Complainant

Respondent

Anonymised Parties

An Officer

A Public Service Body

Representatives

None

Peter Leonard BL, instructed by the Chief State Solicitor’s Office

Act

Complaint Reference No.

Date of Receipt

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

CA-00005619-001

01/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00005619-002

01/07/2016

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

CA-00005619-003

01/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00005619-004

01/07/2016

The complainant is an officer and her employment ended by way of ill-health retirement on the 13th February 2016. She claims unfair dismissal, discrimination and breaches in relation to public holidays and payments demanded of her. The respondent denies the claims.

The complainant outlined that her employment with the respondent commenced in 1999. She held the role of Officer in the respondent service, and was based in a named facility. In 2011, the complainant had spinal surgery followed by a difficult recovery. Her medical advice was that she would not recover fully. She was out on sick leave for a period in 2012 and met with the respondent Chief Medical Officer in November 2012. By this time, she had applied for ill-health retirement and this was under consideration by the respondent for some ten months.

The Chief Medical Officer later informed the complainant that she would not be getting ill-health retirement. She was assigned to work in the control room of a named facility, but she knew that this would not be appropriate as it meant sitting down all day. She appealed the decision to refuse her application for ill-health retirement and this appeal was dealt with by an independent party. This party informed the complainant that she was too young to retire. She said that she could not do full duties and he assessed her for specific roles, for example in control rooms, including one in a named facility. The party told her that all the control rooms were the same, but the complainant did not agree with this, as the one she was assigned to was the worst as it was underground and had no facilities. The other control rooms had their own facilities and had a window. The complainant said that she should not have been assigned to work in the control room of the court facility and her own doctor wrote to say that it was not suitable. She should have been left on sick leave.

The complainant started in the control room of the named facility in July 2013 and worked 8am to 5pm alternative weeks of Tuesday, Wednesday or Tuesday to Thursday. This was a job share and she was not able to work more hours. She wrote to the respondent to complain of the decision to assign her to this role. This was acknowledged by the respondent. The complainant described the role as static, based in a dark room, with no fresh air or access to facilities without obtaining relief. She asked the respondent for an independent assessment of the position and was informed that it had been carried out. She was informed that the Chief Medical Officer had visited the room but she said that he was not independent. The Chief Medical Officer had recommended an ergonomic assessment and recommended alternative duties to alleviate her isolation. The complainant made the suggestions to the respondent regarding roles in the district office and the pay office. She was then suffering from depression and made many complaints to the respondent. Her job-sharing role should have been reviewed after three months, but no such review took place. It had been clear that she would not be fully functional in the role.

The complainant outlined that she made a second application for ill-health retirement and was sent for a functional capacity test. While the Chief Medical Officer had recommended an ergonomic assessment, he had not recommended a functional capacity evaluation. She explained that an ergonomic assessment differed to a health and safety assessment, and assessed the person in the workplace. A functional capacity evaluation was a series of tests undertaken by a physiotherapist to assess your level of mobility. The functional capacity evaluation was carried out in March 2015 and she obtained a copy of the report from the Chief Medical Officer. In respect of the control room, the complainant said that there had been a spare chair in the room, which the respondent insisted was removed. She was supplied with a metal locker, but this only had three wheels. It was subsequently removed following a health and safety inspection. She sent in a medical note to obtain a foot stool, but was provided with a computer board instead.

The complainant outlined that on the 23rd September 2015, she was informed by two members of senior management that she had to go on sick leave. She refused as she was not sick. At this stage, the complainant had no entitlement to sick pay and she asked for garden leave. This seemed to get petty and personalised. The complainant’s witness said that he was threatened with having to go off duty if he did not go back to work. This was put to him by a named chief, not present at the adjudication. At this time, the complainant and the witness were using an office to contact union representatives, and when they returned later, they found the office to be locked. The complainant was scheduled to return to work on the following Tuesday and she was asked to meet the most senior member of management in the facility which she was based. They had a re-run of the conversation of the 23rd September 2015, and she was told that she had to go off duty. The respondent subsequently sent a fax to say that the complainant had to go off sick until an assessment by the Chief Medical Officer. As she was not sick, the complainant thought she would be paid. The complainant outlined that she received correspondence from the respondent of the 23rd September 2015 and an undated letter on the 29th September 2015.

The complainant met with the Chief Medical Officer in October 2015, where he raised ill-health retirement. She replied that she had applied for this, but had heard nothing. At this stage, the complainant was not being paid and was informed that she would be placed on Temporary Rehabilitation Remuneration (TRR). She did not apply for this. The respondent wrote to the complainant to say that she would be retired and this took place on the 13th February 2016. She received a pension payment in May 2016, but this payment was reduced by €7,000. While the pay slip referred to this amount of money, it did not explain the reasons why the monies were taken from her. On the 20th May 2016, she received an email explaining the basis for this. The respondent had retrospectively sought to recover pay for September and October 2015, as well as TRR paid over four months between November 2015 and February 2016. In respect of the surplus leave issue, the complainant said that she had initially been granted 144 hours of leave, but this was reduced to 40 hours. She applied for leave via the district office. She submitted that she could not have taken so much leave without the approval of the district office. The complainant outlined that the complaint made pursuant to the Employment Equality Act related to her role in the control room. She had been the last to be able to leave and the last to be able to have lunch. There were also occasions where she could not leave with her colleagues to take a bus back to the facility and instead, she had to work voluntary overtime.

In reply to the respondent, the complainant said that the respondent had omitted her pension contributions from the 5th July 2013 to the 22nd August 2015. In respect of TRR, she had never been informed that she was on this payment and could have applied for Department of Social Protection support to make up the difference. She should have been able to claim €753.28. She had been sent home on salary, but this was later taken off her.

The complainant said that this was the first she had known of a deduction for her previous employer, another public sector body. She had transferred her service from this public sector employer to the respondent in 2011 and she had been informed by a named official in her old employment that she owed €22 on the changeover. The complainant said that her service with the old employer was not now being counted.

In respect of the control room, the complainant said that the Chief Medical Officer had assessed the room on the 2nd or 3rd December 2012 and that he had already said that it was suitable. There had been two chairs in the control room when this assessment had been carried out. She had used the chair for two years to allow her stretch her legs. The medical letter did not refer to the need for continuous extension but to the ability to stretch her legs. She commented that when the respondent first went out to the facility in 2009, there had always been two chairs in the control room. It had been envisaged that this would be a two-person role. The complainant said that the respondent had turned off the smoke alarms in the facility, demonstrating the control it could exercise.

In respect of the 23rd September 2015, it was the case that nothing had changed for the complainant, but that it had changed for the respondent. There had been a disagreement between the complainant and a named assistant facility manager regarding one day’s annual leave, during which the complainant used the word ‘liar’. Very little had changed except for the attitude to the respondent. The complainant proposed alternative duties to the Chief Medical Officer and it had been the senior manager who refused this proposal. There were alternatives available to the respondent, including non-allowance carrying roles. The complainant said that she could have done any training.

The complainant commented that she did not send in sick certificates in the period she had been sent home by the respondent as it had put her off duty. Officers usually had to apply for TRR via their facility managers. The complainant outlined that between 2013 and 2015, she availed of local services, the Chief Medical Officer, health and safety and the union to find a solution for her situation. She had been a “hamster in a wheel” and the respondent was slow to reply to her. In respect of public holidays, she was entitled to 40 hours as when she held a full-time role, she should have continued to accrue public holidays when on long-term sick leave. Others on sick leave continued to accrue their full contracted hours, while she was restricted to her statutory hours. They also did not have a maximum period to accrue annual leave, as had been applied to her. She said that elevating her leg on a chair was not in a way of a colleague and her role was not a public one. She did not use her leg while carrying out her duties.

In an email of the 3rd May 2013, the complainant addresses the respondent’s refusal to grant her application for ill-health retirement. She raises being sent to the role in the control room and asks that she be sent for a functional body test. A medical certificate of the 28th June 2013 gives details of the complainant’s health issues and supports her application for part-time hours. A medical letter of the 29th January 2015 states that it is unlikely that the complainant will be able to return to full-time employment. A medical letter of the 16th September 2015 recommends that the complainant keep her leg elevated to hip height during her workday. It concludes by stating “I would be grateful if you could facilitate on health and safety grounds.” In email correspondence of the 11th July 2016, the complainant challenges the removal of 144 leave hours that had been credited to her.

In submissions, the respondent outlines that the complainant commenced working for the respondent in March 1999. In 2009, she was transferred to the respondent transport service and from 2013, she was accommodated in the control room. Her employment came to an end in February 2016. The complainant’s ill-health issues arose in early 2011 and she was facilitated with amended duties. She underwent an operation in July 2011 and was on certified sick leave following the operation. She was removed from pay with effect from the 2nd December 2011 and placed on the Pension Rate of Pay until 5th July 2013. After the complainant made her first application for ill-health retirement in 2012, the CMO advised that she could return in a non-contact capacity. The CMO visited the control room and was satisfied that the complainant could work in this environment. The application for ill-health retirement was refused on the 17th January 2013. The complainant’s subsequent appeal was refused on the 24th April 2013 and the appeal medical assessor held that she was fit to return, if accommodated.

On the 28th June 2013, the complainant was permitted to return on a job-sharing basis. The complainant returned to work but sought to move to another non-contact role, given the monotonous and isolated nature of her role. An ergonomic assessment was carried out of the control room and it identified changes which could be made to the room. It was not possible to implement the changes as the control room was outside its jurisdiction (and owned by another public body). The complainant made a second application for ill-health retirement and sought a Functional Capacity Evaluation (FCE). The CMO organised for a FCE to be done on the control room on the 16th February 2015. This recommended that the complainant should not remain in her current role and preferably be rotated so that she could change her posture regularly and interact with colleagues. The complainant went on another period of sick leave from the 21st July 2015 and removed from payroll as she had exhausted her entitlement to paid sick leave. She was on salary between the 21st and 24th July 2015 and the respondent later sought to recoup these monies. The complainant resumed employment on the 1st September 2015. A footrest was purchased to facilitate the complainant, but she said that this was insufficient for her needs. On the 23rd September 2015, the respondent advised the complainant that there was no position in the respondent to facilitate her with having her leg elevated to hip height. The complainant indicated that she was refusing to go off duty. The respondent relies on paragraph 3.5 of Circular 12/2015, which provides that no civil servant who appears to require medical attention should be allowed to remain on duty in the workplace. It was not possible for the complainant to remain on duty with her leg elevated on a chair and she was ordered off duty. She was placed off pay with effect from the 24th September 2015. On the 2nd November 2015, the CMO indicated that his view was that the application for ill-health retirement should be accepted. The respondent wrote the complainant on these grounds on the 12th November 2015. The complainant did not avail of the appeal procedure advised to her.

The respondent submits that the complainant was not unfairly dismissed, but retired on ill-health grounds. It further submits that the complainant was overpaid €7,502.15. This includes the salary overpayment for the period 24th September to 30th October 2015 (€1,399.39); Department of Social Protection overpayment as she was paid at the DSP rate of €188 rather than the TRR rate of €133.59 (€753.28); pension contribution owed of €2,502.82 as she was not deducted the Spouse and Children’s Scheme contribution of 1.5% between the 5th July 2013 and the 22nd August 2015 and surplus annual leave of €2,434.86; €411.80 arising from the 2007 correspondence regarding the transfer of service. The respondent submits that there was no breach of the Payment of Wages Act. On the 20th October 2015, the respondent approved the complainant for 40 additional hours of leave arising from public holidays during her sick leave. There was no breach of the Organisation of Working Time Act.

The respondent made every effort to accommodate the complainant between 2011 and her retirement in 2016. She was regularly assessed by the CMO who gave every consideration to her accommodation. It relies on the section 37 of the Employment Equality Act applicable to officers such as the complainant. It submits that it complied with the requirements of section 16 as set out by the High Court in Nano Nagle School v Daly [2015] IEHC 785. The chair was removed from the control room amid concerns that staff were congregating in the room, in breach of policy. The role was a one-person role and required minimum disruption. A local order from 2012 provided that staff shall not congregate in this area.

The respondent accepted that the complaints were within time and that it opposed all four claims. It referred to reports or letters of the Chief Medical Officer on the 5th December 2012, the 8th April 2013, the 11th December 2013, the 13th March 2014, the 18th April 2014 and the 2nd November 2015. The complainant had been asked to go home on grounds of capability, following which the Chief Medical Officer had a consultation with her GP. The application for ill-health retirement was approved and the complainant did not appeal this decision.

The respondent outlined that the complainant had been overpaid between the 24th September 2015 and the 30th October 2015, when she went on sick leave but continued to be paid. A second overpayment arose when she was paid the DSP rate rather than the lower TRR rate she was entitled to. There was a pension overpayment of €2,502.82 as reductions had not been made to her pay for the Spouses and Orphan’s Scheme between the 5th July 2013 and the 22nd August 2015. The complainant had taken surplus annual leave of €2,434.86.

There had been a lot of toing and froing between the Chief Medical Officer and the complainant regarding her role. It had carried out further assessments of the complainant. The respondent had considered the alternatives suggested by the complainant, but they were popular roles and allocated according to seniority. The respondent had gone outside policy by giving the complainant the particular job-share role. It had made every effort to take account of the complainant’s needs. There were few opportunities for roles with no contact with the client group served by the respondent. While the role may be monotonous, it was a job and an important function. There was always an element of danger in the role.

The assessments carried out by the Chief Medical Officer were all shared with the complainant. The control room was part of a complex administrated by a different public body. The respondent had complied with its obligations in the Nano Nagle case and with section 37 of the Employment Equality Acts, as amended. In respect of the chair in the control room, the presence of a second chair led colleagues to congregate in the room. The chair was removed and a footrest provided in its place, and not a computer platform, as stated by the complainant. This was a one-person position, assigned to the complainant as part of an accommodation.

The witness from the respondent payroll section gave evidence. He referred to a spread sheet of annual leave taken by the complainant, going back to 2011. It had been calculated that the complainant had taken surplus annual leave of 179.9 hours as of when her employment came to an end in 2016. He gave details of the annual leave hours due to and taken by the complainant since 2011. This included hours carried over as well as hours due over periods of sick leave and as a jobsharer.

The payroll witness said that an officer was entitled to statutory annual leave while on sick leave. The complainant was entitled to half her annual leave while on a job share. He explained that the complainant had stopped accruing hours in 2013 after the expiry of 15 months of sick leave. He alluded to a Court decision and said that the hours had been calculated according to procedure. In respect of TRR, this payment was based on length of service, so the longer a person worked for the respondent, the more they received in payment, up to the pension rate of pay. An employee with short service will only be entitled to a lower amount of pay. The complainant had been awarded the DSP rate, but should have been on the lower TRR rate.

The witness from the staff and corporate services directorate gave evidence. He outlined that the respondent tried to ensure that all staff remained in pay. It can take 6 to 8 weeks to calculate an officer’s rate of pay and the basic Department of Social Protection rate is paid in most cases. He had not been aware that monies would be recouped from the complainant. Her retirement in February 2016 had been an opportunity to tidy up issues. He said that as far as he was concerned, the complainant had not filled in the application for the Department of Social Protection payment and she had not submitted certificates. In respect of the letter of the 29th September 2015, the witness said that he had been contacted by a named senior manager to see what should be done. There was a need to refer the matter back to the Chief Medical Officer and there had been a significant deterioration of the complainant’s situation. He said that they had not received an appropriate assessment to provide for the elevation of the complainant’s leg in the control room and this had not been mentioned before. The witness was approached by the respondent Employee Assistance Programme and the trade union regarding the need to hold a case conference. It was clear that the complainant was dissatisfied. The case conference had not taken place by the time the complainant’s GP sent in the letter of the 16th September 2015. He said that her appeal regarding the first application for ill-health retirement had been postponed pending the functional capacity review.

The senior manager from the respondent facility gave evidence. He described the control room as a small room, in which there were monitors and a keypad to open and shut both doors and shutters. The facility was owned by another public body and managed by a named private contractor. The complainant’s role did not involve contact with the client group served by the respondent. It was a role for one person and required keeping attention on people approaching the gates of the facility. The respondent considered the complainant to be capable for this role. In respect of the service generally, the central requirement was to transport the client group between facilities and there were very few “no contact” roles. Training was also required for the roles sought by the complainant in the detail office and the pay office. The former role is a promotion grade that attracts allowances and whose primary role was in training and allocating duties to posts. There was training required for this role and generally no contact. The witness said that another senior manager had asked the complainant to identify alternative roles and she did not do so.

The senior manager said that on the 23rd September 2015, he informed the complainant that there was no suitable role which allowed her to elevate her leg. This meeting took place at 10.15am and he referred to a contemporaneous note of the meeting. In respect of the letter of the 29th September 2015, he informed the complainant that she required confirmation that she was fit for duty and that she now had to go off duty. The complainant refused to go off duty. He believed that the letter was circulated to two named senior managers and then to the complainant. He was not aware which offer the complainant referred to at the meeting in the union office. He commented that there was no way the respondent could have accommodated leg elevation to hip level. In respect of annual leave, the witness referred to print outs of the “clockwise” allocation of annual leave from year to year.

In submissions, the respondent submitted that the Chief Medical Officer had assessed the control room for its suitability. He had also signed the complainant off on sick leave. It submitted that the letter of the complainant’s GP of the 16th September 2015 was different to previous medical documents. The requirement for leg elevation was a significant new piece of information. After making contact with the GP, the Chief Medical Officer approved the application for ill-health retirement. In reply to the complainant, the respondent referred to correspondence of the 8th August 2007 regarding pension contributions with the complainant’s former employer and the reference to €297.56. The respondent submitted that the complainant had not been subjected to any punitive treatment, and emphasised that this included when she was sent on sick leave. She had been treated well and in good faith, for example in assessing her work environment.

The respondent pensions witness gave evidence. The respondent had looked at the complainant’s record over the preceding three years. Given the level of sick leave, this should have been reduced to 2 years and 76 days, but in error, the respondent used the period of 3 years and 115 days. The pension should have been reduced to 75% but this did not take place. In respect of the pensions issue, correspondence from the respondent of the 9th May 2007 states that 30/40ths of the complainant’s service with another public body will be reckonable for pensions purposes. This is because of the “system of uniform accrual” in the respondent service. It states that transferred service might assist where the complainant takes special leave or retires on ill-health grounds. In further correspondence of the 8th August 2007, the respondent corrects an earlier error and states that after the principle of uniform accrual is applied, the complainant’s transferred service is 2 years and 176 days for superannuation purposes. The complainant is required to lodge €296.56 in superannuation contributions.

On the 23rd September 2015, the respondent wrote to the complainant, referring to the medical letter of the 16th September 2015. It comments on the recent purchase of the foot rest and states “regretfully, due to the change in your condition we are now not in a position to accommodate you in the workplace and you will have to avail of sick leave. There are no duties or posts available in the [respondent] where you can keep your leg elevated to hip height during the course of your work. Accordingly, I have asked for an urgent referral to the Chief Medical Officer for advice on your current and long-term ability to perform your duties.”

In undated correspondence to the complainant, the respondent addressed the complainant’s wish to return to work. It states “I regret that the situation remains unchanged from Wednesday last when you presented with a note from your Medical Practitioner [name] relating to your health and safety. Your case has been referred again to the Office of the Chief Medical Officer (CMO) and we have asked that you be given an urgent appointment in the coming days due to the nature of your situation. You will appreciate that while the advice of the CMO is awaited, it will not be possible for you to return to duty.”

In correspondence of the 12th November 2015, the respondent indicates that the opinion of the CMO was that the complainant was incapable on medical grounds of regular and effective service and that the situation is likely to be permanent. Pursuant to section 6 of the Civil Service Regulation (Amendment) Act, 2005, the respondent was satisfied on the advice of the CMO that the complainant should be retired on ill-health grounds. The letter advises the complainant of the right to appeal to a Medical Referee under the terms of Circular 22/07: Ill-Health Retirement from the Civil Service. It gives a deadline for appeal of the 22nd January 2016 and states that the complainant will have deemed to have resigned from the respondent on grounds of ill-health with effect from 13th February 2016.

The complainant makes four complaints regarding her employment with the respondent. She makes a complaint of unfair dismissal following the ending of her employment on the 13th February 2016. She makes a complaint pursuant to the Payment of Wages Act regarding monies recouped by the respondent after the end of her employment. She makes a complaint of discriminatory treatment and a failure to provide reasonable accommodation on the disability ground pursuant to the Employment Equality Act. She does not claim discriminatory dismissal. The final claim relates to public holidays and is made pursuant to the Organisation of Working Time Act. The claims required the submission of additional documentation and submissions by both parties after the hearing.

CA-00005619-001

The respondent retired the complainant on grounds of ill-health, effective the 13th February 2016. This was based on the complainant’s second, outstanding application for ill-health retirement of 6th May 2014. The CMO initially disagreed that the complainant met the criteria for ill-health retirement and a Functional Capacity Evaluation was carried out. It was a full 15 months later that the respondent approved the application for ill-health retirement, even though at this stage the complainant objected to being put off duty. She did not appeal the respondent decision to place her on ill-health retirement.

A striking aspect of this case is that the parties inverted their positions over time with respect to the complainant’s ability to work in the light of her application for ill-health retirement. The respondent initially held that she could attend work, with accommodations being made, and rejected her first application to retire on health grounds. There was considerable delay in finalising the second application. It later said that she could not attend work. The complainant initially said that she was unable to work in the light of the accommodation offered by the respondent in the control room. She sought ill-health retirement and appealed the first rejection. She applied a second time and that application was left with no decision for many months. Towards the end of 2015, the complainant stated that nothing had changed and her fitness to do the role had remained the same. The respondent was not entitled to send her home.

It is clear that, pursuant to section 9 of the Civil Service Regulation Act, 1956 and Circular 22/2007, the respondent could approve the complainant’s application for ill-health retirement. The complainant did not avail of the right of appeal and the statutory provision was the basis the complainant’s employment came to an end.

Notwithstanding these comments, I note that the claim relates to constructive dismissal, where the complainant challenges the accommodation offered to her and the latter change in the respondent’s position. As the complainant did not resign, she cannot succeed in a claim of constructive dismissal. Taking the findings relating to the respondent’s dismissal of the complainant by ill-health retirement, as well as the finding that the complainant did not resign, I conclude that the complaint of unfair dismissal is not well founded.

CA-00005619-002

The respondent submits that the complainant was overpaid €7,502.15. This includes the salary overpayment for the period 24th September to 30th October 2015 (€1,399.39); Department of Social Protection overpayment as she was paid at the DSP rate of €188 rather than the TRR rate of €133.59 (€753.28); pension contribution owed of €2,502.82 as she was not deducted the Spouse and Children’s Scheme contribution of 1.5% between the 5th July 2013 and the 22nd August 2015 and surplus annual leave of €2,434.86; €411.80 arising from the 2007 correspondence regarding the transfer of service.

The case falls within the ambit of section 5 of the Payment of Wages Act as the amounts were payments required to be paid by the respondent. The question to be determined is whether they were authorised by the complainant’s contract of employment, by statute or otherwise.

I find that the two payments related to pension contributions were authorised. They are the pension contribution of €2,502.82 and the amount of €411.80 arising from the transfer. They are payments required by the complainant’s contract of employment and her membership of the pension scheme.

I find that the amount €753.28 sought for the overpayment at the higher personal rate/DSP rate is authorised. I reach this finding because the Circular 12/2015 and the Public Service Management (Sick Leave) Regulations, as amended, provide for maximum periods of payment at both the personal rate and the TRR. While the complainant should have known of the reduced rate at the time she was being overpaid, I find that the later demand for payment is authorised. I am also obliged to reach the same finding in relation to the payment of salary between the 24th September 2015 and the 30th October 2015. I appreciate the complainant’s point that she could have availed of disability allowance or similar benefit if she had known that she had exhausted her entitlement to pay. She should have known at the time she was not entitled to be paid. Nevertheless, the respondent is entitled to recover the monies overpaid in line with the Circular and Regulations.

As a public sector employee, the complainant accrued annual leave while on sick leave. Applying the decisions of the Court of Justice of the European Union in Stringer and others v. HM Revenue and Customs sub nom Commissioners of Inland Revenue v. Ainsworth and others Schultz-Hoff v. Deutsche Rentenversicherung Bund [2009] IRLR 214, Article 7 of Directive 2003/88/EC has direct effect for public sector employees. The respondent submits that the complainant is entitled to accrue annual leave while on sick leave and to claim this for a maximum period of 15 months. It refers to section 86(1) of the Workplace Relations Act. It further refers to the subsequent CJEU decision of KHS AGV v Schulte (C214-10). This case related to whether a German federal statutory provision regarding the carrying over of accrued annual leave was precluded by the Directive. The Court held that it was not precluded. I asked the respondent whether there was a statutory provision or rule or Circular in place at the relevant time in this case which set the maximum period at 15 months. No such document was produced. It was acknowledged that the respondent had gone back over the annual leave taken by the complainant since 2011 and fixed a maximum period of 15 months. The CJEU decision in KHS AGV v Schulte is authority that such a period can be set by legislation, but it is not authority that such a maximum can be applied retrospectively. The amount required by the respondent to be paid was €2,434.86. I acknowledge that following the adjudication, the respondent indicated that it had overstated the amount of surplus annual leave and that monies would be refunded. There was also communication from the complainant that this had not occurred. I make the award in the full amount and the complainant can recover the difference between this amount and the monies already remitted.

CA-00005619-003

The complainant asserts that the respondent did not provide reasonable accommodation for her disability. The complainant had ongoing interaction with the respondent and the Chief Medical Officer about accommodating her disability. This led to her being placed in the control room of a facility operated by another public body. The complainant challenged the appropriateness of this placement. She worked there between July 2013 and the end of her employment. She complained of the isolation of the role and that it was a windowless room. The evidence was that the Chief Medical Officer visited the control room and deemed it appropriate. It was later subject to a Functional Capacity Evaluation, undertaken by a physiotherapist. This recommended changes, which could not be implemented as the control room was under the jurisdiction of the other public body. The respondent asserted that it was not possible to transfer the complainant to other non-contact roles as they were allowance-carrying and allocated according to seniority. The complainant continued to work, until the issue of the chair arose. It is apparent that members of the local management were concerned that the presence of a second chair in the office encouraged colleagues to visit the complainant during the working day. The second chair was removed and replaced with a footrest, which did not allow the complainant to elevate her leg to hip height. On the 16th September 2015, the complainant’s GP wrote to the respondent in the following terms: “I would be grateful if you could facilitate on health and safety grounds.” The respondent reacted strongly. It referred to a change in the complainant’s condition and that it could not accommodate the complainant. She was not permitted to attend work and her long outstanding application for ill-health retirement was finalised.

The duty to provide reasonable accommodation is set out in the Employment Equality Act in the following terms:

“16 (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

…

(3) (a) For the purposes of this section, a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if, the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as “appropriate measures”) being provided by the person’s employer.

(b) An employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -

i. To have access to employment

ii. To participate and advance in employment,

iii. To undergo training,

Unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of –

(i) The financial and other costs entailed.

(ii) The scale and financial resources of the employer’s business and

(iii) The possibility of obtaining public funding or other assistance.

(4) In subsection (3)—

…

‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but (c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself”

Section 37(3) applies to the complainant’s employment:

“It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.”

I make the following findings and comments in relation to this complaint. The complainant initially sought ill-health retirement on her return to work; the respondent deemed her fit for work in a modified role. While she raised issues regarding the control room, the complainant worked in the capacity for 27 months. It is apparent from the evidence that issues arose between the complainant and local management, for example related to an application for annual leave and the congregation of staff visiting the control room. From the evidence, the complainant was clearly a popular member of staff. There was a conflict of evidence whether the office was initially a two-person office and whether there was a 2012 order regarding congregation in the office (prior to the complainant’s commencement in the role). What is striking in this case is the length of time the complainant worked in the control room with the accommodation of her hours and her use of the chair to elevate her leg. The respondent places emphasis on the change in the complainant’s condition, but what changed was the removal of the chair from the office. It provided a footrest that, according to the complainant’s GP, did not sufficiently elevate her leg. The respondent responded by stating that the complainant could no longer attend work. There does not appear to have been consideration of an alternative to the chair that allowed the complainant sufficient elevation of her leg. This was a sedentary role requiring her to be comfortable when seated. There may have been alternatives to a chair to allow this level of elevation. It is also striking that the respondent deemed her unfit to attend work without medical evidence or this being confirmed by the CMO. It is not clear whether there would have been any progression with the outstanding application for ill-health retirement had the chair/footrest issue not arisen. Taken together, the withdrawal of the accommodation provided, without consideration of alternatives, and the putting off duty of the complainant in these circumstances amount to discrimination on grounds of disability. In considering the effects of the discrimination, I note that the complainant’s presence in the workplace ended abruptly. This was not satisfactory, given the complainant’s standing, and nor was it necessary given the longstanding nature of her role in the control room. I note that alternatives to the chair were not considered, for example an item that allows hip-high elevation without being a chair. Taking these factors together, I award the complainant redress of €7,000.

CA-00005619-004

The complainant outlined that she did not receive public holiday pay. She worked a job-share arrangement where she worked five days over a fortnight, either a Tuesday-Wednesday or Tuesday-Wednesday-Thursday. She asserts that she did not receive the benefit of public holidays. The respondent denies the claim and asserts that the complainant was afforded her entitlement of 40 hours of public holiday pay.

The complaint was referred to the Workplace Relations Commission on the 1st July 2016 and the complainant’s employment ended on the 13th February 2016. The date of contravention in relation to public holiday claims is the date of the public holiday in question. There are nine in Ireland. Section 41(6) of the Workplace Relations Act restricts the jurisdiction to hear complaints to contraventions within six months of the date of complaint. This can be extended by a further six months if reasonable cause is shown.

Given that the complainant’s employment ended in February 2016 and the complaint was lodged on the 1st July 2016, there is no public holiday within six months of the date of complaint. While New Year’s Day 2016 is one day out of time, I do not see where there is reasonable cause to extend time beyond the statutory period of six months. I find that the complaint is, therefore, out of time and I do not have jurisdiction to decide the complaint.

CA-00005619-001

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that the complaint made pursuant to the Unfair Dismissals Act is not well founded as the complainant’s employment ended according to the ill-health retirement scheme and she was not constructively dismissed.

CA-00005619-002

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

I find that the complaint made pursuant to the Payment of Wages Act is well founded in so far as the complainant was required to pay to the respondent €2,434.86 for surplus annual leave. The complainant is entitled to recover whatever amount remains outstanding.

CA-00005619-003

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I find that the complaint made pursuant to the Employment Equality Act is well founded and the respondent shall pay redress to the complainant of €7,000.

CA-00005619-004

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

I find that the complaint made pursuant to the Organisation of Working Time Act is out of time and I do not have jurisdiction to decide the complaint.

Ill-health retirement

Sick leave

Stringer and others v. HM Revenue and Customs sub nom Commissioners of Inland Revenue v. Ainsworth and others Schultz-Hoff v. Deutsche Rentenversicherung Bund [2009] IRLR 214

KHS AGV v Schulte (C214-10)

Employment Equality Act / reasonable accommodation

Public holidays / date of contravention