggestions about modifying the tooling but it was not taken on board by the respondent. The claimant attended work on the 10^th.March and advised the respondent that he could not operate the tooling owing to his health condition. He was referred to the company doctor who consulted with the claimant’s cardiologist and ultimately deemed that the claimant was unfit to work “ the heavier 6.9kg tools on the fly wheel press”. The claimant has since been on sick leave - he submitted a grievance the outcome of which was –“ it was not possible to accommodate Pat with a return to light duties only .Pats position as a General Operative requires him to be fit for all operator duties , without qualification.”

The claimant sought to avail of the income continuance plan but this was rejected on the grounds that “ a change in occupation of this nature cannot give rise to an income protection claim , especially when the evidence indicates that you remain fit to continue performing the duties you had been carrying out since your cardiac surgery in 2011”.The application is currently the subject of an appeal.The claimant has been without income since the expiry of his sick leave entitlement.

It was submitted that the respondent discriminated against the claimant by altering his work and failing to give due consideration to the impact of this reorganisation on his disability.The respondent was aware of the claimant’s objections to the reorganisation and discriminated against him by refusing to provide reasonable accommodation with respect to the reorganisation of his work.The respondent took the decision unilaterally and made no effort to work with the claimant in a manner which may have facilitated the introduction of the new tooling.It was submitted that while the respondent engaged the company doctor to assess the claimant’s ability to lift weights – this was done in the absence of the claimant.No workplace assessment was carried out ; no imput was requested from the claimant on the matter of accommodations .

It was advanced that the respondent had failed to meet the 3 stage test set out by the Labour Court in Humphreys v Westwood Fitness Club [2004]ELR 296.An enquiry should first look at the factual position concerning the employees capability including the degree of impairment and its duration….If it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The cost of same must be considered .An enquiry can only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions. Further Labour Court determinations and developing European Jurisprudence were invoked in support of the claimants position. …It is for the employer to make an honest and informed decision of what is reasonable and proportionate having regard to all of the circumstances – involving putting a number of considerations into the balance including the practicability of what may be required , the costs involved , the disruption that may be caused to the service the employer provides and the consequences for the disabled person of not providing the accommodation required.The provisions of EDA 1430 were invoked in support of the claimant’s arguments.

Respondent’s Submission and Presentation: 

The respondent set out the background to the company’s manufacturing plant which employs over 90 people. The respondent set out a timeline for the events leading up to the claimant’s commencement of long term sick leave.It was submitted that the claimant’s duties were changing “ in the smallest way” and when informed about the change the claimant said that he would not be doing the job. The change involved lifting pieces onto a platform and operating the fly press manually. On the 10^th.March 2015 , the claimant informed the production manager that his health would be at risk using the fly press and he was advised by the manager that he would not be required to use the fly press pending further examination of the circumstances presented by the claimant with respect to his health. The Occupational Health specialist stated that in view of the claimant’s medical history , caution would be required and following a workplace assessment and a discussion with the cardiologist the Occupational Health Specialist concluded that the claimant would be unable to work the heavier 6.9Kgtools on the Fly Wheel Press machine. On the 10^th.April 2015 , the HR manager advised the claimant that the company did not have light work for him and that his position called for him to be fit for all duties without restriction.

Details of the ensuing engagement between the union and the respondent on the claimant’s grievance were set out in chronological order.On the 29^th.April 2015 the respondent reaffirmed their contention that “the Company does not have any General Operative positions that encompass light duties only”.This was further confirmed in a letter to the union on the 19^th.October 2015.The company set out the formal response to the claimant’s grievances by way of letter dated the 24^th.Nov.2015 – it was asserted that following consultation with the claimant , several modifications were made prior to releasing the final tooling – it concluded that while every effort was made to improve the work station …..a limitation of just 6.9Kg would render any employee unfit to work in most production environments.

It was submitted that the Company had not breached any equality legislation and that it treated all employees equally and ethically.

It was submitted that the changes that took place in the Bellows Welding Assembly Area were put in place for continuous improvement purposes and not intended to create a situation where the claimant would be unable to comply with his duties.it was submitted that following advice from the Occupational Health Specialist in April 2015 , the Company evaluated whether it would be possible to create a position , involving light duties for the claimant. Given that the claimant could not exert more than 6.9 kilos of force , nor lift or carry any weight exceeding 6.9kg, it was not possible to accommodate the claimant in a position with light duties only as there is no full time or part time job that has light duties.” It is not possible to have one person assist another with lifting duties on a full time ongoing basis.”It was emphasised that the company was a small manufacturing plant on the West Coast facing many competitive challenges and owing to difficulties in the oil and gas market , cost reduction programmes were in place.The Company had formed the view that the claimant “ is not fully capable within the meaning of Section 16 of performing the duties for which he was employed.To date the company has not been in a position to create a position involving light duties in which the claimant could be accommodated”.

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.

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. 

Decision: 

Section 6

It was submitted by the union that the respondent discriminated against the claimant on the grounds of disability through the reorganisation of work in the Bellows Welding Assembly Area and failing to give due consideration to the impact of this reorganisation on his disability. While the claimant did not identify a comparator ,it is reasonable to assume that the other workers in the assembly area either had no disability or had a disability of a different nature.The respondent asserted that there was significant engagement with all staff in advance of the introduction of the new tooling system and contended that many of the claimant’s suggestions and modifications were implemented.I accept the respondent’s contention that they were not aware of the limitations arising from the claimant’s disability with respect to the lifting of weights of in excess of 6.9kg until after the claimant was assessed by occupational health.

Having reviewed the evidence presented by the parties I have concluded that no evidence was advanced to support the contention that the claimant was treated less favourably than his colleagues   in the context of the reorganisation. .Consequently I find that a prima facie case of less favourable treatment has not been established and consequently I do not uphold the complaint.

Section 8

The claimant asserted that the respondent treated him unlawfully by discriminating against him with respect to conditions of employment. Having reviewed the oral and documentary submissions from the parties , I found no evidence was presented to support the contention that the claimant was treated less favourably than his colleagues because of his disability in relation to his conditions of employment.Consequently , I find that a prima facie case of discrimination with respect to conditions of employment has not been established and accordingly I do not uphold the complaint.

Section 16 

The matter before me is whether or not the respondent failed to provide reasonable accommodation to the claimant , given his acknowledged disability , in accordance with the provisions of Section 16.

There is little dispute between the parties in relation to the exchanges that took place in the run up to the claimant embarking on extended sick leave.The claimant submitted that by altering his work and failing to give due consideration to the impact of this organisation on disability , the respondent has discriminated against the claimant.It was submitted that the respondent was aware of the claimant’s condition prior to the organisation and to the claimant’s objections to same.It was contended that the respondent is not entitled to rely on Section 16 having failed to observe its provisions.

The test with respect to reasonable accommodation has been set out by the Labour Court in Humphries v Westwood Fitness Club [2004]ELR 296 – the degree of impairment must be established , the treatment or facilities to enable the employee to become fully capable must be considered and the claimant must be involved n the process.While I acknowledge that there was engagement with the claimant in the run up to the introduction of the new tooling arrangements , I note that the claimant was not at work when the Occupational Health Specialist carried out his work inspection . I find there was no meaningful engagement with the claimant to consider accommodations after the doctor determined that the claimant was “ unfit to work the heavier 6.9kg tools on the fly wheel press”.While the respondent asserts that alternatives were considered by the company , there is no evidence to support this assertion and there was no engagement with the claimant on any alternative assignments.As set out by the Court in EDA 1436 – Nano Nagle – the employer is required to “ put a number of considerations into the balance including the practicability of what may be required , the costs involved , the disruption that may be caused to the service the employer provides and the consequences for the disabled person of not providing the accommodation required……………….If however, the employer fails to properly understand the scope of its duty or fails to adequately consider all of the options that may be available they will have failed in their statutory duty towards the disabled person.On the basis of the evidence presented , I have concluded that the respondent failed to give proper and meaningful consideration to accommodating the claimant and failed to engage with the claimant on appropriate measures that may have enabled him to continue in employment .Accordingly I am upholding the complaint.

I require the respondent to conduct a proper assessment in conjunction with the claimant and his representative with a view to establishing if the claimant can be accommodated in accordance with the provisions of Section 16 within a time frame of one month from the date of this decision.I further require the respondent to pay the claimant €35,000 compensation within 42 days of the date of this decision. 

Dated:   04 April 2017