Complainant

Respondent

Parties

Ryszard Cichocki

Abbot Ireland

Representatives

Self represented

Barrister

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00017136-001

29/01/2018

The complainant contends that he was discriminated against on ground of disability, that he was not afforded reasonable accommodation in relation to his disability, that he was harassed and victimised and that he was discriminatorily dismissed.

The Complainant was employed by the Respondent from 28th October 2008. On 6th September 2016, he was involved in a workplace accident where he tripped over a wire while he was carrying a tray of stents. He was brought to hospital and had x-rays and scans carried out. He underwent a knee operation in February 2017. He was on strong painkillers. It is alleged that he was under constant pressure and harassment from his employer in the months following the accident, which caused him stress and anxiety. During the Complainant’s periods of absence he furnished medical certificates to the Respondent bearing his correct address. In or around March/April 2017 the Complainant found himself under a lot of pressure from the Respondent to return to work.   As a result of the continued pressure, he attended his General Practitioner and was diagnosed with a stress related illness. The Respondent issued the Complainant with verbal and written warnings regarding alleged non compliance with the Company’s attendance and sick pay policy on the 17th November 2016 (verbal), and on 11th April 2017 (written). The Complainant wrote to the Respondent on 16th April 2017 from his correct address to formally complain about the treatment he had received from the company.   On or about 20th July 2017, the Complainant was again deemed unfit for work by the Respondent’s occupational health physician. On or about 26th July 2017 the Complainant’s wife asked his Supervisor how he would be notified of any meetings and was told he would be notified by phone.   On or about 2nd August 2017, the Complainant attended a review with the Respondent’s Occupational Health Physician. Although the Complainant complained to him of inter alia, work related stress and bullying by his employer, he was deemed fit to engage with HR by the OH Physician.   The Respondent wrote to the Complainant at the incorrect address (which he had not occupied for over 6 years) on 11th August and 18th August 2017 to notify him of his failure to attend meetings with HR on 9th and 16th August 2017 and to suggest a further meeting date of 23rd August 2017. The Respondent again wrote to the Complainant at the incorrect address on 30th August 2017 informing him of his alleged failure to comply with the Company Attendance and Sick Pay policy, his deemed abandonment of his position and the termination of his employment.                   In or about the month of August 2017 the Complainant received a telephone call from his Manager enquiring as to his health and recovery. The Complainant did not receive any form of correspondence to notify him of the scheduled meetings with HR on 9th, 16th or 23rd August 2017.     He did not receive any notice of the deemed abandonment of his position and his subsequent dismissal on 30th August 2017. It is argued that the Respondent was at all material times aware of the Complainant’s correct postal address and his phone details and that it failed to notify him in respect of these meetings and ultimate dismissal. On or about 11th September 2017, the Complainant attended the Respondent’s premises for the purpose of collecting his payslips. He was met by a representative of HR and informed that he was no longer an employee of the company.     It is submitted that the Complainant was dismissed by reason of the injuries he sustained in the accident at work on 6th September 2016 and the subsequent period of absence caused by those injuries.   It is further submitted that the Complainant was victimised and harassed in the course of his employment and that the Respondent failed to make any reasonable attempt to accommodate the Complainant with reasonable appropriate measures as required by law.

As a preliminary point, the Respondent argues that as the Complainant is not suffering a disability, he is not entitled to ground his complaint under the Employment Equality Acts on disability grounds.   The Complainant’s complaints in relation to injuries he sustained in his employment appear to be psychological in nature and result from his own general demeanour. The previous injuries which prevented him from returning to work in 2016 and which led to his uncertified absences in 2017 concerned injuries to his knee which appear to have been resolved. The Complainant was certified fit to engage with the Human Resources Department and his complaint of discriminatory dismissal relates solely to his ongoing absence from work beginning in August 2017. In these circumstances, it is submitted that the Complainant is no longer suffering from a disability within the meaning of the Employment Equality Acts.   In support of this argument, the Respondent relies on the Court of Justice decision in Chacon Navas v Eurest Colectividades SA (Case C-13/05) [2006] I.R.L.R. 706.

It is argued that the Complainant was dismissed solely for his clear failure to adhere to the Respondent’s Attendance and Sick Pay Policy and his dismissal was justified.

The sequence of events from September 2016 to August 2017 was outlined by the Respondent, summarised as follows:

On 6 September 2016 the Complainant alleged to suffer an injury while working at the Respondent’s premises and was off work for a while thereafter. Between September and November 2016, the Complainant was off work on occasions and was reviewed by the Occupational Health Physician and the Occupational Health Nurse, who recommended that he work shorter hours and lift weights no heavier than 5 kilos. On 17 October 2016, although he was deemed fit to work, the Complainant telephoned the Respondent and stated that he would not be coming in to work as he deemed himself not fit. He was informed that this was out of compliance with the Respondent’s Attendance and Sick Pay Policy. The Complainant remained out of work from 20 to 28 October 2016. In November 2016, he was out again and failed to attend an appointment with the Occupational Health Physician. As part of the absence and non-compliance investigation, the Complainant attended a meeting on 9 November with management and he informed them that he disagreed with the Physician’s opinion and confirmed that he was aware of the Respondent’s procedures. He was subsequently issued with a verbal warning.  

The Complainant was then absent for prolonged periods in February and March 2017. Prior to this, he had been back on normal duties.   In February he returned to Poland and had an operation on his knee. He failed to attend an appointment with the Occupational Health Physician on 20 February, which again rendered him non-compliant with the Respondent’s policy. He understood this and was not paid for the sick leave period.

On 27 March 2017 the Complainant was reviewed by the Occupational Health Physician and was certified fit to return to work in a restricted role for two weeks. On 6 April 2017 the Complainant attended an absence review meeting in accordance with the Attendance policy. He acknowledged that he had chosen not to attend the appointment on 20 February 2017, he acknowledged his absences and his awareness of the Policy and he was informed that his absence rate stood at 23%.   As a result, the Complainant was issued with a written warning. He was unhappy with the receipt of this written warning and he was informed by HR that he could appeal. He was supplied with written documentation and provided with additional time to lodge an appeal, but no appeal was submitted.

The Complainant was then absent for a further period beginning 4 July 2017. He declined to attend an appointment with Occupational Health on 12 July 2017. On 2 August 2017, the Occupational Health Physician deemed that the Complainant was fit to engage with HR and he would be fit to return to work once this engagement had taken place. The Complainant would not speak with his Supervisor when he phoned him, he would not engage with HR when the HR Department called him and he failed to attend a meeting arranged for 9 August 2017 to discuss his issues. Thereafter there was no contact made by the Complainant with the Company, and he failed to answer letters or attend meetings called during August. When the Complainant failed to attend a meeting on 30 August 2017 called to discuss with him his non compliance with the Company’s Attendance and Sick Pay Policy and his non attendance at scheduled appointments with HR, and as he had not been in contact since 4 August 2017, it was decided that the Complainant had abandoned his position and that his employment would be terminated.   The Complainant had effectively ceased all communications with the Respondent since 4 August 2017 and hid employment was terminated with effect from 30 August 2017. A letter of the same date was sent to the Complainant.   When the Complainant arrived at the Respondent’s premises on 11 September 2011 he was informed of the reasons for his dismissal on the basis that he had not been in contact with the Respondent since 4 August 2017 and that he had failed to attend appointments despite having been certified fit to engage with HR.

The Respondent submits that the Complainant is not entitled to ground his complaint on disability, as the injury he allegedly sustained resolved itself and the Complainant was dismissed for having failed to adhere to the Company Attendance and Sick Pay Policy and for having failed to engage with the Respondent for a period prior to his dismissal.

The first issue I consider therefore is whether the Complainant suffered a disability.

In the Employment Equality Acts 1998 - 2004 disability is defined as follows:

“ 2. (1) ‘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”.

In this case, it was submitted that the Complainant was treated badly by the Respondent and the inference was he was so treated because of his disability.

The Complainant allegedly suffered an injury at work in September 2016. There are numerous medical reports regarding his condition.   It appears he suffered physical and psychological damage according to the reports both from his own General Practitioner and the Respondent’s Occupational Health Physician.   Disability is broadly defined under the Acts. I note that the definition is not without limits and does not extend to transient pain or minor injuries.                                           Colgan v Boots Ireland Ltd DEC-E2010-008 citing the decision in Chacon Navas v Eurest Colectividades SA (Case C-13/05) [2006] ECR-1-6467 deals with such minor injuries and transient pain issues.   However, I find that the case law cited is not on all fours with this instant, and I am satisfied that the Complainant suffered a disability as defined in Section 2 (1) (e) above.

I now consider whether the Complainant has established a ‘prima facie’ case that he suffered discrimination by the Respondent on grounds of disability. Specifically, the Complainant contends that he was discriminatorily dismissed from his employment, and that he was victimised and harassed. He further contended at hearing that he was refused reasonable accommodation.

Section 6 (1) of the Act defines discrimination :

“6 (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, 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 subsection (2) (in this Act referred to as the “discriminatory grounds”) which –

(i)                  Exists,

(ii)                Existed but no longer exists,

(iii)               May exist in the future, or

(iv)               Is imputed to the person concerned.

And Section 6 (2) provides :

“(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are –

(g) that one person is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”.

Section 85A of the Employment Equality Acts provides that the burden of proof first lies with the Complainant to establish primary facts from which an inference of discrimination may be made (known as ‘prima facie’), and it is only then that the burden of proof shifts to the Respondent to prove that no discrimination took place.

Section 85A provides:

“85A – (1) Where in any proceedings facts are established by or on behalf by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.

The facts in this instant case are the Complainant allegedly sustained an injury at work in September 2016 and was out of work on and off for relatively short periods of time from then until he was dismissed at the end of August 2017.     The Respondent subjected him to verbal and written warnings in accordance with the strict Attendance and Sick Pay Policy in the Company.   I note the lack of engagement by the Complainant at certain times, his dissatisfaction with the written warning issued to him and ultimately his perception of the company bullying him.

The Labour Court in Melbury Developments v Valpeters (EDA0917) in interpreting Section 85A of the Acts held unequivocally that the onus of establishing a prima facie case is on the Complainant stated:

“Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires 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 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits no exceptions”.

In this case, the Complainant effectively ceased communication with his employer in or around 4 August 2017 and the Respondent dismissed him on foot of his failure to engage. There has been no evidence presented to me that the Respondent treated or would have treated any other employee in a different manner. The respondent obviously has strict attendance management policies and adhered to these. The fact that correspondence was sent to an out of date address was addressed by the Respondent as the Complainant’s responsibility, having failed to update his contact details in accordance with company policy. I note the lack of coordination between HR and Occupational Health where one section had the correct address and the other did not. However, this failing, and the general approach to the termination of the Complainant’s employment, while questionable cannot be said to be discriminatory acts on the grounds of disability. Likewise, I note the Complainant was accommodated with shorter hours and duties in another part of the plant when he returned to work initially, and I find his complaint of failure to provide reasonable accommodation to be not well founded.   The Complainant complained of victimisation and harassment. The Company as stated, operates a strict Attendance and Sick Pay policy and the Complainant was dismissed for having failed to comply with procedures. It was for this reason and not on grounds of disability the Complainant’s employment was terminated.

I find the Complainant has failed to established a prima facie case and I find pursuant to Section 79 (6) of the Acts, that the Respondent did not discriminate against, or discriminatorily dismiss the Complainant on the ground of disability