ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009100
Parties:
| Complainant | Respondent |
Anonymised Parties | A General Operative | An Agri-Sector Company |
Complaint:
|
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00011946-001 | 16/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00011946-002 | 16/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00011946-003 | 16/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00011946-004 | 16/06/2017 |
Date of Adjudication Hearing: 07/11/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 79 of the Employment Equality Acts, 1998 - 2015, Section 6 of the Payment Of Wages Act, 1991 and Section 7 of the Terms of Employment( Information) Act, 1994,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant is a Polish National who worked as a General Operative with the Respondent Agri Sector Business from 6 September 2006 to 12 May, 2017.The parties submitted opposing details on the Complainants pay, where the Complainant stated that he was paid €17.18 per hour and the Respondent submitted that payment was as €16.93 per hour. On consideration of the final pay slip issued to the complainant , I found that the hourly pay was recorded as €13.55 per hour plus a bonus payment . The Complainant had historically worked a three-shift cycle. This changed for a defined period of time following his diagnosis of Diabetes in 2015.He submitted several claims before the WRC on 16 June, 2017. 1 Employment Equality Acts: Discrimination on Request for Reasonable Accommodation, Victimisation and. Harassment. 2 Unfair Dismissals Acts: Constructive Dismissal 3 Payment of Wages Act 4 Terms of Employment Act He found new work on 30 May, 2017 and received €9.25 per hour for a full-time position. Both parties engaged in correspondence directly with the WRC in advance of the hearing. The Respondent Representative sought details of the complaints in submission form and the Complainant gave several undertakings to submit these details in advance of the hearing date. In addition, the WRC made repeated requests for submissions. There were no written submissions advanced by the Complainant in this case. On the morning of the hearing, the complainants Representative attributed this to be being unable to access an recognised research engine. I requested an oral outline of the case and a request for documents relied on to be shared with the respondent. After the hearing, I requested a table of Loss and Mitigation to accompany the claim for Constructive Dismissal. I did not receive this document. Interpreter: The Complainant had requested the support of a Polish Interpreter on his Complaint form. In advance of the hearing date, I confirmed the availability of the Interpreter and same was confirmed on November 4. I ensured that the Interpreter linked up with the Complainant prior to the commencement of the hearing. At the commencement of the Hearing. The legal name of the company was amended on the claim form with consent. The Complainants Representative then sought an adjournment, stating that he was unhappy with the translation provided by the Interpreter. I took some time to hear the nature of the objection. I also heard from the Respondent on this point who saw no justification for an adjournment given that English had not been a problem for the Complainant in any meeting over a 10-year employment history. I also took time to hear from the Interpreter who assured me that Slovakian and Polish languages were similar and the complainant had confirmed that he understood. I engaged with the Complainant to assess his level of understanding of the exchange between the parties. While I noted that he was clearly nervous, his body language and oral responses to me indicated that he understood. I checked this on several occasions. The Complainants Representative then sought an adjournment to “settle” the case and before I got to consider this further, The Respondent confirmed a refusal of that invitation. I proceeded with the hearing and confirmed the number of witnesses. During the morning, I habitually checked in with the Complainant that he was following proceedings and advised him to let me know if he had any comprehension difficulties. There were none. At 13.45hrs during the break for lunch, the Interpreter sought to excuse himself from the hearing. I advised him that I required him to remain as booked. He approached the Complainants Representative. When I resumed the hearing, the Complainants Representative informed me that the Interpreter had to go but he was happy to proceed with the hearing without interpretation. I requested a formal response from both parties to this and both parties affirmed their satisfaction to proceed. |
Summary of Complainant’s Case:
CA-00011946-001 Claim under Employment Equality Act 1998 The Complainant had worked as a seasonal worker for the Agric Sector business since 2006. He had developed Type 1 Diabetes in 2015 and had worked a two-shift cycle of mornings and evenings rather than a three-shift pattern for the past 1.5 years. The Complainant received a letter from his Site Manager, Mr S, dated 13 February ,2017 which indicated that the temporary rehabilitative two shift cycle could no longer be facilitated as the shift cycle was no longer available. he was advised to attend for work on February 20 at 10 pm. The Union responded to the letter on February 16: The Complainant had a 2-shift cycle for the last year and a half which suggests that a permanency has been established in that regard. The Union sought a retention of the two-shift cycle and advised that the Complainants Disability would “debar him from the shift cycle you propose “ The Complainant did not present for work and received another letter from the Respondent dated February 22, 2017.where the he was invited to return to work on the day shift from a period of unauthorised absence. The Complainant returned to work on 22 February, 2017. He submitted a copy of a letter sent to Mr S confirming his intention to return on February 22. On March 2, 2017, he met with Mr S to seek to resolve his incapacity for Night work The Complainant worked until Friday, March 3 after which he proceeded on sick leave. He received a further letter from Mr S dated March 20 which re-affirmed that the business was not able to facilitate him in not working nights. He was advised to submit sick certificates to cover his illness. On 3 April, the Union wrote to the Respondent and stated: The only impediment to the Complainants return to work is the medical instruction that he cannot work nights. He is medically fit to work mornings and evenings ….and for him to submit a medical certificate for those times could be deemed to be an abuse of the sick leave scheme The Union requested that the Complainant be facilitated with morning and evening shifts with an alternative arrangement when night work arose. This did not elicit a response. The Complainant believed that he was available for work. The Complainant submitted a Medical report from his GP dated May 2, 2017, which recommended that he desist from working nights. He also submitted an Endocrinologist Report dated 25 July 2016.He submitted a Report from a Polish Medical centre dated 26 August 2016 which recommended that the Complainant not work during night-time or in high temperatures. The Complainants Representative submitted that the Complainant had been Discriminated on Disability grounds by being denied Reasonable accommodation. Complainants Evidence: The Complainant learned that his two-shift cycle of day sand evenings was no longer to be accommodated and a return to nights was imminent when he received the letter of 13 February. He knew that his Polish Doctor had recommended him not to do nights. He submitted that he had asked to be swopped from nights but was informed that another colleague who had covered was out sick. Mr S informed him that he wasn’t willing to accommodate him anymore and that he was going to move staff around. The Complainant asked to be laid off but this did not occur. He was unclear on dates but knew that the Company Doctor had told him not to work at nights and just to concentrate on mornings and evenings. He referred to the Occupational Health Report dated February, 27, 2017s. When he visited his GP, he told him that he was fit to work outside of night shifts and the GP couldn’t give any sick certs. He forwarded a letter from his GP to the Company and there was an exchange of correspondence with the Union. The Complainant submitted that his position was filled by a Colleagues cousin while he was out sick and the company was aware of his diabetic condition. He contended that there was no such thing as rehabilitation for the diabetic condition, he lived with it and managed by twice daily injection. He felt that the company did not understand him and had not trained the staff on his condition. During cross examination, the Complainant confirmed that the Irish based Endocrinologist had only commented on his condition over one day in August 2016 and had not placed restrictions on his work. The Complainant confirmed that he wanted to work Night Shift but disputed being able to manage his injection regime at night where he took one injection with a meal and the second at night without a meal. He denied having any conversation on the Night shifts with MR S outside being asked to do the nights and “ I was just afraid to try the nights “ He believed that it would clash with his dietary regime .He disputed that this was his own idea and remarked that this was also the finding from his Polish Doctor and he had decided to follow that direction .He had lost 23 kg over a 17 month period of time during the early part of his diagnosis . The Complainant stated that he had not seen the Occupational Health Report before his meeting with Mr A on March 3nd, details were shared at the 10-minute meeting. He re-affirmed that he believed that he was discriminated against and treated less favourably than colleagues who did not have Diabetes. He confirmed that he had not actioned the Grievance procedure. Victimisation: The Complainant outlined that he had been victimised through the unnecessary and unlawfully removal from the sick pay scheme where he was left with no income and unable to work night shift. Harassment: The Complainant contended that he was harassed by receiving letters telling him to submit sick notes and by the company’s unwillingness to discuss alternatives on a return to work. CA-00011946-002 Claim under Unfair Dismissals Acts 1977-2015 The Complainant submitted that he had been forced to hand in his resignation due to the conduct of his Managers who suddenly decided that he should work three shifts instead of the two shifts in contravention of medical advice. He claimed that he was constructively dismissed. The Complainant outlined that his sick pay ceased in March 27, 2017, He was unable to undertake the three shifts of morning, evening and night duty. He resigned his position by letter dated 16 May, 2017 He undertook to furnish a Table of loss and mitigation. He submitted that he had asked friends regarding employment and had passed his CV around. He stated that he had no means of getting back to work but was fit for work. He secured alternative employment of a full-time nature on May 30, 2017. The Complainants Representative submitted that the Complainant was not aware that the Grievance procedure was necessary at the time. He was partly ill for night work but available for day and evening work. CA-00011946-003 Claim under Payment of Wages Act, 1991 The Complainant outlined that he had refused to work night shift due to his illness and was placed on sick pay for a number of weeks .He was advised by his Union to cease Doctors certificates because of his availability for two shifts rather than three .The Respondent ceased payment on 27 March, causing him to be at a loss of seven weeks wages .He contended that this amounted to a significant breach of Section 5(1) of the Act and sought payment of €4691.40 in unpaid wages . CA-00011946-004 Claim under Terms of Employment Act, 1994. The complainant submitted that he was not properly notified of the management changes in his terms of employment, namely the 3-shift cycle. |
Summary of Respondent’s Case:
The Company operates in the Agri- sector and employs 56 people in peak season and 28 in low season. The Complainant was employed as a seasonal worker. The Respondent disputed the claims of discrimination by treating the complainant less favourably than other staff pursuant to s.6(1)(a) and s.8(1)(b) of the Acts. CA-00011946-001 Claims under Employment Equality Act 1998-2004 The Respondent operated a Dairy Process site, where the complainant was engaged on a February -October basis in a highly regulated and automated environment. The Respondents representative outlined that the Complainant began to have difficulties at work in April 2015 where he received a verbal warning. At that time, the Complainant alleged discrimination and attended the Company doctor. He argued that his own Dr was better qualified than the Company Doctor but agreed to attend the Company Doctor on June 10, 2015.First aiders at the company were alerted to the Complainants condition by Occupational Health. The Complainant was also subject to a Final Written warning in respect of a workplace incident in or around June 2015. The Complainant, following Occupational Health review was placed on restricted duties of “no nights, no confined space or working alone duties “between June and July 2015. He worked a combination of shifts of 6 am to 2pm and 2pm to 10 pm. He remained subject to a no nights’ clause until he engaged with Occupational Health Services and a Consultant Endocrinologist. Two extra people were hired to cover this shortfall in night cover. The Complainant had retained his rate of pay throughout the Disciplinary processes of 2015.He maintained the premium for the three shifts. Having reviewed the Complainants Occupational Health review, the Complainant was deemed fit for all duties on 2 August, 2016. The company sought to engage with him on this recommendation to return to a three-shift cycle. The complainant attended Occupational Health for an updated review on 26 August 2016. He was deemed fit to attempt his normal shift and engaged with Mr S on 27 January and 13 February 2017in that regard. The Meeting of 13 February did not go well. The Complainant did not accept the Occupational Health Physicians recommendations. He made many statements during this meeting about redundancy, coming back to work, discrimination and mentioned that he had an appointment about another job later that week. He stated that he would see the company in court and confirmed that he had taped the meeting. The Company outlined their expectation that the complainant would resume work on his three-shift cycle on February 20 but he failed to attend or notify of his absence. He was prevailed on to attend work on February 27 the at 6 am when the complainant sought an Occupational Health review. This followed on February 24. The Complainant submitted his Polish Consultants report which recommended no night work or work in high temperatures. On March 3, 2017, the Complainant was informed that the two-shift cycle was no longer viable and a return to the three shifts was required. The Complainant was unfit for work and required to go on sick leave with a plan to review in 3 to 4 weeks. If he continued unfit for nights his position may be at risk. The Human Resource manager committed to scoping out other opportunities for day work in other primary dairy sites during this time. The Complainant was advised to comply with sending in medical certificates. Sick pay was ceased on 27 March, 2017 in the absence of medical certificates. On April 3 ,2017 the Company received correspondence from the Union seeking a restoration of the two-shift cycle and the respondent advised that that the complainant should comply with the sick pay scheme requirements and forward medical certs. The Company also sought that the complainant consent to completing a Medical Information Form to obtain information from the Complainants Dr in Poland. The Complainant forwarded his letter of resignation on May 15, 2017. The Company contended that the complainant had failed to establish a prima facie case of discrimination as such the burden of proof did not shift to the Respondent. The Respondent argued that always they took on board the medical advice that was available to them. The Complainant was advised to attempt to work nights but refused. The Occupational Health Physician only received one letter from the complainants Doctor at the February 2017 review. Correspondence to the Polish Doctor went unanswered. The Respondent submitted that they made consistent efforts to assess the complainant’s situation in a timely and proactive manner and to explore a full range of options to accommodate the complainant’s disability in cooperation with the complainant pursuant to Section 16(3) of the Act Government Dept. v A Worker Labour Court, ADE0516, applied. The Respondent contended that the complainant had failed to identify a comparator in relation to whom he was less favourably treated. No supporting or corroborative to the complaint form had been submitted. Evidence of Mr S (The Site Manager) Mr S had worked for the company since April 2011. He described the Highly regulated and highly automated work environment of the Dairy process .He recalled that the complainant had been granted reasonable accommodation in 2015 when he was placed on restrictions in recovering from hi stillness .The Company had not encountered many employees who had Diabetes .Two extra people were hired to cover this shortfall in night cover .The Complainant had retained his rate of pay throughout the Disciplinary processes of 2015.He maintained the premium for the three shifts . Mr S recalled seeking that the Complainant would try the around August 2016. The company was willing to place a first aid room and a facilitation for his mediation at his disposal to assist in the return to the three-shift cycle. He recalled the complainant raised the question of “consciousness “. Mr S confirmed that he was being requested to “attempt “to return to Nights. Mr S formed the view that the Occupational Health Physicians opinions were not rated by the complainants when he sought to hand him and rely on the Polish Medical Report. Mr S asked the complainant to pass this document to The Occupational Health Physician as the company was bound by medical expertise. He recalled meeting with the complainant On February 13, 2017 to encourage his return to nights but he became aggressive and sought redundancy, which was rejected as there was work available Mr S also refuted a claim of discrimination and found that unbelievable. He was invited back to work but failed to appear. Mr S had never seen the letter dated 22 February, 2017 which signalled the Complainants intention to return to work on February 22. When he returned, Mr S and the Human Resource Manager met with the Complainant to ascertain whether he would return to three shift cycle. the Complainant stated that he wouldn’t be able to do night shift. There was no discussion. In referencing the contact by the Union, the Company wanted to rely on medical advice. Mr S submitted that the Company did not have any other open position, there was no alternative work and the Human Resource Manager agreed to look around. There was one person appointed to warehouse position without a commitment to night work. In Cross examination, Mr S was pressed on whether it was company policy to take minutes and he confirmed that he would have to check if written records were in place. In seeking to explain the financial burden around the Complainant not partaking in the third shift, Mr S explained that the shift was covered but needed to carry another person and added a further cost. An additional person was not hired in 2017. the three shifts were the ideal rota. He confirmed that the cost of replacement for the complainant had been raised with the complainant but not quantified. Mr S confirmed that the complainant had not conformed with the sick pay scheme. He confirmed that he had not activated the Grievance procedure. Evidence of Ms HR, (Human Resource Manager) Ms Hr confirmed that she became involved in the case around November 2016. she recalled that the Complainant had been deemed fit for work as the season came to an end. In the run, up to returning to work in Spring, 2017, It was the Company’s intention to seek to secure the complainants cooperation in attempting night work for a short period. Ms HR had not seen the February 22 letter .She recalled the meeting of March 3 , 2017 with Mr S and the Complainant where she explained to the complainant , that if he contended that he was not fit for work ,he needed to be on sick leave and she undertook to look at possibilities outside the business for him such as a 12 hour shift .She was clear that she wanted the complainant to come back and work three shifts .She did not recall any suggestions put forward by the complainant . The Complainant did not give any indication that he anticipated a difficulty in securing medical certificates. He sent in his consent for access to Medical records. Ms HR confirmed that the period of sick leave was viewed by the respondent as an opportunity to plan to attempt to return to the nights while allowing her an opportunity to scope out alternative measures. She explained the circumstances surrounding typical back to work post-surgery as resulting in reasonable accommodation where a re-assessment would follow. During cross examination ,in referring to the OccupatioanlHealth Report of February 2017,she denied that the complainant had been approached to dissuade him from this Report .She confirmed that the Complainant was clearly advised that the company required him to work 3 shifts .She confirmed that sick pay is grounded on whether a Doctor feels that an employee is fit for work She confirmed that the complainant received full pay in March but did not receive payment from the company after that . The Respondent denied both claims of Victimisation and Harassment and affirmed that the complainant had not furnished medical certs in accordance with agreed the operation of the sick leave scheme. The Respondent also submitted that it had not harassed the complainant. CA-00011946-002 Claim under Unfair Dismissals Acts 1977-2015 The Respondent disputed that the Complainant had been dismissed and instead submitted that he had resigned by way of a letter dated 15 May 2017. The Respondent submitted that the Complainant was not able to satisfy the parameters of Section 1 of the Act by relying on either The Respondent contended that the sole letter received from the Complainant in relation to his resignation was the letter of May 15 and they had not seen the letter furnished by the complainant at the hearing dated 16 May. In referring to case law in: Conway V Ulster Bank UD 474/1981, the Respondent had not demonstrated they were no longer to be bound by the contract of employment. Mc Cormack V Dunnes Stores UD 1421/2008, where the EAT had stated that The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise to resolve his/her grievance with his/her employers. The employee would need to demonstrate that the employers conduct was so unreasonable as to make the continuation of employment with the employer intolerable The Respondent submitted that the complainant had not relied on the Grievance procedure to advance any claims for unfair treatment and could not now choose to rely on an argument on unreasonable behaviour by the employer. The Company had been very fair with the complainant. The Respondent had supported him in his illness and was disappointed when they were not permitted sick notes from his Doctor during sick leave. The Respondent understood that the complainant went straight to a permanent job on leaving the respondent employment the P45 issued to him the week after. CA-00011946-003 Claim under Payment of Wages Act, 1991 The respondent disputed the claim and submitted that the complainant had been made fully aware by the company of the conditions of the sick pay scheme. He was written to on two occasions advising him of the requirement to submit medical and social welfare certs in the absence of which he would be suspended from the scheme. The Complainant had not abided by the terms of the scheme and the deduction made was an authorised deduction in terms of the contract CA-00011946-004 Claim under Terms of Employment Act, 1994. The Respondent disputed the claim. The Complainant received an annual contract at the commencement of the season. He worked a three-shift rotation until he was granted a medically advised accommodation to help him manage a Diabetic complaint in 2015. This was with his consent and in consultation with the Company Medical Advisors and was not time specific. |
Findings and Conclusions:
CA-00011946-001 Claim under Employment Equality Act 1998. I have considered the claim advanced by the Complainant and the response furnished by the Respondent. I accept the Respondent submission that the Company was disadvantaged by the lack of a written submission in this case. I was also inconvenienced by this approach. Both parties confirmed their acceptance that the Complainant had a Disability in accordance with Section 2 of the Act. The statutory provision relevant to this case is that of Section 16 of the Acts on reasonable accommodation. Section 16 of the Employment Equality Act 1998, as amended, provides as follows: (1) Nothing in this Act shall be construed as requiring any person to recruit orpromote 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 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. ….. Section 16 (3) provides (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 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;” This section of the Act places an obligatory responsibility on the employer to engage with an employee seeking reasonable accommodation. In this case, it did not obligate a return to work for two shifts rather than three shifts for the complainant, but it sets down a road map to be followed to explore the possibilities (appropriate measures) if any to avail of reasonable accommodation. I have considered the Medical reports submitted by both parties in this case and the sequence in which they evolved. It is relevant that the Complainant was a seasonal worker from February -October on an annualised basis. From the outset, I found the Respondent clear and candid in relation to how the first period of Reasonable accommodation from 2015 -2016 evolved. The Occupational Health Report dated August 26, 2016 confirmed that a number of months had passed awaiting a Specialist Consultation regarding Night Work and an interim “short term accommodation” had run on longer than anticipated. This reflected the two-shift system of work. Both the Endocrinologist and the Occupational Health Physician reported that the Complainant was managing his condition and the Occupational Health Physician submitted that Night work was not prohibited on Medical grounds. It is important to capture that the Complainant had registered a firm personal objection to night work also now. The Respondent acted in accordance with the recommendations of that letter and sought to re-activate the three-shift pattern in accordance with the operational requirements of the Plant. The Complainant submitted a copy of a Polish Medical Report which was translated and dated as August 2016.This timeline was concurrent with the former reports referred to above. I am at a loss as to why the Complainant did not submit this report which indicated a recommendation against night work before the end of February, 2017.This was a material document in the case and one which was subsequently incorporated into the Occupational Health Report of 27 February ,2017. I have found that the Respondent followed all the Medical advices in their possession until the evolution of the Occupational Health Report of 27 February. Another consideration in this case is the visible lack of cohesion between the Treating and Consulting Doctors in this case. There is a clear line of communication established between the Endocrinologist based in Ireland and the referring Occupational Health Doctor. However, there is no reciprocal pattern between the Complainants Doctor in Poland and his Polish GP. I found this to be unusual in an EU setting and particularly as the GP made no reference to a Polish based consultation in his Medical report dated May 2, 2017. I note that the Respondent made a latter-day attempt to close that gap via the release of medical information letter signed by the Complainant in April ,2017. It is of note that there was no response to that attempt. I have also taken account of the fact that the sole GP letter submitted in this case referred to a Medical report rather than a chronology of sick leave management. In short, there was no record that medical certificates had been refused by the Complainants GP in March, 2017. As none of the medical practitioners referred to in the case presented as witnesses, I have reflected on the last Report issued by Occupational Health in February 2017 and proceeded to analyse what followed the recommendation where the Complainant was deemed medically unfit for night work. It seems that the March, 3, 2017 Meeting between the Complainant, Mr S and Ms Hr served as a watershed in this case. Both parties accept that the Occupational Health Report was read out and both parties accept that the Complainant refused to do night work. This outcome seemed at variance with the spirit and intention contained in the Medical recommendation. I was troubled by this first inconsistency noted from the Respondent who had previously affirmed a firm adherence to medical advice. However, I was also struck by the very credible evidence of Mr S when he stated that there was no discussion on the topic. He was surprised that the Complainant had not put forward alternatives. It remains unclear to me just how the sick leave evolved at that point. The Respondent confirmed that the proposal of 3 shifts was rejected and the complainant did not make a counter proposal outside the two-shift system. The Complainant stated that he commenced sick leave on March 6 and did not return to work. He accepted paid sick leave for three weeks after this but did not submit any Social welfare certs or Doctors certs. This suggests to me at least that a Reasonable accommodation was considered by the respondent in the form of paid sick leave to suss out alternatives such as 12 hour shifts. Alternatives did not materialise. The question in this case is centred on whether the complainant was reasonably accommodated within the parameters of Section 16 of the Act? The Respondent planned to implement the Medically advised actions of a return to three shifts for the complainant in early 2017. However, the Respondent did not embrace the recommendation of February 27 on the Complainant not being medically fit for night work. I appreciate that the respondent was struggling to maintain a three-shift system in the company’s busiest period and the complainant formed a core member of that team. I understand that the two-shift working environment may have been problematic but there was a strict legal onus on the respondent to try at least to explore options with the complainant given that he had placed them on formal notice of his intentions in this regard without placing a disproportionate burden on the respondent. There was some scope for a full assessment of measures necessary to accommodate the complainant as referred to in A Hotel V A worker EDA 0721. The Respondent did not complete a risk assessment of Night work. I accept that the Complainant was fearful of Night work and the potential for a negative impact on his illness, however I also noted that a 3.30 am Insulin regime was recorded as part of his daily treatment regime. In ECJ HK Danmark v Dansk Almennyttigt Boligselskab DAB and KK Danmark v Pro Display C-335/11and C-337/11The ECJ marked the transition from the medical to the social approach to Disability in recommending that the pattern of working hours could be adjusted as reasonable accommodation .
“If a curable or incurable illness entails a limitation which results in particular from physical, mental, or psychological impairments which in interaction with various barriers may hinder the full an effective participation of the person concerned in professional life on an equal basis with other workers and the limitation is long term one, such an illness can be covered by the concept of disability within the meaning of Directive 2000/78/EC.”
In Nano Nagle Centre v Marie Daly [2015] IEHC 785, Noonan J. held that options with regard to reasonable accommodation need to be put to the person claiming under this clause. This could involve adaptation of work patterns, distribution of tasks, inclusive of elimination of tasks. The High Court held that the respondent had to prove that it had considered adjusting the duties required of a Special Needs Assistant to permit a return to work. The High Court recognised the restrictions to this obligation when it stated:
“It may or may not be relevant to consider whether a point is reached where the appropriate measures transform the job into something entirely different from that which originally existed “
The Complainant had worked for almost 9 years prior to his diagnosis of Diabetes in 2015. He was granted reasonable accommodation from 2015 until the review period of Spring 2017 when he was asked to “try the nights”. This was not a request for a trial of 1 night or even two nights but the entire shift of nights. He vetoed this proposal and proceeded on sick leave on March 6. The Respondent did not cost the impact of reasonable accommodation at this point or demonstrate whether it would have placed a disproportionate burden on the employer. References to two back up staff hired in 2016 to float the reasonable accommodation for the complainant were not qualified in the detail of the Respondents submission.
I have found that the Respondent had a positive track record of granting reasonable accommodation 2015-2017. The Complainant was not in my opinion sufficiently present in work related meetings February to May 2017 to scope out alternatives in accordance with Section 16(3). While the Act places the more onerous burden of reasonability on the Employer in this regard. It is reasonable that a complainant makes himself/herself available for conversations /assessments/evaluations of alternatives for a continuation of a favourable consideration of reasonable accommodation, particularly in this case where the Night Premium continued to be paid. In Queally Pig Slaughtering V Robert Tkac EDA 1618, the Labour Court referred to the previous case of A Worker V an Employer [2005] ELR 159, as a test to be applied in cases of access to reasonable accommodation. “….to make a proper and adequate assessment of the situation before decisions are taken which may be to the detriment of a disabled employee ….” In Tkac, the court held that” the respondent did not consider the possible options that were available” They pointed to the omission of a medical report.
I have found that the Respondent had decided to curtail the reasonable accommodation granted to the Complainant in 2015 and this was not disturbed by the February Occupational Health Report which stated that the complainant was unfit for nights. By going against these recommendations in favour of the proposal grounded solely by business exigencies, the respondent fell short of their obligations in Section 16(3). While I appreciate that, there is no statutory guidance on a suggested duration for reasonable accommodation and I note that the Complainant had retained his night premia during the reasonable accommodation phase, I have found that the medical recommendations contained in The Occupational Health Report of February 2017 did not anchor a proper or adequate assessment before a decision was taken to insist that the full range of shifts be undertaken on March 2, 2017. In making this finding, I understand that the Respondent was not compelled to facilitate the day shifts to the detriment of the night shift, but rather the Respondent was obliged to exercise a consideration of an adaptation of patterns of working time. I appreciate that the respondent was not aided in this by the Complainants lack of engagement or utilisation of the Grievance procedure to aid a resolution. It would have been of assistance to me to have had sight of the minutes of the meetings on February 13 and March 3, 2017. The Complainants lack of co-operation with the company sick leave scheme and his subsequent termination of employment dated May 15,2017 were also factors which militated against an agreement on reasonable accommodation. I have found however, that the Complainant has attained the burden of proof set out in Section 85A of the Act and has demonstrated a prima facie case of discrimination where he was denied reasonable accommodation within the meaning of the Act, which the respondent has failed to rebut.
Victimisation: The Definition of Victimisation is set out in Section 74(2) of the Act. The Complainant gave an undertaking on his complaint form dated 16 June 2017 that he would provide details of the claim in chronological order at the hearing. When invited to address the claim submitted on victimisation, the Complainant made a sole reference to his removal from the sick leave scheme but he did not specify the complaint or the person or body to whom he made the complaint in accordance with Section 74(2). He offered no evidence in support of his claim of victimisation. In a recent Labour Court case Rapier Contract Services ltd V Adina Predut EDA 187,the Court emphasised the requirements in establishing a case of Victimisation . As Section 85A places the burden of establishing the material facts on which a complaint is based on the Complainant and as she has failed to do that in this regard the Court finds that she has not met the burden of proof set out in section 85A of the Act. I find that the complainant has not met the burden of proof set out in Section 85A of the Act.
Harassment: The Definition of Harassment is set out in Section 14(A) of the Act and I have not received any details of this claim outside a contention that the Complainant had been harassed by letters from the Respondent. The Complainant did not offer evidence in the claim. I find that the complainant has not met the burden of proof set out in Section 85A of the Act. CA-00011946-002 Claim under Unfair Dismissals Acts 1977-2015 I have considered the evidence adduced in this complaint. I have found that there is a considerable overlap in the facts of the previous claim for reasonable accommodation. The Complainant stated that he was forced to hand in his resignation directly rising to having to work nights which was contrary to the medical advice of his GP and the Company Doctor. A Claim for Constructive Dismissal places a very high burden on the Complainant. He is required to demonstrate that his resignation was involuntary either through breach of contract or through the unreasonable conduct of his employer. The Complainant made the employer aware that he had Diabetes and this was being managed through reasonable accommodation until Spring 2017, when the Employer made a proposal to return to three shift pattern. The Medical reports which the Complainant referred to in his complaint pointed to one letter from the GP dated May 2,2017 which read as a report and the Occupational Health Report dated February 27, 2017. The Complainant gave evidence that he commenced his new position on May 30, 2017, but refrained from furnishing the requested table of mitigation and loss. The Complainant went on sick leave on March 6, 2017 and was paid until March 27. The Company sought his cooperation with the requirements of the sick leave scheme but the complainant chose not to furnish the requested medical certificates and he was notified on cessation of pay in early April. I was struck by the Complainants reluctance to activate the company grievance procedure to pursue lost earnings and his stated desire to come straight to the WRC in April 14,2017. He stated that he had not claimed Illness benefit and I could not establish any signs of protest outside letters from the Complainants Trade Union. This was confusing for the Respondent, who understood that he was a member of a house Union. Perhaps it may have been prudent for both parties to have had a formal meeting in this intervening period. Section 1 of the Act defines dismissal in the following manner 1. “dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer…… Dismissal is disputed in this case. I have had an opportunity to consider the contract and assess the conduct of both parties in this case. The complainant was hired to provide cover during peak milk processing season and the contract provided for a flexibility and mobility clause. I am not satisfied that there was a breach of this contract. The Complainant was permitted paid sick leave as a measure to facilitate a resolution to the impasse surrounding the proposed return to three shifts. The Respondent made reasonable efforts to secure his co-operation with the scheme but the Complainant did not comply. I have found that the Respondent was keeping the door open in this regard. What was surprising is that the Complainant absorbed a 7-week period of cessation of pay without protest or activation of the company grievance procedure. I have not found that the Respondent acted so unreasonably to justify grounds for termination. The Complainant submitted that he had a period of sick leave in 2009 post surgery that was without incident. He was clearly familiar with the scheme. On 14 April, 2017 the Complainant filled in the Request form to release information from hi doctor in Poland. This was not accompanied by any other concerns. The Complainants signed resignation followed 4 weeks later and it stated: Please accept this letter as a formal notification that I am leaving my position with X company on May 2017. This letter did not point to any distress. The date of departure Is not declared. The Complainants Representative submitted another copy of a letter dated 16 February which the Respondent stated they had not received. I am not able to accept this letter which is dated one day after the letter of dismissal and was unsigned. Based on the evidence before me I have not established that the Complainant has met the test for Constructive Dismissal. I have found that he resigned on a voluntary basis without exhausting the internal procedures. CA-00011946-003 Claim under Payment of Wages Act, 1991 I have given careful consideration to this claim which arose from the same facts as the preceeding claims .I have studied the Respondent sick pay scheme as an express term of the 2015 contract submitted by the Respondent at hearing . The eligibility criteria for paid sick leave is set out in Section 9 of the document and is predicated on : 1 Three seasons history of employment 2 Notification of Illness 3 Medical certificate for absences more than 2 day 4 Payment is hybrid of Social welfare and payroll . 5 Attendance at the Company Doctor I found that the Complainant was aware of this scheme, having been a beneficiary in 2009 and for a three week period in March 2017 .It was an express term of his contract and I cannot accept that it was fair or reasonable to stand back from the terms of the scheme on the advise of his Union .He did not action the grievance procedure . Section 5(1) of the payment of wagers Act provides that a deduction in wages is not permitted save through contract , statute or written consent reasons . I have found that the Respondent invited the complainant to participate in the sick leave scheme and he chose not to. I have found that the deduction occurred because of an express term of the complainant’s contract of employment, which was known to him. The Claim is not well founded. CA-00011946-004 Claim under Terms of Employment( Information ) Act, 1994. I have considered the claim as advanced by the Complainant and the response furnished by the Respondent . I note that neither party submitted a real time statement of terms of employment . I have insufficient evidence before me to consider this complaint . I note the statement intended in the correspondence between the parties to secure the Complainants return to a three shift cycle in February , 2017 . I have not established a contravention in the legislation. DECISION: CA-00011946-001 Claims under Employment Equality Act 1998. Reasonable Accommodation: Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. I have concluded my investigation of the complaint herein and based on the I find that pursuant to Section 79(6) of the Act, the Respondent discriminated against the Complainant on grounds of disability in terms of Section 6(2)(g) of the Employment Equality Acts and failed to provide him with reasonable accommodation to enable him to continue work in terms of Section 16 of the Acts. In accordance with section 82 of the Act, I order that the respondent pay the complainant €4,000 in compensation for the breach. The complainant was not in receipt of remuneration from the respondent at the time of the complaint. The entire award of €4,000 is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act, 1997 (as amended). I order the respondent to incorporate a policy on reasonable accommodation in their staff handbook within 6 weeks from the date of this decision. Victimisation: I have found that the Complainant has not established the required burden of proof in this case and the claim cannot succeed. Harassment: I have found that the Complainant has not established the required burden of proof in this case and the claim cannot succeed. CA-00011946-002 Claim under Unfair Dismissals Acts 1977-2015 Section 8(1)(b) of the Workplace Relations Act, 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions in accordance with section 7 of the Act of 1977. I have found that the Complainant has not me the test to establish a Constructive Dismissal. The Claim cannot succeed. CA-00011946-003 Payment of Wages Act, 1991. Section 6 of the Payment of Wages Act, 1991 requires that I decide in accordance with the redress provisions under the Act. I have found the claim to be not well founded. CA-00011946-004 Terms of Employment (Information) Act, 1994. Section 7 of the Terms of Employment (Information) Act ,1994 requires that I make a decision in accordance with Section 3 of the Act. I have found the claim to be not well founded.
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