Complainant

Respondent

Anonymised Parties

A General Operator

A Company

Representatives

Deirdre Canty SIPTU

Sophie Crosbie IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00020738-001

24/7/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00020738-002

24/07/2018

Summary of Complainant’s Case:

CA -00020738-001

The Respondent manufacturers plastic pipes and is a second-generation company employing 120 staff on a small site. The complainant was not provided with a written contract. The Complainant had a defined absence problem which was managed through the disciplinary procedure between September 2002 and May 2017.

The Respondent confirmed that a fume leakage had occurred on the Plant in June 2015. While the Complainant was not working on the machine or in the immediate locus of the fume leak, he became affected by the fumes. He was seen by Occupational Health and expected to return to work in a short-term frame. The Complainant returned on 6 July 2015 and complained of nasal blockage and loss of sense of smell. Another absence followed for “head pains “in July 2015. The Complainant continued under medical supervision and had two further absences for back pain and winter vomiting bug.

The Complainant had an operation on his nose in November 2015 resulting in a year’s sick leave. He returned to work on 8 December 2016 and had 5 further episodes of absence for a variety of reasons before going out on long term sick leave in August 2017.

The Complainant had habitually been based in the Extrusion area where dust was not a major factor. The Respondent accepted the complainants account of the 2015 chemical incident and noted that he had made three attempts to return to work. He had been represented by a Shop Steward.

The Respondent secured an expert ENT report in November 2016. The Respondent then commissioned a “Dust Assessment “. The assessment determined that the yard was not capable of control for dust purposes, Packaging was graded at 40%.

The Respondent submitted that the jurisprudence in the case law of the ECJ in the form of Chacon Navas and Jette/ Ring had application in the case

Preliminary Argument:

The Respondent raised a valid point at the commencement of proceedings. The Company had not received a detailed submission from the complainant in advance of the hearing and the respondent had not been on notice of the primary facts on which the complainant had chosen to rely.

The Respondent wanted the hearing to be aware that the complainant had recently received a settlement from the company’s insurers in respect of a workplace incident in 2015 which gave rise to the claim. The Respondent offered to disclose the terms of the settlement which incorporated a sum “for loss of future earnings “

The Respondent submitted that the rule in Henderson and Henderson had application in the case along with the doctrine of Res Judicata .the Respondent contended that “ whilst these rules and recent caselaw do not rule out these proceedings being brought at all, they do require careful consideration of what aspects of his claim the complainant has already compromised in his previous proceedings before the Courts and it is entirely appropriate to bring this to the attention of the Adjudicator in the interest of the proper conduct of legal proceedings”

The Respondent disputed any awareness of a disability experienced by the complainant. None of the inter party engagements since 2015 had reflected this. The Complainant was examined by the company doctor on 9 occasions and had attended 3 ENT appointments since 2015, none of these encounters pointed to the presence of a disability as defined by Section 2 of the Act.

In referring to the burden of proof referenced in Melbury Developments ltd V Valpeters EDA 09/17, the Respondent argued that the burden of proof for discrimination had not been made out by the complainant.

The Respondent went on to submit that the complainant was misconceived in law.

1 The Complainant had not notified the Respondent that he had a disability prior to his sick leave in August 2017, from which he had not returned.

2 The Respondent had not been fully notified of the details and of the claim

3 The Respondent relied on the defence to reasonable accommodation contained in Section 16(1) of the Act. The Complainant had simply never requested reasonable accommodation. He had not cited a comparator. He had not made a veritable proposal to be considered for “appropriate measures “Nano Nagle at the Court of Appeal.

Substantive Case:

The Respondent outlined that the Complainant had been made aware through a series of meetings and correspondence that the company considered him unfit to do the job for which he had been employed and that the company could not keep his job open indefinitely.

“The Employer had a belief, based on reasonable grounds that the employee was medically incapable of performing the role for which he was employed. the belief was based on up to date medical evidence, shared with the complainant. The Complainant agreed that he was not fit to return to work in his previous role. “

Dismissal had been suggested by the respondent as a “potential outcome” and this had been communicated to the complainant. The Respondent had embraced the standards set down in Humphries on

1 Consider the duration and degree of impairment

2 Based on Medical Evidence

3 consideration of special treatment

4 Full participation of employee

The Respondent submitted that the company was permitted to rely on the defence of Section 16(1) of the Act, as they were not required to hire or keep in employment anyone “who is not fully competent, capable and willing to do the job in question under the conditions for which the job is required to be performed.”

The Complainant had not disputed that he was unable to work in dusty areas. The Respondent had engaged in significant assessment of the area to attempt to identify less dusty areas but was unable to identify such an area and therefore was not able to provide reasonable accommodation.

Evidence of Company Owner:

Mr O had been with the Company for 24 years. It is a second-generation family business which employs 125 employees, the breakdown of which is

Administration 8

Sales 13

Engineering 6

Supervisors, Quality, Distributors and General Operators form the remainder of the cadre.

The Company manufactures pipes and has faced trading challenges and significant redundancies. The threat of Brexit is also looming. Mr O recounted the Redundancy process he engaged in through LIFO in 2010. The operating culture of the business had changed radically since its 50 years of operation. the Safety function is now outsourced to a market expert and governed by standard operating procedures (SOPS) Jobs are accompanied by risk assessment.

Mr O outlined the operation of the extrusion hall and the different levels of dust, where the complainant worked. He submitted that dust could not be controlled in the external yard setting.

Mr O confirmed that the company had spent a lot of money (a 4-figure sum) on a Dust Assessment Report. He confirmed that he had not shared the report with the complainant. He gave no reason for this and realised that he should have done so.

He worked on the basis that the complainant was deemed medically fir to return to work and efforts were made to rehabilitate him back to the extrusion hall. He did explore alternative options directly with the complainant. Mr O contended that the exclusion hall was best placed from a dust control zone for the complainants return to work. the yard was an uncontrolled area. the Exclusion zone had a baseline measurement of 2% while packaging was 40%. There were no jobs in stores. A floater position was filled by an ex shop steward.

Mr O affirmed that there were no other options available for the complainants return to work and the complainant seemed to accept that. Mr A stated that he had offered an appeal but was not taken up by the complainant. Appeals were normally held by a Director of the Company and another manager.

Mr O was clear that the company had not been met by the term of “Anosmia “or the complainant’s disability at any time since the incident of 2015. The Company had been focussed on the complainants return to work through rehabilitation and exploration of alternatives based on medical opinion. Nobody mentioned a disability.

Mr O outlined that the company had consulted with the Union throughout and again nobody had mentioned disability prior to the WRC process. He understood that the PI claim had addressed the complainant’s loss of earnings to date attributed to his injury and any future estimated losses. Social welfare payments were due to be repaid.

Mr O had not seen the ENT Report from November 2017. the Company had very little staff turnover and during the change process of 2010, the company identified that 70 people had over 10 years’ service.

During cross examination, Mr O confirmed that he had filled the role of Director for 10 years. He was a qualified Accountant and had a knowledge of contract law. the Company did not have a Human Resource Manager but pay roll was administered locally. Mr O managed Absenteeism himself through company policies. He had not discussed the complainant’s loss of sense of smell with the Pay Roll Officer. He replied by saying that he relied on the Medical reports and the consequent engagements with the complainant. He refuted any reliance on disability in the case. He said the complainant was certainly ill but not disabled, his symptoms exacerbated when he came back to work.

The Engineering Dept received the Dust assessment but the report was not furnished to the Doctors with whom the complainant attended. The report was not sent to the complainant either, no reason given. The results were circulated through Safety Reps and Staff Working Areas the External Consultants assessed the workplace for dust. The Complainant could not see himself returning to extrusion area and never mentioned facial masks.

Mr O confirmed that the offer of appeal was not mentioned in the letter of Dismissal or in any other written format. He disputed that the complainant was unaware of his power top appeal as he was highly conversant with the company procedures where he had at least 1 verbal warning for “possible absence”

Mr O was certain that all areas were considered for suitability for the complainants return and none suited due to dust level. These conversations were actioned with the full participation of the complainant.

The Respondent concluded by re-affirming the Preliminary arguments and submitting that the complainant had not attained the burden of proof of discrimination in the case to cast the focus on the respondent. The Respondent relied on the defence contained in Section 16(1) of the Act.

In the latter-day response to the ENT Specialist Report, the Respondent re-affirmed that disability was not mentioned at any stage.

CA -00020738-002 Minimum Notice

The Respondent contested the claim and submitted that the complainant was not available to serve notice at the company. This did not warrant payment of a notice period.

CA -00020738-001

I have given a lot of thought to the facts of this case. I have considered all arguments advanced and all written submissions. Both claims originated as claims under the Employment Equality Acts 1998-2011.The first for a refusal to grant reasonable accommodation and the second for discriminatory dismissal.

I am certain that the over-arching Personal Injuries case concluded prior to the hearing cast a shadow over the case. The Respondent understood that they had discharged whatever liability they agreed on at this forum(undisclosed) and faced the prospect of defending the Equality claims with a high level of dissatisfaction and sense of duplicated proceedings.

I fully accept the Respondent submission on not having sight of a written submission in advance of the hearing. This is not a personalised attack on busy people in the field, but the issues at stake in the case would have benefitted from an earlier notification for all of us. In my opinion, it would have allowed all parties to prepare fully for the hearing, which comprises just one aspect of the investigation into the complaints.

The Respondent has argued that I should not entertain the case as the rule in Henderson and Henderson precludes this. I have given some thought to this submission and find that I disagree with it. The rule in Henderson and Henderson [1843]3 HARE 100 67 ER 313 from the English Court of Chancery established that a litigant may not raise a claim in subsequent litigation which ought to have been raised in a previous action.

However, the Irish Court of Appeal, Hogan J, most recently in Culkin V Sligo County Council [2017] IECA 104 took a more purposive approach to this rule and advised a “merits-based approach “in deciding cases where the Rule was raised.

Justice Hogan held that even if he wanted to, the Plaintiff, Mr Culkin, could not have combined a common law claim for Personal Injuries along with a statutory claim for discrimination in one set of proceedings. He then went on to temper his stratification of validating both parallel processes by way of a final rider:

It would be open to the Court of Trial to determine that the Personal Injury claim or part there-of should fail claiming it amounted in substance to a collateral attack of the Equality Tribunal.

In this case, I am faced with a reverse of Culkin. The PIAB case has concluded and the Respondent was particularly dissatisfied to be back at the table faced with a claim, they say they know nothing about. The Respondents representative was strident in that regard. The Complainant and his representative were equally strident that the complainant was entitled to pursue a claim to address the effects of his disability.

I had an issue where the Respondent offered to allow me to direct the Respondent to release details of the PI settlement. I asked both parties if they wished to volunteer this detail, neither party agreed.

In applying Culkin to the facts of the case, albeit in reverse sequence, I find that the complainant is not barred from taking his case as the claims for discrimination are not grounded on a claim for loss of earnings but for the effects of discrimination. This is a separate and distinct cause of action to a Personal Injuries case and is permitted to proceed. I have taken account of Justice Hogan’s rider on “collateral attack “and its possible consideration down the line in my investigation.

This brings me to the dispute of whether the complainant possesses a disability in accordance with Section 2 of the Act to satisfy the grounds for pursuing his case past the preliminary arguments stage and into a consideration of the substantive case as detailed above?

This is a very important threshold in the case.

I noted very early on at the hearing, that the Respondent had managed the complainant’s workplace experience post the industrial fume leak in 2015 through a Management of Attendance, Safety and Health and Occupational Health process. It is noted that the Respondent acted responsibly in this regard and the complainant was an active participant of that process.

However, on reviewing the documents , medical reports and inter party correspondence 2015-2018, and reflecting on the evidence adduced at hearing ,I have established that the Respondent was clearly concentrating on the complainants capacity to undertake the work and that if   compliance with legislation had been considered at all , the company were operating in accordance what the law said in terms of “ Capacity “ in Section 6 of the Unfair Dismissals Act .

The wording of the letter of dismissal clearly points to this and reflects case law in Dunnes Stores V Elaine O Brien, 2017, UDD 1714, Rearden and St Vincent’s Hospital at EAT in 1979 and the seminal High Court Case of Bolger V Showering’s [1990] ELR 184.

This, in my opinion goes a long way to explain the indignation expressed by the Respondent when faced with claims of discrimination, as they held an honest belief that they had already addressed and disposed of the complainants claim for actual and prospective loss of earnings, the central option of redress in Unfair Dismissal.

However, a claim for discrimination originates from a different background, that of the Employment Equality Act. The Framework Directive 2000/78/EC provides a general framework for equal treatment in employment and occupation. The Directive stresses that the EC Treaty should not be undermined by discrimination in the workplace.

Section 6 provides that discrimination shall be taken to occur where

(a)    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 S, 6(2) which

(1)    Exists

(2)    Existed but no longer exists

(3)    May exist in the future

(4)    Is Imputed to the person concerned

Section 6(2) (g) outlines that one is a person with a disability and the other either is not or is a person with a different disability.

The ground of Disability is set down in Section 2 of the Act.

“disability” means—

(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 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;

From the very outset, I must be satisfied that the Complainant is covered by the grounds of disability as set down in Section 2(1) of the Act. This was a hotly disputed point between the parties and one where considerable case law was advanced in support of the respective submissions.

The Complainant has submitted that he developed a disability following his workplace incident in 2015. He detailed that he had never managed to sustain a continuity in the workplace from that date and he had not returned to work post August 2017.

I took some time to consider the sole ENT Specialist Report submitted post hearing by the Union on behalf of the complainant. This Report is dated 22 June 2017 and was requested by a solicitor’s firm. I presume this document informed the earlier parallel proceedings.

The ENT Specialist was not present at hearing and I could not probe his Report with him as to whether he considered if the Complainant possessed a disability rather than the illness attributed to him by the Respondent. I did note that the Specialist detailed that the Complainant suffered a house mite allergy, nasal polyps and had a reduced sense of smell. I did not discover any Medical Reports which confirmed a total loss of smell.

The Report concluded by stating that “the situation looks chronic “Despite the reference to many visits to this Specialist paid for by the Respondent, these were not incorporated in the respondent submission. This caused me to probe the Occupational Health Physicians reports as this Consultant was not available to the hearing.

I noted that the November 2016 OHD Report recorded the complainant’s self-assessment of “an ongoing loss of sense of smell with nasal blockage present from sometimes or all of the time “the Report also raised a concern at the duration of time off work post the first operation.

I did not have access to any medical report from an ENT Specialist or Occupational Health Physician consistent with the time cited as the last date of discrimination, 18 April 2018.

I have yet to decide on whether the complainant could be said to have a disability in accordance with Section 2 of the Act. I have observed that the complainant had a history of several illnesses from 2015 onwards, from a bad back, gastric upset and the nasal condition attributed to the fallout from the Industrial leak. However, it is the nasal condition that I am being asked to recognise as a Disability. I am not aided by the lack of Independent Medical Validation of this condition. I appreciate that the complainant expressed a strong sense of alienation attributed to his condition, however, the continued absence of Medical Reports, despite my request for same has been a difficult issue for me to seek to unravel.

In a recent Labour Court case of Houses of the Oireachtas and Thomas Hickey EDA 1918, the Court quoted Chacon Navas v Eurest C -13-05 and the conjoined cases Jette Ring V Dansk Almennyttigt Boligselskab C -335/11(   HK Danmark ) Lone Skoube Werge v Dansk Arbejdgiverforening acting on behalf of PRO Display ( in liquidation C -337/11,which shone some light on the concept of Disability as referring to a limitation which results in particular from physical , mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of a person concerned in professional life on a long term basis .

The Court did not accept that a short term illness such as chest infection could constitute a disability.

“ No medical report was opened to the Court to establish clearly and unequivocally the extent and the duration of the complainants illness or that illness was a chronic illness within the meaning of the Act. The Court was informed of the medical certificates submitted by the complainant to his employer during the period of absence from work between early January 2014 and 24 March 2014, some of those noted the complainant was suffering from pleurisy, one stated a chest infection and others stated that he was absent by reason of “lung investigation “

The Court held that the Complainant had not established a prima facie case that he had a disability.

In the instant case, the complainant was cleared to return to work without restrictions by Occupational Health in November 2016. He did attempt to resume but had to withdraw. From early 2017 his absences were explained on a sequential basis as Viral Infection, Sore nose and Throat Infection x2 Chest Infection and problems with sinuses. The Complainant was cleared for a return to work by his own GP in September 2017 and Occupational Health in November 2017 outside areas of significant dust exposure. I did not have sight of the ENT Specialist Report following the visit dated 7 November 2017.

I am aware that the complainant or his representatives did not describe his illness as a disability during the inter party interactions prior to my investigation. The term is not used in any of the medical reports I read. However, I could see that the Union represented a very strong view expressed by the complainant that he was in fact disabled and limited in his capacity to participate in the way that the ECJ cases mentioned above describe.

I am further guided by a Preliminary Reference to ECJ in the case of Daouidi V Boots Plus SL, wages Fund, Ministerio Fiscal C -395/15 in seeking to explore whether a temporary incapacity equates with Disability.

The fact that a person concerned finds himself in a situation of temporary incapacity for work as defined in national law , for an indeterminate amount of time, as a result of an accident at work , does not mean , in itself that the limitation of that persons capacity can be classified as long term within the meaning of Disability in the Directive , read in the light of the United Nations Convention on the rights of Persons with Disabilities

The evidence which makes it possible to find that such a limitation is “ long term” includes the fact that at the time of the alleged discriminatory act , the incapacity of the person concerned does not display a clearly defined prognosis about short term progress or the fact that that incapacity is likely to be significantly prolonged before that person has recovered and in the context of verification of that “ long term “ nature the referring Court must base its decision on all the objective evidence in its possession , in particular on documents and certificates relating to that persons condition , established on the basis of current medical and scientific knowledge and data .

I have considered all I heard and read in this case in respect of this Preliminary Argument. the Complainant was deemed fit for work with suggestions of location in November 2017. The Communique reflects an ongoing illness rather than a Disability.

I find that I have insufficient supporting documentation or certification to support a finding of a Disability in this instance. A considerable length of time has passed since the ENT Report in my possession came into being and no further Specialist reports have been shared consistent with the dateline of the original complaints. The Complainant has not met the Test set out in Daouidi.

I fully accept that the Complainant has the right to run his case, but I cannot support his contention that his nasal illness, while clearly debilitating, entailed such a long-term limitation to be converted to a disability within the meaning of Directive 2000/78.

I have not established that he possessed a disability in accordance with Section 2 of the Act. I am unable to progress the case from Preliminary argument to the substantive case.

I find that the complaints are not well founded.

CA -00020738-002

I have considered both parties submissions in this case. Section 4 of the Act sets out the Employers statutory obligations in the case of termination of a contract of employment. Both parties accepted the dates given as the duration of employment.

I could not establish any fair grounds to separate the complainant from his legal right to notice. In accordance with my powers granted under Section 12 of the Act, I have identified a contravention of Section 4 of the Act.

I find the complaint to be well founded.

Decision:

CA -00020738-001 Employment Equality

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have found that the Complainant did not possess a disability in accordance with Section 2 of the Act. I find the complaints are not well founded.

CA -00020738-002 Minimum Notice

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

Section 11 of the Minimum Notice and Terms of Employment Act, 1973 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found the complaint to be well founded. I would direct the Respondent to immediately insert a clause on notice in all contracts of employment.

I order the Respondent to pay the complainant €4,960 in compensation in respect of the loss suffered. This amounts to the 8 weeks of notice due.

Discriminatory Dismissal, Reasonable Accommodation, Definition of Disability and Minimum Notice