Complainant

Respondent

Anonymised Parties

A Printing Company employee

A Printing Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00005887-001

15/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00005887-002

15/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00006090-001

22/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00006090-002

22/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00006122-001

26/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00006122-002

26/07/2016

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

CA-00006122-003

26/07/2016

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

CA-00006454-002

15/08/2016

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

CA-00006454-003

15/08/2016

The complainant is employed by the respondent since 2001. He was initially employed as General Operative and on or about 5th May 2004 became a Grade 2 Printer working the night shift. The complainant contends that he was discriminated against by the respondent on the basis of his disability and by the respondent’s failure to provide reasonable accommodation for him. The complainant also contends that the respondent breached the Payment of Wages Act, 1991 in respect the non-payment of salary that he believes should have been paid to him.

In relation to the complaints submitted to the Adjudication Services of the Workplace Relations Commission (WRC) there appears to be significant duplication on the part of the complainant. The complainant’s representative very helpfully clarified that there are two complaints for consideration. The complaints to be adjudicated on are CA00006454-002 and CA-00006454-003. The complaints relate to issues referred to the WRC under the Equal Status Acts, 2000 and the Payment of Wages Act, 1991.

Respondent’s position

The respondent raised a preliminary point that the complaint submitted under the Equal Status Act, 2000 should be dismissed on the basis that the complainant has failed to substantiate his complaint that “he has been discriminated against by a person, organisation/company who provides goods, services or facilities” within the meaning of the Act. The respondent stated that this is an employment related complaint yet the complainant has not submitted any complaint pursuant to the provisions of the Employment Equality Acts, 1998-2015.

Complainant’s position

The complainant stated that the complaint relates to discrimination on the grounds of disability and that the respondent failed to reasonably accommodate the complainant in the course of his employment. The complainant’s position is that the complaint should proceed as the respondent is on notice of the complaint and is not prejudiced in any way as a result of how the complaint was submitted.

Preliminary Decision

The Workplace Relations Commission complaint form is not a statutory form. The complaint clearly relates to allegations of discrimination on the disability ground in the employment context and an alleged failure on the part of the respondent to provide reasonable accommodation to the complainant. I am satisfied that I can amend the complaint and adjudicate on the substantive issues in accordance with the provisions of Section 77 of the Employment Equality Acts, 1998-2015.

The complainant stated that he was discriminated by his employer on the basis of a disability. The complainant stated that he was suffering from a bladder condition. As a night worker the complainant would sleep during the day but his condition required multiple trips to the bathroom and returning to sleep was an issue. The complainant stated that returning to sleep was less of a problem after visiting the bathroom during the night. The complainant confirmed that he received medical advice and sought the support of the respondent in returning to the day shift on a temporary basis while suffering from the bladder condition. The complainant stated that his condition, the lack of support from the respondent, difficulties sleeping and other personal matters including his mother’s death resulted in a deterioration of his health and he began to suffer with depression. The complainant stated that he made multiple attempts to be facilitated by the respondent but was not supported in any way.

The respondent stated that it did not discriminate against the complainant. The respondent’s position is that it considered the request of the complainant that he be facilitated with a transfer to the day shift but it was unaware at the time that it was on a temporary basis. The respondent stated that it first became aware of the temporary nature of the transfer request in May 2016. The respondent stated that there were no vacancies on the day shift at the time of the request but it tried to see if a swap was possible. It stated that unfortunately there was no one willing to transfer from the day shift to the night shift.

The respondent confirmed that the complainant submitted a letter from his consultant urologist stating that “it may help [the complainant’s] medical condition if he were to work during the daytime and revert to a normal sleeping pattern at night.” The respondent’s company doctor who is also the complainant’s GP stated that he “would not expect the urologist’s assessment of shift work would be from wide experience of such, but his opinion of course weighs heavily with his patient.”

The respondent stated that it was in the situation where it considered the transfer request to be permanent in nature which it was unable to facilitate and it had also been given somewhat uncertain information in relation to the complainant’s condition.

The respondent stated that the complainant was on certified sick leave from 29th January 2016 until 22nd June 2016 having undergone surgery for his condition. The respondent stated that it was implementing a rotation programme in June 2016 and was able to facilitate the complainant with a temporary transfer to the day shift at that time. The rotation continued until March 2017.

The respondent confirmed that the complainant was deemed to fit to return to work on night shifts during March 2017.

The complainant stated that he was discriminated against by the respondent on the basis of a disability and that the respondent failed to reasonably accommodate him as is its obligation under the Act.

The parties have opposing views in relation to the transfer request that the complainant submitted. The complainant stated that it was a request for a temporary transfer whereas the respondent stated its understanding was that the request was for a permanent transfer to days.

The complainant submitted a transfer request by email on 31st December 2015 to the HR Manager. The email stated as follows:

“I wish to be considered for a transfer to a position on the day shift on medical grounds. I have a medical condition that is making it extremely difficult for me to work the night shift. I believe that working the day shift would be much better for me while I am in this condition.

I would be willing to speak to you in detail about my condition on a strictly confidential basis.”

I have considered the contents of this email and I do not find that it was a request for a temporary transfer. The content of the email suggest that the complainant believes the transfer would be beneficial to him, however this was before there was any medical opinion on the issue and the medical opinion was somewhat unclear as to whether a transfer to the day shift would definitely help his situation.

The respondent confirmed in evidence that it had never compelled a permanent transfer but had compelled temporary transfers on occasion, however it had already said it understood this to be a permanent request.

The parties engaged in further correspondence on the issue of the complainant’s request to transfer to days but the complainant’s emails on the matter did not mention that the transfer was temporary in nature. The respondent in its correspondence to the complainant confirmed that there was no vacancy on the day shift and no one on the day shift was willing to transfer to the night shift. The respondent confirmed that if there were any changes that it would reconsider its position. I find that this is consistent with its understanding that the request was for a permanent transfer.

The respondent was subsequently in a position to facilitate the complainant with a temporary transfer to days in June 2016 when he returned to work from certified sick leave and this temporary transfer continued until March 2017. The complainant is currently back working on the night shift.

Discrimination

Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows:

6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) 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) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Burden of Proof

Section 85A of the Act provides as follows in relation to the burden of proof which a Complainant must establish:

85A (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes —

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Reasonable Accommodation

The requirement to provide reasonable accommodation is set out under Section 16(3) of the Employment Equality Act, 1998 as follows:

16(3) (a) For the purposes of this Act 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) The 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 or advance in employment, or

(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;

“ employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to a person who has a disability include—

(a) such a person who is seeking or using any service provided by the employment agency,

(b) such a person who is participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and

(c) such a person who is a member of or is seeking membership of the regulatory body….

(5) Nothing in this Act shall be construed as requiring an employer to recruit, retain in employment or promote an individual if the employer is aware, on the basis of a criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful.

(6) Without prejudice to the generality of subsection (5), that subsection applies in particular where the employment concerned involves access to minors or to other persons who are vulnerable.

Naming of the parties.

Given the sensitivities of this case and the private and personal issues involved, I have decided that it is appropriate to anonymise the parties in this adjudication decision.

Conclusion

I find that the respondent was not in a position to facilitate the complainant’s transfer request on the basis of its understanding that it was permanent in nature and there was no one willing to swap from the day shift to the night shift. It had tried to facilitate the complainant but was unable to create an additional position on the day shift as this would have been a disproportionate burden on its resources. There was also a lack of any certainty whether the transfer to the day shift would help with the complainant’s condition.

In all of the circumstances of this case, I find that the respondent did not discriminate against the complainant on the grounds of his disability and that it met its obligations in relation to providing reasonable accommodation.

Having considered the written and verbal submissions of the parties and all of the evidence adduced at the hearing of this complaint, I declare that the complaint is not well founded.

The complainant contends that the respondent breached the Payment of Wages Act, 1991 by withholding payments due to him during a period of sick leave from 29th January 2016 until 22nd June 2016. The complainant contends that his total loss of earnings amount to €14,066 which was withheld as a result of the discriminatory treatment of the complainant by the respondent.

The respondent stated that the claim is without merit. The respondent stated that the complaint was submitted on 15th August 2016 which means the cognisable period is from 16th February 2016 until the 15th August 2016. The respondent stated that the claim relates to the non-payment of salary to the complainant in respect of certified sick leave from 29th January 2016 until 22nd June 2016. The respondent stated that the dates of sick leave prior to the 16th February 2016 are out of time. Notwithstanding its position on the time limit of the claim, the respondent stated that the complainant had already exhausted his contractual entitlement to sick pay of six weeks at full pay and 6 weeks at half pay.

In relation to this complaint I find as follows:

The cognisable period for this claim is the six months immediately prior to the date the complaint was submitted. (i.e. from 15th August 2016 to the 16th February 2016)

Irrespective of the timing of the complaint and the cognisable period, the respondent stated in evidence that the complainant had exhausted his entitlement to payments under the Company Sick Pay Scheme. In those circumstances, I find that the respondent did not make an unlawful deduction in contravention of Section 5 of the Payment of Wages Act, 1991.

Having considered the submissions of both parties and all of the evidence adduced at the hearing of this complaint, I declare that the complaint is not well founded.

Discrimination, Reasonable accommodation, prima facie, Unlawful deduction, sick pay entitlements