ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001854

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

Date of Adjudication Hearing: 10/11/2016

Workplace Relations Commission Adjudication Officer: Ian Barrett

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, following the referral of the complaint 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 any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The Complainant believes he was discriminated against on the basis of his disability, alleging that the discrimination took the form of an unlawful verbal warning he received, the Respondent’s failure to provide ‘reasonable accommodation’ for his return to work and that the decision to invoke the disciplinary process against him amounted to an act of victimization. The Complainant received a verbal warning on the 17th November 2015 relating to his absence from work from the 20th August 2015 to the 9th November 2015 (a total of 59 days) due to sickness arising from a back injury he suffered at work in 2009 which was aggravated in 2012. This warning was confirmed in writing on the 20th November 2015 and on the 27th January 2016 the decision was upheld following an appeal by the Complainant. The Complainant contended that the Respondent will justify their actions under the terms of the Company’s Attendance Policy. However, this is a separate document from the Employee Handbook that is referred to in the standard employment contract and therefore cannot be deemed binding. The Complainant stated that his full period of absence was certified by his GP and therefore he was disciplined for being on legitimate sick leave, and that it was unfair to consider absence from employment for certified medical reasons as grounds for the Company’s disciplinary process to be invoked.   Furthermore, the Complainant contended that the Respondent breached Section 16 of the Equality Act, by failing to provide ‘reasonable accommodation’ for the Complainant’s disability. The Complainant also stated that as he had exhausted his entitlement to payment under the Respondent’s sick pay scheme, they did not suffer any financial burden as a result of his absence, yet they proceeded to fully apply their disciplinary policy. The Complainant could only surmise that the reason for this was to “make an example of him before his colleagues”. The Complainant also stated that he had been absent from work previously in 2012 due to back pain and on that occasion no disciplinary action was taken. It was further submitted that the Complainant made a number of verbal and written complaints to the Respondent alleging that the pace of work and standards expected of him were in excess of what he believed he could safely do in light of his disability, as defined by Section 2 of the Employment Equality Act 1998. Therefore, he alleged that the actions of the Respondent in this instance (demonstrated by their change of attitude when compared to his previous absence in 2012 when he did not receive a verbal warning) amount to victimization.

Respondent’s Submission and Presentation:

In response, the Respondent stated that they did not accept that any form of discrimination had taken place in relation to this complaint. They contended that the Complainant, both in his formal complaint to the WRC and in his submission, had not made a prima facie case that the Respondent has discriminated against him in any way, be it relating to a disability, victimization or a failure to provide reasonable accommodation, and as he has been unable to provide any evidence to support his claims, these complaints should be dismissed.

The Complainant has been employed by the Respondent since the 30^th October 2007, working as a warehouse operative in the Company’s main distribution facility. His employment contract included a clause that that he would be bound by the Company policies and procedures outlined in their Employee Handbook. These procedures operate in a large, unionized environment and have been applied on previous occasions to the Complainant, in circumstances that are very similar to those that are up for adjudication today.

The Company operates an attendance policy and its purpose includes the employee and Manager’s responsibilities around returning to work after absence. It sets out how these meetings, consisting of an individual review meeting and a discussion relating to attendance/absence and the process to be followed, will be conducted.

The Company has set procedures for managing absence, which are established and clearly understood by all personnel. Where there is unacceptable absence (based on levels stated in either percentage or frequency levels) an attendance review meeting takes place. The next stage from this meeting is to either take steps to address the attendance issue or to initiate the Company’s disciplinary procedures, or both. If a Manager believes that a disciplinary meeting is the appropriate next step, it is arranged in the normal manner.

The Respondent stated that in the 9 years’ tenure of the Complainant, his absence history has been significant, so that the disciplinary process has been invoked on a number of occasions. In fact, the Complainant has been issued with a verbal warning in relation to his attendance on four separate occasions in the past.

The Complainant commenced sick leave on the 20^th August 2015 and was absent until his return to work on 9^th November 2015. The absence was due to a lower back injury he sustained at home while getting up off the sofa and not as a result of an injury at work in 2012, as was alleged by him. The Complainant submitted sick certificates throughout his absence in line with company policy.

The Complainant attended the Company Doctor on the 15^th September 2015 who reported that he was unfit for work then but suggested a possible return to work date of the 28^th September, on a phased programme.

The Complainant had a return to work meeting as per Company policy on the 29^th September but did not produce a ‘fit for duties’ certificate from his own GP. Instead, he advised that his own Doctor’s opinion was that he could only return to work provided it was for light duties, and specifically that he should not lift weights heavier than 10kg. The Complainant was asked to consent to Doctor to Doctor communication so as to clarify these issues, but he refused and his absence continued.

An independent medical assessment was arranged for the 29^th October 2015, which the Complainant attended. The report was not received until the 26^th November 2015, by which stage the Complainant had returned to work. It recommended a phased return to work, with restricted duties of a light physical nature, working half time initially and building up his hours.

The Complainant had attended a ‘Return to Work’ meeting and as his period of absence had exceeded that allowed in the Company’s absence policy, an attendance review meeting was also arranged. Following this a disciplinary meeting took place on the 17^th November and the complainant was issued with a verbal warning, relating to this level of absence between the 20^th August and the 9^th of November. A verbal warning is placed on an employee’s file and expires three months later.

The Complainant appealed the verbal warning on the 26^th November. An appeal meeting was heard the following month and the decision to issue the warning was upheld, communicated to the complainant in January 2016.

The Respondent concluded their submission by stating that the Complainant was unable to provide primary facts in relation to the grounds claimed so as to proceed with a viable complaint and adduced no grounds to imply discrimination.

On the contrary, they referred to the evidence they provided; a contract of employment, the established company policies and procedures that were applied to the Complainant previously, the Complainant’s refusal to permit the Company Doctor to consult with his GP when a difference of opinion seemed to exist, the provision of fair return to work arrangements and no proper evidence to back up the serious claim of victimization, should all lead to a conclusion that these claims are ill founded.

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.

Issues for Decision:

The matters for decision are whether the issuing of a verbal warning constituted a discriminatory act on the grounds of disability and whether the Complainant was treated unlawfully by being victimized and by the Respondent’s failure to provide ‘reasonable accommodation’ for the Complainant’s disability.

The Respondent’s position is that they issued a verbal warning to the Complainant in line with their attendance policy. The Complainant had been absent for a prolonged period and had previous periods of absence that resulted in a verbal warning, the first stage of the disciplinary procedure, being issued.

The Complainant does not accept that he should be subject to a disciplinary procedure for being on certified sick leave, particularly as he has met all of the company conditions for submitting medical certificates and so on. He believes that the decision was taken because he has questioned the Company’s return to work programme, expressing concern about the duties, work and performance standards expected of him and as such he doesn’t think that the respondent has provided ‘reasonable accommodation’ for his disability and he has been victimized.

The Complainant believes that his ongoing medical condition was originally caused by an accident he had at work in 2009 and was likely aggravated by another incident at work in 2012. He believes that the most recent period of sick leave, following an injury he sustained while getting up from his sofa at home, is consistent with and related to his previous ailments and their cause.

The Respondent believes that the Complainant has not cooperated fully with their reasonable requests to facilitate his safe return to work but sought to obfuscate the process whenever possible. The contended that a verbal warning is the first stage of their disciplinary process, a ‘words to the wise’, that the Complainant had been warned in a similar fashion previously and such cautions are placed on file for 3 months and then expire. The Respondent believes that the proper application of their policies and procedures fully justified the issuing of a verbal warning and that they acted fairly and reasonably to that end.

Legislation involved and requirements of legislation:

The legislation referred to in this case in the Employment Equality Act 1998-2011.

Decision:

Taking the above into consideration, I am satisfied from the submissions made and evidence presented that a verbal warning, in line with the terms of the employment contract and the Company’s stated policies and procedures, including an appeal process properly followed, was appropriate in this case and could not be considered as unreasonable.

I am satisfied that the Complainant failed to provide a convincing argument or evidence that he was discriminated against by reason of his disability, but that the Respondent provided credible contradictory evidence that would lead a reasonable person to conclude that no discrimination took place. This includes the allegations that the Company failed to provide the respondent with ‘reasonable accommodation’ or that their actions amounted to victimization, in response to his actions or behaviour.

I am satisfied that the Respondent’s policies and procedures are robust. They include sick pay, the use of medical practitioners and other third parties and employee assistance and return to work programmes and a clear appeal process. I am also influenced by the fact that that the Complainant was subjected to the policy previously, with a similar outcome and did not raise a grievance on those occasions.

In conclusion, I believe that the Complainant has failed to establish a prima facie case that discrimination took place and failed to provide evidence to support such a claim and accordingly the complaint must fail.

Dated:  15^th February 2017