Complainant

Respondent

Parties

A Forklift Driver

A Building   Materials Supplier

Act

Complaint Reference Nos.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 28    of the Safety, Health & Welfare at Work Act, 2005

CA-00005794-001

12/07/2016

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

CA-00005794-002

12/07/2016

The Complainant was employed by the Respondent as a   Forklift Driver from 7^th April, 2015 until April, 2016 when his   employment was terminated. The Complainant claims that he was subjected to   penalisation by the Respondent contrary to Section 27 of the Safety, Health   & Welfare at Work Act, 2015. The Complainant also claims that he was   discriminatorily dismissed from his position on the grounds of his disability   and that the Respondent failed to provide him with reasonable accommodation   contrary to Section 16 of the Employment Equality Acts.

The Complainant was employed by the Respondent as a   Forklift Driver from 7^th April, 2015 until 14^th April,   2016. The Complainant was provided with a fixed term contract subsequent to the   commencement of his employment which was due to expire on 9^th October,   2015. The Complainant submits that his employment with the Respondent   continued without interruption after 9^th October, 2015 following   the expiry of his initial fixed term contract.

The Complainant was subsequently moved to work in the Respondent’s   block plant and his duties included the cleaning of a large cement mixer   which was capable of holding 3/4 tonnes of cement. The Complainant sustained   an injury to his arm at work on 4^th November, 2015 whilst cleaning   the cement mixer with a lump hammer. The Complainant claims that he had   previously notified the Respondent that there was a malfunction in relation   to the equipment which was used for cleaning the cement mixer. However,   despite several requests to address this matter the Respondent failed to take   the required corrective action to fix the equipment. The Complainant claims that he was forced   to climb into the cement mixer on the date he sustained the injury and use a   kango hammer to try and clean the mixer because the cleaning equipment had   not been repaired.

The Complainant notified the Respondent of the incident in   or about 17^th or 18^th November, 2015. Thereafter, the   Complainant was required to seek medical attention and take absences from   work on grounds of sick leave to do so. The Complainant submits that he lost   the power in his arm as a result of the injury and experienced extreme   difficulty in trying to carry out his duties following the accident. The   Complainant was sent to the Company Doctor for examination and went absent   from work on sick leave as a result of the injury sustained from the time   that he reported the incident until 4^th January, 2016. The   Complainant accepts that he was allowed to carry out forklift duties by the   Respondent after returning to work following this period of sick absence. The   Complainant subsequently brought a claim for damages for personal injuries   against the Respondent arising out of the said workplace accident.

The Complainant submits that he was informed by the   Manager of the Block Plant, Mr. A, prior to sustaining this injury that the   Respondent intended to keep him on after his initial contract had expired.   The Complainant was summoned to the Respondent’s office on 7^th   April, 2016 and was informed by his Manager, that his contract was not being   renewed and that his employment was being terminated. The Complainant was   informed that the contract was not being renewed for a number of performance   related issues including lateness, uncertified days off, poor productivity   and failure to wear a high viz jacket on several occasions. The Complainant   submits that these alleged performance related issues were not brought to his   attention by the Respondent at the material time. The Complainant contends   that the reason his contact was not renewed was directly attributable to the   accident that had occurred and the injury he sustained arising from this   incident.

The Complainant disputes that the termination of his   employment arose simply as a result of the expiry of his fixed term contract.   The Complainant submits that he was never employed pursuant to a fixed term   contract and that, even if he was originally, he was employed pursuant to a   Contract of Indefinite Duration (CID) from 9^th October, 2015. The   Complainant submits that the Respondent failed to comply with its obligations   under Section 8 of the Protection of Employees (Fixed Term Work) Act 2003 in   that he was never provided with a clear and specific indication of the   objective condition that would determine his contract of employment, as is   required by the legislation.

It was   submitted that the Complainant was provided with no paperwork on or before 9^th   October, 2015 and his contract was simply continued. The Complainant submits   that even if the earlier fixed-term contract came to an end on 9^th   October, 2015, it was immediately followed by a period of employment up to   the date of dismissal which was not governed by any fixed-term or   specified-purpose contract. Thus, it is submitted that the Complainant was   employed from this point onwards (at the latest) on a CID. Without prejudice,   it is further submitted that a CID came into being as a result of the   Respondent’s failure to provide the Complainant with written objective   justifications as to why he was not being offered a CID when the said   contract was being renewed.

The   Complainant relied upon the following cases, namely: HSE North Eastern Area -v- Khan[1],   North Dublin Muslim School -v- Naughton[2],   Board of Management of St. Joseph’s School for Deaf Boys -v- Grehan[3],   Dublin City Council -v- O’Donoghue[4]   and Dublin Institute of Technology -v- Nealon[5]   in support of his position on this matter.

CA-00005794-001 -   Complaint under the Safety, Health and Welfare at Work Act 2005

The Complainant submits that the Respondent penalised him   contrary to Section 27 of the Safety, Health and Welfare at Work Act 2005 by   dismissing him in circumstances where it was aware that he had injured   himself at work and that he was unable to carry out that work to the same   level on account of those injuries. The Complainant submits that he was   entitled to protection from penalisation in accordance with the provisions of   Section 27(3)(f) of the Act after he had reported and taken steps to try and   protect himself from the dangers associated with using the defective cleaning   equipment during his employment.

Additionally, the Complainant submits that in accordance   with the provisions of Section 13 of the Act that employees have a duty to   take reasonable care of their own safety, health and welfare at work and to   report risks at work. The Complainant submits that in complying with those   duties, he alerted his employer to those risks. The Complainant submits that   his dismissal by the Respondent in such circumstances amounted to a   contravention of Sections 27(3)(a), 27(3)(c) and 27(3)(f) of the Act.

CA-00005794-002   - Complaint under the Employment Equality Acts

The Complainant submits that he was acting under a   disability within the meaning of Section 2(1) of the Employment Equality Acts   as a result of the injury sustained in the workplace accident in November,   2015. The Complainant submits that these injuries impaired his mobility and   caused him pain and discomfort.

The Complainant claims that he was dismissed by the   Respondent on the grounds of his disability and it is submitted that a prima facie case of direct discrimination   has been established. The Complainant also submits that no efforts were made   to reasonably accommodate him after he sustained this injury. He submits that   the Respondent cannot rely upon the provisions of Section 116(3)(c) of the   Acts as a defence in relation to its failure to provide reasonable   accommodation in the circumstances of this case.

The Respondent company employs over 400 staff in Ireland   and produces a large selection of superior quality paving, walling and   landscaping products.

The Complainant was one of a number of employees who   commenced employment with the Respondent on a six-month fixed term contract,   commencing on 9^th October, 2015 and due to end on 9^th   October, 2015. Due to further business demand, the Respondent company offered   to extend the Complainant’s fixed term contract by a further six-month period   which was due to terminate on 8^th April, 2016. A similar offer to   extend was issued to 14 other staff previously engaged on a Fixed Term   Contract.

The Respondent submits that on 15^th November,   2015 the Complainant advised his Line Manager that his elbow was very sore   and he was having difficulty lifting items. This issue was apparently the   result of an incident which had occurred on 4^th November, 2015   when the Complainant had allegedly banged his elbow while cleaning a mixer.   Further to this information, the Complainant was sent to the Company Doctor   who certified the Complainant unfit for work due to an elbow injury.

The Complainant was absent from work on sick leave as a   result of this elbow injury from 19^th November, 2015 until 4^th   January, 2016 during which time he continued to attend the Company Doctor and   a Physiotherapist. The Complainant was paid in full during this period of   absence and the Respondent discharged all medical fees arising. The   Complainant’s Physiotherapist indicated in a letter to the Respondent on 9^th   January, 2016 that the Complainant should “remain on light duties until his   strength returns”. On his return to work in January, 2016, the Complainant   was relieved of the normal duties required of a Forklift Operator, which   ordinarily would involve driving as well as manual labour such as lifting and   cleaning. In order to comply with the Physiotherapist’s recommendation, the   Complainant was required only to drive and carry out minimal lifting. The   Respondent had no difficulty implementing this arrangement of light duties   and the Complainant did not report any difficulties with that arrangement. This   arrangement remained extant until the Complainant’s Fixed Term Contract   expired in April, 2016.

The Respondent submits that a number of difficulties arose   in relation to the Complainant’s performance during his period of employment   including persistent lateness, uncertified days off, poor productivity and   breaches of company health and safety requirements by persistently refusing   to wear the appropriate high visibility jacket provided by the company,   instead insisting on wearing a dirty orange jacket. These performance issues   were raised in conversation by the Complainant’s Line Manager on a number of   occasions and by his direct Supervisor.

The Respondent submits that notwithstanding the foregoing,   the company extended the Complainant’s Fixed Term Contract in October, 2015,   for a further six months, on the understanding that his performance and   attendance would need to be improved, together with an agreement from him to   adhere to the health and safety requirements on site. Unfortunately, the   Complainant continued to attend late for work and it was submitted that he   had a substantial number of lates during the material period.

The Respondent submits that the Complainant’s Fixed Term   Contract was not renewed in April, 2016 because of these performance related   issues and his to properly address these matters. The Respondent submits that   the termination of the Complainant’s employment was not linked in any way to   his elbow injury but rather to the aforementioned performance related issues.   The Respondent submits that while 15 employees (including the Complainant)   had their Fixed Term Contracts renewed in October, 2015, not all of those   workers were issued with renewed contracts at the expiry of the six-month   period from October, 2015 to April, 2016.

CA-00005794-001   - Complaint under the Safety, Health and Welfare at Work Act 2005

The Respondent submits that it is at a loss to understand   the basis of the complaint under the Safety, Health and Welfare at Work Act   2005 in circumstances where no complaint in relation to health and safety was   raised by the Complainant at any time. The Respondent submits that the   Complainant’s allegation of penalisation is without foundation. The   Respondent submits that the Complainant did not commit an act protected by   subsection (3) of Section 27 of the Act and that the Respondent did not   impose a detriment on him because of, or in retaliation for, having committed   the protected act.

The Respondent submits that there cannot be a casual link   between a protected act and the termination of the Complainant’s Fixed Term   Contract (i.e. the alleged penalisation) and the complaint under this   legislation is without foundation.

The Respondent relied upon the cases of Toni   & Guy Blackrock Limited -v- Paul O’Neill[6] and Citizens   Information Board -v- John Curtis[7] in   support of its position in relation to this matter.

CA-00005794-002   - Complaint under the Employment Equality Acts

The Respondent refutes the claim that the Complainant was   dismissed on the grounds of disability contrary to the Employment Equality   Acts or that there was any failure to provide him with reasonable   accommodation contrary to Section 16(3) of the Acts.

The Respondent submits that in effecting its duty of care   to the Complainant, when on notice of his complaint (some 11 days after the   alleged incident) sent him immediately to the Company Doctor, following which   he attended physiotherapy for some substantial time thereafter. The   Respondent submits that the Complainant was placed on light duties, on the   advice of his Physiotherapist, following his return to work. The Complainant   was also paid in full during the period he was absent on certified sick leave   for this injury and all medical expenses were discharged by the Respondent   during this time. The Complainant’s return to work was facilitated in   accordance with the certification from the Company Doctor and a   recommendation from the Complainant’s treating Physiotherapist to return to   light duties.

The Respondent submits that no facts in the instant case   exist from which it could be inferred that the Complainant was treated less   favourably than another person is, has been, or would be treated, on the   basis of a disability, and consequently, the Respondent contends that the   claim cannot therefore succeed.

The Respondent accepts that the Complainant alleged that   he hurt his elbow on a machine on 4^th November, 2016, and submits   that once on notice of this injury, acted promptly and appropriately, seeking   appropriate medical attention and acting in accordance with the recommendations   of the Complainant’s Physiotherapist.

The Respondent further submits that the Complainant can   provide no evidence via comparators that the treatment he received was less   favourable, as none such exists. The Respondent submits that the termination   of the Complainant’s employment was not linked in any way to his elbow injury   but rather was wholly attributable to the aforementioned performance related   issues.

The Respondent relied upon the cases of Southern   Health Board -v- Mitchell[8],   Margetts -v- Graham Anthony & Company Limited[9]and   Dublin   Corporation -v- Gibney[10]   in support of its position in relation to this matter.

Issue of   Jurisdiction

The Respondent submitted that the Complainant has also   lodged a claim with the Personal Injuries Board in or around June, 2016 and that   the basis of that claim is the injury to his arm. The Respondent contends   that the Personal Injuries claim should be addressed prior to the instant   complaints being addressed by the Adjudication Officer given that the   Complainant is seeking reliefs by way of compensation for alleged complaints   based on the same facts in both sets of proceedings.

In considering this issue, I wish to note that the Workplace   Relations Commission is the quasi-judicial body within the State that has   been established to inquire into complaints at first instance under   employment rights and equality legislation. I am satisfied that the complaints   before me for adjudication under the Employment Equality Acts and the Safety,   Health & Welfare at Work Act 2005 and the Personal Injuries claim are   different claims with different time limits and different rules as to both   liability and quantum. The Personal Injuries Board or indeed the High Court   does not have any jurisdiction to adjudicate upon the statutory claims that   have been referred to the WRC. In this regard, I have taken cognisance of the   Court of Appeal case in Culkin –v- Sligo County Council[11] where Hogan   J. dealt with a related matter and in effect held that a person is not   precluded from proceeding with a claim of discrimination before the Equality   Tribunal (the predecessor body to the WRC) in circumstances where there is   also a Personal Injuries claim pending.

In the circumstances, I am satisfied that I am not   precluded from proceeding with my inquiry into the instant complaints under   the Employment Equality Acts and the Safety, Health & Welfare at Work   Act, 2015. Accordingly, I find that I   do have jurisdiction to inquire into these matters.

CA-00005794-001   - Complaint under the Safety, Health and Welfare at Work Act 2015

The Law

Section 27 of   the Safety, Health and Welfare at Work Act, 2005, states:

“(1) In this section “penalisation”   includes any act or omission by an employer or a person acting on behalf of   an employer that affects, to his or her detriment, an employee with respect   to any term or condition of his or her employment.

(2) Without prejudice to the generality   of subsection (1), penalisation includes –

(a) suspension, lay-off or dismissal (including a dismissal within the   meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of   suspension, lay-off or dismissal,

(b) demotion or loss   of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in   wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a   financial penalty), and

(e) coercion or   intimidation.

(3) An employer shall not penalise or   threaten penalisation against an employee for –

(a) acting in   compliance with the relevant statutory provisions,

(b) performing any  duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety   representative or employer or the Authority, as regards any matter relating   to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the   relevant statutory provisions,

(e) being a safety representative or an employee designated under section   11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the   employee reasonably believed to be serious and imminent, and which he or she   could not reasonably have been expected to avert, leaving (or proposing to   leave) or, while the danger persisted, refusing to return to his or her place   of work or any dangerous part of his or her place of work, or taking (or   proposing to take) appropriate steps to protect himself or herself or other   persons from the danger.”

Section 27(5) of the Act states:

“(5) If penalisation of an employee, in   contravention of subsection (3), constitutes a dismissal of the employee   within the meaning of the Unfair Dismissal Acts, 1977 to 2001, relief may not   be granted to the employee in respect of that penalisation both under this   Part and under those Acts.”

In the   instant case, the Complainant claims that he was subjected to penalisation by   the Respondent contrary to Section 27 of the Act by dismissing him in   circumstances where it was aware that he had injured himself at work and that   he was unable to carry out that work to the same level on account of those   injuries. The Complainant contends that in dismissing him in such   circumstances, the Respondent acted in contravention of paragraphs (a), (b),   (c) and (f) of Section 27(3) of the Act.

The   Respondent disputes the Complainant’s claim that he was subjected to any act   of penalisation contrary to the Act. The Respondent submits that the   Complainant did not commit an act protected by subsection (3) of Section 27   and did not impose a detriment on him because of, or in retaliation for   having committed a protected act. The Respondent contends that there is no causal   link between a protected act and the termination of the Complainant’s Fixed   Term Contract and therefore, the claim under the Act is without foundation.

The Act is silent on the question of who the burden of   proof should be allocated to as between the parties. In the case of Toni   & GuyBlackrock Limited -v- Paul O’Neill[12]   the Labour Court held that: “it seems to the Court that a form of shifting burden of proof, similar to   that in employment equality law should be applied in the instant case. Thus,   the Claimant must establish, on the balance of probabilities, that he made   complaints concerning health and safety. It is then necessary for him to show   that, having regard to the circumstances of the case, it is apt to infer from   subsequent events that his complaints were an operative consideration leading   to his dismissal. If those two limbs of the test are satisfied it is for the   Respondent to satisfy the Court, on credible evidence and to the normal civil   standard, that the complaints relied upon did not influence the Claimant’s   dismissal.”

I am satisfied that the aforementioned test as outlined by   the Labour Court in relation to the shifting of the burden of proof is   applicable to the present case.

There issue of whether or not the Complainant committed a   protected act within the meaning of Section 27(3) of the Act was in dispute   between the parties. The Complainant gave   evidence that he reported defects in relation to the equipment used for   cleaning the cement mixer to both the onsite Fitter and his existing immediate   Line Manager on a number of occasions prior to 4^th November, 2015   when he allegedly injured his arm whilst cleaning the cement mixer. The Complainant   contends that the Respondent’s failure to rectify these defects compromised   his health and safety in the workplace, and ultimately, resulted in him   sustaining the injury to his arm whilst cleaning the cement mixer on the   aforementioned date. The Respondent did   not any adduce direct evidence from either the Fitter or the Complainant’s   immediate Line Manager at the oral hearing to contradict the Complainant’s   account concerning this matter.

Section 13(1)(h)(i) of the Act provides that an employee has   a duty to report to his or her employer any defects in the place of work or   the systems of work which might endanger the safety, health and welfare at   work of the employee or that of any other person. I have found the   Complainant’s evidence on this matter to be more compelling and I am   satisfied, on the balance of probabilities, that he did report and make a   complaint concerning health and safety matters to the Respondent in relation   to the defects which he contends arose with the equipment used for cleaning   the cement mixer. Accordingly, I find that the Complainant’s actions in this   regard constitute a protected act within the meaning of Section 27(3)(a) of   the Act.

The Labour Court has held in the case of Toni   & Guy case that: “It is clear from the language of this   section that in order to make out a complaint of penalisation it is necessary   for a claimant to establish that the determent of which he or she complains   was imposed “for” having committed one of the acts protected by subsection 3.   Thus, the detriment giving rise to the complaint must have been incurred   because of, or in retaliation for, the Claimant having committed a protected   act. This suggested that where there is more than one causal factor in the   chain of events leading to the detriment complained of the commission of a   protected act must be an operative cause in the sense that “but for” the   Claimant having committed the protected act he or she would not have suffered   the detriment. This involves a consideration of the motive or reasons which   influenced the decision maker in imposing the impugned determent.”

Therefore, in order to make out a complaint of   penalisation contrary to the Act, it is necessary for the Complainant to   establish that the detriment which he has complained of was imposed “for” having committed the   aforementioned protected act. The detriment claimed by the Complainant is   that he was dismissed from his employment as a result of having made the   complaint about health and safety in the workplace.

It was common case that the Complainant’s employment was   terminated by the Respondent in April, 2016. However, the actual reason why   the Complainant’s employment was terminated was very much in dispute between   the parties. The Respondent refutes the Complainant’s contention that he was   dismissed as a penalisation for having committed a protected act within the   meaning of Section 27(3) of the Act. The Respondent contends that the   Complainant’s employment was terminated after the company decided not to   renew his fixed term contract in April, 2016 exclusively because of   performance related issues.

There was also a dispute between the parties on the issue   of the Complainant’s employment status during his period of employment. The Complainant   contends that he was never employed pursuant to a fixed term contract and   that, even if he was originally, he was employed pursuant to a contract of   indefinite duration from the 9^th October, 2015 onwards. In   considering this issue, I have examined the documentation submitted in   evidence by the Respondent and I am satisfied that the Complainant was   initially employed on a fixed term contract which was effective from 7^th   April, 2015 until 9^th October, 2015. I note that the Respondent   wrote to the Complainant on 7^th October, 2015 and informed him   that his fixed term contract was being extended for a further period of six   months and would be effective for the period from 9^th October,   2015 until 8^th April, 2015. I am satisfied that the information   contained in this letter complied with the Respondent’s obligations under   Section 8(2) of the Protection of Employees (Fixed Term Work) Act 2003. I   note that this letter was signed by the Complainant in acknowledgement of the   renewal of his fixed term contract and I accept the Respondent’s evidence   that this letter was provided to him in advance of the expiry of the initial   fixed term contract. Having regard to the evidence adduced, I find that the   Complainant was, in fact, employed on a fixed term contract basis by the   Respondent for the entirety of his period of employment.

I must next consider the circumstances surrounding the   Respondent’s decision to terminate the Complainant’s employment in April,   2016 and whether his complaints regarding health and safety were an operative   reason in the decision not to renew his fixed term contract at that juncture.   In considering this matter, I note that the Complainant went absent from work   on certified sick leave from 19^th November, 2015 until 4^th   January, 2016 after sustaining an injury to his arm during the alleged   workplace accident which he contends occurred on 4^th November,   2015. The Complainant was paid in full during this absence and it was not in   dispute that the Respondent discharged all medical expenses arising from this   injury (including the Complainant’s physiotherapy expenses). The Complainant   was facilitated with alternative duties in order to comply with his   Physiotherapist’s recommendation upon his return to work in early January,   2016. The Complainant worked for a further period of approx. three months   until his employment was terminated in April, 2016.

The Respondent contends that the Complainant’s fixed term   contract was not renewed in April, 2016 because of a number of performance   related issues which had arisen during his period of employment including persistent   lateness; breaches of company health and safety requirements by refusing to   wear high visibility jackets; uncertified absences from work. The Complainant’s   direct Supervisor gave evidence at the hearing in relation to the alleged   performance related issues and confirmed that he spoke to the Complainant on   several occasions during his period of employment about these matters. The   Complainant denies that there were any difficulties in relation to his   performance and contended that the first occasion any such issues were   mentioned to him was on 7^th April, 2016 when informed that his   employment was being terminated.

Having regard to the evidence adduced, I have found the   Respondent’s evidence on this issue to be more compelling and I accept that   there were difficulties with the Complainant’s performance during his period   of employment. I have found the evidence of the Complainant’s direct   Supervisor to be credible and I accept that these matters were raised with   him during his period of employment. In coming to this conclusion, I have   taken cognisance of the HR documentation adduced in evidence by the   Respondent which supports its position in relation to the Complainant’s   lateness’s and unauthorised absences from work during his period of   employment. I have also taken   cognisance of an e-mail which the Complainant’s direct Supervisor sent to the   Respondent’s HR Department on 7^th April, 2016 which corroborates   his evidence that the reason for the termination of his employment was wholly   attributable to performance related issues.

I accept that the Respondent may not have strictly   complied with its internal Grievance and Disciplinary Procedures in terms of   the manner in which these performance related issues were dealt with during   the Complainant’s period of employment. However, my jurisdiction in the   context of this complaint does not relate to the fairness or otherwise of the   circumstances which resulted in the termination of the Complainant’s   employment. Having considered the totality of the evidence, I find that the   Respondent’s decision not to renew the Complainant’s fixed term contract and   terminate his employment was wholly attributable to the performance related   issues which arose during his period of employment. I find that the complaints which the   Complainant made in relation to health and safety were not an operative   consideration in relation to the Respondent’s decision to terminate his   employment. In the circumstances, I find that the Complainant did undertake a   protected but that the alleged detriment was not a penalisation within the   meaning of Section 27(2) of the Act. Accordingly, I find that the complaint   is not well founded.

CA-00005794-002   - Complaint under the Employment Equality Acts

The next element of the complaint which I must consider   relates to the Complainant’s claim that he was discriminatorily dismissed on   the grounds of his disability.

Section 85A of the Employment Equality Acts   sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish,   in the first instance, facts from which it may be presumed that there has   been discrimination in relation to him.   If she succeeds in doing so, then, and only then, is it for the   Respondent to prove the contrary. The   Labour Court has held consistently that the facts from which the occurrence   of discrimination may be inferred must be of “sufficient significance”   before a prima facie case is established and the burden of proof   shifts to the Respondent. In deciding   on this complaint, therefore, I must first consider whether the existence of   a prima facie case has been established by the Complainant. It is only where such a prima facie   case has been established that the   burden of proving there was no infringement of the principle of equal   treatment passes to the Respondent.

In the case of Melbury Developments v Arturs Valpetters^[13] the   Labour Court, whilst examining the circumstances in which the probative   burden of proof operates stated that a Complainant "must first establish facts from which discrimination may be   inferred. What those facts are will vary from case to case and there is no   closed category of facts which can be relied upon. All that is required is   that they be of sufficient significance to raise a presumption of discrimination.   However, they must be established as facts on credible evidence. Mere   speculation or assertions, unsupported by evidence, cannot be elevated to a   factual basis upon which an inference of discrimination can be drawn …… the   burden of establishing the primary facts lay fairly and squarely on the   Complainant and the language of this provision admits of no exceptions to   that evidential rule”.

Section 6(1) of the Employment Equality Acts   provides that discrimination shall be taken to occur where “a   person is treated less favourably than another person is, has been or would   be treated in a comparable situation on any of the grounds specified in   subsection (2) …..”. Section 6(2)(g) of the Acts defines the   discriminatory ground of disability as follows – “as between any 2 persons, ...   that one is a person with a disability and the other either is not or is a   person with a different disability".  

The first matter   I have to consider is whether the Complainant has a disability within the   meaning of the Acts. The definition of disability in Section 2(1) of the Acts   is as follows:

‘‘disability’’ means—

(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,

(c) the malfunction,   malformation or disfigurement of a part of

a person’s body,

(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 the case of Customer Perception v Gemma Leydon[14], the Labour   Court in referring to   paragraph (c) of the statutory definition, held that: - “Taking the ordinary and   natural meaning of the term malfunction, (connoting a failure to function in   a normal manner), the condition from which the complainant suffered in   consequences of her accident amounted to a malfunction of parts of her body.   It thus constituted a disability within the meaning of the Act. Moreover, in   providing that the term comprehends a disability which existed but no longer   exists, it is clear that a temporary malfunction comes within the statutory   definition”.

The Complainant contends that he sustained an injury to   his arm while discharging duties in the workplace on 4^th November,   2015. The Respondent accepts that the Complainant reported the injury to the   company (albeit that the exact date when he made this report was in dispute),   and once on notice of the injury referred him for assessment by the Company   Doctor. The Complainant was subsequently certified medically unfit to work by   the Company Doctor from 19^th November, 2015 until 4^th   January, 2016 arising from this injury. I am satisfied from the medical   evidence submitted that the injury which the Complainant sustained to his arm   arising from this incident amounted to a malfunction of a part of his body. The   injury had the effect of restricting the movement and power in the   Complainant’s right arm. Whilst I also note from the medical evidence that   there was an improvement in the Complainant’s condition to the extent that he   was certified fit to return to work in January, 2016 (albeit on restricted   duties), I am satisfied that the Complainant’s condition constituted a disability   within the meaning of Section 2 of the Act at the material time of this   complaint.

It was not in   dispute that the Complainant’s employment was terminated within a period of less   than three months after his return to work following a period of absence   arising from his disability. I find that the very fact of the closeness in   proximity between this absence from work on grounds connected to his   disability and the termination of his employment is of sufficient   significance to raise an inference of discrimination on the grounds of   disability. Accordingly, I find that   the Complainant has succeeded in establishing a prima facie case of discriminatory dismissal on the grounds of   disability.

Where such a prima facie case is established it   falls to the Respondent to prove the absence of discrimination. This requires   the Respondent to demonstrate a complete dissonance between the protected   characteristic (in this case disability) and the impugned acts alleged to   constitute discrimination. In this regard the Adjudication Officer should   expect cogent evidence showing that the Complainant’s disability was nothing   more than a trivial influence on the impugned treatment of him, since the   facts necessary to prove a non-discriminatory explanation would normally be   in the possession of the Respondent.

Having regard   to the evidence adduced, I find that the Respondent has adduced cogent and   compelling evidence that the termination of the Complainant’s employment was   not in any way attributable to his disability. As I have already found above,   I accept the Respondent’s evidence that there were difficulties with   the Complainant’s performance during his period of employment. I find that   the Respondent’s decision not to renew the Complainant’s fixed term contract   and terminate his employment was wholly attributable to the performance related   issues which arose during his period of employment and was not in any way   influenced by the fact of his disability. In the circumstances, I find that the Respondent has succeeded   in rebutting the inference of discrimination raised by the Complainant. Accordingly,   I find that the Complainant was not subjected to a discriminatory dismissal   on the grounds of his disability contrary to the Acts.

Reasonable   Accommodation

The final element of the complaint which I must   decide relates to the Complainant’s claim that the Respondent failed   to provide him, as a person with a disability, with reasonable accommodation   contrary to Section 16(3) of the Acts.  

Section 16(3) of the Acts, sets out the obligations and   requirements on employers to take appropriate measures, where needed in a   particular case, to enable a person with a disability have access to,   participate in or advance in employment. It requires an employer to make a   proper and adequate assessment of the situation before taking a decision   which is to the detriment of an employee with a disability.  

In the case of A Health and Fitness Club -v- A Worker[15]   the Labour Court interpreted Section 16 of the Employment Equality Acts as a   process orientated approach which places an obligation upon an employer to   embark upon a process of ascertaining the real implications for the   employee's ability to do the job, taking appropriate expert advice,   consulting with the employee concerned and considering with an open mind what   special treatment or facilities could realistically overcome any obstacles to   the employee doing the job for which s/he is otherwise competent and   assessing the actual cost and practicality of providing that   accommodation.

In the instant case, the Complainant was unable to work   during the period from 19^th November, 2015 until 4^th   January, 2016 as a result of the injury sustained to his arm in the alleged workplace   accident. The Complainant’s Physiotherapist recommended that he should be put   on light duties following his return to work to accommodate the ongoing   medical difficulties with his arm which restricted his ability to carry out   the full range of duties that he was expected to discharge prior to   sustaining the injury.

Having regard to the evidence adduced, I am satisfied that   the Respondent was fully aware of the precise nature of the Complainant’s   disability upon his return to work and that it acted in accordance with the   medical advice available in relieving him of a number of the heavier duties   required of his position such as lifting and cleaning. In doing so, I am   satisfied that the Respondent complied with the Physiotherapists   recommendation and thereby put appropriate measures in place to facilitate   the Complainant’s return to work at that juncture. The Complainant has not   adduced any evidence to suggest that the measures which the Respondent put in   place were inappropriate or that he was unable to undertake the duties   assigned to him on his return to work and during the subsequent period prior   to the termination of his employment.

In the circumstances, I find that the Respondent did not fail in its obligation to   provide reasonable accommodation to the Complainant, as a person with a   disability, in accordance with the provisions of section 16(3) of the Employment   Equality Acts.

CA-00005794-001   – Complaint under the Safety, Health and Welfare at Work Act 2015

I find that the Complainant did undertake a protected within   the meaning of the legislation but that the alleged detriment was not a   penalisation within the meaning of Section 27(2) of the Safety, Health and   Welfare at Work Act 2015. Accordingly, I find that the complaint is not well   founded.

CA-00005794-002   - Complaint under the Employment Equality Acts

Having investigated the above complaint, I hereby make the   following decision in accordance with Section 79(6) of the Employment   Equality Acts. I find that:

•   The   Complainant was not subjected to a discriminatory dismissal on the grounds of   his disability contrary to the Acts.
•   I also find that the Respondent did not fail   in its obligations to provide reasonable accommodation to the Complainant, as   a person with a disability, in accordance with the provisions of section   16(3) of the Acts.

Accordingly, the aforementioned complaints under the   Employment Equality Acts are not upheld.

Safety, Health and Welfare at Work Act 2015 – Section 27 –   Protected Act – Penalisation – Dismissal – Complaint not well founded –   Employment Equality Acts – Disability – Discriminatory Dismissal – Section 16   - Reasonable Accommodation