ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007541

Parties:

Representatives

Kevin Bell BL, Caoimhe Connolly of Moran & Ryan Sols

Maria Kelly BL, Dermot P. Coyne Solicitors, Aidan Burke, John Reilly, Craig Gardener, Tony Kavanagh,

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00010149-002	09/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010149-003	09/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00010149-001	09/03/2017

Date of Adjudication Hearing: 25/09/2018

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015, 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 was employed as a Driver/Installer from January 2016/October 2016 to 23rd January 2017 (date of termination in dispute). He was paid €525.00 per week. He has claimed that he was not afforded reasonable accommodation for his disability, he was discriminatorily dismissed and he did not receive minimum notice. He has sought compensation.

1)Employment Equality Act 1998, CA 10149-001

Summary of Complainant’s Case:

On 9th January 2017 he severely injured his back while lifting a heavy piece of kitchen equipment. He attended his GP and was certified unfit for work till 18th January 2018. His GP informed him that after this period he would be fit for work as long as he avoided lifting weights in excess of 5 kilograms. He returned to work on 23rd January 2017 and advised the Respondent that he could only lift weights up to 5 kilograms. (25 kilos normal). The Respondent told him that unless he was fit to carry out heavy lifting duties there was no work for him and sent him home. His Solicitor wrote to the Respondent on 23rd January 2017 requesting them to carry out an appropriate assessment in light of the Complainant’s disability, with a view to determining his disability could be reasonably accommodated. No response was received. His Solicitor wrote again noting his hardship as he was not in receipt of pay. No response was received. It became clear to him that the Respondent had intended to terminate his employment on 21st January 2017.A claim was lodged with the WRC on 9th March 2017. ON 235th May 2017 the Respondent after mediation in the WRC wrote seeking to try to explore ways that his disability could be accommodated. By this stage the Complainant had no trust or confidence in the Respondent and was seeking alternative employment, so no further engagement took place. His representatives made legal submissions on discriminatory dismissal referring to the Employment Equality Act. He maintains that he was dismissed in circumstances amounting to discrimination on the grounds of disability which is contravention of this Act. The Respondent also failed to reasonably accommodate his disability in line with its obligations under Sec 16. The legal definition of disability includes “malfunction of a part of a person’s body. This encompasses the malfunction of the Complainant’s lower back. They cited the Equality Tribunal case Clavin v Marks & Spencer (Ireland) Ltd DEC-E2015-055 in support. They relied upon the Labour Court case EED-037 A Health and Fitness Club v A Worker. It required “to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity. If the employee is not fully capable Sec 16(3) of the Act requires the employer to consider what ifany special treatment or facilities may be available by which the employee can become fully capable.

In this case the Respondent has fulfilled none of these duties towards the Complainant. He was simply informed that on 21st January 2017 that if he could not carry out heavy lifting duties there was no job for him.

Summary of Respondent’s Case:

The Complainant had worked with the Respondent as an agency worker from 6th August 2015 to 23rd December 2015. He commenced employment with Respondent on 5th January 2016. He resigned his position on 28th September 2016. He was re-employed on 10th October 2016 on a 13-week probation. After the Christmas break he returned to work on 9th January 2017 and worked 9th,10th and 11th January. He worked these days without incident and did not report any incident or illness or workplace accident. On 12th January 2017 he contacted the Warehouse Manager, not his line manager to inform him that he would not be in work and that he had injured his back on 9th January. He had not reported this to any person who had worked with him that day. He had met with the Managing Director on 11thh about his wages but had not raised it then. He was absent from work from 12th to 19th January 2017. He did not have a medical certificate when he returned to work. He was asked to produce a certificate that showed that he was fit to return to work. He did not return to work until 23rd January 2017. On 23rd he submitted two certificates. He did not report to his line manager. One of the certificates gave no reason for the absence, the other dated 20th stated that he was fit to return but with the exception that he does not bend his lower back excessively and does not twist his lower back. He was referred to his line manager but he did not go to him and left the premises. He returned to work later that day with a Social Welfare Benefit claim. He was referred to the managing director but he refused to meet him. He had presented page 6 of the claim form and the managing director reluctantly singed the form so as not to deny him sick benefit but the managing director ticked NO to the question “Do you confirm the time and place of the accident; Was this during normal working hours? He did not return to work since. No further medical certificates were submitted. He was not dismissed from his employment. On 24th January 2017 his solicitor wrote claiming that he had suffered personal injuries because of accidents which occurred on 29th June, 17th & 27th October and 9th January 2017. He never reported workplace accidents and never advised the Respondent that he had a disability. On 6th June he was written to inviting him to make contact to discuss accommodating him in his employment. He did not contact the Respondent.

Due to the Complainant’s failure to meet the managing director on 23rd January 2017 and his failure to report to work thereafter they were denied the opportunity to engage with him about the alleged workplace accident, injury and assessment of the manner in which work was carried out. He failed to do so. This claim is denied. All jobs involve lifting and carrying equipment in excess of 10 kgs. All operatives are required to have attended appropriate manual handling training. The claim of discrimination is denied. He was not dismissed by the Respondent. He refused to report tyo his line manager and refused to meet the managing director and he failed to return to work, he failed to submit further medical certificates and failed to contact the managing director in June 2017. The Respondent made legal arguments concerning the definition of disability, reasonable accommodation. They rejected that he had a disability within the meaning of the Act. He failed to inform them of a disability. His medical certificates do not support his claim. The certificate was for one week for unspecified reasons. This cannot be interpreted as a disability within the meaning of the Act. Reasonable accommodation cannot be considered when a disability was not notified. They cited case law in support.

Dismissal?

The Complainant was not dismissed. He went out sick for one week in January 2017. On his return to work he was asked to provide medical evidence for his absence. He failed to report to his line manager when he returned some days later. He also refused to meet the managing director. He refused to engage with the Respondent. There was no dismissal and as a consequence there is no claim for minimum notice.

Findings and Conclusions:

1)Disability/reasonable accommodation

Sec 2 of the Act defines what disability is:-

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

I note that the Complainant returned to work on 19th January without a medical certificate.

I note that on 23rd January 2017 he submitted two certificates; one dated 13th January 2017 stating that he was unfit for work for unspecified reasons. The second dated 20th January stated that he was fit for work with exceptions that he does not bend his lower back excessively and does not twist his lower back also lifting weights in excess of 10 kgs.

I note that he did not report to his line manager and that did not meet with the managing director.

I find that the Complainant failed to properly inform and engage with his employer, which he is obliged to do.

I find that he failed to advise the Respondent properly of his alleged back injury.

I also note that he did not submit any more medical certificates.

I note that the Respondent did not engage with the Complainant regarding the restrictions contained in the medical certificates.

I appreciate that the Complainant did not help his situation with his “stand off” in not meeting his line manager and managing director as requested by the warehouse manager.

I then note that on 23rd January the Complainant’s Solicitor wrote two letters to the Respondent, one serving a personal injuries claim and the second seeking reasonable accommodation for the disability.

Despite the Complainant’s failure to engage with the Respondent I find that it was crystal clear that the Complainant’s Solicitor believed that his client had a disability within the meaning in this Act and that he sought reasonable accommodation for his client with the Respondent, in writing.

I note that the Respondent advised that they inadvertently handed over both letters to their insurers and so overlooked the request for reasonable accommodation.

Bizarrely they offered to meet with the Complainant in June to discuss such accommodation.

I find that the Respondent was on notice of his disability concerning his back movements and lifting limitations and failed to engage with him

I find that they failed to carry out an assessment of his situation which would determine whether it was possible to provide reasonable accommodation.

I find that the Respondent has breached this Act

2)Discriminatory Dismissal

I note that the Complainant alleged that he was dismissed on 19th January 2017 when he was allegedly sent home because he was unfit to carry out normal duties.

I note that he stated on his claim form to the WRC that his termination date was 13th January 2017.

I note that at the hearing he stated that it was 21st or 23rd January 2017.

I note that his solicitor wrote to the Respondent on 23rd January 2017 seeking reasonable accommodation.

I note that the Respondent wrote to the Complainant in June 2017 requesting to meet to discuss accommodation.

I find that the Complainant was not terminated on 13th, 21st or 23rd January otherwise his solicitor would not seek reasonable accommodation for a person no longer in employment.

I note the Complainant requested his P45 in February 2018.

I find that no convincing evidence was produced that shows that there was a dismissal.

Therefore I find that there was no discriminatory dismissal.

Decision:

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 have decided that the Respondent failed to provide reasonable accommodation for the Complainant.

I have decided that the Complainant contributed to this failure by his refusal to engage with his manager and managing director.

However, I have decided that the Respondent had sufficient information in order to carry out an assessment into the Complainant’s ability or inability to carry out his normal duties and to assess the impact of his disability.

I have decided that the Respondent should pay the Complainant €5,000 in compensation for their failure to assess and provide reasonable accommodation.

This is to be paid within six weeks of the date below.

2) Organisation of Working Time Act, CA 12098-001

This complaint was withdrawn at the hearing.

3) Minimum Notice & Terms of Employment Act 1973, CA 12099-001

Summary of Complainant’s Case:

The Complaint has stated that he was discriminatorily dismissed on 23rd January. He did not receive minimum notice.

Summary of Respondent’s Case:

The Respondent stated that no dismissal took place. He requested his P45 in February 2018. This claim is rejected.

Findings and Conclusions:

I refer to the above complaint where I found that there was no evidence of a dismissal.

Decision:

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

I have decided that no evidence was produced to show that there was a dismissal.

I have decided that no dismissal took place. Therefore, there is no basis for a claim for minimum notice.

I have decided that this complaint should fail.

Dated: 27th November 2018

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Minimum notice