ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00010263

Parties:

Complaints:

Date of Adjudication Hearing: 19/07/2018

Workplace Relations Commission Adjudication Officer: Roger McGrath

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:

CA-00013347-001 Complaint under the Payment of Wages Act, 1991

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

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

CA-00013347-002 Complaint under the Payment of Wages Act, 1991

Summary of Complainant’s Case:

The Complainant had sought a re-imbursement of sick pay which he believed had been unlawfully deducted from his pay in 2017.

Summary of Respondent’s Case:

The Respondent submitted that the Complainant had been reimbursed the sick pay in question in the period between the second and third hearings.

Findings and Conclusions:

As this matter has been resolved there is no need for any further action.

Decision:

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

As this matter has been resolved there is no need for any further action.

CA-00013347-003 Complaint under the Payment of Wages Act, 1991

Summary of Complainant’s Case:

The Complainant submitted that he had not received an increment he was due because his absence record, which he alleged was calculated improperly, was deemed to be such as to justify the withholding of the increment by the Respondent.

Summary of Respondent’s Case:

The Respondent has agreed to award the Complainant this increment with effect from March 2017.

Findings and Conclusions:

As this matter has been resolved there is no need for any further action.

Decision:

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

As this matter has been resolved there is no need for any further action.

CA-00013347-004 Complaint under the Employment Equality Act, 1998.

Summary of Complainant’s Case:

The Complainant presented a detailed written submission.

The Complainant submitted that his absences were caused by work related PTSD and as such should have been classified as having arisen from an occupational injury or disease. By not doing so the Respondent has discriminated against the Complainant on the ground of disability.

The Complainant submitted as background that during the period 26th September 2016 to 27th January 2017 the Complainant was absent from work on sick leave. On his return from sick leave, and in accordance with the relevant circulars, the Complainant applied to the Respondent to classify his absences during the above period as arising from occupational injury or disease (OID) pursuant to relevant circulars.

By letter dated 28th April 2017 the Respondent determined that the period in question should not be classified as OID and that therefore the Complainant was deemed to have exhausted his entitlement to sick leave on full pay on 16th January 2017. The Respondent did not reimburse the Complainant in respect of his placement on half pay between 16th January and 27th January 2017. Furthermore, he was placed on half pay when he went on sick k leave on 10th May 2017 until 19th May 2017.

In addition, the Complainant was informed by a letter dated 21st March 2017 that the Respondent had decided to defer an increment he was due to receive on 5th March 2017, for a year arising from his sick leave record.

The Complainant submits that out of a total of 27 absences of 161 (between April 2015 and January 2017) 11 absences of 126 days arose from his PTSD.

The Complainant also submits that a medical report dated 12th April 2017, the Respondent's own Occupational Health Physician, advised that the absences from September 2016 to January 2018 can be considered to be linked to an Occupational Injury/Disease, whilst affirming that the final decision rests with management.

It is the Complainant's case under the Employment Equality Act, 1998, that most of his sick leave arose from his disability, i.e. Post-traumatic Stress Disorder. The Complainant submits that in applying the policy on the deferral of increments without distinguishing between ordinary sick leave and sick leave arising from a disability, the Respondent has indirectly discriminated against the Complainant on the disability ground in relation to conditions of employment and this is not objectively justified on legitimate grounds and/or the measure is not proportionate or necessary to the aim. In deferring his increment, the Respondent failed to afford the Complainant equal pay with a colleague-peer without a disability whose increment had not been deferred.

Notwithstanding the fact that the Respondent has agreed to treat the absences in question as OIDs and to award and backdate the Complainant his increment from March 2017, the Complainant contends that the he was caused much stress and detriment by his employer because of a discriminatory clause in the Respondent's Sick Pay Scheme.

The Complainant submits that there is an inherent failing in the Sick Leave Policy that lends itself to discriminate against individuals who have a disability, in this case the disability being PTSD. There can be no doubt, according to the Complainant, that the Respondent understood he was suffering from PTSD when the Respondent was deciding on the categorisation of his absences, yet they chose to ignore his disability.

The Complainant contends that the Respondent, by not deeming his absences, due to PTSD, a disability as OIDs, because of a discriminatory clause in the Sick Pay Policy, caused him to suffer both financially and emotionally in the 18 months or so it took to get the matter resolved.

The Complainant gave evidence about the negative impact this episode had upon him.

The Complainant believes that he should be compensated for the financial loss and emotional turmoil he suffered because of the way the matter was handled by the Respondent.

Summary of Respondent’s Case:

The Respondent denies that it discriminated against the Complainant.

Regarding the categorisation of the Complainant's sick absences, the Respondent submits that the Complainant's application (to have his absences treated as OIDs) was rejected because, in the opinion of the Respondent, the Complainant had failed to provide evidence linking the incidents with his work duties.  

The Respondent submits that the Complainant did not utilise an internal appeals mechanism open to him appeal the decision not to deem his sick absences as falling within the scope of OIDs.

The Respondent submits that the first time the Complainant made an allegation that he was suffering an underlying disability of PTSD was on 21st February 2018. This allegation was contained in a submission prepared for the WRC hearing scheduled for 23rd February 2018.

The Respondent submits that only one of the certificates furnished by the Complainant during the preceding 24-month period identified PTSD as the reason for his absence. Further, according to the Respondent, the last time the Complainant was certified as suffering from PTSD was in October 2015.

The Respondent submits that the psychiatric assessment undertaken after the hearing of 23rd February 2018, concluded that there was a "high probability" that during the periods of absence the subject matter of the complaint the Complainant was suffering from an underlying condition of PTSD dating back to a previous occupational injury.

On receipt of the report, the Respondent revisited the decision of 28 April 2017 and deemed the disputed absences to be a result of an occupational injury. Further, the Respondent awarded the Complainant his increment with effect from March 2017. The Respondent submits that having regard to the foregoing, this claim should be dismissed and that in light of the fact that the payments have now been made there is no substantive issue between the parties.

In addition, the Respondent contends that it was not guilty of any wrongdoing in initially refusing to make the payments and that as the matter has now been addressed and it has been agreed to pay the Complainant his increment the matter is now a moot point.

While the Respondent does not accept that there has been any breach of legislation, however, in similar cases where, the Labour Court found there was breaches which are "technical and insubstantial in nature" do not give rise to an award of compensation where the employee has not suffered any loss or detriment as a result of the breach.

Findings and Conclusions:

I have considered this matter carefully.

The Complainant contends that the absences should have been categorised as OIDs in 2017 as there was ample evidence to support the view that they were OIDs, linked to the Complainant's underlying PTSD condition. The delay in deeming the absences OIDs was caused by an inherent flaw in the sick pay scheme and the reluctance of the Respondent to accept medical certificates which indicated the absences were caused by PTSD and a medical report which indicated they should be considered linked to an Occupational Injury Disease.

The Respondent counters that when the decision was made not to categorise the absences as OIDs the Respondent was unaware of the underlying PTSD and/or any linkage to the absences caused by the Complainant's disability; therefore, the Respondent could not have discriminated against the Complainant on the disability ground when deciding to withhold the increment.

Notwithstanding the above, the Respondent contends that if the decision to withhold the increment is found to be a breach of the Act it is but a technical breach, of no major significance.

Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “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.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.

I have examined whether the Complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

 “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

To determine whether the Complainant has established a prima facie case a three-tier test is employed:

First, the Complainant must establish that he/she is covered by the relevant discriminatory ground.

Second, he/she must establish that the specific treatment alleged has actually occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In this instant case, the agreed facts of the case are that the Complainant was suffering from work related PTSD, an accepted disability that he did not receive his increment at the time he would have in normal circumstances and he was subject to less favourable treatment than someone in similar circumstances not suffering from PTSD. That being the case I find that a prima facie case has been established and the burden of proof falls upon the Respondent.

In this case the question to be answered is whether there was a breach of the Act in Respondent's decision not to deem the absences in question as OIDs arising from the Complainant's underlying PTSD condition.

If I find a breach of the Act occurred I must then decide what impact this breach had on the Complainant and whether he should be awarded any compensation.

Having considered all the evidence adduced I find that the Respondent did not discriminate against the Complainant either directly or indirectly as alleged.

For a breach to have occurred the Respondent must have been aware that the absences were linked to the PTSD condition. From the evidence adduced I find that it is unreasonable to have expected the Respondent to have been aware that thee absences were due to the Complainants' underlying disability. There are several reasons for this:

Firstly, the medical certificates submitted by the Complainant give a variety of reasons for his absence but only one cites PTSD as the reason; the Respondent could not be expected to extrapolate an underlying condition of PTSD from the certificates as they were submitted.

Secondly, although the Occupational Health Physician's letter of April 2017 states that the Complainant's absences should be considered to be linked to an OID, the Doctor does not mention PTSD. Again, it is unreasonable to expect the Respondent to interpret this letter as an indication that the Complainant was suffering from a disability.

Thirdly, the Complainant failed to utilise the appeal mechanism that was available to him, to make a case that his absences should be OIDs caused by his PTSD.

Fourthly, once it became clear that the Complainant was putting forward PTSD as the reason for the absences the Respondent immediately sought a medical assessment of the Complainant's condition. Once the outcome of that assessment became known the Respondent reviewed the previous decision it had made and changed it.   Such a response is not in keeping with the actions of a Respondent who had knowingly ignored an employee's disability in the first place.

I do not find fault with the Sick Pay policy as a certain amount of flexibility and discretion is required in such policies. The fact that the decision on the categorisation of the absences was changed once the Complainant's case was proven by the psychiatric report supports the contention that the policy is fit for purpose.

In conclusion, I find it was not clear to the Respondent that the absences in question were linked to the Complainant's underlying PTSD condition and that being the case the Respondent cannot now be held guilty of discriminating against the Complainant on the disability ground.

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 do not find in favour of the Complainant.

CA-00013347-005 Complaint under the Employment Equality Act, 1998.

This complaint was withdrawn at the third hearing.

Dated:   24th October 2018

Workplace Relations Commission Adjudication Officer: Roger McGrath

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