Complainant

Respondent

Anonymised Parties

A Care Assistant

A Nursing Home

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00004084-001

26/04/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 77    of the Employment Equality Act, 1998

CA-00004084-002

26/04/2016

There are two claims encompassed by this   referral – Claim No 1 - a Discrimination and Victimisation claim on the   grounds of Race (EE /2012/637) filed on the 17^th December 2012 and   Claim No 2 - CA-00004084-002 -a Disability and   Lack of Reasonable Accommodation claim (filed on the 26^th April   2016).

A Time limits issue in regard to claim No 1   was the subject of Labour Court proceedings (EDA 1614) in June 2016 where on   Appeal against an Adjudication Decision (DEC-E2015-076) the claim was deemed   to be admissible. It was referred back to the WRC.

Both claims are now considered in this Adjudication.

For convenience and clarity I will deal with each claim   separately.

Extensive written and oral pleadings were made by both   parties in this case. A brief summary   of the main points made is given below.

Extensive reference, by both sides, was made to numerous   quoted Legal precedents.

It was clear that a Personal Injury case in the High Court,   involving all the same parties, appeared to have also coloured events since   2011.

Claim No 1 – Discrimination on Racial Grounds - filed on the 17^th December 2012 (originally EE 2012 -637)

The Complainant commenced employment in the Nursing Home   in 2005. During her employment she was subjected to derogatory comments   regarding her skin colour by fellow staff and was subject to racial bullying   and harassment by Managers /Supervisors. The Complainant was injured at work   on the 21^st July 2011. She maintained that her return to work ,   albeit on “light Duties” was consistently refused by her employer on the   grounds of her skin colour.

Claim No 2 - CA-00004084-002   – Failure to provide Reasonable Accommodation / Discrimination in   Conditions of Employment – claim filed on 26^th April 2016

The Complainant‘s Employment ended formally with the Respondent   by letter of the 17^th December 2015. This constituted a   Discriminatory Dismissal of the Complainant as the Respondent failed to   adequately explore and consider Reasonable Accommodation for her disability,   as set out in law, to allow a Return to work by the Complainant.

Claim No 1 - Discrimination on Racial Grounds EE/2012/637

The Respondent resolutely denied this claim. However as   the incidents alleged were now six or   more years ago direct witness evidence was not possible as some of the key Respondent parties were now not physically available   or were incapacitated on health   grounds. Correspondence from the time indicated that the Complainant had her   self been the subject of a number of serious counter complaints by other   staff members. All these complaints   had been furnished to her at the time via her then Solicitor – a Mr. Stewart   and had been adequately investigated.     The Respondent is a Religious Congregation with a major Missionary outreach   and would take any suggestions of Racial Discrimination most seriously

In summary there was no prima facie case ever substantiated to support this claim.

Claim No 2 – CA-00004084-002   - Failure to provide Reasonable Accommodation / Discrimination in   Conditions of Employment – claim filed on 26^th April 2016

The Respondent maintained strongly that this claim had to   be limited to issues surrounding the last date of alleged Disability Discrimination   i.e. the Dismissal Letter of the 17^th December 2015. The Complainant   could not seek to extend backwards her claim to incidents that had occurred   well before the date of the claim being lodged. In particular incidents that   fell within the ambit of Claim No 1, the Racial Claim, had to be excluded.

In essence a “causative or linked chain” could not be   created linking incidents in 2011 and 2012 to the current claim.

No withstanding this and in oral evidence the Respondent   resolutely denied all allegations of failure to explore or provide   “Reasonable Accommodation” for the Complainant.

Claim No 1 – Discrimination and Victimisation on Racial   Grounds - filed   on the 17^th December 2012

The key question was :

Did Discrimination of the Racial Grounds occur in the   period referenced by this claim?

In this case there was, largely due to the passage of time   since the incidents were alleged to have occurred, a shortage of primary oral   evidence. The key witness for the Respondents,   Sr.A, a Trustee of the Home and a Senior member of the Congregation, was not   employed there at the relevant time and could only rely on written records   and her general interpretations of the then likely policy of the Order. The Complainant   gave oral and written evidence of racially abusive name calling by fellow   staff members.

Considerable detail was given by the Complainant of   alleged short comings in the care of the Residents of the home; for example   allegations of staff being drunk on duty and not providing proper care to   frail elderly residents were made. It   was also established that counter complaints had been made by staff against   the Complainant.

It was clear that relationships were strained between some   of the Heath Care Assistants and the Complainant. However these seemed to   centre on work practices and methodologies as opposed to any manifestly racial   overtones.

The Respondents, at all time following the accident to the   Complainant on the 21^st July 2011, took all appropriate medical   steps and referrals to appropriate medical expertise. She was advised that   following her recovery from the accident that she was fit for duties that did   not involve manual handling. On the 30^th November 2012 she was   advised that the Respondent did not have any such restricted positions   available. There was no obvious racial Overtone to this exchange. To directly   link on Racial grounds the non return to work of the Complainant was an   assumption that was not supportable from the evidence.

Accordingly having reviewed all the evidence available I   did not find, at this time and remove, sufficient evidence to sustain a claim   of Discrimination or Victimisation on Racial Grounds against the Complainant. A prima   facie case was not established to   sustain the first claim filed on December 2012

Claim No 2 – Failure to provide Reasonable   Accommodation / Discrimination in Conditions of Employment – claim filed on   26^th April 2016.

The key question was

Were correct efforts made by the Respondent to provide Reasonable Accommodation for the Complainant?.

First of all, I considered it acceptable to allow   consideration of strictly Disability matters to reach back to the medical   inquiries and reviews that followed the accident in 2011. Legal precedent   would be strong on this point. Cork VEC   v Hurley EDA 24/2011 being an Authority here.

The key question then is to establish whether or not   efforts to provide “Reasonable Accommodation” for the Complainant took place?

The key correspondence here is the Medical Consultants   letter of the 25th October 2012 which stated that the Complainant was “Fit to return to work ,under taking very   light duties in a health care setting with effect from Tuesday ,30^th   October ,2012.”

Extensive correspondence by the Complainant and her legal advisor   followed with the Respondent until the   final letter of the 20^th December 2012 where the Respondent’s detailed all their examinations of work   duties to lead them to the conclusion that

“there is no role   available to Ms. X which would allow her to undertake very light duties in a   health care setting only at this time”.

Little further significant communication on Employment or   Equality issues followed between the Parties until the Equality Officer   hearing on the 22^nd July 2015. (This decision on time limits for   the claim was appealed to the Labour Court with a decision issuing on the 27^th   June 2016.) However it has to be noted that during this period High Court   proceedings involving all the same parties were in process.

An ending of employment letter issued from the Respondents   to the Complainant on the 17^th December 2017. This largely restated   in brief the reasoning in the Respondent letter of the 20^th December   2012.

At this point in the oral hearing a major disagreement   arose between the parties. The   Solicitor for the Respondent maintained that the letter of the 17^th   December 2015 had been written at the request of the Complainant’s Solicitor   and was to have formed part of putative overall settlement negotiations. As   such it had to be seen in the context of why it was written at that time. As   the Complainant’s Solicitor was no longer on record and was not at the   Hearing this could not be confirmed either way. Suggestions of a possible agreement   were denied by the Complainant verbally.

Oral evidence was given for the Respondent by Sister A, a   Trustee of the home and senior member of the Religious Congregation. She gave what I considered to be good   evidence and reflected careful consideration of the situation by the Order   responsible for the Home.

Regrading the situation in 2015, at the time of the   dismissal letter, she stated that the situation at the home had not changed significantly   since 2012 and that there was no light duties role available for the Complainant.

In questioning from the Adjudicator and cross examination   by the Complainant and by her legal Advisor the main thrust of the Nano Nagle School v Marie Daly [2014 No 516 MCA] was put to the   witness. Could the work of the home   have been reorganised to allow for the Complainant to return in a light   duties capacity?  

The witness answered in what I took to be a careful and   consider capacity and maintained that no reorganisation was possible to   facilitate the Complainant. A number of possible options were suggested in   evidence by the Complainant both orally and in writing. These were discounted   as impractical by Sister A.

However it was noted that no further Medical Reviews   /Updates had taken place in 2015 prior to the Dismissal decision. There appeared to be a presumption on the Respondents   part that nothing much had changed medically since 2012. It was clear that no   effort had been made to have the Complainant re assessed by an Occupational   Health Physician in late 2015. I felt that the fact that the Personal Injury   action was in the background was a contributory factor here as was the   unusual possible settlement scenario between the respective Solicitors.

Correspondence to the Labour Court Secretariat form the Complainant   dated the 14^th January 2016 seeking a Redundancy Payment was   exhibited.

In overall summary, having read all the correspondence and   considered all the evidence both oral and written I came to the following   conclusion as regards the Reasonable Accommodation   and Conditions of Employment elements of the claim.

1. Adequate   and proportionate consideration was given by the Respondents in late 2012 to   the Reasonable Accommodation issue.
2. The   Complainant’s case in the period 2012 to 2016 was confused by the Race Discrimination   Claim (claim No 1 here) and the Personal injury Actions.
3. The   key witness for the Respondent Sister A was convincing and gave evidence of high   quality.
4. The   circumstances surrounding t the writing of the letter of the 17th December   2015 as part of a putative settlement agreement as alleged by the Solicitor   for the Respondent were most unusual. I did not doubt his bona fides.
5. The   Complainant was clearly, by letter of the 14^th January 2016 and by   Oral evidence now in 2017, was seeking a Redundancy payment.

6. Legal   Precedent in leading cases such as Humphries   v Westwood Fitness Club [2004] ELR 296 indicate the high bar that is   required in Dismissal decisions in these types of cases. No strictly   Occupational Health medical re assessment had taken place, to my knowledge,   prior to the writing of the Dismissal letter in December 2015. However in   caveat here I was not fully aware of what medical evidence was passing   between the parties in the Personal injury action.

In final Conclusion and largely due to point 6 above I   found that the claim for failure to provide proofs of good efforts to provide   and or consider Reasonable   Accommodation at the time of the writing of the Dismissal Letter on the   17^th December 2015 stands well founded.

On the same grounds the claim for Discrimination of Grounds of Disability also stands well founded.

No additional Occupational Health reports were sought as   assistance to the Respondent. It was an unsupported presumption that nothing   of medical significance had happened since 2012 to possibly make the Complainant   more re-employable.

However these findings   are largely procedural.