Complainant

Respondent

Anonymised Parties

An Employee

A Government Department

Representatives

Jennifer Murray Office of the Chief State Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00020537-001

13/07/2018

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

CA-00020537-002

13/07/2018

CA00020537-001: Complaint pursuant to section 8 of the Unfair Dismissals Act 1977 alleging unfair dismissal contrary to section 6 of the Act.

CA00020537-002:   Complaint pursuant to section 77 of the Employment Equality Act 1998 alleging discrimination on the disability ground contrary to section 6 of the Act.

The Background:

The Complainant commenced working with the Respondent on or about 22 October 2012.     The Complainant’s job title was Clerical Officer.   The Complainant’s annual gross salary was €33,840.

The Complainant alleges that she was subjected to bullying, harassment and intimidation by fellow workers to the extent that she has been absent on sick leave suffering from psychological and psychiatric symptoms since in or about March 2015. Previous to that the Complainant had been assessed in 2013/2014 by the HSE Dept. of Psychiatry, was put on medication and attended the HSE day hospital on a regular basis.

The Respondent was aware of the situation as the Complainant spoke with her Employee Assistance Officer on a number of times regarding it since in or about May 2013.

It is the Complainant’s position that the Respondent has effectively shut her out of her job by its failure, refusal or neglect to adequately or at all deal with her difficulties.

The Complainant also complains of the manner in which the respondent dealt with her grievances and refers in particular to the Respondent’s letter dated 19th June 2017.

The Complainant has been trying to date to resolve the matter internally but to no avail.  

On or about 14th September 2015 the Complainant invoked the Respondent’s Dignity at Work procedure.  

The Respondent refused to deal with some of the grievances on the basis that it can only investigate complaints that occurred within a four month period and that they were not given sufficient details of the grievances.

The Complainant’s request for mediation was refused on the basis that mediation other than voluntary mediation cannot be offered unless the Complainant has suffered an immediate and direct loss of earnings as a consequence of the actions complained of.   The Complainant did suffer an immediate and direct loss of earnings as she was out of work as a consequence of the actions complained of. Voluntary mediation was not forthcoming.

On or about 2nd June 2017 the Complainant wrote to the Respondent stating that she wished to invoke Stage II of the Revised Grievance Procedure as Stage I had been essentially exhausted without resolution and/or the Complainant was dissatisfied with the decision of management dated 3rd February 2016 regarding her complaints.   The Complainant put the Respondent on notice that if the matter could not be resolved it was her intention to refer the matter to the WRC.   The matter was not resolved and continues to remain unresolved.    

On or about 19th June 2017 Ms RC, Personnel Officer for the Respondent wrote to the Complainant to the effect that it is her “view that the matter has been fully examined, the conclusion being not to proceed further”.   The said letter goes on to say that this “decision stands and I now consider the matter closed”.

The Complainant referred the matter to the WRC pursuant to section 13 of the Industrial Relations.   A hearing date was scheduled for 14th December 2017 at which the Complainant and her legal representative attended.   The Respondent completed the form stating it did not object to the hearing.   However, despite this the Respondent wrote to the WRC on 13th July 2017 to the effect that the Adjudicator had no jurisdiction over the Respondent in section 13 of the Industrial Relations Act.   The Complainant was never furnished with a copy of this letter either from the WRC or from the Respondent and accordingly was taken short.     In the event the Adjudicator held he had no jurisdiction and the complaint was dismissed for want of jurisdiction.

At the hearing on 14th December 2017 it was indicated that should the Complainant put herself on the transfer list her application would be looked on favourably.   The representatives for the Respondent were informed that the Complainant had already applied for a transfer.

On 19th December 2017 the Respondent wrote to the Complainant the relevant contents of which said letter are set out hereunder:-

I refer to matters raised by your barrister following the hearing into your complaint at the Workplace Relations Commission which was held on 14th December 2017.

The HR Assignments team have confirmed that you applied for a transfer to the following locations:

·         Department of A……… – Co. Wexford

·         Department of A………– Co. Wexford

I attach details of the new xxx Mobility Scheme which launched on 13th November 2017.   This scheme will eventually replace all existing transfer mechanisms and will be administered by Peoplepoint.   You should reapply to transfer to the above areas as set out in the attached.   I will separately email you a copy of the attached documents….

The Complainant had already requested a transfer but notwithstanding duly put herself on the transfer list but no transfer was offered. The Complainant was informed that her sick leave record posed a difficulty in offering her a transfer.   It now appears that the new mobility scheme is the scheme which put sick leave record in issue when seeking a transfer. Accordingly, it appears that the Complainant was advised to reapply to a scheme which was never going to operate in her favour.

Following the WRC hearing on 14th December 2017 it was expected that the Respondent would engage in direct and meaningful discussions to find a reasonable and definitive resolution of the issues between it and the Complainant.

On January 31st 2018 the Respondent wrote to the Complainant, the contents of which said letter are set out hereunder:-

I refer to your current absence on sick leave and hope that you are feeling better.

In that regard, you were recently requested to submit to the Chief Medical Officer an up to date medical report from your treating doctor on two occasions (15 September 2017 & 6 November 2017). To date, no such report has been received by the CMO.

Requests for medical reports to be sent to the CMO are part of the Public Service Sick Leave regulations and failure to comply with these regulations is considered misconduct and can result in an officer being placed in the Disciplinary Code.

The granting of paid sick leave for any officer is also a decision for the Personnel Officer and failure to comply with Sick Leave regulations will result in an officer’s paid sick leave being stopped and their absence being recorded as unauthorised. The recording of unauthorised absences is also seen as a disciplinary matter.

Therefore, I now request that you submit to the CMO an up to date medical report from your treating doctor as a matter of urgency. Failure to provide this report by Friday 15 February 2018 will result in your paid sick leave being stopped and your being placed on an unauthorised absence. Your continued failure to comply with Sick Leave regulations may also result in your being placed in the Disciplinary Code, which can ultimately lead to dismissal.

I also wish to acknowledge that your meeting with your line manager to discuss the resumption of work has not yet been re-arranged, as had been agreed at our previous meeting in HR Division. Ms NF is now the HEO looking after your area, having taken over from Mr. EL, and I would like to request that you make contact with Deirdre as soon as possible to set up this informal meeting so you can discuss your role on your resumption and which will assist you in your return to work.

You can contact Ms NF directly on 01-2146500 or ( Email) set up this meeting. I have informed Ms NF that you should be in contact to arrange this meeting.

If you have any further queries in relation to the above, please do not hesitate to contact me on 01-7xxxxxx.

The Complainant is at a loss as to the reference to paid sick leave in circumstances whereby she was not in receipt of a salary since April 2015.  

After the expiration of several months, a medical examination by the Respondent’s CMO and a course of correspondence the Respondent wrote to the Complainant on 5th April 2018, the relevant contents of which are set out hereunder:-

I refer to your current absence due to sick leave and hope that you are feeling better.

In that regard you recently met with Ms NF, HEO, to discuss your role on resumption of work.   However, no return to work date was agreed between yourself and MS NF at that meeting.   As per the last report we received from the Chief Medical Officer, copy attached, your doctor has found you fit to resume as of 3 March 2018.

Therefore, as you are now found fit to resume, you are now required to make contact with either myself or Ms. NF on receipt of this letter to agree a return to work date and a phased return pattern for the initial weeks of your resumption.

Failure to make contact with either myself or Ms NF to agree a return to work date before Friday, 13th April 2018 will result in you being removed from the payroll and it will also be considered that you have abandoned your post.   This may result in you being advanced through the Disciplinary Code, which can ultimately lead to your dismissal.

On 13th April 2018 the Complainant responded to the said letter dated 5th April 2018, the contents of which said letter dated 13th April 2018 are set out hereunder:-

I wish to acknowledge receipt of your letter dated 5th April 2018 received by post on 10th April 2018.

I am indeed glad to at last be returning to work and whereas I have been certified as fit to resume work on 3rd March 2018 this certification has not been unconditional in circumstances whereby my G.P. notes that an exposure to my previous situation may well result in a recurrence of my difficulties and Dr ML appears to accept this.   I trust that this concern will be given the weight it deserves and that I am not forced to return to the previous situation.

1. Set out hereunder is the report of Dr ML:-

I have received a report from the complainant’s treating doctor. Her G.P. feels she has improved and has certified her fit to resume work on 3/3/18.     Her G.P. further notes that an exposure to her previous situation may well result in a reoccurrence of her difficulties.   I suggest she has a thorough return to work meeting with local management/HR to try and identify supports to minimise her perceived work stressors when she resumes work.

In view of the extended absence from work, I recommend resumption on a reduced hour’s basis initially.   The exact arrangements can be agreed with local management.

Despite the view of the Complainant’s G.P. and that of Dr MF regarding supports for the Complainant all that was arranged was a phased resumption of work to the role as heretofore.   Nothing else was considered or put in place.

The Respondent further wrote to the Complainant on 9th May 2018, relevant contents set out hereunder:-

“You are now being given a date of Thursday, 31st May 2018 to resume duty in your current post in … Office.   This branch is willing to allow some reasonable flexibility around that date (i.e. a few days either side; not weeks) should you wish to put forward an alternative. You can e.mail ………. to agree an alternative date within that timeframe.

Should you fail to return to work on the above date, or an agreed alternative, HR will consider it that you do not intend to return to your post and this will be taken as a formal resignation.”

The Respondent took this line despite the fact that the medical certification of fitness to return to work dated 3rd March 2018 contained a restriction on that fitness to return to work that that an exposure to the Complainant’s previous situation may well result in a recurrence of her difficulties and Dr ML, the Respondent CMO appears to accept this.  

The Complainant sent a further copy of hers of 13th April 2018 to the Respondent and was awaiting a response from the Respondent.

On 18th June 2018 the Respondent wrote to the Complainant, the relevant contents set out hereunder:-

You were advised on 9th May 2018 that a failure to return to work on 31st May 2018 (or an alternative agreed date) would be regarded as your intention not to resume your Clerical Officer role in the Department and your formal resignation from the Civil Service.

It is with regret that I note that you failed to return to work on 31st May 2018 or to make any contact with HR division, or your local management, in relation to any alternative resumption date.     Consequently, this is being regarded as notification of your formal resignation from the Civil Service.

You should note that your formal resignation from your Civil Service post is being regarded as of the 1st June 2018.   An exit case will be raised on your behalf with PeoplePoint and they will write to you in due course informing you of any preserved pension entitlements you may have.

The Complainant wrote to the Respondent on 28th June 2018 the contents of which are set out hereunder:-

I wish to acknowledge receipt of your letter dated 18th June 2018 informing me that you are regarding me as having resigned as of 1st June 2018.

As you will be aware my fitness to return certification was not unconditional in circumstances whereby my G.P. notes that an exposure to my previous situation may well result in a recurrence of my difficulties and Dr LM, your medical expert, appears to accept this.  

As you are also well aware, the only reason that I did not return to work is due to your failure or refusal to offer me the accommodation necessary in and about my job and because you were forcing me to return to the previous situation which was the cause of my illness and absence from work.

Up to receipt of your letter I have been awaiting confirmation that you will offer me the accommodation necessary in order for me to return to work but this has not been forthcoming.

Please take notice that I did not resign and that I am taking your action as a dismissal.   Please further take notice that I intend submitting a complaint to the Workplace Relations Commission for unfair dismissal and for failure to provide the necessary accommodation for my disability.

By its said actions the Respondent has dismissed the Complainant and which said dismissal is an unfair dismissal; the said dismissal was effected without notice and without any procedures fair or otherwise.

By its actions the Respondent has discriminated against the Complainant on the disability ground;   the respondent has failed, refused or neglected to make any accommodation, reasonable or otherwise, for the Complainant’s disability.   The provision of reasonable accommodation for the Complainant’s disability would not have placed any or any disproportionate burden on the Respondent.

Submission on the Unfair Dismissal Complaint - CA00020537-001:

The Complainant did not resign.   By deeming the Complainant to have resigned in the circumstances is a dismissal and which said dismissal, as already noted, is an unfair dismissal.

The Respondent provided the Complainant, in writing, with a return to work date of 31st May 2018 and demanded that the Complainant return to conditions of work which were contrary to medical advice and demanded that the Complainant meet this date at the pain of termination of her contract of employment.   The substance of this written demand cannot be other than a dismissal.

The Complainant’s contract of employment was terminated by the Respondent when the Respondent, and only the Respondent, unilaterally made it clear that the relationship will come to an end.   When the Respondent deemed the Complainant to have resigned any such resignation was imposed on the Complainant.  

It is submitted in this kind of case the Adjudicator should look to the substance of the alleged resignation and not to the form of the transaction.   See Birch v University of Liverpool [1985] I.CR. 470 where the court held that in deciding whether there had been a dismissal, the court should look at the substance rather than the form of the transactions between the parties.   See also O’Reilly v Minister for Industry & Commerce [1997] E.L.R. 48.     As already noted the transaction cannot in substance be other than a dismissal and which said dismissal is an unfair dismissal within the meaning of the Unfair Dismissals Acts 1977.

By terminating the Complainant’s contract of employment in the manner it did so terminate the Respondent purported to bypass the provisions of the Unfair Dismissals Acts 1977, as amended, particularly section 6 of the Act of 1977 and the requirements of section 14 of the Unfair Dismissals Act 1977, as amended, which require an employer to furnish the reason for the dismissal and to effect fair procedures in accordance with its own procedures and in compliance with SI 146/2000.   The Complainant was not afforded a right of appeal of the decision of the Respondent.

It is submitted that it wasn’t reasonable for the Respondent to take the actions it so took.

Submission on the Employment Equality Complaint - CA00020537-002:

The Complainant’s suffers from a disability within the meaning of section 2(1)(e) of the Employment Equality Act 1998.     Section 2(1)(e) provides as follows:-

(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,

It is submitted that even in the absence of a representation that the Respondent would seek a resolution of the issue the Respondent has, pursuant to section 16(3) of the Act of 1998, a statutory obligation to so do.

In Nano Nagle v Marie Daly (2018) IECA 11 the Court of Appeal addresses the nature of enquiry to be undertaken by an employer in discharge of their obligations under the Act at section 16 and, in terms of considering the nature of what reasonable accommodations should be afforded to a person suffering from a disability such that they would be fully competent and capable of undertaking their essential duties.   Notwithstanding its representation and the recommendations of the medical advisers the Respondent made no efforts to comply with its statutory obligations, the said representation or with the said recommendations of the medical advisers.

The Adjudicator is directed to the case of Mary Guidera v Dunnes Stores (EDA 1838/ADE 18/4) a case which bears a striking resemblance to the within case and where the Labour Court found that the reason for dismissing the Complainant was “her inability to provide a return to work date” and that the Complainant’s “inability to definitively address the demand for such a date on the date of her dismissal was a function of her medical adviser related to her disability as provided to the Respondent in writing”.   The circumstances in the within case are more cogent in that the Respondent’s own medical adviser, Dr ML, advised the Respondent in writing the conditions under which the Complainant was certified fit to return to work.   The Respondent chose to ignore this advice and demanded, at peril of termination of her contract, that the Complainant return to work in the same role as caused her to suffer her disability.

However, unlike the situation in Mary Guidera the Respondent herein was in a position to “objectively evaluate the degree to which appropriate adjustments could be made to her working arrangements so as to render her capable of participating in the employment.”   Notwithstanding the Respondent simply chose not to make the necessary working arrangements so as to render the Complainant herein capable of participating in her employment.   In the circumstances, it is respectfully submitted, that the Respondent has failed adequately or at all to discharge its obligations pursuant to section 16 of the Employment Equality Act 1998 and the Adjudicator must, on this alone, find that the Complainant was discriminated against on the ground of her disability contrary to the Act of 1998.

It is submitted taking into account the size and nature of the Respondent that finding suitable accommodation in order for the Complainant to return to work would not have placed a burden, disproportionate or otherwise, on the Respondent.  

In An Individual v a Respondent (ADJ00001672) the WRC Adjudicator, influenced by the High Court in the Nano Nagle case, found that a greater responsibility is now placed on employers to actively explore and consider any and all potential alternatives that may amount to appropriate measures to reasonably accommodate an employee with a disability.   One such potential alternative was to transfer the Complainant.   If a taxi rank system was in place regarding transfers this would not have hindered the Respondent as positive discrimination is permissible in respect of the nine categories set out in the Act of 1998.

In common with the Complainant in An Individual v a Respondent (ADJ00001672) the Complainant's medical certification to resume work contains a restriction, as a result of a disability, that she cannot return to her former role so accordingly the matter for adjudication revolves around the issue of reasonable accommodation, which in this particular case relates to the Respondent accommodating the Complainant in a position consistent with the medical restrictions arising as a result of her disability.   It is again reiterated that the Respondent not only failed to accommodate the Complainant but failed, refused or neglected to adequately or at all consider alternative posts for the Complainant.

In common with the Complainant in An Individual v a Respondent (ADJ00001672) the reason for not providing the Complainant with alternative employment is unreasonable.   The basis for the failure to offer the Complainant herein a transfer is unreasonable in circumstances whereby the Respondent excludes the Complainant from the possibility of a transfer because of her sick leave record, particularly as the Complainant is absent as the result of a disability within the meaning of section 2 of the Act of 1998, as opposed to sick leave in the ordinary sense, and because her illness was work related.  

The new mobility scheme, which the Complainant was told to reapply to regarding a transfer, put her not only at a disadvantage but actually excluded her from the possibility of a transfer.   It is submitted that in the instant case this if not direct discrimination is indirect discrimination as it has the potential to impact more on employees with a disability.

In common with the Complainant in An Individual v a Respondent (ADJ00001672) the Respondent allowed a stalemate situation to develop.

In common with the Complainant in An Individual v a Respondent (ADJ00001672) as a result of the Respondent's position, the Complainant remains out of work, in a scenario where she is off pay and experiencing significant financial difficulties as a result.

On 13th July 2018 The complainant submitted two complaints against the respondent (herein after referred to as the Department’), seeking adjudication by the Workplace Relations Commission (WRC). The complainant alleges unfair dismissal under Section 6 of the Unfair Dismissals Act, 1977 and discrimination on grounds of disability under Section 77 of the Employment Equality Act, 1998 (copy of complaints provided at Tab 76).

The basis of these complaints is that the complainant claims to have been subjected to bullying and harassment, which led to her absence since 8th October 2014. She alleges to have attempted to resolve matters internally and intends to produce evidence to that effect. She further alleges that the Department has failed, refused or neglected to provide reasonable accommodation for her “disability” to allow her to return to work which led to her dismissal.  

The Complainant had previously submitted a claim in July 2017 in relation to alleged bullying and harassment, citing ‘Industrial Relations Issues’, to the WRC under Section 13 of the Industrial Relations Act, 1969.   The Department did not object to the Hearing, though it did query the legislative basis under which the complaint was submitted to WRC and sought clarification regarding same, on two occasions. There was no response from the WRC prior to the hearing. The Department attended the Hearing on 14th December, 2017, at which the Adjudicator commented on the queries raised by the department and asked for the basis of such query. The Hearing was suspended, and the matter was subsequently dismissed by the Adjudicator for want of jurisdiction.

THE COMPLAINANT’S EMPLOYMENT WITH THE RESPONDENT

The complainant commenced employment with XX on 2nd September 2002 as a Clerical Officer based in Arklow. She availed of a career break from 2nd January 2007 until October 2012. In January 2012 all XX Employment Services were transferred to the Department following a Government decision. When the complainant’s career break ended she commenced employment with this Department on 22nd October 2012. She was assigned to the Department …… in Co. Wexford as a Clerical Officer. On 22nd October 2012 the complainant, as a new entrant, signed various undertakings indicating that she had read and noted various civil service policies or regulations including:

•             Code of Standards and Behaviour (Copy at Tab 83)

•             Sick leave Regulations (Copy at Tab 84)

The complainant’s Absence Record with the Department:

Dates    Absence Type

8th October 2014 – 17th November 2014              Sick Leave

18th November 2014 – 23rd November 2014       Unpaid unauthorised absence

24th November 2014 – 8th December 2014          Sick Leave

9th December 2014 – 2nd February 2017               Unpaid unauthorised absence

3rd February 2017 -   1st June 2018            Sick Leave

The complainant’s claim that she attempted to resolve the alleged ‘bullying’ issues internally

In her WRC complaint the complainant claims that she intends to produce evidence to demonstrate her informal efforts to resolve the issues with the help of local management.   On 19th January 2015, the complainant contacted HR Division seeking information on how to make a complaint on an “ongoing work issue”.

HR asked the complainant to provide a brief outline of the issue to ensure that she was provided with the proper advice as there are two different complaint processes depending on the nature of the complaint. At this time, the complainant had received a copy of the respondent’s anti-bullying/harassment policy then in effect (Positive Working Environment) from a respondent Employee Assistance Officer (EAO). On 22nd January 2015 she indicated that she wished to keep the complaint informal and have it dealt with locally based on advice from the EAO (Copy of email at Tab 2).

On 27th January HR advised the complainant to initially raise the issue with Mr. EM (Area Manager) and to provide sufficient detail that would allow him address her concerns. On 10th February 2015 the complainant emailed Mr. EM describing the alleged behaviours as “repeated behaviour experienced by myself, within my working environment from various staff members, but more often from particular work colleague, which I feel is inappropriate”

On 11th March 2015 The complainant was subsequently issued with a copy of the new anti-bullying/harassment policy, Dignity At Work, which came into effect on 20th February 2015. In reply the complainant advised HR that having read the DAW policy she would send details of the complaint directly to Mr. EM as she wished to keep the complaint informal and not involve any other parties (including HR). HR informed Mr. EM that The complainant would contact him directly.

On 31st March 2015 HR emailed the complainant reminding her to contact Mr. EM and providing his telephone number, following which she advised that she would contact Mr. EM within ‘the next day or two’. The complainant did not contact Mr. EM.

On 8th May 2015, following further missed telephone calls from HR, The complainant emailed and asked ‘what level is the investigation at?’ and if she was required to name the individual(s) concerned before a formal process to resolve the issue could be initiated. She was reminded that in her previous contacts with HR she had indicated her intention to deal with the matter informally directly with Mr. EM.   She was also advised that the EAO was a support person to her, but not mediating on her behalf in relation to this matter. She was again advised that if she wanted to make a formal complaint that she would indeed be required to name the person and provide details of the alleged offending behaviour.

The complainant contacted HR Division on 4th June 2015 stating that she was still awaiting a response to her email to Mr. EM. She was again reminded that she had advised HR of her intention to contact Mr. EM directly to deal with the matter locally; that the EAO could not mediate on her behalf nor initiate a complaint.

On 8th and 14th July 2015, HR contacted the complainant

The Chief Medical Officer (CMO) had recommended that a meeting be arranged to discuss her workplace difficulties. She was asked to advise HR of dates when she would be available to meet with Mr. EM. She did not respond to these requests to meet with local management/HR.

It is the Department’s view that between January 2015 and August 2015 the complainant made no significant effort to resolve the matter informally. The complainant did not fully elaborate on the February email to Mr. EM and did not contact him again or accept an invitation to meet with Mr.EM /HR despite numerous attempts by HR to arrange such a meeting.

The complainant’s formal complaint of bullying and harassment

On 25th August 2015, the complainant contacted HR advising of her intention to submit a formal complaint. HR emailed the complainant on 7th September 2015 advising how to make a complaint and explaining the time limits that apply to the making of complaints under the policy.   She was reminded of the services of the EAO. A formal complaint, naming three respondents, was subsequently received on 14th September 2015.

The respondents were Mr. ME (Area Manager – Wicklow South), Mr. DF (Assistant Principal, Employment Services - Bray) and Ms. EB (Clerical Officer, Arklow Intreo).

The complainant, Ms. EB and Mr. DF all previously worked in xx. The complainant and Ms. EB had been based in the office in Arklow and Mr. DF in the office in Wicklow town. Mr. DF was the area manager for the Wicklow region.

In accordance with the Dignity At Work policy, Ms. EB was appointed as a Designated Person (DP) to progress the complaint. The complainant was notified of this appointment on 16th October 2015. A meeting took place on 10th November in Gorey, Co. Wexford.

Following the meeting, the DP emailed the complainant to provide “specific incidents and dates of same of the alleged bullying behaviour” by 16th November 2015 to allow time for the DP to meet with the respondents and give them an opportunity to respond to the allegations. On 11th November 2015 the complainant replied indicating her willingness to avail of mediation. HR explained, in a letter dated 17th November 2015 that mediation, as provided for in the DAW policy, could be facilitated once the respondents had been made aware of and had an opportunity to respond to the allegations.   The matter of returning to work was also mentioned at this time as there was a new manager in the Arklow office.

On 17th November HR advised the three respondents that a formal complaint had been made against them by the complainant and that a DP had been appointed and would be in touch with them. All material relating to the allegations and a copy of the DAW policy were sent to the Respondents.

On 30th November 2015 the DP furnished her report to the Personnel Officer for consideration. In her report the DP outlined each complaint and indicated that they were either outside the timeframes set out in the policy or was not classified as bullying as defined by the DAW policy.   For example, one of the allegations referred to a period dating back to 2006/2007 when neither party was employed by the Department.

Over the period 17th November 2015 to 3rd February 2016, efforts were made by the Department to arrange for all parties to avail of mediation, in accordance with the DAW policy (see emails at Tabs 25, 35, 38 and 41 documenting this). Mediation is a voluntary process. The three respondents considered the proposal and declined to participate.

It is the role of the Personnel Officer to make a decision on the case. They must consider the complaint and the findings from the report of the Designated Person. On 3rd February 2016, the Personnel Officer wrote to the complainant advising of her decision in this matter, as follows:

Complaint against Mr. DF:               found to be outside the timeframe of the policy

Complaint against Mr. Meade:      found to be a proper exercise of authority by management

Complaint against Ms. EB:                 found to be a once-off incident and therefore not within the      definition of bullying and also outside the timeframe.

The overall decision was that the matter would not proceed to a formal investigation. The Personnel Officer proposed that the complainant meet with HR and the new manager of the Arklow office over the following two-week period to discuss her return to work.   She was given until 9th February 2016 to respond. This meeting, which was an opportunity for the complainant to meet her new manager and discuss the plan for her return to work, took place on 29th February 2016. The complainant was accompanied by her CPSU union representative.

On 4th May 2016, the Civil and Public Service Union (CPSU) contacted HR asking that the matter be re-investigated. The CPSU was advised that there is no provision to either review a Designated Person’s report or to review a decision made by the Personnel Officer.   However, in light of both the meeting of 29th February and the CPSU letter of 4th May, HR Division did re-examine the DP’s report and determined that, given the details of the complaint and the responses provided, that the DP could not have come to any other conclusion. The letter also stressed that the outcome did not deny that “there may have been a ‘difficult’ working relationship” but that with the “passage of time and change of personnel” there would be every prospect of a more positive working environment.

On 2nd June 2017 the complainant wrote to HR to outline her dissatisfaction with the decision on her DAW complaint and to invoke Stage 2 of the Civil Service Grievance Procedure. The Grievance Procedure, detailed in Circular 11/2001-‘Revised procedure for dealing with grievance problems’, is a process that seeks to deal with complaints of individual members of staff about acts or omissions of management. On 19th June 2017 the Personnel Officer responded to the complainant advising her that her complaint had been processed and fully examined in accordance with the Dignity at Work Policy and was concluded.

Mediation

The complainant alleges that the department refused mediation. This is untrue. The DAW policy emphasises the importance of informal resolution of workplace issues where possible and highlights the use of mediation as a valuable tool. Mediation is available at every step of the process. However, it is voluntary; all parties must agree to participate.   Mediation was offered on a number of occasions as part of the DAW process as detailed above. However, the respondents in this matter did not wish to participate in mediation. The Department informed the complainant of this on 19th May 2017 and 3rd February 2016. On 2nd June 2017 the complainant attempted to invoke mediation as set out in the Civil Service Grievance Procedure. The Department responded (see Tab 54) to the complainants outlined in the preceding section.

The Complainant’s contentions regarding her application for a transfer out of the Arklow office

On 5th April 2017 HR met with the complainant who was accompanied by her Trade Union representative.  

On 19th May 2017 HR wrote to The complainant to follow up on issues raised at the meeting which included a reference to transfer procedures, “if you are considering applying for a transfer to another officer(sic), normal transfer procedure will need to be followed, at which point your overall sick leave record will also be considered”.

A person will be considered for transfer if their sick leave has not exceeded “56 days or 25 instances in the previous rolling four-year period.

On 30th May 2017 The complainant applied to HR for a transfer to offices in the Departments of Environment & Agriculture in Wexford.

Following the suspension of the December 2017 WRC hearing the complainant’s legal representative informally queried the possibility of a transfer for the complainant to another Department. The Department advised that it would consider any transfer request from The complainant taking into account standard transfer procedures.

On 13th November 2017 a new Mobility Scheme for the Civil Service was launched that replaced all existing transfer mechanisms*. Initially the scheme was confined to certain locations and grades. Existing transfer applicants were advised to reapply for their preferred locations under the new Mobility Scheme.

Having checked the existing transfer application lists the Department wrote to the complainant on 19th December 2017 advising that she had already applied for a transfer to offices in Wexford. She was also advised to reapply via the new Civil Service Mobility Scheme. The complainant now claims that the Department “advised her to reapply for a scheme which was never going to operate in her favour” due to her sick leave. However, the sick leave criteria used to assess transfer eligibility did not change following the introduction of the new Mobility Scheme. The complainant would not have been eligible to transfer either under the old transfer mechanism or under the new Mobility Scheme due to her sick leave record.

*Following the initial launch the Mobility Scheme was suspended due to technical issues and relaunched in September 2018.

Department efforts to assist The complainant to resume work

In accordance with the Civil Service Code of Standards and Behaviour civil servants are obliged to attend at work as required and to comply with sick leave Regulations. Failure of staff to comply with the protocols pertaining to sick leave is of great concern to the Department.

Circular 6 of 2014 – ‘Arrangements for Paid Sick Leave’ sets out the provisions that applied to the complainant’s absence which commenced October 2014 (Copy of Circular 6/2014 at Tab 84). Section 2.2 of the circular specifies that staff must understand that they need to:

•             Be familiar and comply with the sick leave regulations and policy;

•             Maintain regular contact with the employing organisation during periods of sick absence;

•             Take all reasonable measures where possible to manage their own health and well-being with a view to returning to full health;

•             Cooperate fully with all referrals to the CMO, which includes providing medical reports to the CMO when requested;

•             Cooperate fully with all rehabilitative measures to facilitate an early return to work.

On 17th July 2013 the Department emailed Office Notice 45/13 directly to all staff informing them of the (then) proposed new sick leave arrangements. On 13th December 2013 the Department emailed Office Notice 67/13 to all staff with an update on the introduction of these new arrangements. On 27th March 2014 the Department emailed Office Notice 19/14 to all staff to inform them of the terms of the new sick leave scheme which became effective on 31st March 2014. Office Notice 19/14 contained a link to Circular 6/2014. (Copies of these Office Notices at Tab 85). The complainant attended work in this period and would have received all three Office Notices by email.  

Since the commencement of the complainant’s absence, there have been numerous efforts by both the Department and the Office of the Chief Medical Officer (CMO) to engage with the complainant in relation to her resumption to work. PeoplePoint is a HR shared services centre for the Civil Service that manages the transactional elements of HR processes, for e.g. Absence Management. This includes corresponding with employees on behalf of the CMO.

Following the conclusion of the DAW complaint, the Department proposed that the complainant meet with HR and the new manager of the Arklow office to discuss her return to work as advised by the CMO. A meeting took place on 29th February 2016 (copy of minutes at Tab 42). However, the complainant remained absent from work following this meeting.   Her absence from December 2014 until February 2017 is recorded as an ‘unauthorised unpaid absence’. During this period she did not provide medical certificates to her “Line Manager, HR Unit or PeoplePoint” in accordance with Section 3.2 of Circular 6/2014.

On 3rd February 2017 the Department wrote to the complainant in relation to her ongoing uncertified absence advising that she must either provide medical certificates if she was unfit to work; or resume work if fit to do so; or if she wished to resign to notify HR in writing. She was also advised that the CMO had stated that she was “fit to engage and meet with HR” (copy of letter at Tab 46). The complainant requested a meeting by reply and on 5th April 2017 a meeting was held.

The purpose of this meeting was to discuss the complainant’s continued absence, her failure to submit certs to HR or PeoplePoint, which categorised her absence as unauthorised, and also to discuss her return to work. There were two periods of unauthorised absence per departmental records – 18th November 2014 to 23rd November 2014 and 9th December 2014 to 2nd February 2017.

At the meeting, the complainant attempted to discuss her complaint of bullying once again, indicated that she was unhappy with the decision and again asked for mediation. She was reminded that mediation had been offered before and had been refused by all three respondents.   It was requested that the officers be approached again. It was pointed out that over the period of her absence one of the respondents, Mr. EM, had retired (on 1st September 2016) and another had been reassigned. However, the Department agreed to consider whether mediation was now appropriate and would respond to the complainant with a decision.  

On 19th May 2017 The complainant was advised that mediation had been offered twice and it would not be offered again and that HR considered the matter of the DAW complaint closed. She was advised that an appointment was being made with the CMO as part of the process of her resumption to work. She was asked to make further contact with the manager of the Arklow Office to have an informal chat in advance of her return to discuss dates and duties (copy of letter at Tab 51). On 19th May 2017 the Department referred her to the CMO for an opinion on her fitness to resume work.

On 15th June 2017 Mr. EL, the manager of the Arklow office contacted The complainant to arrange a meeting for 22nd June. On 20th June the complainant cancelled this meeting and was asked to provide alternative dates.   She did not do so.

PeoplePoint, on behalf of the CMO, wrote to the complainant on 12th June and 17th July 2017 (copies at Tabs 69 & 70) requesting correspondence exchanged between her hospital specialist and her GP prior to an appointment with the CMO. The Department contacted the CMO’s office again 23rd August 2017 to arrange a referral.   The CMO’s office contacted the complainant again on 15th September and on 6th November 2017 requesting the medical information.

On 31st January 2018 HR contacted the complainant by letter and email to remind of her obligations in relation to sick leave including the provision of reports for the CMO, and advised of the consequences of a failure to comply with sick leave regulations. At this point in time, a meeting with her manager had still not taken place. A new manager, Ms. NF, had been assigned to the Arklow office and the complainant was provided with contact details and requested to set up a meeting as soon as possible.

On 26th February 2018, eight months since the original request, the CMO’s office contacted the Department to advise that a report had been received from the complainant’s medical practitioner who certified her as fit to resume work on 3rd March 2018. The CMO recommended a thorough return to work meeting with local management or HR to identify the supports required.   A phased return was also recommended.

The complainant met with her new manager on Wednesday 14th March 2018 at the Arklow Bay Hotel.   The meeting lasted 15-20 minutes. The complainant was given information on the workload and what her role would be within the office. She was informed that she could be accommodated with a phased return if she wished. She was also invited to visit the office. At the meeting the complainant gave no indication of when she was returning to work and did not seek any particular accommodation or mention that she was suffering from a disability. When asked for her thoughts on her return to work she said that she was there to hear what Ms NF had to say about her return to work and put forward no suggestions herself. She was represented at the meeting by her union representative. She did not contact her manager following this meeting other than to thank her for the meeting and to request a copy of rota of Clerical Officer duties . This was sent to her by email in which Ms NF stated “please feel free to contact me if you wish to discuss this any further”.

The Department emailed the complainant on 22nd March 2018 to obtain a resume date and to agree the details of the phased return. The email stated “In the last CMO letter we received (attached) they advise your GP has found you fit to resume from 3 March 2018. Therefore, from HR’s perspective there is an expectation that you will resume at this time, following your meeting with your line manager. HR has confirmed she will be in a position to accommodate your return and to allow you resume on a phased basis. You should also be able to agree what pattern your phased return takes with HR and can email her in relation to this. I’m also available on xxxxxx if you need to discuss this further.” The complainant did not reply. The Department followed up with a letter on 5th April 2018 (Tab 61), again requesting that The complainant provide a return to work date. The complainant was given two weeks to respond. The complainant responded by email on 13th April (Tab 62) but did not provide a return to work date. In her response she states “I am indeed glad to at last be returning to work and whereas I have been certified as fit to resume work on 3rd March 2018, this certification has not been unconditional in circumstances whereby my GP notes that an exposure to my previous situation may well result in a recurrence of my difficulties and Dr NL appears to accept this. I trust that this concern will be given the weight it deserves and that I am not forced to return to the previous situation”. It is submitted that the Complainant accepts that she is fit to return to work and there is no mention of her suffering from any alleged disability. HR responded on the 13th April 2018 (Tab 63) as follows “ I acknowledge receipt of your email and thank you for making contact. However, as previously advised, a resumption to work date was to be agreed by today to avoid you being taken off the payroll and it being considered you have abandoned your post. While the CMO acknowledged your GP’s note regarding exposure to your previous situation, this does not preclude you from resuming duty having been found fit to resume. The CMO also advised that you should have a thorough return to work meeting with local management, with whom you have recently met. A further meeting can be arranged with local management prior to or when you have returned to work, once a date for that resumption has been agreed. Your local management are also aware of the CMO’s advice and those supports will be in place for you once you have resumed. (emphasis added) Please respond to this email by close of business today to agree a date for your resumption, and to avoid further action being taken. Once a return to work date is agreed I can inform Ms NF also and arrange for her to meet you on your return”.   The complainant did not respond.

On 9th May 2018, The complainant was again contacted by HR and provided with a return to work date of 31st May 2018. The complainant was also advised that if she failed to resume on that date or to provide an agreed alternative date the department would consider that she had resigned her post. The complainant did not return to work, nor did she contact the Department. Therefore, on 18th June 2018 (Tab 66), the Department wrote to the complainant advising that she was considered to have resigned on 1st June 2018. The complainant’s response on 2nd July,2018 indicated that she intended to submit a complaint to the Workplace Relations Commission.

The Position of the Department

The complainant argues that she was subjected to bullying and harassment and that she has made extensive efforts to resolve this matter informally.   However, as clearly outlined above it is in fact the Department that has made extensive efforts in this case.   The complainant has consistently failed to properly engage with the Department.  

In relation to the bullying and harassment claims, the department made every effort to assist the complainant by providing support and advice throughout the process, facilitating both an informal and formal approach and attempting to organise mediation a number of times. As has been clearly illustrated above, the Dignity at Work Policy was implemented and the Department is satisfied that it acted in accordance with the policy in relation to this case. There was no finding of bullying and /or harassment of the Complainant.

In relation to the complainant’s claim that the Department discriminated against her on the disability ground The complainant did not disclose a disability to the Department at any stage since she commenced employment in the Department or during her absence from October 2014. She never sought reasonable accommodation for a disability during meetings with HR on 5th April 2017 or with the manager of the Arklow Office on 14th March 2018. The CMO did not recommend to the Department at any stage that the complainant must be offered reasonable accommodation for a disability.      

The Department rejects the complainant’s contention that the department has ‘shut her out of her employment’.   The complainant’s GP certified her fit to resume work on 3rd March 2018. The complainant did not return to work on this date. The CMO supported her GP’s opinion and advised that the complainant meet with local management to discuss her return to work (copy of CMO report at Tab 73). The Department complied with this advice and arranged a meeting between the complainant and her new manager on 14th March 2018. At this meeting the complainant did not identify any supports she required that would assist her return to work.

On 22nd March, 5th April and again on 13th April 2018 the Department wrote to The complainant asking her to provide a date on which she would return to work and assuring her that supports, if required, would be put in place once she returned to work. The complainant only replied once in this period but did not provide a date. On 9th May 2018 the Department wrote to the complainant instructing her to return to work on 31st May 2018. The complainant did not reply to this letter and did not return to work. It is a matter of fact that after she was certified as fit to work the Department gave the complainant four opportunities to resume work, each of which she rejected.

The Department contends that the complainant did not comply with Section 10 of the Civil Service Code of Standards and Behaviour by refusing to “attend work as required”; that she did not comply fully with the terms of the sick leave Regulations; and that she did not accept the opinions of her GP or the CMO who certified her fit to resume work.

In conclusion, it is submitted that it was entirely reasonable for the Respondent to take the Complainant’s failure to return to work on the 31st May 2018 and her failure to make contact with HR division or local management in relation to an alternative resumption date as a resignation from her post.  

Discrimination, The Law

1.            Section 6(1) of the Equality Act 2004 provides that:

“Discrimination shall be taken to occur where 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")”

2.            Section 6(2) provides that as between any two persons, the discriminatory grounds include:

“that one is a person with a disability and the other either is not or is a person with a different disability).”

Section 16 (3) (a) provides:

“for the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking those duties.

(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.

(c ) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.

BURDEN OF PROOF

In the first instance the Complainant must satisfy the Adjudication Officer that she comes within the discriminatory ground cited. There is a bald statement that the Complainant suffers from a disability but nothing further is provided by way of evidence or information and the Respondent reserves the right to address this further in writing if required.

The Complainant’s GP certified her as fit to resume to work and simply noted that an exposure to her previous situation “may well result in a recurrence of her difficulties.” There is no mention of the Complainant suffering from a disability and there is no request to provide reasonable accommodation. In relation to the CMO, she suggested a thorough return to work meeting with local management/HR to try to identify supports to minimise her “perceived work stressors” when she resumes work. The Complainant was assured that supports would be put in place but as the Complainant never identified what supports she required it is difficult to see what the Respondent could have done in advance of her return to work.

It is submitted that in the first instance the Complainant has not established that she is suffering from a disability. Without prejudice to that it has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has or would be treated, on the basis of the discriminatory ground cited. It is only when she has discharged this burden that the burden shifts to the respondent to rebut the inference of discrimination raised. In Concern v Anthony Martin (ADE/05/15) the Labour Court has stated in relation to the Burden of Proof in a case concerning gender and age discrimination.

"The allocation of the probative burden in discrimination cases is now determined by Section 85A of the Employment Equality Acts 1998 and 2004. This section gives legislative effect in domestic law to Directive 97/80 on the burden of proof in cases of gender discrimination and to Article 10 of Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Education.

This Section provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination may be presumed, it is for the Respondent to prove the contrary."

The Labour Court has ruled that the aim of the Directive was to “formalise in legislation “the case law of the Court of Justice rather “than to introduce a new procedural requirement” (Southern Health Board v Mitchell [2001] E.L.R. 201). The Court went on to consider the extent of the evidential burden, which a claimant must discharge before a prima facie case of discrimination, could be made out. The onus is on the Complainant to:

“prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination. It is only if these primary facts are ….. regarded 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”

It is submitted that the Complainant had been certified as fit to return to work, but she refused to provide a return to work date despite assurances that she could return on a phased basis and that “supports’ would be put in place when she resumed. The Complainant simply refused to engage or respond. It is submitted that she has failed to adduce any facts from which it could be inferred that she was treated any differently to anyone else who has been certified as fit to work but refuses to engage. In the circumstances it is submitted that the Complainant has failed to establish that she suffers from a disability as defined and has failed to establish a prima facie case of discrimination.

00020537-002

The complainant alleges that the respondent has discriminated against her on the grounds of disability and failure to make reasonable accommodation. The burden of proof in such cases is well established and is set out in the case of Melbury Developments Limited v Arturs Valpeters IEDA09171 that the:

"...Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85,4 places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. "

The definition of disability contained in the Employment Equality Acts is set out in a list of broad categories as follows:

“(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,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(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 judgment or which results in disturbed behaviour”.

The scope of protection against discrimination of the Act is delineated in Section 8.  

Section 8(1) of the Act prohibits discrimination in relation to:

                (a) access to employment,

                (b) conditions of employment,

                (c) training or experience for or in relation to employment,

                (d) promotion or re-grading, or

                (e) classification of posts.

Accordingly, the scope of prohibited discrimination is wide and encompasses every stage of employment.  

In this jurisdiction disability has been interpreted in an extremely broad way . In An Employee v. Bus Eireann [2003] ELR 351 it was held that heart conditions amount to a disability for the purposes of the Acts. Further, in the case of Mr O v. A Named Company DEC-E2003-052 it was held that work related stress may amount to a disability. Further, as was suggested in A Government Department v. A Worker EDA094, the de minimis rule applies and the condition must manifest in a minimal level of symptoms to be classified as a disability.

The complainant states that she is suffering from depression and has been be for an extended period of time. The respondent states that they were completely unaware that the complainant was suffering from depression and it was for that reason she was out on sick leave. The complainant submitted numerous medical certificates to the respondent. None of them mention depression. It would seem that Dr. ML was also unaware that she suffered from Depression. In fact, nowhere in any of the documentation submitted does it state the complainant is suffering from depression. Whilst the complainant may very well be suffering from Depression there is no factual evidence to support that before me. In the absence of any evidence to support the contention I can only find that the complainant has failed to establish that she has a disability within the meaning of the Act. It is on that basis that I find that the complainant has failed to establish a prima facia case of discrimination on the grounds of disability and failure to make reasonable accommodation.

CA020537-001

The respondent states that the complainant in effect resigned her position when she failed to return to work. The complainant states that she was shut out of her employment by the respondent. The respondent rejects the complainant’s contention that she was ‘shut her out of her employment’.   She was certified fit to resume work on 3rd March 2018 however she did not return. The respondent’s CMO supported the complainant’s GP’s opinion and advised that the complainant meet with the respondent to discuss her return to work. A meeting was arranged between the complainant and her new manager on 14th March 2018.

On 22nd March,5th April and 13th April 2018 the respondent wrote to the complainant asking her to provide a date on which she would return to work. The complainant only replied once in this period but did not provide a date.   On 9th May 2018 the respondent wrote to the complainant instructing her to return to work on 31st May 2018. The complainant did not reply to this letter and did not return to work. I note that the respondent requested the complainant return to work on four occasions, but she did not take them up on the offers. I find from the 3rd March onwards, following the complainant being certified fit to return to work she failed in her obligation to engage with the respondent in any meaningful way. The respondent is not obliged to hold the complainant’s position open for her for any prolonged period of time. They gave her numerous opportunity to engage with them, but she continually failed to do so.

In conclusion, I find that it was entirely reasonable for the Respondent to take the Complainant’s failure to return to work on the 31st May 2018 and her failure to make contact with HR division or local management in relation to an alternative resumption date as a resignation from her post.  

The complaint fails.