Complainant

Respondent

Anonymised Parties

A Worker

A Dairy Manufacturing Plant

Representatives

Denis Gormalley Siptu

 HR Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00034739-001

19/02/2020

The claimant was aggrieved with the reduction in pay he incurred for a period of redeployment following his return from sick leave.

Introduction

Adjudicator, the case before you here today relates to a dispute/complaint by our member in relation to the company regrading him from a chargehand to grade 6 and the subsequent loss of earnings suffered. The respondent is a multipurpose agricultural co-operative with business interests in Dairy Ingredients, Consumer Foods, Animal Feed Milling and Trading.

Background

We believe that in order to give a true reflection of our case it is appropriate for the claimant to outline the background in his own words from his experience:

Adjudicator, my grievance centre’s around the decision of the respondent not

to grant me a reasonable accommodation (no night shifts) when I went back to

work on 21st March 2018. Had they done so, I would not have lost my job as

chargehand in the case in plant and would not have incurred a financial loss of in excess of €16,000.

This situation arose as a result of my ill-health. Briefly, my medical history is as

follows: -

In February 2013, I had a disc replaced (A.C.D.F.). This was in my neck at

C6/C7. I was off work for approx. 12 weeks. When I returned to work, I had no

trouble settling into my old job. There was no loss of duties or pay. In 2014, I was diagnosed with Neuropathy. I immediately advised my line manager, Mr. X and I continued in my job.

In 2017, I again had trouble with a disc in my neck and after many deliberations with doctors, I again had a disc replaced – this time C5/C6. I was off work for 7 months in total, much of this time was without company sick pay. In March 2018, I was fit to return to work having been referred to the company doctor on 8th February 2018. I informed the HR Manager, and a meeting was arranged with Mr. Y, Head of Health & Safety. At this meeting, I was asked by Mr. Y (in the presence of the Human Resources Manager) what my duties were, and I told him that I was a chargehand in the Casein Plant. He asked who I was working with and he advised me that the other person must do the lifting. He said that I must return on a phased basis starting with a 3 day per week and building up to a 4 day and a 5-day week. He advised me to report to Mr. Z who was Health & Safety Officer at this stage so that he could do a risk assessment. I left that meeting with the impression that I returning to my old job from the following Monday and that the Head of Health & Safety had approved this.

I returned to work on 21st March 2018 and reported to Mr. X and also to

The Head of Food Ingrediencies. Mr. X advised that he was not aware of my return to work but went ahead with the Risk Assessment (copy which I have). His advice was to lift nothing as the company doctor had indicated that I should lift nothing heavier than 5 kg.

Ms. B told me to go to the Control Room, but she didn’t know what my duties were as I was not Chargehand. There was no mention that my rate of pay was to be reduced. It was a strange set-up – sitting in the Control Room each day behind those that were doing my job with nothing to do and this went on for the most part of 6 months. This felt like I was been treated like a child and that I was been punished for suffering with the disability.

The first time I realised that my rate was cut was when I opened my payslip after the first week back. I approached Ms. B about this, and she said that she had forgotten to say it to me. It is worth noting at this point that during the recent ‘Pandemic Redeployment’, the chargehands involved, Mr. A, Mr. B & Mr. C etc did not have their rates cut even though they were not doing a chargehand job during the pandemic.

As the weeks went by, I covered the position of chargehand (cover for Mr. D on 6th May 2018; cover for the late Mr. E on 12th June; Mr. F on 15th June and others). I received Chargehand’s rate of pay for these periods and I was fit for the job.

So, as I’ve said – I was fit and willing to do the job, all that I required was a

‘Reasonable Accommodation’.

The company requested that I attend the company doctor. This I did on 25th July 2018 – I met with a Dr. A. This was the second visit to a company doctor. The first visit was to a Dr. B on 8th February 2018 prior to my return to work in March. Dr. B stated that I was suffering from depression which was a very hurtful statement which he later withdrew as I never suffered from depression.

Dr. B has since amended his report to take account of this error. At my visit with Dr. A, she had a list of activities on site but certainly had no list of jobs. She stated that I couldn’t be washing silos (she seemed to think that this was a manual exercise). I wondered at the sincerity of this exercise. She didn’t seem to understand the duties of a Chargehand.

I wish to contest the point made by Dr.A  her report when she states that Neuropathy is worse at night. It is my experience that Neuropathy is worse when I sleep be that day or night.

I met with Mr. G manager for the division of the company I work in and Ms. A on 20th June 2018 and again met with Mr. G and Ms. B on 26th June 2018 at which meeting Mr. G stated that my problem was that ‘I didn’t want to work’, something he later refused to accept that he said.

I did all I could to resolve the issue, but the company refused to give me my job back or a ‘reasonable accommodation’. Surely, it would have been possible to say that they could give me my job back with a reasonable accommodation (like they did I do all I could to resolve the issue, but the company refused to give me my job back or a ‘reasonable accommodation’. Surely, it would have been possible to say that they could give me my job back with a reasonable accommodation (like they did for Mr. H, Mr. I  and others who do not work nights) and when something suitable would come up that they could look favourably on my application. I did apply for 2 jobs over the past 4 years or so

but both were unsuccessful. I do not understand what was going on – on one hand, Mr. G told me I was the best chargehand in Casein and yet he told me that I didn’t want to work. I must say that this was the most stressful time I’ve had in 33 years with the company and stress drives my condition worse.

At this stage, it was agreed that we would get SIPTU involved. We worked to resolve the matter with Mr. D.G (SIPTU) and at all times I looked for my old job back, the basis of which is the legislation – The Employment Equality Acts 1998-2015 which deals with persons at work who are unfortunate

enough to pick up a disability. This is also stated on the Irish Human Rights and Equality Commission (IHREC) website –

‘An employer cannot decide that a

person with a disability is incapable of doing a particular job without considering whether there are appropriate measures which they could take to support the person to carry out the required duties.’ These measures include offering flexible working times to the employee. It also must be noted that there is support for employers and these details are available on the website mentioned above.

If redeployment to an administrative role was the only option as suggested by Dr. A, training would have been important, this is also supported by legislation. Perhaps the company is of the view that I cannot be re-trained but as my condition worsens this might be an option we could revisit without animosity.

My current health situation is that I have disc degeneration, two replaced, two more injected on 2nd October 2020. I met with Mr. H Neurosurgeon for a second opinion on 21st December 2020 and a pending visiting to the Mater Hospital on 10th February 2021 as the investigation into my neuropathy is ongoing. It is fair to say I’m a chronic pain sufferer and yes, it is difficult to keep

the current job going as it is a 6-day job on shift.

It must be noted that in 2018, I had 2 kids at National School and as my wife worked, it was important to me that I remained on shift work. Like most, I had a mortgage to pay and a loss of €20,000 if I was forced to move to a job as junior storeman (which I was forced under protest) at short notice could not be afforded.

Also, this was having a major effect on my pension because at my age I was heading into my last ten years and the best three of the last ten count for the pension.

The junior storeman’s job was totally the wrong place for me as there was a lot of lifting involved and the Health & Safety people had said that I was to do no lifting yet each day 90% of my work involved lifting. I was advised by Mr.G that he ‘could send me anywhere he liked’, I felt this statement was put to me in a forthright manner that was somewhat aggressive and was backing me into a corner. This was at a meeting on 24th September 2018 with my union Official and Ms. A which goes against the Health & Safety advice offered by the company doctor. This meant I had to stay in this job without objection. I did have to visit my GP to get anti-inflammatory medication during this time which caused further medical problems.

I’m grateful to the respondent for 33 years of service, I’m also grateful to the management for going some way towards giving me reasonable accommodation albeit late in the day and somewhat short of what was granted to others after a lot of stress and bad feelings.

My grievance is of a financial loss and not resulting from not receiving a full reasonable accommodation which I sought. Please note that there is no financial loss to the company in doing this. I work to cover the ‘coverman role’ and he covers for me.

A Grade 7/Chargehand in the Casein Plant in 2018 could earn in excess of 54,500.

Note this was a Clasado year (extended period in which the Casein Plant was open). My earnings for 2018 was €31,500. The difference being €23,000. I estimate that I would have earned €7,000 approximately had I worked from 1st January to 20th March, so this leave a shortfall and a financial loss of €16,000 for 2018. This is a conservative figure as in 2020, my earnings were €56,500.

My financial loss in 2018 also impacted my bonus in 2019 calculated at 4% of gross earnings in 2018 (€640) and a reduction in my RO bonus (15% of €16,000=€2,400) Estimated loss of earnings - €19,040.

In summing up, the company doctors report still stands but for the past 2 years with a limited accommodation, I have done my job as Chargehand and haven’t had any days off due to my condition. Yes, I’m a chronic pain sufferer but by taking pain relief 3 times a day, I can control it.

I’m aware that other employees were excused from working the night shift for health reasons and thereby granted a Reasonable accommodation. If I had been granted the same Reasonable accommodation when I returned to work, I would have been in a position to retain my job as Chargehand. This is what occurred in 2013 when the first disc was replaced, and my neuropathy was reported to the company in 2014 and I continued in my role until 2017.

To progress the matter and in order that I could return to my job as chargehand, I had to compromise. I was requested to obtain a letter from my consultant, Mr. W stating that I could work 3 nights when I was due to do a week of nights. I was informed by Ms. A that if I submitted this letter, I would be returned to my old job. As this was the only method, I had of returning to my job and I was anxious to get back to it, I asked Mr. W if he could provide the letter requested. Letter dated 10th December 2018 attached. It is important to note that this was a compromise on my part as the company doctor had already stated in her report that I was unfit for night work due to my condition.

I would once again like to thank the company for my 33 years’ service and for the limited accommodation afforded to me. I would also like to thank my trade union official (SIPTU) and my Shopsteward for their advice during this very difficult time and the Workplace Relations Commission and to you Adjudicator for hearing my case.

The claimant’s trade union official made the following submission on the claimant’s behalf:

The Union’s Case

1. The claimant returned to work following his absence on March 21st, 2018

expecting that he could be accommodated in his role as chargehand in the

casein department on a 2 shift cycle days and evening until such time as a

longer-term accommodation could be found.

2. On his return the company chose to remove the claimant from his role as

chargehand and the associated rate of pay which was approximately €75

per week in basic pay.

3. Due to the company decision the claimant was unable to work his normal

roster and therefore suffered a loss of earning of approximately €19,040

for the year 2018. Had the claimant been accommodated as he had sought on

his return to work, he would have comfortably earned this much in excess

of his actual earning in 2018.

4. The claimant has sought to find an accommodation since and prior to his

return to work in March 2018. He was at all times willing to work his charge                                            hand role on a 2 cycle days and evenings basis. Had this accommodation been

made he would have suffered no loss and we would not be here today. As

identified in the claimant’s ’s submission 2 of his colleagues were accommodated

 with 2 cycle days and evening when they returned following illness. Had this happened

 in the claimant’s case he would have suffered no loss of earnings.

5. The claimant has provided cover for the chargehand position in the period in

question illustrating that he was fit and capable to complete the role.

6. Other chargehand colleagues that were displaced during COVID-19 due to

loss of sales was not regraded to grade 6 and did not have their pay

reduced.

7. At the end of the period in question we came to an accommodation that

resulted in the claimant been restored to his role as chargehand. It is

important to note that this accommodation resulted in no additional cost to

the company.

8. The claimant should not have to suffer the financial hardship of such a

significant loss of earnings due to a failure to find an accommodation. The claimant was already suffering financial hardship as he had missed long periods work without pay during 2017.

9. We have engaged with the company in good faith through our procedures

in an attempt to resolve this dispute. However, when we engaged with the

company in relation to the claimant’s loss of earnings they were unwilling to

compensate him.

Conclusion

The claimant has engaged with the company on this dispute in good faith in an

attempt to find a resolution. We have found that the company are not willing to compensate the claimant for regrading him from a chargehand to a grade 6 and the subsequent loss of earnings suffered.

The claimant has suffered a significant loss that has and continues to cause financial hardship.

The company have moved other chargehands to lower grades without reducing their pay.

We have come to an accommodation for the claimant and wish to continue to

positively engage with the company regarding his future working as he deals with his 2 disabilities.

We believe our claim to be fair and reasonable.

Given the above we respectfully request that you recommend that the company compensate the complainant for regrading him from chargehand to grade 6 and the subsequent loss of earning through a payment of €19,040.

At the hearing the claimant expressed his disappointment with what he believed was a failure on the part of the employer to maintain his income on his return from sick leave – it had resulted in a significant loss for him at a time when his family could least afford it. He took the view that his colleagues had been treated more favourably than him – when this was disputed by the respondent the claimant alleged that the company had dragged their heels on the matter and could have expedited his return to chargehand by earlier engagement with his neurologist.

The respondent set out a chronology of the claimant’s employment history with the company since May1988 and explained that the claimant worked in a seasonal plant _Feb.-Oct and when the season ends the plant closes and employees working in the plant transfer to the K site during the winter months. During this time, the chargehand rate ceases and it was advised that this had the agreement of SIPTU.

The respondent’s rep reported that the claimant was on sick leave from May-July 2017 and on his return was moved to a day position on the recommendation of the company doctor. The claimant was assigned to administration but went on sick leave 3 days later and did not return to work until the 21st of March 2018. He had a prior appointment with the company doctor who recommended that the claimant was fit to return to work in the Cassein plant with the following restrictions – no night work and no heavy lifting. A phased return n was recommended – the terms of the return to work were set out to the claimant at a meeting on the 12thMarch 2018. The claimant returned to work on the 21st of March 2018 – he was working as an extra man on the shift doing light duties and consequently was not paid the chargehand rate. At a further review with the company doctor in July 2018, a list of roles was drawn up for the claimant that might suit – given the claimant’s ongoing medical issues, the company doctor was of the opinion that the claimant should not work nights or be involved in heavy lifting.

From the 1stOctober the claimant was moved to a day work position with no weekend work or heavy lifting .On the 12thOctober the claimant’s neurosurgeon advised that the claimant could commence limited night work – he was to return to his role as chargehand  and re-join the normal shifts-“ working 3 shifts and moving to 4 shifts rotation during peak milking processing including weekend work ……in the night shift rotation of the roster, the claimant would be scheduled to work 3 night shifts out of the normal 6. The claimant was returned to his chargehand rate on the 11th of February 2019 but was not paid the rate from March 2018 – Feb. 2019 “as he was not carrying out the functions of the role”. The union made representations on the claimant’s behalf seeking compensation for the losses incurred between March 2018 and Feb. 2019. No settlement was reached as the company took the view that they had been very accommodating to the claimant during the entire process. The claimant had been paid in line with the company sick leave Scheme during his illness.

It was submitted that the company facilitated the claimant as best they could and in accordance with medical advice – it was suggested that the company was now being penalised for the goodwill shown. It was submitted that the claimant was advised that he would not receive the chargehand rate when he was not doing chargehand work – in March 2018 and that the claimant appeared to accept that at the time. The claimant was unable to do chargehand work on his return in March 2018 and another employee was moved into the chargehand role and was paid the rate for the job. It was submitted that it was unreasonable to expect the company to pay the chargehand rate to 2 employees when one was unfit to fulfil the duties. When the claimant returned to the chargehand position in Feb. 2019, he was paid the chargehand rate. It was contended that concession of the chargehand rate would pose considerable difficulty for the company as the chargehand rate is not paid when the job is not s performed .

The respondent disputed the amount of loss incurred by the claimant and asserted that they had at all times provided the claimant with reasonable accommodation. It was submitted that the respondent readily took on board the recommendations of the claimant’s neurologist and denied that there was any delay on their part in implementing his advice. The company denied that there had been any special treatment of the claimant’s colleagues – it was advanced that the workers named by the claimant had been accommodated in the butter plant where there was sufficient numbers on the shift to allow that- that did not involve any additional costs for the respondent of the company. With respect to the workers who had moved arising from changes required owing to Covid 19, the company contended that this group moved at the behest of the company and accordingly maintained their existing terms and conditions of employment.

I have reviewed the submissions and contributions made at the hearing. I note that while the claimant referred the complaint under the Industrial Relations legislation, he is relying significantly on the provisions of equality legislation with respect to reasonable accommodation. In the case of Marie Daly v Nano Nagle School, the Supreme Court sets out an employer’s ‘reasonable accommodation’s obligations to an employee with a disability. The Court held that employers were obliged to consider all appropriate measures which could be undertaken to provide reasonable accommodation and to demonstrate, if no such measures were taken, that this was only because those measures would be disproportionate or unduly burdensome. The test is one of reasonableness and proportionality.  The respondent in this case chronicled the various measures put in place to accommodate the claimant including assigning him on a supernumerary basis   while another worker carried his chargehand duties. The claimant continued to receive his substantive pay and shift allowances. Concession of this claim would have required the respondent to continue paying the claimant the chargehand rate while assigning another worker to cover the post and also pay the replacement worker the chargehand rate. I cannot accept that the claimant has advanced any compelling evidence to support his contention that reasonable accommodation extends to maintaining the rate of pay of his substantive post while not being assigned to it.

I have concluded that the employer acted reasonably in the measures applied to reintegrate the claimant into the workforce and accordingly I recommend against the claimant.

Disability / Reasonable accommodation