FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : G4S CASH SOLUTIONS IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - DARIUS MUCHA (REPRESENTED BY SEÁN COSTELLO SOLICITORS) DIVISION : Chairman: Mr Haugh Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision No: ADJ-00003947.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 29 August 2018. The following is the Determination of the Court:
DETERMINATION:
Background to the Appeal
This is Mr Mucha’s (‘the Complainant’) appeal of an Adjudication Officer’s decision (ADJ-00003947, dated 21 February 2018) under the Employment Equality Act 1998 (‘the Act’). The Complainant’s Notice of Appeal was received by the Court on 3 April 2018. The Court heard the appeal in Dublin on 29 August 2018 in the course of which it received evidence from the Complainant and from Mr Morgan Tutty on behalf of G4S Cash Solutions Ireland Limited (‘the Respondent’).
The Complainant was employed by the Respondent as a cash service operative between 25 November 2013 and the date of his resignation, 18 January 2016. He filed a complaint with the Workplace Relations Commission on 30 June 2016 alleging that he had been constructively discriminatorily dismissed by the Respondent and that the Respondent had failed to make reasonable accommodation for his disability.
Prior to his resignation, the Complainant had been on long-term certified sick leave, due to depression, from 8 August 2015. The Respondent referred the Complainant for assessment by its occupational health advisors (Corporate Health Ireland) on 19 August 2015 where he was assessed by a Dr Kevitt in whose opinion the Complainant was at that time unfit for work. Dr Kevitt’s report advised the Respondent that the Complainant was attending his own GP and accessing appropriate treatment and that, in her opinion, it would be some six to eight weeks hence before he would be fit to return to work. She recommended that the Respondent arrange a follow up appointment for the Complaint with her four weeks later at which she could assess his progress. Dr Kevitt did not make any recommendation in this report in relation to the provision of reasonable accommodation for the Complainant’s disability.
The Respondent referred the Complainant for a second assessment by Dr Kevitt on 15 December 2015. In her report, Dr Kevitt noted that the Complainant’s condition had improved significantly and stated that, in her opinion, he should be medically fit to return to work in January 2016. She recommended that “he should not work alone for at least his first six to eight weeks back if at all possible”.
At the Respondent’s request a meeting took place in early January 2016 to discuss the Complainant’s return to work. The Complainant was accompanied at that meeting by a SIPTU shop steward. Mr Tutty and a Ms Lynch – who at the time worked in the Respondent’s Human Resources department – attended from the Respondent’s side. It is common case that this transpired to be a very short meeting. When asked if he was fit to return to work during the month of January 2016, the Complainant replied that he would first have to consult with his own GP before confirming his position. He indicated that he would make an appointment to see the GP and then let the Respondent know the outcome. He suggested that a further meeting could then be arranged.
There is a dispute between the Parties in relation to the Respondent’s reaction to this proposal. The Complainant alleges that Ms Lynch told him that if his GP were to say that he still had outstanding health issues, there would be no need for a further meeting; he could inform the Respondent by email and drop in his uniform and identity card to the Respondent’s offices. Mr Tutty, in his evidence, denied that Ms Lynch made any such remarks. No minute or note from the meeting was furnished to the Court. Neither was the SIPTU shop steward who had attended with the Complainant called as a witness.
The Complainant attended his GP on 12 January 2016. The GP prepared a report dated 13 January 2016 in which he advised that the Complainant “feels that he is not mentally and physically ready to return to full time employment at present” and “He feels that the nature of the work will adversely affect his mental and physical health ...”. The report goes on to list the reasons advanced by the Complainant to his GP to explain why he felt as he did. The GP’s report concludes with the following sentence: “He is considering a change in occupation for the above reasons”.
The Complainant, it appears, did not take any further action in relation to his employment until 18 January 2016 on which date he sent an email to Ms Lynch resigning his employment, attaching a copy of the GP’s letter of 12 January 2016. In that email he stated:
“Please accept my leaving notice from work with effective date of 18thJanuary 2016.
Due to health issues related to work conditions I am no longer able to continue to work with your company. Please forward P45 and P60 for 2015.
Thank you for opportunity to work with G4S.”
The Complainant returned his uniform and identity card approximately two days later. He did not avail himself of any grievance procedure. He denies ever having been furnished with a grievance policy by the Respondent. In his direct evidence, the Complainant told the Court that he was happy with his decision to resign as the Respondent had not demonstrated any interest in him or concern for his welfare during his absence on sick leave. He said he didn’t want to continue to work for a company that “doesn’t care”. In cross-examination, Mr O’Gorman put it to the Complainant that he had not thought to raise any of these issues in his letter of resignation or on the occasion when he met with Ms Lynch when returning his uniform. The Complainant’s only response to this was to say the resignation letter had been drafted by a friend of his. In response to a question from the Court, the Complainant said that his decision to resign his employment was based on the conversation he had with his GP on 12 January 2016 in the course of which the GP told him that the Respondent wasn’t the only company in the world and suggested that he consider alternative employment.
Discussion and Decision
Having carefully considered the Parties’ written submissions and the evidence adduced from the witnesses at the hearing of the appeal, the Court is of the view that the Complainant has failed to establish a prima facie case such as to shift the burden of proof to the Respondent within the meaning of section 85A of the Act.
The Respondent dealt with the Complainant’s absence and potential return to work in a reasonable and responsible manner. It referred the Complainant to its occupational health advisors on two occasions. Following the second referral, the occupational specialist confirmed that the Complainant would be medically fit to return to work in January 2016. Accordingly, the Respondent sought to engage with the Complainant by arranging a return to work meeting in early January. That meeting was terminated after a short number of minutes as the Complainant insisted that needed a further consultation with his own GP before he could make any decision about his future. This request was facilitated by the Respondent.
The Complainant’s own evidence to the Court was that his decision to resign his employment derived in large measure from the conversation he had with his GP on 12 January 2016 during which he had outlined to his GP the various reasons why he felt that the nature of the work he was employed by the Respondent to do adversely impacted on his physical and mental well-being. The GP’s note clearly states that the Complainant was considering a change in occupation for those reasons. There was no suggestion in the GP’s letter that the Complainant had any interest in exploring the possibility of reasonable accommodation that would permit him to continue in the Respondent’s employment. Furthermore, the Complainant makes no reference to any alleged failure on the Respondent’s part in this regard in his resignation email of 18 January 2016.
For the foregoing reasons, the Court determines that the Complainant’s decision to resign was not based on a perception on his part that the Respondent had not made reasonable accommodation for his disability. It was based on his own perception that the state of his mental and physical health made him an unsuitable candidate for the job in question.
Accordingly, the appeal fails and the decision of the Adjudication Officer is affirmed.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
6 November 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.