Complainant

Respondent

Anonymised Parties

Senior Depot Worker

Transport provider

Representatives

Rachel Timlin   Kenny Sullivan Solrs

Lars Amussen BL

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-00032784-001

06/12/2019

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

CA-00032784-002

06/12/2019

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

CA-00032784-003

06/12/2019

The Complainant has worked with the Respondent for nearly twenty years. In 2014 the Complainant was diagnosed with depression, which said mental health condition can correctly be described as a disability for the purpose of the Employment Equality Act of 1998. The Complainant continues to work for the employer, but several issues have arisen which have given rise to the Complainant making formal complaints by way of 2 workplace relations complaint forms dated the 27th of November 2019 and the 6th of December 2019.

The Complainant has suffered with serious bouts of depression which has compromised his ability to work. The Complainant does not believe that the Employer has responded appropriately to this condition and has felt marginalised and discriminated against. In addition, the Complainant believes that he has had a formal Grievance ignored and has had wages unlawfully deducted. The Complainant gave evidence on his own behalf and that evidence was challenged.

The Respondent was represented by its own Industrial Relations team and I was provided with a written submission together with relevant documentation. Evidence was provided by the District Manager and the Industrial Relations Manager. The evidence was subject to cross-examination. The Respondent denied discrimination and the two claims under the payment of Wages Acts. The Respondent denies that a dispute has arisen under the Industrial Relations Act. The Employer evidence is that it has doubled down on its efforts to accommodate this employee in recognition of the difficulties the employee has had and his genuine desire to get back to work and re-engage more generally.

I have carefully considered the evidence adduced in the course of this hearing. The Complainant herein has worked with the Respondent transport provider for nearly twenty years. The Complainant worked in one of the many transport hubs associated with this Respondent and his tasks included general operative duties, cleaning, cash handling, ticketing and assisting wheelchair and other disabled persons accessing and using the service.

It is fully accepted by the Respondent and this Adjudicator that the Complainant has been diagnosed with depression since 2014 and that this has interfered with his ability to cope with ordinary every-day life. The Complainant has been treated by his own G.P and has attended programmes in an adult mental health centre which includes counselling and treatment for an associated dependency. Whilst specifics were not opened to me in a detailed way, I accept that the Complainant has not had an easy time.

The evidence is that the Complainant was missing from the workplace for periods in 2014. When this absence was questioned, the Complainant subsequently came under the care of the company Chief Medical Officer. I understand that the Offices of the Chief Medical Officer include up to 5 full time Doctors responsible for the health and safety and occupational capabilities of up to 10,000 employees across a number of Public Transport bodies.

Over the next couple of years, the Complainant continued to work on a sporadic basis though his ability to perform tasks was severely curtailed. At the direction of the Chief Medical Officer, the Complainant was not allowed to work safety critical duties and was not allowed to perform on-track duties. When the Complainant had to leave the workplace through ill health, he had the benefit of the in-house sick payment scheme. The said scheme operated to allow for full remuneration for a certain period, with reduced remuneration over time up to 26 weeks in total.

One of the terms of the continued employment in the workplace (or claiming the sickness absence benefit) was that the Complainant submitted to random assessment under the Board’s Drugs and Alcohol Programme. He missed two consecutive appointments in May of 2017 which might have seen the end of the employment had not the Complainant’s SIPTU representative got involved. This effected his entitlement to continue on the sick scheme pay roll. The Complainant re-engaged with the process and returned to the CMO. For whatever reason, there then followed a period of time when no progress was made. As I understand it, the CMO was anxious to know and understand the nature and extent of the treatment that the complainant was undergoing in the adult mental health centre. The Complainant did not facilitate this request though whether this was because he was reluctant, or he genuinely thought that the information would not be forthcoming is not clear to me.

By early July 2018 the CMO had indicated that the he was not in a position to make any further recommendation in the absence “..of Medical reports from his treating medical officer in connection with his underlying medical conditions”.

In early January 2019 the Complainant came back to the Employer and appeared to be ready to co-operate with the CMO. I understand that the Complainant had the full support of his SIPTU representative at this time and at all times. It was agreed that the Complainant would be returned to the sick leave payroll at the end of January 2019.

The Complainant’s condition improved in the next while and a CMO assessment at the start of June 2019 suggested that in the right conditions the Complainant could return to the workplace. The CMO indicated that non-safety critical role would continue to be advised. In addition, the CMO advised that the Complainant should not be given “non-lone working duties”.

The Respondent gave evidence that this last request for “non-lone working duties” was most unusual and proved very difficult to implement as a matter of practicality. In the course of a working day at any of its hubs or depots an employee will often be working on his/her own such as when cleaning or in the ticket office. Whilst very often employees work alongside one another too, the clear implication of the Chief Medical Officer is that the Complainant, by reason of his medical conditions, should not be allowed to work on his own and should always have another employee at this side. I must accept that the precaution was a balanced one considering the Chief Medical Officer’s own understanding and assessment of the risk. Nobody has challenged the CMO findings.

At this time the Complainant was only communicating with his Employer through his SIPTU representative who, I would note, was working very hard on the Complainant’s behalf. The Complainant could not understand why he could not be immediately returned to the workplace as he thought others had been. The Complainant gave evidence that he should have been allowed to come in and sit in the office as soon as he was deemed fit to return to work. This, he said had happened to a fellow employee Mr. AT. I do not know if this proposition was ever put to the Employer through the SIPTU representative, but this appears to be a part of the Complainant’s case that he was discriminated against by reason of his disability, with Mr. AT being set up as a comparator.

In evidence the Complainant made out the case that the Company never communicated directly with him, but I would accept that the Employer was never put on notice that it should deal with any person other than the SIPTU representative that it had been dealing with. It was for the Complainant to signal that this should change if he wanted a more direct line of communication. In circumstances such as these, I am mindful of the fact that the Employer that communicates directly with an employee who has been out on sick leave or is otherwise vulnerable often exposes itself to criticism when an alternative method of communication presents itself (Union Rep, Solicitor etc.).

I accept that there was a regrettable delay in finding a position for the Complainant which allowed him safely to return to the workplace in such a way that he would not be alone in the course of his working shift. I am advised that the position – working at the barrier checking tickets – was a bespoke position for the Complainant as it was improvised in such a way that he would always be allowed work alongside a co-worker. The Complainant returned to work on or about the 20th of August 2019. On balance I am inclined to accept the Respondent ‘s evidence that this was a reasonable accommodation of the Complainant’s particular circumstances.

The Complainant stated that many of the tasks that he had been allowed to do heretofore were removed from him and he cited being allowed to help with wheelchair bound passengers or working in the booking office as examples. The Employer said that the former is seen as a safety critical role and the latter is a solitary role and therefore both tasks were denied the Complainant by reason of the Chief Medical Officers dictate.

In his evidence, I understood that the Complainant believed that the Company had acted with cruelty to deny his return to the workplace for so long and then compounded this cruelty by refusing to let him operate and perform duties he felt capable of performing. The Complainant has brought a Payment of Wages claim in respect of this period of time. On balance, I have formed the view that the Complainant did not appear to have an insight into the difficulties created by the CMO in attaching the condition that the Complainant was not to be allowed to work on his own. No blame attaches to either party the CMO’s proviso simply had to be implemented. I think the Complainant should give more credit to the Employer for having made the accommodation that it has,

Unfortunately, about six weeks after he had started back up, the Complainant was the victim of an unprovoked assault on the street which left him shaken. In addition, the Complainant had to have a number of procedures carried out on his jaw and sent certificates from St James Hospital confirming this had happened.

I think it was reasonable that the Station Master on learning of this incident, and given the Complainant’s very particular medical background, requested that the CMO be allowed assess the Complainant to ensure his fitness to return to duties. I am not an expert in medical matters, but I think it reasonably foreseeable that a violent assault might have a negative impact on a person’s mental health. The Station Master made the correct decision. There was however an unfortunate delay between this request being made and an appointment being made for review. The Complainant was without pay for that period of circa four weeks. I note that when he was certified as fit to work following the appointment on November 15th, 2019, the employer wanted this information formally confirmed by the CMO before formally allowing the Complainant return.

The Complainant’s frustration is fully articulated in a Grievance letter dated the 15th November 2019 and addressed to the HR department. I understand that when the Complainant went out sick by reason of the assault, he had already exhausted his sick pay entitlements under the company scheme for the relevant twelve-month period as the Complainant had been on sick pay from January to July 2019.   The delay in meeting with the CMO, he says, gave rise to undue financial hardship. The Complainant asserted that it was widely known that getting such an appointment should only take a day or two.

I note that receipt of the Complainant’s Grievance was notified to the Complainant, but that no formal steps were ever taken as the Complainant issued two formal complaints through the WRC on the 27th of November and the 6th of December. Both of these complaints have come before me at this time. In its defence before me, the Respondent stated that it can give no guarantee on how quickly an employee can be seen by the CMO. The notification of a consultation in less than 48 hours is usually related to the Drugs and alcohol programme for blood testing.

On balance, and in considering the evidence I have outlined above, I am satisfied that the Complainant has not made out a Prima Facie case of discrimination by the Employer.

I am additionally not making any recommendation under the Industrial Relations legislation as I am of the belief that the Complainant’s Grievance was superseded by his own actions when he raised the exact same complaint with the WRC before the Grievance had gained any traction in the workplace. He did not allow this matter be dealt with in the workplace before bringing it before the WRC.

Regarding the Complainant’s last complaint, I am inclined to accept that no effort was made to speed up the process whereby the Complainant might be sanctioned by the CMO to return to the workplace. The delay gave rise to the loss of remuneration.

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

CA-00032784-001- the Complainant has made out no Prima Facie case against the Employer and was not discriminated against.

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

CA-00032784-002 – the Complaint herein is not well-founded and I make no recommendation.

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

CA-00032784-003 – The Complaint herein is well founded and I am directing that the employer pay to the employee the amount of €1,000.00.