EDA2015

FULL RECOMMENDATION

ADE/19/39
ADJ-00013697 CA-00017822-001

DETERMINATIONNO.EDA2015

SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015

PARTIES :

ASSURED PERSONNEL LTD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

MR ADAM HERZYK
(REPRESENTED BY E.M. O'HANRAHAN SOLICITORS)

DIVISION :

Chairman:	Ms O'Donnell
Employer Member:	Ms Connolly
Worker Member:	Mr Hall

SUBJECT:

1.Appeal Of Adjudication Officer Decision No. ADJ-00013697

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section (83) (1) of the Employment Equality Acts,1998 to 2015. A Labour Court hearing took place on 20th August 2020. The following is the Determination of the Court:

DETERMINATION:

Introduction
This is an appeal by Adam Herzyk (the Complainant) against the Adjudication Officer’s Decision ADJ-00013697 in his complaint of discrimination on the ground of disability and discriminatory constructive dismissal by Assured Personnel Ltd (the Respondent). The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Acts).

The Adjudication Officer found that the complaint failed.

Background

The Complainant commenced work with the Respondent on the 31^stMarch 2016. His employment came to an end when he resigned on the 7^thDecember 2017. The Complainant was employed as a casual worker and in accordance with his contract work was assigned on a ‘first in first asked basis’. The Complainant was employed as a driver/ valeter. It is the Complainant’s contention that he was constructively discriminatorily dismissed. The Complainant left work on the 9^thMay as he was unable to work due to a pain in his back. On the 22^ndMay 2017 he submitted a medical certificate which cited back pain as the reason for his absence. The Complainant submitted medical certificates up to and including the 30^thSeptember 2017. In September 2017 he submitted to the Respondent a medical certificate confirming he was fit to work from the 1^stOctober 2017 but should not work fulltime and should perform light work. It is the Complainant’s submission that the Respondent did not offer him any work at all in the period 1^stOctober 2017 until his resignation on the 7^thDecember 2017.

The Complainant lodged his claim with the WRC on the 18^thMarch 2018. The cognisable period for the purpose of the Act therefore is 19^thSeptember 2017 to the 18^thMarch 2018. However, as the employment ceased on the 7^thDecember 2017 that is the relevant end date in respect of this case.

Complainant’s case

The Complainant went on certified sick leave from May 2017, the certificate he submitted indicated that he was suffering with low back pain. During his absence the Complainant was in regular contact with the Respondent by text message. A translated version of the text messages was provided to the Court by the Complainant. On the 9^thMay 2017 he received a text message form the Respondent stating

“I received a message from Tina after you left office today, apparently you have trouble with your back. As soon as possible a doctor’s statement that you are capable of work is necessary. I need the doctor to write what type of work you can do and how long.”

The Complainant responded advising that he had a medical appointment with a Polish Orthopaedist in Dublin on May 20^thas that was the earliest date he could get. A further text message was received from the Respondent on the 12^thMay 2017 as follows:

”I understand. I need to be certified as soon as possible that your work is not overly physical. that you are able to give it up and that you agree to your obligations. Please also add that you waive any complainants about the company regarding your problems. If you work too much ,then I ask you to stop working until you receive a doctor’s certificate.

The Complainant submitted medical certificates from the 20^thMay 2017 and submitted a statement to the Respondent dated 22 May 2017 asfollows “ I am stating that my back pains (injury) happened as a result of my last work. Thus, I do not claim anything regarding this matter from the company”

On the 8^thand the 10^thSeptember 2017 the Complainant sent messages confirming that he had submitted a certificate to cover him until the 30^thSeptember and that he could go back to work on the 1^stOctober 2017. The Respondent replied on the 11^thSeptember 2017“I understand. You will have to talk to Marcin about the hours. If the hours are available it will bring in a wider range from the doctor, recommending you work half time for now”.

On the 17^thand 23^rdOctober 2017 the Complainant sent further messages looking for work. He received a message from the Respondent on the 23^rdOctober as follows “Hello, are you available 7 days a week”. He responded on the same day confirming that he was available 7 days a week although his Doctor had recommended that he work part-time and that he had submitted that doctor’s report. The Complainant messaged again on the 5^th, 10^thand 17^thof November but received no response from the Respondent. On the 1^stDecember 2017 the Complainant was certified as “fit and well to undertake fulltime work.” He submitted that medical certificate by email to the Respondent on the 4^thDecember 2017. He also sent a text message on the morning of the 4th December 2017 stating “I sent the last certificate from the doctor. When can I count on any work?”

On the morning of the 7^thDecember 2017 the Complainant sent a further message saying“ In connection with the lack of perspectives and the company’s desire to continue my future work, I am forced to take a termination notice. Please send p45. By the way, I wish you a Merry Christmas and all the best in the New Year.”

This was followed up by a message of the 11^thDecember looking for a letter from the Respondent confirming that the employment had ended.

It is the Complainant’s submissions that he suffered from a disability as defined under section 2 (1) ( c) of the Acts in that his low back pain was a malfunction of a part of his body. In support of this submission the Complainant provided the Court with a medical report dated 13 March 2017 which indicated that “his type of injury is overuse and overloading type”and that the expectation was that the symptoms would approve over time. A second report that appear to have been done in and around 2013 stating that he suffers from chronic back pain and that the pain first occurred in 2011 was also submitted.

It is the Complainant’s submission that the Respondent discriminated against him by not facilitating his return to work with effect from 1^stOctober 2017. The Complainant identified 10 comparators who he submits were provided with work during the relevant period. It is also the Complainants submission that when he notified the Respondent on the 4^thof December 2017 that he was fully fit to return to fulltime work that the Respondent did not provide him with any work, and he was left with no choice but to resign on the 7^thDecember 2020 and was therefore constructively dismissed because of his disability.

The Complainant is seeking compensation for the act of discrimination on the grounds of disability and for constructive dismissal.

Respondent’s case

The Respondent’s business is seasonal and the period during which the Complainant is alleging discrimination is low season and there was not much work available. Any work that was available was distributed on a First in First asked basis. The Respondent’s disputes that the Complainant had a disability and submitted that the Complainant had not provided any grounds to substantiate that his back pain amounted to a disability. It is the Respondent’s submission that even if had a disability the mere fact that he fell within one of the discriminatory grounds is not sufficient in itself to establish a claim of discrimination. The Respondent submitted that the Complainant had failed to discharge the evidential burden which must be discharged beforea prima faciecase can be said to have been established.

In respect of the Comparators the Respondent submitted anonymised data showing the hours worked by a number of workers during the relevant period. The Respondent submitted that it was clear from the data that the majority of employees had their hours reduced during the period and that the fact that he did not receive any hours was due to the seasonal nature of the work. The Respondent informed the Court that they had a group app whereby a week in advance they circulated the hours available and casual employees could indicate if they were available and the work was then assigned on a First in First asked basis. The Complainant would not have been included in that group app while he was on sick leave.

In respect of the Complainant’s complaint that he had not been facilitated when he sought to return to work on 1^stOctober 2020 in line with his medical report the Respondent submitted that there had been an internal meeting to look and see if he could be facilitated but the nature of the work meant it was not possible. It was their submission that he had been informed of this in early October during a meeting with a manager of the Company. Unfortunately, the manager who had met him had left the company and there was no note of the meeting or of any correspondence to him setting out that the employer having reviewed the position was not able to make reasonable accommodation. Nor was this mentioned in response to the various text messages he sent to the company during the relevant period.

In respect of the Complainant’s complaint that he had to resign and therefore was constructively dismissed, the Respondent denied that the Complainant had cause to resign. The Complainant submitted a medical certificate by email on Monday the 4^thDecember 2017. The Complainant would have been aware that in line with normal practice the hours for that week would have already been allocated and that it would be the end of the week before the next message seeking employee’s availability would issue. The Complainant did not raise any grievance with the Respondent. The Complainant resigned by text message on the 7^thDecember 2017 and then sought his p45. It is the Respondent’s submission that no dismissal took place. Based on previous years the Complainant would have been aware that the Respondent’s business would pick up over the Christmas period, but he resigned before the Respondent had an opportunity to assign work to him.

The applicable law

The Act defines disability and discrimination as follows;

Section 2.— (1) In this Act, unless the context otherwise requires

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,

(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;

Section 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 insubsection (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,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination.

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

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different [civil status] (in this Act referred to as “the[civil status]ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject tosubsection (3)(in this Act referred to as “the age ground”),

(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”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of theTravellercommunity and the other is not (in this Act referred to as “theTravellercommunity ground”).

Discussion and determination

The Respondent alleges that the Complainant does not have a disability within the meaning of the Act. The Court having heard the submissions and reviewed the medical reports provided finds that the Complainant did suffer a ‘malfunction’ of his lower back and therefore his disability falls within the scope of the Act.

The Complainant alleges that he was discriminated against on the grounds of disability. In a claim of discrimination under the Act it is for the Complainant in the first instant to establish surrounding or primary facts which could lead to an inference that discrimination has occurred before the burden of proof shifts to the Respondent. There is a three-tiered test for establishing if the burden shifts to the Respondent which is often referred to as the “Mitchell” test.

It provides:-

1)It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so. he or she cannot succeed.
2)If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.
3)If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent,(Mitchell v Southern Health Board [2001] ELR 201)

The Complainant in this case relies on the failure of the Respondent to provide him with any work after he submitted a medical certificate indicating that he should work part-time on restricted duties. The Respondent does not dispute that the Complainant was not assigned work in the relevant period. It is clear to the Court based on the submissions of the parties that the Complainant had established a prima facie case of discrimination and therefore the burden of proving that the failure to assign work to the Complainant was not linked to his disability falls to the Respondent. The Respondent in his submission relied on the fact that they applied a First in First asked policy. However, when the Court with the agreement of the both parties reviewed the data provided, it was clear that employees with less service than the Complainant were offered hours during the relevant period. The Respondent confirmed to the Court that during the relevant period the Complainant in fact was not included in the group message which issued each week to all the casual staff advising of the hours available for the coming week as he was out sick. Although the Respondent submitted that they had considered whether or not a reasonable accommodation could be made for the Complainant they had no documentation to support that contention nor could they explain why this was not mentioned in response to the numerous text messages from the Complainant indicating his availability. In all the circumstances of this case the Court finds that the Complainant was discriminated against on the grounds of his disability when he was not offered hours under the first in first asked system from the 1^stOctober 2017. The Respondent also failed to establish that they had considered in a real manner the possibility of reasonable accommodation.

The Complainant’ second complaint is that he was constructively dismissed

The applicable law

Section 1 of the Unfair Dismissals Act 1977 defines constructive dismissal in the following manner

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,”

Section 6(1) of the Act states

“ Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Issues for the Court

As dismissal as a fact is in dispute it is for the complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act.
Section 1of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test”
an employer must be“guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”as held.
Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the Court may find?he is justified in leaving. It is this latter reasonableness test that is relied upon by the complainant.

Discussion

The question that arises for decision in this case is whether, it was reasonable for the Complainant to terminate his employment because of the Respondent’s conduct. The Court notes that it is not disputed between the parties that the Complainant submitted a medical certificate on the 4^thDecember 2017 confirming that he was fully fit for work. The Complainant submits that the unreasonable behaviour of the Respondent in not providing reasonable accommodation and then when he was certified fully fit to work not providing him with work left him with no choice but to resign. The Court finds that the Complainant would have been aware that when he submitted the certificate on the Monday that the work for that week would have already been allocated. Therefore, it is not clear why he felt he had to resign on the Wednesday two days after submitting the final certificate. Any issues that the Complainant had in relation to failure to provide reasonable accommodation could have been progressed without the need to resign his position. The Court finds, therefore, that the Complainant was not constructively dismissed.

Determination

The Court finds that the Complainant was discriminated on the basis of his Disability. The effect of that discrimination was that he had no earnings from the 1^stOctober till the 7th December 2017 the date his employment ended. The Court in accordance with Section 82 (1)( c) of the Act awards compensation in the amount of €10,000. This sum reflects both the effects that flowed from the discrimination and the requirement that the amount awarded be effective, proportionate and dissuasive.
In respect of the complaint for unfair dismissal, the Court finds no dismissal occurred and that element of the complaint fails.
The Court so Determines.