Complainant

Respondent

Anonymised Parties

A Manufacturing Engineer

A Medical Devices Company

Act

Complaints Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00014076-001

21/09/2017

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

CA-00014076-002

21/09/2017

The claims in this case arose from an alleged contravention of the Payment of Wages Act in respect of a reduction in the payment of annual bonus in 2017 and a claim of Discrimination on grounds of disability.

The Complainant was represented by Kevin Bell, B.L instructed by Deirdre Crowley, Solicitor and the Respondent was represented by Sophie Crosbie, IBEC Executive and members of the Respondent Human Resource Team.

Both parties submitted written documents in support of their position. I sought further submissions on whether stress can be deemed a ground of Disability. I received further documentation from both parties. I accept there has been a delay in completing my decision and I apologise for this. I had to be satisfied that I had assembled all relevant documents to complete my Inquiry and Investigation in the case. I am satisfied that I now have such documentation and can proceed to the decision in both cases.

This case had originally been conjoined with ADJ 10766 as some confusion existed surrounding the identification of the correct legal entity. Both parties agreed that the present named respondent constituted the correctly termed employer and ADJ 10766 was formally withdrawn at the commencement of the hearing.

At the time of lodging the complaint on 21 September 2017, the complainant was employed as a Manufacturing Engineer in a large Medical Devices company. He worked a 39-hour week in return for a monthly payment of €4180.78 per month. The Complainant had commenced work in February 2002 and. He resigned his position in March 2018 while on long term sick leave. The Complainants representatives submitted an expansive documentation which incorporated a contract of employment signed 26 March 2013.

CA -0014076-001 Payment of Wages Act

The Complainant submitted that he usually received a bonus payment which ranged between 8% and 12.5% annually. The annual calculation of the bonus was unfavourably reduced in his case in the 2016 calculation and an illegal deduction was made to the complainant’s award of €4,300 in March 2017. The Complainant submitted that a bonus of approximately 12% was paid to his fellow employees covering 2016 and he had been disadvantaged by the reduction applied in his case.

The Complainant had raised an extensive grievance dated 4 May 2017 which addressed this omission, and this had not been dealt with adequately.

By way of background, Counsel for the complainant outlined that the Complainant had recorded two episodes of work-related stress during 2016 and did not go back to work.

He argued that the Bonus was corporately determined. The Complainant was unaware of target shortfalls applicable to his performance in 2016 and while he had had previous absences at the company , he had not experienced a commensurate deduction in his bonus payment .He contended that it was    particularly relevant   that a standard mid-year review of performance review had not taken place and the complainant had instead been inputted in the calibration system as “ Improvement needed “ without engagement .This category prevailed at the end of year consideration on the application of the bonus payment . This served as a departure from the company’s standard approach to identification and application of the bonus payment.

Counsel went on to emphasise that while the Respondent may have held a discretion in the application of the bonus payment, it ought not to have been applied arbitrarily, capriciously or be fettered for discriminatory reasons.

The decision making, and administration of the bonus was not explained to the complainant as he had not participated in the process.

The Complainant sought a reimbursement of the deduction on his complaint form and at hearing.

CA-00014076-002 Employment Equality Complaint

The Complainant submitted that he had been discriminated against on grounds of Disability on 22 March 2017. The Complainant submitted that he had been denied payment of an annual bonus in the amount of approximately €5,200 because he had been suffering from work related stress. The Complainant contended that he had been on sick leave at the time the bonus was paid and had continued sick leave up to the submission of his complaint. He argued that he had been treated less favourably by his employer whilst on work related sick leave as he would have otherwise have received a significantly larger bonus amount.

Counsel for the Complainant submitted that the Complainant presented with a psychological impairment which constituted a Disability.

The Complainant gave evidence that he had experienced pressure in relation to 3 active projects where he believed that there was no agreed pathway to managing a resolution. He became apprehensive of failure and time lines began to slip. He submitted that he had not been listened to. There was a changeover of Line Manager and a back fill was delayed while Mr A, the incumbent was double jobbing. The Complainant became physically and mentally fatigued and secure sleep enabling medication from his GP. He was forthright in his account of his condition with the Occupational health Physician from the outset and on July 7, 2016, the Physician told him to replace “Medical Illness “on his certificates with Work Related Stress.

On his return to work in August 2016, the complainant submitted that he was curtailed from inserting Work-Related Stress on his back to work record by Mr A. He tried to engage on making progress with his line Manager and human resources, he raised efficiencies at the Engineering meeting, but he didn’t continue with the Human Resource interface. He was promised the support of a Graduate engineer, new in the door, who turned out to be consumed in manufacturing and not really in a position to contribute to the projects. He recalled that he fell apart as he had not mastered the effects of his first absence and he felt worse than before and recommenced sick leave on November 7, 2016.

The Complainant explained that the purpose of a mid-year review “I stop give that person an opportunity to perform or to put yourself in there. The Criteria for payment of the bonus was based on the Company and self-performance. He attributed his absence as the reason for the deduction in bonus. He had never been given the category of “Improvement needed “before.

In cross examination, the complainant confirmed his understanding that a sheet of paper accompanied the Company Rules of the Bonus scheme. He affirmed that the Company had cancelled one of the Projects in September 2016, but those 3 projects were active all Summer. he confirmed that he had discussed his problems with Mr A but had not formalised them into a grievance in real time. He confirmed that he was physically and mentally frail and availed of counselling as he had experienced anger.

In referring to the loss of his partial bonus, the complainant believed that nobody spoke to him regarding the calculation of the bonus which was less favourable to him as he had not participated in any of the reviews underlying the calculation.

The Complainants representative submitted that the complainant had sought a resolution meeting in October 2016. He was not submitting a complaint of reasonable accommodation. Instead, he contended that the complainant was suffering from a Disability of psychological impairment for a period of 18 months and this was sufficient to shift the probative Burden of Proof to the Respondent. He argued that Section 2 of the Act served to prohibit the decision to reduce the bonus payment. In previous years, he had been participant in the review process and this year he had been eclipsed by his health and absence as reflected in the November calibration. Nobody had explained this rationale to the complainant.

The Complainant submitted a supplementary submission on 31 July in response to the extensive legal submission from the Respondent.

1 The Complainants condition constituted an illness which constituted an impairment and thus was covered by Section 2 of the Act.

2 The Complainant named a comparator who worked on the same team as the complainant and who did not have a disability and earned €5,960 by way of 2016 bonus payment

3 The Complainant had tried to engage but was discouraged by the approach adopted by his Line Manager, Mr A

The Complainant referred on case law of Prison Officer V Minister for Justice and Brides V Minister for Agriculture

The Respondent is a large Medical Devices Company. The Complainant commenced work as a Process Technician on 11 February 2002 and was promoted to the position of Manufacturing Engineer. The Complainant applied for promotion in late 2015 and was unsuccessful. The Respondent submitted that this led to an associated demotivation.

The Complainant resigned his position on 27 March 2018. At the time of the hearing the Respondent had been notified of parallel claims in existence under Personal Injuries and Unfair Dismissals Acts.

The Complainant had a period of sick leave of 4 week in June 2016.He proceeded on continuous sick leave from which he did not return to work in November 2016. The Complainant submitted a grievance in May 2017.  

CA -0014076-001 Payment of Wages Act

The Respondent disputed the claim.

The Respondent outlined that a worldwide incentivised bonus scheme operates globally within the company.

“For each performance year there is an aggregate bonus pool which is the sum of the bonus targets of all eligible participants. After the end of the performance year, the committee determines the percentage of the pool that will be paid out as bonus for that year, based on the Company’s performance as to sales and adjusted earnings per share and its attainment of quality goals ……”

Eligibility to participate in the Plan for a Performance Year was outlined as:

1 Regular Exempt Employee or Eligible International Employee

2 Not eligible for commission

3 Not eligible for any other incentive plan or programme

4 You complete at least two full months of eligible service during the performance year

Provision is made for pro -rata service based on the percentage of time in an eligible position during the performance year.

All bonus awards are to be based on salary and incentive target as of December 31 of the Performance Year.

The Respondent submitted that the bonus was not a contractual entitlement for the complainant and questioned whether it was properly incorporated by the Payment of Wages Act.

The 2016 (January -December) bonus payment (payable in March 2017) was made to the complainant as €1699.49 and not €800 as alleged by the complainant.

In quoting from the Respondent submission : Once the assigned bonus pool is determined for each business group, region or unit , the amount of the assigned bonus pool will be entered into the compensation management system which allocates a portion of their assigned bonus pool to each manager of plan participants .Each manager will evaluate the performance of each participant under his management and enter into the compensation management system rating percentage from 0% to 150% for each evaluate participant .

The rate assigned determines the percentage of Target Annual Bonus.

The Complainant received 25% value of bonus with a Performance rating of “Improvement required” for the year 2016. The Plant received a bonus funding of 108%.

The Respondent outlined that the complainant had demonstrated 4 periods of absence over a 12-month period in 2016. A new Manager was appointed to the complainant’s team in May 2016 and the mid-year performance review was not undertaken in the usual sense. The new manager was obliged to input the calibration system and inserted the complainant based on 360-degree feedback as “improvement required “

The Respondent submitted the sick leave record for the complainant for 2016.

February 8,9 and 10 = 3 days

June – July       = 22 days

November onwards =34 days

During the second period of sick leave, the complainant provided a medical opinion from his own Doctor citing “work related stress” He was seen by the Company Doctor on 6 July 2016 who echoed “some stress related symptoms …. which he believes are due to workplace matters …” He was recommended a return to work on 11 July 2016 with a rider to address the workplace issues. The Complainant returned to work on July 27, 2016 and engaged in his workplace difficulties. His three projects were reduced to two projects.

The Complainant had a performance rating of “needs improvement” at year end based on the available information as he had been absent on sick leave since November and was not a participant in the review. He received 25% of the bonus payable.

The Complainant submitted a grievance on 4 May 2017 in response to this development. The grievance was an expansive document and addressed the entire work station outside the bonus payment.

The Respondent denied that a deduction had been made to the complainant under the meaning of the Act. His bonus was therefore allocated based on his individual performance according to the rules of the scheme. The Complainant had not demonstrated his entitlement to the bonus .2016 was the first year that his performance rating was “ improvement required “ and this informed the reduced bonus payment which was designed by two managers at the plant .The Respondent submitted that the company’s experience of midyear “ needs improvements” recipients amounted to a perceived difficulty in closing the gap in performance over the second half of the year .

The Respondent contended that the claim under the Payment of Wages Act is not a mechanism to appeal the performance rating which was properly addressed under the Industrial Relations Act or the grievance procedure

CA-00014076-002 Employment Equality Complaint

The Respondent disputed that work-related stress amounted to a disability within the meaning of the Employment Equality Acts as provided for in Section 2(1) (e), whose definition of disability refers to conditions or impairments of a relatively serious nature.

In relying on the jurisprudence of the ECJ in HK Danmark acting on behalf of Ring V Dansk Almennyttigt Boligselskab (C -335/11), the Respondent presented the concept of Disability in Council Directive 2000/78/EC where the ECJ had sought to differentiate Disability from Sickness.

Disability ……must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails 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 the person concerned in professional life on an equal basis with other workers, and the limitation is a long term one …….on the other hand , an illness not entailing such a limitation is not covered by the concept of discrimination .

The Respondent submitted that the Investigation and hearing should have regard for a clarification in the condition, illness or disease in a given case. The Respondent submitted that the difference between general illness and disability cited in EDA 094 had a relevant application to the case. This distinction was further reflected in

Herry V Dudley metropolitan council and Governing Body of Hillcrest school UK EAT /010/16 LA

J V DLA Piper Uk [2010] ICR 1052

Cregg Labour Solutions ltd V Gerard Cahill EDA 1634

Mr O V A named Company DEC-E 2003-52

A worker V A Food Manufacturer DEC -E2010-1897

The Respondent emphasised the differentiation made between what is termed disability and what is termed ordinary stress or disappointment and reactions to adverse circumstances or life events .For the ground of disability to be relied on, the respondent contended that some form of physical or mental impairment ought to be in existence . The Respondents view on this was strengthen by the caselaw which emphasised that meaningful medical reports from relevant specialists / GP were necessary to satisfy the probative burden of proof outlined in Section 85A of the Act.

In drawing from the Labour Courts distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on one hand and recognised psychiatric illness, the Respondent referenced the International Classification of Disease version 10 which excludes work related stress as a mental illness presentation from 27 named classifications of illness.

The Respondent submitted that the true construction of disability within Section 2(1) (e) of the Act requires as a starting point a known medically diagnosed mental illness or condition as opposed to stress or work relate stress which are part of the human experience of everyday life.

The Respondent also submitted that the complainant had not provided evidence, so his purported disability influenced the decision to award a lower bonus. The Respondent stated that the claim was misconceived in law.

The Respondent argued that the complainant had not placed the Respondent on notice of a disability or a desire for reasonable accommodation prior to his departure on sick leave in November 2016. His concerns originated from workload which in turn had been reduced. The Complainant has not furnished details of a comparator or whether he is alleging direct or indirect discrimination and the Respondent wished to reserve their position on the right of reply. The Respondent disputed that the complainant could rightly rely on himself as a proper comparator for the purposes of his complaint.

The Respondent exhibited a series of Consultant Occupational Health Physician reports 6 July 2016 to 21 March 2017 in addition to a copy of a back to Work Meeting in July 2016

Ms B, Human Resource Manager gave evidence on the pathway of support opened to the complainant. Following a two-week period of absence, a Report I furnished to an Occupational Health Nurse who in turn referred the complainant to the Occupational Health Physician.

A recommendation followed in July 2016 that the Complainant engage with his Manager and HR.

Ms B submitted her knowledge of Bonus Calculation at the Company. The Calibration Meeting is hell in late November in advance of the performance review. Once the Corporate Review is completed in January/February, the employees are then made aware of the bonus payment award. There is a provision for a year end appeal to Mr A.

During cross examination, Ms B confirmed that the end of year review is the reasoning which reflects the performance. The Managers decide the rating, which is not shared.

In closing the Respondent Representative reaffirmed that illness such as experienced by the complainant did not constitute a disability. The bonus had been objectively decided by Mid-year review on a 360-degree basis.

She disputed that the complainant had satisfied the burden of proof and the complainant had neglected to cite a comparator He had not been treated less favourably on the 5 established needs set out in the reviews.

The Respondent was aggrieved by the late submission of the complainant’s supplementary submission post hearing. In responding to the submission, the Respondent observed that the complainant was seeking to “conflate the nomenclature on a medical certificate with a disability and this was not a correct application of the law”. The Respondent argued that the Company was prejudiced by the lack of notification of a disability and disputed the Comparator pro offered given that he was ranked two levels below the complainant.

CA -0014076-001 Payment of Wages Act

I have carefully considered the oral and written submissions of the parties. I have been asked to decide on whether the 25% payment of a performance bonus in March 2017 constituted an illegal deduction in the complainant’s wages? There was a pronounced conflict between the parties on this issue and I have needed some time to review the evidence and the documentation.

Firstly, the complainant has submitted that he was illegally deducted 75% of his bonus payable for the calendar year 2016.In taking the Respondents submission, I must firstly explore whether payment of a bonus is covered by the Payment of Wages Act in the first instance?

I read the Respondent submitted Company Bonus Plan. I considered the 2002 Complainant contract submitted by the Respondent, which was silent on the bonus payment. I read and considered the 2013 contract of employment submitted by the complainant. Part 7 was delineated as Bonus and requires a full inclusion for deliberative purposes.

You will be entitled to participate in the Company’s bonus scheme. The scheme currently provides for an annual bonus of up to 10% of basic salary (ex-pension) The amount of any bonus (if any) shall be determined by the Company having regard to criteria established by the company. The Company reserves the right in its absolute discretion to amend or terminate the bonus scheme at any time.

Section 1 of the Payment of Wages Act sets out a broad definition of wages as:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,

From a careful reading of Section 7 of the 2013 contract, and the undisputed fact that a bonus (albeit reduced) was paid to the complainant in March 2017, and every other year of his employment, I am satisfied that the bonus payment at the heart of this claim constitutes wages as a bonus referable to his employment. This is exhibited by the Respondent Policy Document named X Company Annual Bonus Plan. I am satisfied that I hold the jurisdiction to consider this claim further to establish whether the partial reduction in the bonus paid in March 2017 constituted a breach of Section 5(1) of the Act?

It is common case that the complainant had an extensive period of 59 days sick leave in the calendar year 2016. I note that he had a recorded 13 days sick in 2015 and 25 days in 2015, neither of which appeared to have a material effect on the application of the bonus payment for those respective years.

I took time to read the entire document on the Company Bonus Plan cited in the respondent documentation .The Bonus , once declared by Committee is then channelled through the Business Units to the Managers who in turn evaluate the performance of their direct reports and determine for each participant , the percentage ( 0-150%) of the participants Target annual bonus as the bonus Saward for the performance year .

Eligibility is outlined as satisfying all the following:

1 You are a regular exempt employee or an eligible international employee

2 Not eligible for commissions

3 Not eligible for eligibility in any other incentive plan

4 Two full months of eligible service during the performance year.

A pro rata divisor applied for internal company relocation based on time spent in eligible position.

The Determination process is governed by Committee and CEO.

In reviewing the documentation associated with the plan, I was struck by the clearly delineated Section 5 of Payment Conditions:

To avail of a bonus payment, employment was deemed to be essential and I was struck by the line

“If you cease employment before the (bonus) payment date, you will not be eligible to receive any bonus award ……. Conversely, if you are an employee on the payment date, you will be entitled to your bonus award, if any, even if you are not actively performing duties on that date

The Section goes on to mention eligibility for bonus payment in circumstances surrounding severance, lay off and leave of absence.

I am satisfied that the complainant was directly employed by the Respondent on the declaration of the 2016 Bonus in December 2016. He was on paid sick leave at the time of the alleged deduction followed by a transition to income protection payments from the company. However, I was not satisfied with how the Respondent approached the calculation of the Individualised bonus as there was a clear departure from the standard procedure of mid year assessment or even end of year conjoint review. The Complainants representative disputed the pro offered 360 Feedback form as originating at the time of the supposed mid-year review. I, myself found a complete lack of transparency on the interface of the sick leave scheme with the bonus payment scheme. I endeavoured to secure some clarification from the company representatives in how absences through for example sick leave / maternity leave reflected in the bonus payment system, but there was no specific policy governing these instances available.

I reverted again to the Bonus Payment Scheme for guidance and Step 4 on Individual determinations of bonus by management. I was slow to take account of the Professional Development plan in this regard as it was dated 26 January 2017 and the complainant was not a participant. The System dated this form as 28 April 2017, some 5 weeks after the bonus payment was made.

In short, I could not identify a fair or reasonable deliberative process which resulted in the 25% bonus payment to the complainant. No evidence was adduced that the company had trading difficulties which may have caused the company to shorten the global payment to staff. In fact, it was not disputed that a full bonus payment was declared by the company for year ending 2016 at 108%.

I have considered the nature of the bonus outlined in Section 7 of the Complainants contract of employment. I am mindful of the EATs 2015 determination in Devlin V ESB [2015]26 ELR 278, where in their deliberations on whether a bonus was payable, the Tribunal drew on the persuasive effect of Horkulak V Cantor Fitzgerald Int [2004] ICR 697 and held that a discretion Is not unfettered and must be exercised reasonably and in good faith.

I have found that an omission occurred in the calculation of the complainant’s bonus payment for 2016. It seems to me that he satisfied the eligibility criteria for payment and was wrongly assigned a pro rata calculation without his participation or consent. I appreciate that the complainant went on to raise a grievance in May 2017. However, there were so many issues catalogued on that document that it was not crystal clear that the complainant was taking issue with his bonus being reduced for the year 2016. It got lost in the myriad of other issues. I accept the Respondent submission in that regard.

In Cleary v B and Q Ireland ltd [2016] IEHC 119, Mc Dermott J in deciding on whether an appeal of the EAT on a retrospective bonus payment should succeed made the following remarks which have guided my findings. I accept that the facts of the case are distinguished in part from the instant case, however it is his comments on a “bonus earned and subsequently payable “that I seek to emphasise here

I am satisfied that the bonus for August 2011 to January 2012 was properly payable in June 2012 notwithstanding the withdrawal of the scheme in January 2012. I am satisfied that in the circumstances of this case the overall discretionary nature of the bonus scheme does not extend to a withholding of the bonus due, in respect of that period, in respect of which the bonus was quantified and payable under the scheme, subject to compliance with the eligibility provisions. I am satisfied that the contract of employment and bonus scheme must be interpreted reasonably. The discretion to withdraw the bonus scheme at any time, in my view, was always intended to apply in futuro and attached to the conferring of bonuses, yet unaccrued, under the terms of the scheme. The payment of the bonus crystallised as a contractual obligation once it was “earned” in accordance with the terms of the scheme as operated. I am satisfied that the Tribunal erred in law, in interpreting the discretion vested in the employer to withdraw the bonus scheme at any time as being applicable or attaching to this period.

The Respondent submitted that the Complainant had not earned the full bonus payment for 2016 and that the categorisation of his performance of “Improvement needed” in May 2016 was the sole option open to the company in a year end calculation of bonus. I had difficulty with the passivity in this position and I could not find an opportunity for an application of pro rata outside an internal mobility situation of which paid sick leave is not on par.

Based on the above objective analysis, I find that the Respondent erred in the calculation of the complainant’s yearend bonus in seeking to rely in a May Performance Ratings at year end. I have found a deviation from the eligibility criteria in Section 2 of the Plan.

1.       The Complainant was an eligible international employee

2.       He had no declared commission /incentive plan

3.       He had completed two months of eligible service during the performance year

I also found an inconsistency in application of the bonus payments 2013-2016.

I must therefore find that the Complainants bonus was properly payable in its complete form in March 2017 and that the complainant was wrongly deducted 75% of his bonus.

I have found that the Respondent Contravened Section 5(6) (a) of the Act and applied an illegal deduction to the complainant’s wages on March 22, 2017. Sullivan V Department of Education [1998] ELR 217 applied.

I find the complaint to be well founded.

CA -0014076-002 Employment Equality Claim

The Complainant outlined his complaint on grounds of disability on his presiding complaint form. I accept that it would have been more helpful for the complainant to submit a written submission as requested prior to the hearing. The purpose of this is to allow the investigation to commence in a timely fashion and to permit the time allocated to the hearing to be used for clarifications of the documents and the submission of oral evidence from the parties.

The Respondent was forthright in their criticism of the approach adopted by the Complainant. For my part, I wanted to ensure that both parties were heard and given that the respondent accompanied their written submission with a rider of preserving their right of response to the complainant, I did not think they were prejudiced by allowing the complainant to make reciprocal legal submissions on which the Respondent was given an opportunity to respond in full.

I found an overlap in the spirit and intent on this the second claim in this case. Both claims arose from the non-payment of aspects of the complainant’s bonus in March 2017. This claim requires to be investigated in accordance with Section 79 of the Employment Equality Act.

I have considered the extensive written and oral submissions submitted by the parties. I have reflected on the evidence adduced at hearing.

As a first step, I must be satisfied that the Complainant is covered by the grounds of disability as set down in Section 2(1) (e) of the Act. This is the core of disagreement between the parties and one I have probed carefully seeking Occupational Health Reports from the Respondent to assist in my investigation.

The issue before me is one of tenure of illness (temporary incapacity for work) and definition of disability.

Section 2 (1) defines Disability as

“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;

The Complainant has submitted that his condition of work-related stress amounts to a long-term Disability. He submitted a GP certificate citing work related stress consistent with the period of the deduction in the bonus. the Complainants representative asked me to look at and consider that the complainant had been on a period of extended leave due to work related stress for over 18 months. The Respondent in reply submitted that the complainant had been recommended a return to work by the Occupational Health Physician in July 2016, this coincided with the Management review of performance. The Respondent accepted that the complainant was ill but did not accept that this amounted to a disability given that the company had not been placed on notice of his condition and he had failed to appeal the refusal top grant him income protection payments from the company scheme.

It is important for me to reflect on the definition of Disability. I can accept that the complainant was ill and suffered from a psychological impairment. I was very struck by his honest evidence where he described that his thought processes were seriously affected through his experiences at work.

I note the Respondent submissions also and note while the Respondent was on notice of the nature of the complainants illness from Summer 2016 ,the complainant did not describe his condition as a disability until the circumstances of this complaint .I accept that the Complainants letter of Grievance dated May 4 2017 captured details of work load overload and disregard for him as an employee , these issues were conjoined with many more statements of need for progress .

I asked to review the up to date Occupational Health Reports compiled by the Company Physician as I already had sight of the undisputed GP medical reports. I was particularly interested to consider the complainants professionally judged prognosis at the time of the alleged discriminatory act in March 2017. I found these reports helpful

On 7 December 2016, stress related symptoms were marked, and the complainant was deemed unfit to link with a Manager.

On 12 January 2017, unfit for work, symptomatic, unable to give definite return to work date.

21 March 2017, Grievance procedure commenced, symptoms have settled, medically fit to meet with Human Resources. This report was emailed.

This signals a pathway of progression and reflects an equilibrium in symptoms at least. It also sets out a plan to an engagement with the Management Team. I have emphasised this period as it reflects on the time of the alleged discriminatory action on March 22.I note that the Complainant has emphasised that the complainant did not recover and resigned his position later. However, I believe I am to consider the facts of the case as they arose up to 22 March 2017.

In this I am guided by The Framework Directive 2000/78/EC provides a general framework for equal treatment in employment and occupation. It cautions that the objectives of the EC Treaty should not be undermined by discrimination in the workplace.I am also mindful of the jurisprudence in HK Danmark which equates Disability with a “ long term “ tenure .This was an important departure from Chacon Navas .

I am guided by a Preliminary Reference to ECJ in the case of Daouidi V Boots Plus SL, Wages Fund, Ministerio Fiscal C -395/15, 1 December 2016. This case involved a Kitchen Assistant who functioned at a high level prior to breaking his arm in a workplace accident, following which his employment was terminated. The Spanish Court submitted 5 questions to the ECJ and it is the fifth question to which I was drawn on whether a person who finds himself unable to work temporarily as determined by national law for an indeterminate period through an accident at work, and whether the limitation to that person’s capacity can be defined as “long term”?

On the facts of this case, I found that the Occupational Health Report of March 21 demonstrated short term progress and I did not detect that the incapacity was likely to be significantly prolonged given the energy associated with the planned grievance. Of course, I would have liked to have heard directly from the Physician, however, I am mindful that the complainant had indicated that he had placed a high level of trust in her assessment early on. I also had regard for the GP reports.

At the time of the deduction of the bonus, I cannot establish that the complainant was in possession of a disability in accordance with Section 2(1) (e) of the Act.

I have taken the time to extract the persuasive commentary from the ECJ in support of my finding.

On those grounds, the Court (Third Chamber) hereby rules in Daouidi:

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that:

– the fact that the person concerned finds himself or herself in a situation of temporary incapacity for work, as defined in national law, for an indeterminate amount of time, as the result of an accident at work, does not mean, in itself, that the limitation of that person’s capacity can be classified as being ‘long-term’, within the meaning of the definition of ‘disability’ laid down by that directive, read in the light of the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009;

– the evidence which makes it possible to find that such a limitation is ‘long-term’ includes the fact that, at the time of the allegedly 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 the verification of that ‘long-term’ nature, the referring court must base its decision on all of the objective evidence in its possession, in particular on documents and certificates relating to that person’s condition, established on the basis of current medical and scientific knowledge and data.

I appreciate that the facts of this case are unique, however, based on the facts before me, I have found that the Complainant was not in possession of the ground of Disability consistent with the period in which the bonus was reduced.

I find the complaint not well founded.

Decision:

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

CA-0014076-001 Payment of Wages Act.

Section 6 of the Payment of Wages Act, 1991 requires me to make a decision in respect of the alleged contravention of Section 5(1) of the Act.

I have found the complaint to be well founded and I order the Employer to pay to the employee the net amount of 75% of the bonus earned by the employee during 2016. I order that this sum amounts to €5,098.47 less statutory deductions.

CA -0014076-002 Employment Equality Claim

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 completed my investigation, I have found for the reasons outlined, that the complainant cannot rely on the ground of disability to advance his complaint. I have no further jurisdiction in the case. The claim is not well founded.

Payment of Bonus, Discrimination on grounds of work-related stress