Complainant

Respondent

Parties

David  Dunne

J & G Agencies Tilemarket

Representatives

Dublin South Citizens Information Service

 Peninsula Group Limited

Act

Complaint Reference No.

Date of Receipt

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

CA-00048479-001

04/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00048479-002

04/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00048479-003

04/02/2022

The complainant began working with the respondent which is a tile business in December 2011 as a senior manage.

He had general duties in relation to opening and closing the show rooms, organising goods inwards and deliveries, maintaining stock levels, liaising with suppliers, cash handling and banking, customer service et cetera.

In September 2019 the complainant underwent surgery and following the operation was certified as unfit for work. In due course his employment was terminated, and he complains that the failure to provide him with reasonable accommodation for his disability amounted to discriminatory treatment.

He also has made complaints under the Minimum Notice & Terms of Employment Act and the Terms of Employment (Information) Act.

 On October 23rd 2019 the complainant received a letter from the respondent inviting him to an informal welfare meeting on November 14th and in the course of this a phased return to work was discussed.

This was followed up on January 30th 2020 by other phone calls between the parties in the course of which the complainant confirmed that he was attending a cardiac course which would be completed on February 28th, 2020.

On March 2nd the complainant was certified as fit to return to normal duties but with a restriction that he could not do any heavy lifting for the foreseeable future. There was a further meeting with the respondent on March 9th on the telephone and it was agreed that the complainant would return to work on a phased basis, initially on a three-day week.

Following the onset of the pandemic the respondent closed on March 24th and the complainant and his colleagues were placed on layoff. On May 18th the company opened for ‘click and collect services’ only but the complainant was not among those who returned to work.

Following a further assessment, it was again recommended that the complainant return to work on a phased basis starting with three days per week and building up to five days over a two-month period but this time with a specific recommendation that he be restricted to maximum lifting of 15 kgs on a permanent basis.

There was further communication between the parties in August and the complainant provided written consent for the respondent to contact his GP to request a medical report.

Nothing further happened until November when a further medical certificate was received confirming that the complainant was generally well from a cardiac viewpoint but restating the weight restriction.

Further communication between the parties ensued in December and in early January the complainant was invited to another ‘medical capability’ meeting which took place on the phone.

At this meeting and at the earlier one on December 10th the complainant reiterated his eagerness to return to work and suggested that other employees could help him with any heavy lifting as they had done on his earlier returned from sick leave in March 2020.

He also suggested that the company could consider employing a store man in as they had done previously. The complainant stressed that he was not sick and that he had been certified as fit to return to work.

Despite this he was not facilitated and when he contacted the respondent to check when he would be returning to work, the response was that the company was reviewing the position and they could not establish whether it was safe for him to return to work.

The complainant gave direct evidence on oath.

He confirmed the lifting weight restriction and in relation to his capacity to manage around this he said that colleagues had been and would be willing to help, but that the necessity to do so does not arise frequently.

He also thought that it would represent a reasonable accommodation were the company to employ a store person but the company had not carried out any risk assessment and this had not been suggested.

He also said that he had requested a return to work on a regular basis and confirmed his fitness to do so subject to the restriction on the weight. The respondent had stated at its last meeting with him that it was concerned about his health.

However, he had thirty-five years’ experience and could have managed with someone to assist. The occasions on which help might be needed were described as ‘rare’. This was discussed with the respondent, but he was told that it was not feasible.

He could discharge the full demands of his duties except lifting, although he did exceed the recommended weight occasionally.

He confirmed in cross examination that he had a good relationship with the respondent and that it was a fair employer.

In summary the complainant says that his disability is not in dispute but that the respondent is required to consider reasonable accommodation.

There is no evidence of a genuine, meaningful exploration of all options and, for example no expert on health and safety matters was consulted.

Similarly, an assumption was made that task sharing was not feasible, but this could have been done on a trial basis. While the measures required are reasonable and proportionate, when options have not been properly considered then any defence fails.

J&G Agencies Ltd T/A TileMarket operates a retail/trade showroom, selling tiles and associated products. David Dunne was employed by the respondent from December 11th, 2011, until August 19th, 2021, as Retail Branch Manager.

The complainant lodged the following claims with the WRC on November 5th, 2021:, CA-00048479-001 Section 77 of the Employment Equality Act 1998, CA-00048479-002 Section 12 of the Minimum Notice & Terms of Employment Act, 1973 and CA-00048479-003 Section 7of the Terms of Employment (Information) Act 1994

On September 10th, 2019, he underwent a heart operation and was certified as unfit for work by his GP on November 6th, 2019.

The respondent wrote to him on October 23rd, 2019, requesting an informal welfare meeting three weeks later and also noted that sick pay was discretionary, but that a weeks’ discretionary sick pay had been paid to the complainant.

It further offered “should you require me to complete any forms for you for the purpose of claiming illness benefit from the Department of Social Protection, please do not hesitate to contact me”.

The complainant was medically certified as unfit to return to work from September 23rd, 2019, to October 23rd, 2019, and October 24th, 2019, to November 24th, 2019. On December 3rd, 2019, Ms Dowds wrote to the complainant, noting his expression of interest in a phased return to work and requiring sign off by the complainant’s Consultant.

On November 30th, 2019, the complainant was certified unfit to return to work until January 2020, noting it was “due to his heart condition he needs to limit heavy lifting” and a further certificate was received on January 24th.

There was a discussion between Ms Dowds, and the complainant by telephone on January 30th, 2020. A letter summing up the phone call, of the same date was sent to the complainant, and noted.

“My understanding is that while your health continues to improve you are still not well enough to return to work in any capacity and your doctor has issued you with a sick line until 21st February 2020. You are continuing to attend the cardiac care course which will be completed on 28th February and on completion of same your doctor will be able to advise you on your ability to return to work. By certificate dated the 21st of February 2020, the complainant deemed fit to return to work.”

On March 5th, 2020, Ms Dowds wrote again noting he had been certified fit to return to work and requesting his attendance at an informal welfare meeting.

‘To establish what arrangements, need to be made to ensure your safety upon your return. We would like to discuss a phased return with you, starting with three days and increasing to five days by six weeks. Following a further six weeks we will then reassess your health and may request for a medical report to be completed to ascertain if your duties can be amended.”

This meeting took place on March 9th, 2020, on the phone. The complainant’s phased return to work was discussed and implemented and he returned to work on March 10th, 2020, on an agreed three-day week.

On March 24th, the respondent’s premises closed, and all staff were placed on temporary layoff, in line with Government COVID-19 guidelines and reopened on May 18th, for click and collect services. The complainant did not return to work.

On June 10th, 2020, Ms Dowds requested consent to an independent medical assessment. That report recommended that the complainant return on a three-day week basis, rising to four if all was well but imposing a maximum lifting weight of 5kgs initially, rising to 7-10 and gradually to 15kgs. 

On August 10th, 2020, Ms Dowds requested an informal welfare meeting with the complainant, which was held on August 11th, 2020, and on 15th August 2020 the complainant consented to the respondent contacting the complainant’s GP to obtain a medical report.

On November 30th, the complainant ’s GP certified a limit on heavy lifting and on December 7th, 2020, the complainant was invited to a medical capability meeting, held on December 8th, 2020. A further medical capability meeting was held on January 8th, 2021.

At bothmeetingsthecomplainant andMsDowdsdiscussedtheOccupationalHealthReport,andGP’srestrictiontolimitheavylifting andmeasurestobeputinplace inordertoaccommodatethecomplainant ’sreturntowork,includingtheweightrestriction, given the complainant ’s role was on the shop floor and required lifting weights up to 35kg.

The complainant fully engaged in the discussion suggesting that an additional staff member could be hired to assist him, or an existing sales staff member could take on the additional responsibilities of the complainant ’s customers’ requirements in addition to their own.

The notes of the January 8th telephone call indicate that Ms Dowds discussed each proposal put forward by the complainant and the company’s own internal review on accommodating the complainant’s weight lifting restriction.

(Email communications dating from May 17th  2021 to  May 31st, 2021, between the complainant and Ms Dowds, in respect of requests for updated health status, the complainant ’s request to return to work, and an updated assessment, were submitted.)

On June 28th  2021, the complainant was invited to a medical capability meeting which was held on June 30th.  The complainant ’s proposals proposal for returning to work; namely, hiring an additional assistant, or requiring an existing staff member to take on extra lifting responsibilities in addition to their own role, were discussed. Ms Dowds noted neither option was viable.

The complainant was medically certified fit to return to work on July 12th provided a weight restriction of less than 15kg was in place.

On July 22nd, 2021, Ms Dowds wrote to the complainant noting that the restriction on the complainant’s ability to left weights exceeding 15kgs or over was a permanent restriction, the respondent had no option but to dismiss the complainant on medical capability grounds. She noted:

“During our meeting we discussed the previous medical report provided by Dr Murphy and the Occupational Health report from Health Assured both of which give the opinion that there needed to be a permanent restriction in your ability of lift over 15kg. We also discussed your view of this, and you said these reports were accurate. You felt a further updated occupational health report was unnecessary as medically nothing had changed and you had recently been with your GP, whose report was provided later. The meeting proceeded with the absence of the updated reports. The updated medical report from Dr Murphy was received later and again stated a restriction in your ability to lift over 15kg.

We discussed whether there were any reasonable adjustments that could be made to your current post to facilitate a return to work, but none were found. We also considered the possibility of suitable alternative employment, but unfortunately there were no suitable vacancies. We also discussed the operational needs of the organisation which required lifting.”

On July 26th, 2021, the complainant notified the respondent that he intended to appeal the termination and the complainant was notified that the appeal would be heard by an independent HR company.

On August 19th  2021, an appeal hearing was held by Mr. Paul O’Connor of Graphite HRM. The complainant was accompanied by a family member to appeal hearing.  On September 27th  2021, the decision to dismiss the complainant was upheld.

The Appeals Officer found:

" The Appeal Officer finds that the decision to dismiss on medical capability grounds to have been well founded based upon the following facts:

•  The two medical opinions gathered that a weightlifting restriction of no more than 15kg is in place indefinitely for Mr. David Dunne.

•  The fact that Mr. David Dunne was in full agreement with this assessment.

•  The evidence that the role of Retail Branch Manager is primarily physical and involves regular lifts of 15g and above products.

•  The fact that the suggested accommodations are not reasonably accommodated by the company, including relying on other staff members, the hiring of a new employee or the removal of lifting duties.”

The respondent advertised a “Commercial Sales Consultant” role in September 2021, as a marketing exercise. No one was recruited for the role.

The sales assistant role advertised required the candidate to be “physically fit as heavy lifting is required”. The complainant ’s weight-lifting restriction, in addition to the junior nature of the role, would have made this an unsuitable role and was therefore not offered to the complainant

Linda Dowds gave evidence on oath.

She is employed by the respondent as an accounts administrator for the respondent. She confirmed that she had a conversation with the complainant about the weight lifting issue. Initially the complainant’s GP had not specified a weight limit and she had followed this up with him.

At the meeting on December 7th, she said that the complainant had confirmed the weight restriction but asked what could be done to facilitate his return to work.  The witness gave evidence that she discussed the situation with the Managing Director and other sales staff on at least three occasions and then had a second meeting with the complainant on January 8th.

She said that the outlet in which the complainant worked was trading at a loss and could not afford to employ a store man at approximately €26.000 per annum simply to assist the complainant. She said that she had not been aware of the complainant having to get assistance from an employee in an adjacent business in relation to lifting.

She stated that her primary concern was the safety of the complainant. In response to a question as to why it took so long between the January meeting and the decision to terminate the complainant’s employment in July, she said that they were trying to be fair to the complainant as they did want to find a way of facilitating his return to work.

In cross examination she confirmed that the respondent had not examined the possibility of using mechanical aids to assist the complainant although the witness said that she was not an expert in health and safety matters.

The company Managing Director Giuseppe Gaudiano gave evidence on oath.

 He had been made aware of the complainant’s health problem and had discussed the possible return to work with Ms Dowds. The issue was the weight restriction which was ridiculous in the context of the weights which needed to be lifted. Given the difficult state of the business and the fact that the outlet the complainant had worked in had never made a profit he rejected the idea of employing a store man.

In respect of mechanical assistance, the witness said he was not aware of any shop in his line of business that used mechanical lifting equipment.

He confirmed that he had made the final decision to terminate the complainant’s employment but that this would not have arisen but for the weight restriction and the complainant would have remained in employment.

The final witness was Derek Tynan, a sales assistant in the respondent business who gave evidence on affirmation. He confirmed that lifting heavy weights is a general requirement for the job and that it cannot be carried out without doing so.

He said that most sales are small quantities, but they need to be transported to the customer’s car and the most common order is a box of tiles which weighs 28kgs. A typical order could be sixteen such boxes.

The complainant has brought a claim under section 77 of the Employment Equality Act 1998 and claims he was treated differently due to his disability. This is strongly disputed by the respondent.

Discrimination is dealt with in Section 6(1) of the Employment Equality Acts, 1998 to 2008 which states that discrimination occurs where: “…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)”

Section 6 (2) (g) of the Acts defines the discriminatory ground of disability as follows ; “As between any two persons… that one is a person with a disability and the other is not or is a person with a different disability”.

It is submitted that central to the claim of discrimination under the Act, is for one person to be treated less favourably than another but the complainant has failed to identify a comparator in respect of his claim of discrimination, on the basis of his disability, against the respondent.

The complainant, therefore, has failed to establish a prima facie case of discrimination to show that he was (a) discriminated against on account of a disability, (b) his employer failed to provide reasonable accommodation for him on account of a disability and (c) in dismissing him for discriminatory reasons.

It is well settled that Section 85(A) of the Employment Equality Acts, as amended, specifies that the burden of proof rests with the complainant at first instance. (The respondent submitted a number of well-known legal authorities on this point).

The respondent submits that the complainant had been employed with the company for almost ten years, was a valued employee and had always been treated as such.

The respondent acted as a reasonable employer throughout the process of the complainant’s return to work after surgery. The respondent submits that in March 2020, the complainant was to return to work on a phased basis, which the company accommodated; eager to have the complainant return to work.

The restriction to the complainant’s lifting capability did not change with time. On receipt of the Occupational Health Assessment, it became apparent that the restriction on the complainant ’s lifting capability was a permanent restriction.

It is submitted that the respondent completed an internal review on steps to accommodate the complainant ’s disability.

The respondent refers to the above submissions in respect of the burden of proof applicable to a claim for discrimination under the Act.

The complainant has alleged the respondent discriminated against him in failing to make reasonable accommodation for his disability and discriminatorily dismissed him. The respondent rejects these allegations.

Section 16 of the act provides for the nature and extent of an employer’s obligation in certain areas:

Section 16 (1)

“Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

It is well settled that Section 16(1) must be read in conjunction with Section 16(3) of the Acts which imposes the following obligation on employers concerning employees and prospective employees:

Section 16 (3)

“3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘‘appropriate measures’’) being provided by the person’s employer.

(b)          The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i)  to have access to employment,

(ii)  to participate or advance in employment, or

(iii)  to undergo training, unless the measures would impose a disproportionate burden on the employer.

(c)  In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i)  the financial and other costs entailed,

(ii)  the scale and financial resources of the employer’s business, and

(iii)  the possibility of obtaining public funding or other assistance.”

Section 16 (3) of the Act requires the employer to consider what if any special treatment or facilities could render the employee fully capable.

The respondent refers to the Supreme Court decision of Nano Nagle v. Marie Daly (2019) [2019] IESC 63, where McMenamin J stated, in respect of an employer’s obligations under section 16 of the Act, as follows:

“Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the “section”, that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance. But s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

The respondent submits that when it became clear the complainant would not be in a position to carry out all of the elements of his role due to his heart condition, the company carried out an internal review/audit on accommodating the complainant ’s restriction in the Dublin premises.

The respondent submits that consideration was given to the existing sales staff member assisting the complainant on a permanent basis, but on review and in consideration of annual leave, breaks, and potential absences, it was evident that this was not a permanent solution.

The respondent submits that they considered electronic assistance, and the use of trolleys to assist the complainant, but again the complainant would still be required to carry out the initial lift, and was restricted from doing so by his doctor and according to the occupational health assessment.

The respondent noted the Occupational Health Assessment, on July 23rd  2020, states under case history at page 5 of the document:

“He says he was working two days in the first week and three days in the second week but was doing no lifting. He says normally his job would be liftin tiles in packs weighing between 15 and 35kg.”

It is further submitted that the Appeals Officer noted the complainant ’s own words in respect of his role were (at page 6, under the heading Grounds of Appeal)

“DD was asked to describe his position, “controlling the shop from start to finish you know, welcoming customers in and selling, goods inwards, goods out, stock control, everything really. Handling goods in and out of the shop…. It was a physical job as well”.

The Appeal Officer, at p.11 of the report noted:

“The company have been clear in communication to DD that his role of Retail Branch Manager is predominantly physical in nature. The office and administrative duties involved have been described as being minimal. DD himself is in agreement with this opinion and has stated that he views the role as being primarily on the store floor interacting with stock and customers.”

The Appeal Officer at p11, in considering the three options put forward in respect of reasonable accommodation, found.

“The first accommodation which was suggested was to ensure that DD would not have to lift anything over 15kg while working his standard shift. DD put it to the appeal that with either two or three employees on site, it would be reasonable for employees to help out and assist with each other. The company however raised that this was not a guarantee and puts DD at risk of injury due to several potential demands including customer demands, covering break times, leaves of absence and other ad-hoc needs for the staff. The company pointed to no guarantee that DD would be supported 100% by relying on a fellow staff member.

The second accommodation which was suggested was to directly hire and employee to assist directly with DD in lifting. As stated above, the company raised again the difficulty to guarantee a full support for lifting. The company also raised a concern that hiring a new employee for an additional role is not viable as a reasonable accommodation.

The third potential accommodation was to potentially remove the need to lift while working in this role. The company were clear that the role of Retail Branch Manager was primarily physical in nature. It was stated that the average weight of item to be lifted were more than often above 15kg. Therefore, it is not reasonable to remove the need to lift weights above 15kg. The nature of the business in particular the primary items for sale to customers is particularly concerning from a weight perspective.”

It is submitted that it cannot be said that consideration was not given to reasonable accommodations being made in respect of the complainant. The three options put either the complainant at risk of being alone and lifting weights in excess of 15kg, where a sales assistant, was for some reason not available, or hire another staff member solely to carry out the complainant ’s lifting functions, or eliminating an essential part of the respondent’s service, and therefore potential revenue loss in returning customers.

The respondent refers to the decision of Humphreys v Westwood Fitness Club DEE-7/2003, where it was held:

“The nature and extent of 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 and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer’s decision. In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at medical evidence available to the employer either from the employee’s doctor or obtained independently. Secondly, even if it is apparent that the employee is not fully capable, Section 16 (3) of the Act requires the employer to consider what, if any, special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a fully opportunity to participate at each level and is allowed to present relevant medical evidence and submissions”.

It is submitted that the respondent, took steps over a period of almost two years in attempting to bring the complainant back to work safely, without risk to him, other staff members or customers. It is further submitted that the respondent in seeking medical reports, and any update or change in the complainant ’s circumstances before the decision to terminate the complainant ’s position was taken, acted reasonably in all the circumstances.

The respondent refers to the decision in A Worker v. An Employer (2005) ELR 159.

“The duty placed on an employer by s.16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the detriment of a disabled employee. As was pointed out by the EAT for England and Wales in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] I.R.L.R. 566, this arises because in the absence of such an assessment it will often be impossible for the employer to know what facilities or special treatment may be reasonable, possible or effective.”

It is submitted that appropriate measures could not be put in place that would not be a disproportionate burden on the respondent. It is submitted considering all of the above the respondent fulfilled its obligation under section 6(3) of the Act.

The complainant has claimed he did not receive his statutory minimum period of notice on termination of his employment or payment in lieu thereof.

The Act states:

“4. (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,”

The respondent refers to section 5(3) of the second schedule of the Act where it states:

“Subject to paragraph 4 of this Schedule, an employer shall pay to an employee, if there are no normal working hours for that employee under the contract of employment in force in the period of notice, in respect of each week in the period of notice, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice.”

The respondent submits that in the thirteen weeks preceding the complainant’s notice of dismissal, the complainant was not provided with any hours due to the premises operating at a reduced capacity for click and collect services due to COVID.

It is submitted that at this time the complainant was in receipt of the Pandemic Unemployment Payment and continued to receive same throughout the period of four weeks postdating the notice of dismissal and the payment of the complainant’s outstanding leave and public holiday entitlement.

CA-00048479-003 Section 7 of the Terms of Employment (Information) Act 1994

The complainant has claimed he did not receive a notification of a change to his terms of employment in writing in accordance with the Terms of Employment (Information) Act 1994. He has alleged, in his claim form, that since receipt of his statement of main terms of employment since 2014, “the terms relating to my pay changed significantly since then, but my employer did not provide me with details of these changes in writing”

The respondent notes that the Act requires notice in writing of the change of terms to the employee. The respondent refers to the pay slips (submitted), provided to the complainant on a monthly basis, where the complainant’s wage increase is evidenced in the increase in monthly salary. It is submitted that it cannot be said the complainant did not receive notice of his increase in salary.

It is respectfully submitted that had the complainant not received written notice in respect of an update to his terms of employment as alleged, the complainant was not prejudiced as a result of it.

It is submitted that a complainant alleging a breach of the Act must not only demonstrate the breach but also demonstrate how he suffered a prejudice as a result of a change of terms of employment.

In this respect, the respondent refers to the Employment Appeals Tribunal case of Sergejus Udalous -v- South-eastern Vegetable Producers Limited TE224/2012 where the Tribunal, citing with approval the case of Archbold v CMC (Ireland) Ltd. TE 05/2003 held that awards under this Act are not equal to “loss of remuneration” but are “in the nature of compensation.” Accordingly, the Tribunal was entitled “to determine what payment was just and equitable in the circumstances including whether a complainant was “unduly prejudiced” in respect of an alleged breach.

It is submitted in the present case that the complainant was not prejudiced as a result of not being notified in writing of an increase in his salary, as he worked for a further seven years with the respondent, after the updated statement of terms of employment were provided, and never raised any concern or grievance in respect of his contract. Any breach that could be considered to be merely technical in nature and should not attract a monetary award as per the Labour Court decision of Philmic Ltd. t/a Premier Linen Services v Petrailis (TED1616).

The respondent further refers to the Labour Court decision in Grant Engineering (Ireland) -v- Delaney (TED1728) where the Court highlighted its view that they will not award compensation where the claim “is without substance and trivial” and where the technical breaches “have had no practical effect on or consequence for the” employee.

The respondent refers to the Labour Court decision in Irish Water -v- Hall (TED161) and it’s finding in respect of technical breaches, detriment, and the de minimis rule, which the respondent submits is equally applicable in this case, where the Court stated as follows:

“De Minimis rule

It is an established principle of the common law that a Court should not squander its resources in dealing with claims that are without substance because the contraventions complained of had no practical consequence for the plaintiff… The Court is satisfied that, in the circumstances of this case, any deviations that may have occurred from what the strict letter of s. 3 of the Act, or from what the statutory instrument at issue prescribes, are so trivial, technical, peripheral or otherwise so insubstantial as to come within the de minimis rule. There can be no doubt that the respondent provided the complainant with all the information that he required in relation to the essential elements of the terms and conditions attaching to his particular employment. What is complained of is a failure to provide information on matters that had no practical significance in the context of the employment that he was offered and accepted.”

The respondent submits that the complainant was at no detriment, in receiving an increase in his salary, in circumstances where it cannot be said he was not on notice, having received a monthly pay slip, in writing. It is submitted the complainant was fully aware of all and any increases in his salary, and was informed verbally of each. It is submitted the complainant should not benefit from a technical breach of the act, in circumstances where he benefitted financially from the change of terms.

In conclusion, the respondent did not treat the complainant less favourably than another and submits that all employees of the respondent company are treated equally; he has failed to identify a comparator in respect of his claim of discrimination, on the basis of his disability, against the respondent.

The respondent acted reasonably in all of the circumstances, in considering accommodations which could be made in respect of the complainant ’s role in order to facilitate a return to work.

The complainant ’s role was ultimately very physical in nature, with no solution available to the respondent in respect of accommodating the complainant’s weightlifting restriction and his claims should be dismissed. The delay in concluding the matter arose out of concern for the complainant.

The background narrative to this complaint is as set out above and is largely not in dispute.

Essentially the complainant suffered an unfortunate setback to his health which adversely affected his capacity to fully discharge his duties for the respondent and in due course his employment was terminated.

The phrase ‘in due course’ acquires some significance as the decision to terminate the employment was long delayed; somewhat but not entirely added to by problems related to the pandemic. The respondent says that its failure to act was partly motivated by a desire to see if the termination could be avoided until eventually it was forced to act.

In fact, this period of delay ran from the point when the complainant was certified fit to return to work in May 2020 until July 2021 when his employment was eventually terminated. it is an inexcusable delay in addressing the matter one way or the other, although the parties may have felt that it held open the possibility of a return to work for the complainant. There appeared to be a degree of good will towards him.

The respondent has referred in its submission to Sections 16 (1) and (3) of the Act which respectively provide for the termination of employment on the grounds of a lack of competence and a qualifying provision in respect of ‘reasonable accommodation’.

Section 16 (3) (c) i, ii and iii and the extensive quote in the respondent’s submission from McMenamin Jin Nano Nagle v. Marie Daly (2019) [2019] IESC 63, address the issue of proportionality in respect of any accommodation that might be required. The following extract from that case will give an indication of the law.

Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance.

At various stages the complainant had made proposals that might enable him to cope with the weight restriction including recruiting an additional employee to work in the store. In evidence he stated that in the brief period of his return to work before the Covid layoff he was reliant on his fellow workers to assist, and indeed on occasion employees of a neighbouring business.

A measure of the problem was clear from the evidence of witness Derek Tynan, who is also a sales assistant in the respondent business.

He confirmed that lifting heavy weights is an essential requirement of the job and that it cannot be discharged without doing so. The complainant had argued that his tasks and duties could have been re-organised to enable him to continue at work.

His evidence on affirmation was that most sales were small quantities, (as he described them) but they had to be transported to a customer’s car and the most common order is a box of tiles which weighs 28kgs. A typical order could be sixteen such boxes.

It will be recalled that the restriction placed on the complainant by his doctor was 15kgs.

In passing one wonders how a medical practitioner with any knowledge of a patient’s actual job can certify that they are fit to return to a job facing such a contradictory reality.

It ought to be obvious that in certifying fitness to return to work a medical practitioner would have some regard to the reality of the job for which they are certifying fitness, not some generalised return to work to some theoretical job. (The first certification of return to work in 2020 did not specify a weight limit at all).

To the various options that were floated the employer responded that the possibility of employing an additional employee was not a viable one as the business was consistently loss-making. Similarly, placing the complainant’s co-workers (or those in a neighbouring business) in a position where they might have to assist him was not a reliable way forward.

The complainant placed emphasis at the hearing on the failure by the employer to investigate the possibility of mechanical assistance, although I could see no evidence that this featured in the conversations at the level of the workplace.

The company Managing Director Giuseppe Gaudiano in his evidence said he was not aware of any shop in his line of business that used mechanical lifting equipment. It is far from clear that this would have resolved the problem.

The hearing did not hear evidence on whether such equipment as was being referred to was available and would be effective in addressing the specific needs of the respondent’s retail operation. It would be required to fulfil the work described by Mr Tynan of carrying out boxes of tiles to a customer’s car.

Any mechanical option would have to completely eliminate lifting at all stages of the process in order to meet the restrictions imposed by the complainant’s medical advisor, which Mr Tynan’s evidence cast doubt on.

While the respondent could have done more to examine this specific option, the other options proposed fall within the exceptions in Section 16 (3) (c) i, ii and iii and as described in Nano Nagle.

I find that the burden of providing accommodation to enable the complainant to continue to work for the respondent would have been disproportionate.

There was no serious submission on how his tasks might have been reorganised to enable him to continue and there was credible witness evidence that this could not be done.

In the case of the additional employee, it was stated by the respondent to be an additional cost of €26,000 per annum. Having to rely on other employees (despite their apparent willingness to do so) was not a reliable option and the respondent was understandably concerned about the complainant being tempted to exceed the weight limit if that was not an option.

Likewise, relying on employees from an entirely different business would not be a satisfactory long-term option. 

Ina any event, the case for a mechanical option was not made out. It is far from certain that the provisions of Section 3) (a) would have been met. It requires a person to be fully competent to fully undertakethe duties of the post with the additional measures. Again I note that this was not raised by the complainant in his discussions with Ms Dowd.

 For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘‘appropriate measures’’) being provided by the person’s employer.

The possibility of providing the complainant with a different role which did not involve lifting at all does not come within the concept of ‘reasonable accommodation.

Therefore, I find that the complainant was fairly dismissed on the grounds of a lack of competence. I have fully considered the process which led to the termination and while again expressing concern about the length of time taken it did conform with the principles set out in Humphreys v Westwood Fitness Club DEE-7/2003 (set out in the respondent ‘s submission.)

Regarding the other complaints I find that there was a breach of the Terms of Employment (Information) Act but it is a minor matter, and no award is required.

The complainant has also complained that he did not receive his statutory minimum period of notice on termination of his employment or payment in lieu thereof. The submission by the respondent on this point is above, notably it refers to section 5(3) of the second schedule of the Act where it states:

“Subject to paragraph 4 of this Schedule, an employer shall pay to an employee, if there are no normal working hours for that employee under the contract of employment in force in the period of notice, in respect of each week in the period of notice, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice.”

In the thirteen weeks preceding the complainant ’s notice of dismissal, the complainant was not provided with any hours due to the Covid and the complainant was in receipt of the Pandemic Unemployment Payment me throughout the period of four weeks postdating the notice of dismissal and the payment of the complainant ’s outstanding leave and public holiday entitlement.

On the basis of the foregoing, he is not entitled to a payment in respect of notice.

For the reasons set out above complaints CA-00048479-001 under  the Employment Equality Act 1998, CA-00048479-002 under the Minimum Notice & Terms of Employment Act, 1973 are not well-founded.

In relation to CA-00048479-003, while there has been a minor breach of the Terms of Employment (Information) Act 1994 I make no award in the circumstances.

Reasonable Accommodation, Disability