Complainant

Respondent

Anonymised Parties

Team Leader

Local Development Organisation

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-00028627-001

23/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00028627-002

23/05/2019

The complainant commenced employment with the respondent as a Team Leader in August 2014. The respondent is a service provider for community-based projects. In February 2019 the complainant was informed that he was required to move his work location to another town. The complainant objected to this proposed move on a number of grounds. The dispute is in relation to a written warning which was issued to the complainant. The complaint under the Employment Equality Act is that the complainant was discriminated against by reason of a disability and that he was not provided with reasonable accommodation for that disability.

After 5 years of being based in one location the complainant was instructed to move to another office located in the respondent’s Head Office which is 55 kms. distant.

There was no engagement with the complainant with regard to this move or his role in the new location.

The complainant objected to the move and both he and his union sought a meeting with management in this regard.

The complainant was issued with a written warning for refusing to move and threatened with further disciplinary action including dismissal. No appeal hearing took place.

The complainant suffers from a condition that, amongst other issues, restricts the amount of driving that he can perform.

The complainant provided a certificate from his GP to the effect that he was not fit to drive long distances but the respondent insisted that his transfer would take place.

The complainant transferred on 20 May and sought a meeting in relation to his new role and travel time and expenses. He advised management that he would leave the workplace early until such time as agreement could be reached on outstanding issues.

Management responded by advising that ceasing work early would be viewed as a breach of the complainant’s contract and would lead to dismissal. The complaint / dispute was then referred to the WRC by the complainant.

The complainant’s contract of employment specifies that his place of employment was the respondent’s Head Office and the operations area as being the county.

The complainant was requested to transfer from the branch office to Head Office to undertake the same type of work as he had been performing. Similar requests had been made to other staff in the past without objection.

Management met with the complainant in early February 2019 to discuss this issue but the complainant stated that he was refusing to transfer to the new location.

The complainant’s home address is situated between the two locations and the difference in travel distances is 6 km each way per day. The complainant was given 4 weeks’ notice in order that he could make any necessary arrangements.

On 25 February, having been advised by management of arrangements for his new position, the complainant again stated that he was not moving locations.

On 5 March the complainant was issued with a written warning for refusing to transfer as requested on 4 March. The complainant was also advised that if he did not transfer by 6 March further disciplinary action would be taken.

An exchange of emails with the complainant and his union followed with regard to an appeal against the warning but because of various objections no appeal hearing took place.

On 13 March 2019 management met with the complainant and his union official to discuss the issues regarding the transfer but no agreement was reached.

At the same meeting the respondent received a medical certificate regarding the complainant’s ability to drive and on 5 April the complainant was requested to attend an appointment with an Occupational Health Specialist. The complainant did not attend the appointment on 13 May.

On 20 May the complainant attended for work at Head Office but left early as he was taking 1.5 hours as travel time. There was no agreement for this action and management advised the complainant that any repetition of this breach of contract could result in the termination of his employment.

This complaint and dispute were heard in conjunction with the complaint contained in File No. ADJ-00022531.

The complainant was employed as a Team Leader / Supervisor by the respondent which operates community-based projects within its area. The employment commenced on 18 August 2014. The complainant was issued with a Statement of Employment which stated that the location of the post was in the town where the respondent’s Head Office was located and that the organisational area was the relevant county. The complainant was, however, assigned to work on a particular project in a branch office within the county and had responsibility for a number of staff in that location. There was no issue with the complainant’s work during this time.

On 6 February 2019 the Project Coordinator (and complainant’s line manager) visited the branch office and informed the complainant that he was required to re-locate to the organisation’s Head Office. The complainant stated that this visit was unannounced and that the request was a complete surprise to him. The complainant immediately objected to the proposed transfer. The accounts of the meeting by the persons concerned differ with the complainant stating that the Coordinator failed to engage with details of the complainant’s new role, responsibilities, travel time, expenses, etc.   The Coordinator stated that he attempted to point out that it was normal practice to transfer members of staff and that the proposed move would not involve any change in grade, status or earnings. It would appear, however, that the atmosphere at the meeting became heated and that consequently the meeting did not last very long.

The Coordinator sent an email to the complainant the next day stating that the complainant was required to move for “operational reasons” and advising that in order to allow the complainant to make arrangements for the move the transfer would take effect on 4 March 2019.   The Coordinator further stated that at the request of the complainant a copy of his contract was forwarded to him some days later together with a copy of the Staff Handbook.

On 25 February the Coordinator sent an email to the complainant confirming that his transfer would occur on 4 March as advised and informing the complainant that a named member of staff would meet him on that morning in order to brief him on operations in the Head Office. The complainant replied that afternoon and reiterated that he would not be moving to the other location. The complainant complained about the lack of information and consultation and about the concern that he had that the transfer involved a demotion. The complainant also contacted other persons involved in the organisation including the CEO as well as his union official.

The Coordinator responded by email on 28 February in which he stated that the move “is to accommodate the development of our new social enterprise initiative.” The email went on to mention that it was custom and practice to request staff to move location within the county. The email ended by stating that if the complainant maintained his refusal to transfer “sanctions will be invoked.” The Coordinator also wrote to the complainant’s union official later that same day setting out the respondent’s position and stating that he would be willing to discuss options “that might ameliorate any problems for (the complainant) in making the move, but the content of my email to him this morning …still stands.”

The complainant did not move offices on 4 March. On 5 March the Coordinator emailed the complainant expressing his disappointment at the failure to transfer and referenced the section of the Staff Handbook dealing with refusal to carry out “reasonable management instructions.” The email went on to state:

“This official written warning is to advise you that you are expected to do this by no later than 9am on Wednesday 6th March and that failure to do so will result in further disciplinary action up to and including termination.”

The complainant’s union responded on his behalf later that day requesting a withdrawal of the warning which it claimed was in breach of the principles of natural justice. The union also stated that the complainant wished to appeal the warning. The complainant went out on sick leave at this time and stated that this was due to the stress caused by these events. The Coordinator wrote to the union on 6 March acknowledging the request for an appeal hearing and suggesting that the parties meet on an informal basis to discuss the matters with a view to reaching agreement on how to move forward. The union responded by rejecting the idea of an informal meeting and requesting details an independent person to hear the appeal.   The union did, however, state that they were available for a meeting.

A meeting was held between the parties on 13 March to discuss the proposed transfer with the complainant being accompanied by his union official. No progress on that issue was made but at the end of the meeting the complainant submitted a medical certificate to the effect that his patient was suffering from chronic pain and as a result was not fit to drive long distances. There is a dispute in the accounts of what was stated by the Coordinator in response to this certificate. The complainant’s account is to the effect that the Coordinator sympathised with complainant and said that he was aware of this. The Coordinator stated that he responded by telling the complainant that this would have to be referred to the company as it was the first that he had heard about this matter.

Further correspondence occurred between the parties with the union asking that the complainant’s grievance in respect of the transfer request be heard in conjunction with the appeal of the written warning. The grievance was submitted in writing on 19 March. On 28 March the respondent submitted the name of the person who would hear these matters. The complainant sent an email objecting to the named person as he was a member of the respondent’s board.

The hearing was eventually arranged for 9 April to be heard by the named person. At the meeting the complainant’s side objected to the presence of the notetaker brought by the respondent as he was the same notetaker as had provided notes for the meeting of 13 March, the contents of which they had issues with. The meeting did not proceed that day.

In the meantime, on 5 April the respondent wrote to the complainant advising him that as a result of the medical certificate which had been submitted at the meeting of 13 March an appointment had been made for him to attend an Occupational Health Specialist for assessment on 13 May. The complainant’s union requested the respondent to provide details of the referral and this was sent on 23 April. The complainant noted that there were in fact two referral forms completed by the respondent which differed in detail regarding the reason for referral. One form refers to the complainant suffering from Fibromyalgia as a result of which he cannot drive to his workplace while the second form states that the complainant is refusing to transfer to another location by reason of pain related issues preventing him from driving to that location.

On 10 May the respondent sent a letter to the complainant offering “a final one-week period to make any necessary arrangements to facilitate the transfer”.

The complainant did not attend the medical assessment on 13 May. On 15 May the complainant responded to the letter of 10 May reiterating his position with regard to the transfer and requesting certain information in this regard. The complainant went on to state:

“If this move takes place, please note that you knowingly as my Employer are putting my health at risk.

Also please note for complete clarity – if this move takes place, I will be doing so under protest.”

The complainant also explained that due to issues with the referral he had missed the OH appointment and had been informed by the OH provider that requests for re-scheduling would have to come from the respondent. On 17 May the complainant emailed the respondent to confirm that he would attend for work at the new location on the following Monday. He again requested certain details including a detailed job description and a time/date to discuss expenses and travel time. The email reiterated the points about health risk and acting under protest.

On 20 May the complainant attended for work at the new location. He emailed the Coordinator that morning regarding having a discussion on expenses and travel time. He also sought clarity on his new role. He again emailed the Coordinator that afternoon regarding these matters and advised that until terms were agreed he planned to leave the offices at 3.30pm to allow for the 45 minutes each way travel time. The complainant subsequently left the office at 3.30pm as indicated. That evening the Coordinator sent a letter by email to the complainant setting out the background to the issue over the previous 13 weeks from the respondent’s point of view and ending the letter by stating that leaving at 3.30pm was in breach of the complainant’s contract and any recurrence would lead to termination of his employment. On 21 May the complainant’s union responded on his behalf protesting at the treatment suffered by their member and advising that the issues would be referred to the WRC. The complaints were received by the WRC on 23 May.

Complaint No. CA-00028627-001:

This is a complaint under the Employment Equality Acts, 1998 – 2015. The complaint is to the effect that the complainant was discriminated against with regard to their disability and specifically that the respondent failed to provide the complainant with reasonable accommodation in this respect. The complaint also alleges that the complainant suffered harassment by the respondent.

Section 6 of the Act states:

(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…

Subsection (2) details the discriminatory grounds and includes:

     (g) that one 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 16(3)(b) of the Act states:

The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability –

(a)    to have access to employment,

(b)    to participate or advance in employment, or

(c)     to undergo training,

unless the measures would impose a disproportionate burden on the employer.

The complainant in his submission states that he suffers from fibromyalgia. There was no medical evidence submitted at the hearing in this respect. He further goes on to state that the respondent was aware of this condition.   The respondent in evidence said that they were not aware of any specific condition until the complainant submitted a medical certificate to them on 13 March 2019. I have studied 10 medical certificates that the complainant submitted to the respondent in the period 22 March 2018 to date of complaint and I note that none of them makes specific reference to fibromyalgia.   There is in some cases reference to back pain / generalised pain. With regard to the certificate handed in at the meeting on 13 March I note that it states as follows:

“He is suffering from chronic pain which started 9 years ago and has never significantly responded to any treatment.

It significantly affects his daily routine.

Given his symptoms and long history I feel he is not fit to drive long distance as it can aggravate his pain and can prevent him to focus on his job.”

I note that this certificate does not specifically mention fibromyalgia. The referral form from the respondent to the OH specialist company dated 19 March contains the statement that “the employeeis claiming that he has fibromyalgia and that he cannot drive to his work place as a consequence.”

I also note that in the initial exchanges between the parties following the request to transfer on 6 February no mention was made of the complainant’s condition. I am therefore satisfied, based on the evidence before me, that the first occasion on which the respondent was advised of a specific condition pertaining to the complainant that could have an impact on work performance was 13 March.

The complainant subsequently put a lot of emphasis on the issue that the transfer of employment location required him to travel a long distance each day. I note that in fact his home address is situated almost equi-distance from the two locations in question with the Head Office about 5 kms further away than the branch office. The issue that the complainant had is that his children went to school in the town in which the branch office was located and that his requirements in their regard would entail the type of mileage that were at the heart of this element of his objections to the transfer. There was no requirement for the complainant to engage in extra travel during the course of his working day.

As noted above, having been informed of the complainant’s medical condition the respondent referred the complainant to an OH specialist company for assessment. I note that in fact there were two referrals and the reason for assessment and issues to be addressed vary in emphasis on the respective referral forms. It is clear, however, that the respondent was seeking confirmation as to the complainant’s declared disability. The complainant took issue with the referral and did not present himself for the appointment.

Section 16 of the Act imposes a duty on the employer to identify the measures which could be taken to reasonably accommodate the employee with a disability in carrying out their role.   The Labour Court examined this issue in the case of Humphries v Westwood Fitness (2004) ELR 296 as follows:

“However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity.

The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she is in full possession of all the material facts concerning the employee’s condition...”

It appears to me that in the case before me the employer, having been informed that the complainant had a medical condition, was endeavouring to carry out their obligations in this respect but the complainant did not attend the appointment arranged with the OH specialist.

The complainant also made reference to their belief that another member of staff who was appointed to the branch office as his replacement received expenses to travel to that location. This belief was based on a conversation that the complainant stated he had had with that person. There was no direct evidence therefore with regard to this matter. The Coordinator in his evidence rebutted this allegation.   It should be noted that the staff member concerned was present on the first day of the hearing but the respondent did not bring him to the adjourned hearing and thus there was no first-hand evidence from that person.

In summary therefore, the declaration by the complainant that he had a disability and that that disability might impact on his work took place five weeks after the request to transfer work location. The specific impact that the complainant advised the respondent about was his inability to drive long distances. The transfer did not of itself require the complainant to drive long distances.   The respondent was, however, engaged in a process to determine if and how the declared disability could impact on the complainant’s work.

Section 85A of the Act sets out the burden of proof that applies to claims of discrimination.   It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment on the grounds specified. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that discrimination has occurred. The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of sufficient significance before a prima facie case is established and the burden of proof shifts to the respondent.

Having regard to this requirement and to the evidence before me, I find that the complainant has failed to establish a prima facie case of failure by the respondent to provide reasonable accommodation in respect of his disability or of discrimination on the grounds of disability.

The complainant also alleges that he was harassed by the respondent. Section 14A(7)(a) of the Act defies harassment –

(a)    In this section –

(i)                  references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds and

(ii)                references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b)    Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other materials.

The complainant’s submission alleges that the actions of the respondent in insisting that he transfer work location and the events that ensued, as outlined above, over a period of three months amounted to a campaign of harassment on the part of the respondent.

I do not believe that these events constitute harassment as defined in the above section of the Act.   I believe that the respondent was insistent on the complainant transferring and that the complainant strongly objected to this proposal. The events that followed were industrial relations issues. That there were flaws in the manner in which the respondent pursued the matter is undoubtedly true but there were also issues with regard to the complainant’s response. These matters will be dealt with within that context. I therefore find that the complaint of harassment is unfounded.

Complaint no. CA-00028627-002:

This is a dispute under the Industrial Relations Act, 1969, and is in relation to the issuing of a written warning to the complainant on 5 March 2019. The sequence of events preceding this warning are set out above.   The Coordinator who issued the warning referenced the Disciplinary Procedures set out in the Staff Handbook.   Part of that procedure states as follows:

“Before the start of any stage of the procedure, you will be told of the nature of the complaint against you and no decisions will be made without you having been given the opportunity to fully state your case….At all stages of the disciplinary procedure you have the right to be accompanied by a work colleague or representative.”

The issuing of the written warning was clearly in breach of the respondent’s own procedures and in breach of the principles contained in the Code of Practice on Disciplinary and Grievance Procedures (S.I. No. 146 / 2000). There was no prior notice issued to the employee that the disciplinary process was being invoked, he was not advised of the complaints against him, he was not given a chance to state his case nor to have representation in that regard. I note that there was an appeal process set in motion but I do not intend to go into the various issues that then occurred. Suffice it to say that the issuing of the written warning was fundamentally flawed. I recommend that the warning be expunged from the complainant’s record.

CA-00028627-001:

I find that the complainant has failed to establish a prima facie case for the complaints under the Employment Equality Acts, 1998 – 2015 in respect of discrimination on the ground of disability, failure to provide reasonable accommodation and harassment. The complaints therefore fail.

CA-00028627-002:

I find that the employer’s procedures utilised in the issuing of a written warning to the employee were fundamentally flawed. I recommend that the warning be expunged from his file and that the employer abide by their own procedures and by the principles set out in the relevant Code of Practice.

Reasonable accommodation     Disability     Harassment     Written warning.