Complainant

Respondent

Parties

Nadezda  Solomonova

Milne Foods Limited

Representatives

Mairead Carey

Carey Solicitors

Fiona Egan

Peninsula Group Limited

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-00030345-001

17/08/2019

The Complainant was employed as a general operative the Respondent earning the minimum wage.

She commenced working with the Respondent on 18 April 2007.

On 18 January 2019 she informed management that she could not continue to work hand processing on the onion line due to a reaction she was having to onions. She was called to a disciplinary hearing and following same her employment was terminated on 7 February 2019.

By letter 3 April 2019 she was informed that her appeal was not allowed.

The Complainant's case was that she was working on a production line in the Respondents vegetable processing plant. Her work involved preparing, peeling and cutting vegetables and placing them in bags for sale.

She had a severe reaction to onion, which caused her to have the following health problems:

difficulty breathing, swelling to her nose and eyes, nose was streaming, severe headaches, pain in her eyes, her eyes were streaming continuously, she had difficulty in sleeping.

The Complainant had been attending her GP in relation to this onion reaction since 2013. Her GP wrote to the Respondent in August 2014 stating that she had "a severe reaction to working with onions – eyes swollen and streaming and with difficulty breathing". He asked that she be allowed to avoid working with onions if possible.

The Complainant's case was that she had no reaction to preparing other types of vegetables, but the Respondent refused to allow her to work in other areas and insisted that she work on the onion line at least once per week and more often than once per week.

She submitted that management were aware of her health difficulties and she continued to seek reasonable accommodation from the Respondent, but the Respondent consistently refused her request and treated her refusal to work with onions as a disciplinary issue.

On 18 January 2019 she informed management that she could not continue to work on the onion line that day because of the reaction she was having to onions. She was extremely unwell as she had been processing onions for several hours.

The Complainant was called to a disciplinary hearing on the 31 January 2019. Before and following the hearing, she continued to work in the factory with onions. On the 7 February 2019 she was called the office and handed a letter which set out that her employment has been terminated. She was advised she had a right of appeal which she exercised. By letter 3 April 2019 she was informed that her appeal had not been allowed.

The Complainant set out that her reaction to onions amounted to a disability. She submitted the Respondent had a duty to offer her reasonable accommodation. She argued the Respondent could easily have taken her off the onion line and allocated her work which did not cause her to suffer pain and discomfort.

Her claim was that she was dismissed for the discriminatory ground of disability.

She referred to the Supreme Court decision in the case of Nano Nagle -v- Marie Daly which clarified what is required to provide reasonable accommodation.

The Complainant explained that the Respondent had a duty to properly investigate the Complainant's medical circumstances to ascertain what accommodation was needed to keep her in employment.

The Complainant went on to argue that the Respondent could have distributed her duties on the onion line to other co-workers. The Respondent had consistently maintained that other co-workers did not suffer the same effects from onions as the Complainant. Accordingly, the Complainant contented that there was no reason not to allocate her work to others.

The Complainant explained that the Respondent trivialised the health effects that she experienced when working with onions. Despite being on notice in 2014 that she had "a severe reaction" to working with onions including difficulty breathing, the Complainant took no account of this in the allocation of her weekly tasks.

The Plaintiff gave oral evidence that the she experienced the symptoms every year.  She agreed that her co-workers didn’t’ want to work on the onion line but gave evidence that they didn’t have as “severe reaction that she had”.

She showed me the googles and submitted they were €3.00 plastic safety glasses and not appropriate to prevent onion fumes coming through to her eyes or mouth. 

The Complainant explained that she is Latvian and has very poor English. She explained she found it difficult to articulate the problems she was having in English.  This was both at internal meetings with HR and with the company doctor.  She said she was overwhelmed by the whole process. 

At the hearing she gave evidence through a translator.

The Complainant’s daughter gave evidence.  She explained that she worked for the Respondent and on the onion line also.  Her eyes and nose did water initially, but she became used to the onion fumes.  She said her reaction was not as bad as her mothers.  She described her mother’s face as being swollen and how she had difficulty breathing. 

The Respondent accepted that the Complainant's role did involve cutting and preparing vegetables. For most of her time working, it explained that she worked on the carrot and onion processing line. It explained that working on those lines involved more regular hours as distinct from other vegetable lines which were shift based and involved irregular hours and shift patterns.

The Respondent described how most employees experienced the effects of working with raw onions and this meant that the onion line was the least preferred work.

The Respondent explained that following the notification in September 2014 and the presentation of a GPs letter confirming her reaction to raw onions, the Complainant indicated that she preferred to work with carrots and turnip.

The Respondent changed its work practice so that all staff rotated on the different vegetable lines and this resulted in staff spending just one day per week on the onion line. On this one day a week, an employee would spend between one to five hours processing raw onions. The Respondent submitted that five hours were the maximum time depending on the workload. The Respondent explained that there was a consultation process with the Complainant at this time during which the Complainant agreed that all her colleagues’ eyes watered when working with onions.

The Respondent argued that this was reasonable accommodation and that it appeared to work until the complainant raised her complaints on 5 September 2016 and 13 October 2016 when she refused to prepare onions when requested to do so by her supervisor and the production manager.

The Respondent's HR manager met with the Complainant and it was agreed to have her medically assessed as the medical letter on file was two years old.

At the meeting the HR manager explained that if the GP confirmed that she had an allergy to onions, that the Respondent may have to move her to a different line to which the Complainant replied she "didn't want to".

During the time waiting for the updated medical report, the Respondent informed the Complainant that she was to refrain from working with onions until it had received clarity from its company doctor. It submitted that it sent the Complainant home on one occasion in November 2016 a few hours before her shift was due to end as all other vegetable lines were finished for the day and there were only onions left to complete.

The GP report from the Respondent's doctor dated 9 November 2016 indicated based on the blood test taken, that the Complainant showed a very low level of IgE.  The Report went on to state "which is not indicating any specific allergy (only levels more than 100 considered significant, the result here was 25) I do not believe there is any allergy present, just a very irritant response to the sulfenic acid released with processed onions. If possible, her exposure to onions should be limited, I understand that she was offered to be facilitated in this regard".

The Respondent noted no specific allergy in the GP report however it verbally offered the Complainant the option to move to a different vegetable line which she refused.

The Respondent noted that in November 2014 when the Complainant chose to remain on the carrot/onion line, it provided her with protective goggles to protect her eyes and limit the effects of the onions. This was in addition to rotating the time spent on the onion line.

The Respondent explained that they Complainant chose not to wear the goggles for vanity reasons, believing them to look "stupid" and later referring to them as "uncomfortable". When she was asked if she ever brought these issues to the attention of management, the Complainant admitted she did not.

The Respondent submitted that there were other occasions when the Complainant would simply refuse to do work on the onion line and would walk off and request to go home.

The Respondent explained that having received numerous verbal warnings for continuing to refuse to carry out management instructions to work on the onion line for which she was assigned on a limited basis with protective equipment, disciplinary action commenced and resulted in the Complainant's dismissal in February 2019.

The Respondent refuted that it had discriminated against the Complainant by reason of her disability and that it had failed to reasonably accommodate her. It explained that the Complainant was dismissed for failing to follow a management instruction in carrying out her work duties. It had followed its disciplinary procedure over a long period of time. 

 It submitted that the Complainant had not discharged the burden of proof and relied on the Labour Court decision of Melbury v Valpetters (EDA0917).

The Respondent submitted that the medical evidence did not prove that the Complainant suffered from a disability as defined under the Acts. It acknowledged that the Complainant suffered a common and unpleasant symptom that every individual suffered when exposed to / or working with onions for any period.

The HR manager gave evidence.  She explained how she had a Health and Safety role with the Respondent also.  She gave evidence that she didn’t see the Complainant with swollen eyes.  She did see her with watery eyes, as her co-workers had also. 

The HR manager explained that the Complainant could speak English and she never raised any issues she had with the translators that were provided at the internal meetings. 

The Respondent relied on the Humphreys -v- Westwood Fitness Club decision (2004) ELR 296 and submitted that it attempted to appraise itself of the full facts of the condition from the Complainant's GP. It submitted that the Complainant's reaction to onions was nothing out of the ordinary.

The Respondent went on to argue that the Complainant failed to cooperate with it by the wearing the protective goggles provided and refusing to work on a different vegetable line. The Respondent also relied on the Supreme Court judgement in Nano Nagle -v- Marie Daly.

Section 7 of the Employment Equality Act 1998- 2021 (the Acts) provides that an employer may not treat an employee with a disability less favourably than an employee who does not have a disability. For a claim of discrimination on grounds of disability under the Acts to succeed, the first requirement is for a Complainant to establish that he/she has a disability. This was disputed in the instant case.

Burden of proof

My first task is to analyse the definition of disability in the Acts and determine whether the facts presented to me meet this definition.

The burden of proof rests with the Complainant to establish that her alleged impairment meets the definition of disability under the Act. 

Section 2(1) of the Acts defines disability as follows:

“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,

(c) the malfunction, malformation or disfigurement of a part of a person's body,

(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;

The definition of disability used in the Acts originates, as noted by Kerr in Irish Employment Legislation (Dublin: Round Hall, 2000 at 113), from the Australian Disability Discrimination Act 1992 and has been described as a “detailed and very wide definition of disability” (Greene, “Terminating Employment on Incapacity Grounds” ((2016) 13 I.E.L.J. 43).

In the European cases of Chacon Navas v Eurest (C-13/05) and later in Jette Ring v Dansk (C-335/11) it was established that a disability was any condition that hinders full and effective participation in the workforce.

Neither party presented oral medical evidence to me at the hearings. I was presented with a number of short letters from a GP who was the Respondent's company doctor.

I also note that in several the written attendances taken by the Respondent, noted that while the Complainant had the benefit of a translator present, there were language difficulties in understanding the Complainant and this appears to have been confirmed by the GP also.  The Complainant's representative submitted that the GP did not understand the Complainant.

The Complainant further explained that she did not have a medical card and didn't have the necessary money to pay for consultation fees. 

I recognise the work being carried out by the Complainant was very physical in nature. The Complainant gave evidence that the Respondent did have a machine that peeled onions but that it did not work well. She had to use a knife to cut and peel onions from a conveyor line. The Complainant explained that one bin of onions weighted 370kg. An empty bin weighed 40kg. She gave evidence that on her shift she would process 3 to 4 bins of white onions and 1.5 to 2 bins of red onions.

To decide whether the symptoms from which the Complainant suffered is a disability within the statutory meaning ascribed to that term is a mixed question of law and fact.

The Complainant relied on 2 (1) (c) as set out above from the statutory definition namely: -

"disability" means—

(c) the malfunction, malformation or disfigurement of a part of a person's body,

The Collins dictionary definition of malfunction is to “fail to work properly”.

The Labour Court succinctly set out inA Government Department -v- a worker EDA094 in the context of a complaint of stress

The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR 327). Nevertheless, no statute can be construed so as to produce an absurd result or one that is repugnant to common sense.

In relation to the definition of disability the Labour Court noted that “it is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal effect on the sufferer. This is clear from the definition which provides that it: - “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””.

The contents of the medical reports and their context were very much in dispute between the parties.

The first letter is handwritten and dated 22 August 2014.  It stated

"The above named woman presented here this p.m. with a severe reaction to working with onions – eyes swollen and streaming and with difficulty breathing.

I understand she has no bother with other vegetables/fruit.

I would appreciate if you could allow her to avoid working with onions in the future if at all possible."

The second letter is dated 9 November 2016 and states

"The bloods which returned on the above lady showed a very low level of IgE, which is not indicating any specific allergy (only levels > 100 are considered significant, the result here was 25). I do not believe that there is any allergy to onions present, just a very irritant response to the sulfenic acid released with processed onions. If possible, her exposure to onions should be limited. I understand that she was offered to be facilitated in this regard.”

I was also furnished with the Complainant's medical records from the GP practice which contained notes of the various attendances by the Complainant.  There was a note in the consultation notes that the GP practice spoke with the Respondent's HR manager and

"Informed blood results normal, advised patient needs to have blood tests repeated and lab to be informed if she wants specific allergen to onions tested as it is not done in Mullingar".

There was a further consultation note

"Chat re-bloods – IgE 25/no specific allergy identified"

I am conscious that these consultation notes are written in summary format.

The evidence from both the Complainant and the Respondent's HR manager was that a second blood test was not taken.

The Complainant’s direct evidence was that she had a lot of headaches, her eyes were burning, her eyes were blurry, her nose was leaking all the time, her nose was dripping onto the food, she was coughing a lot, she could not breath and she couldn't sleep.  She gave evidence that her symptoms were getting worse over the years.

The Respondents evidence was that working with onions was unpleasant for all employees working on that line.  The HR manager disputed that the Complainant was in the distressed state as set out above and noted that the complaints from the Complainant about working on the onion line were sporadic.  The HR manager gave evidence that the Complainant refused to work on a different line. 

The medical evidence can be summarised to

2014:  eyes swollen and streaming and with difficulty breathing

2016:   I do not believe that there is any allergy to onions present, just a very irritant response to the sulfenic acid released with processed onions

Based on the above medical evidence and the Complainants own evidence, the Complainant’s symptoms were long term. 

While the medical evidence did not describe the Complainant’s symptoms as chronic within the meaning of paragraph (b) of the definition of “disability” for the purposes of the Acts, I find the symptoms described fall within the meaning of paragraph (c) of the definition of “disability” in that there was a malfunction of the eyes, nose and breathing due to the sulfenic acid released with processed onions. 

I move on now to the substantive claim.  As per s.85A of the Act, the onus to prove that discrimination occurred rests with the Complainant in the first instance. I find that there are facts that give rise to an inference of discrimination. The Complainant has a disability as a result of she was assessed and in 2014 the medical advice was that she should “avoid working with onions in the future”. 

The evidence presented to me was that the Complainant remained working on the onion line and her failure to follow instructions regarding this work was the reason for her dismissal.

Based on these facts, I believe that there is prima facie evidence of discrimination, such that the burden of proof shifts to the Respondent in accordance with s. 85.A.

The next issue for me to consider is whether the Respondent made the efforts required in s.16 to facilitate the Complainant continuing with her work.

The Supreme Court set down clearly the requirements on employers to meet the terms of s.16 regarding the reasonable accommodation of employees with a disability and the requirements in determining if these have been met.

In the judgment of the Supreme Court in Nano Nagle v. Marie Daly (2019) E.L.R. 221, McMenamin J., noted as follows;

‘Once consultation, or other necessary steps for compliance, have been taken, an employing entity may have to ask itself the ultimate question whether, having explored the modes of accommodation, and if, prudently having consulted with an employee, the position, as defined in s.16(1), is, in fact, capable of adaptation so as to accommodate that claimant, and whether the claimant would be capable of performing that function thus adapted. But it is that “position” or job, not another one.’

It is well accepted that there is no requirement on the employer to find another distinct and separate job for an employee with a disability. There is a requirement on employers to explore alternative modes of accommodation to establish if the position held by the employee with a disability is capable of adaptation to accommodate that employee.

Having considered the evidence, I do not accept that the Respondents provided reasonable accommodation to the Complainant.  The Respondents own company doctor suggested that her exposure to onions would be limited in 2014 and 2016. 

Despite this, the attendance notes with the Complainant and HR in 2016 refers to the Complainant being required to carry out work with onions (albeit on rotation).  The note went on to state that failure to work with onions when required by her supervisor may lead to disciplinary action. 

I note I the disciplinary hearing on the 31 January 2019, the Complainant asked

“can I be moved to a different line or the yard, I can do anything”

I accept that the onion line was disliked by all employees and to provide different treatment to the Complainant could possibly lead to difficulties with the other staff.  However, the Respondent should have taken on board the advices from its own company doctor and been more aware of its responsibilities to the Complainant under the Employment Equality Acts.

There is a conflict of evidence as to whether the Respondent made efforts to remove the Complainant from working with onions.  It was accepted that working on the onion line moved to that of rotation, but the Complainants evidence was that she had to process onions every day.  This is not in line with the 2014 the medical advice which was that she should “avoid working with onions in the future”. 

The Respondent accepted that the Complainant did refuse to work on the onion line but refused to work on another vegetable line.  This was denied by the Complainant.

There is a dearth of documentary evidence or correspondence between the Respondent and the Complainant.  The medical reports in 2014 and 2016 should have raised a red flag for the Respondent to consider its obligations under the Employment Equality Act, to take advice as to the best course of action in the circumstances and to document its actions. 

There are no attendance notes on the Complainant’s HR file that she refused to a different line.  The Company doctor’s consultation notes refer to refusing to change line but there is a question mark after this reference.  Without evidence from the GP, it is difficult to understand what the question mark refers to or why it was there.  

I find that the “goggles” provided to the Complainant were only standard plastic safety glasses and would not have done anything to alleviate the sulfenic acid impacting on the Complainant’s nose, mouth and eyes.

Taking the above into account, I prefer the evidence of the Complainant and am satisfied the terms of s.16 were not met. The Respondent has not proven that it met the requirements for a reasonable accommodation of the Complainant.  I am satisfied that if there had been reasonable accommodation, the Complainant would have been capable of performing the functions of her job. The was other work lines and shifts that the Complainant could have worked on other than the onion line and according to the Respondent, this was offered to her.

On the question of dismissal for discriminatory reasons, the reason provided to the Complainant in the dismissal letter of the 7th February 2019 was

“as you are aware the doctor has said there is no medical reason for you not to carry out your duties…. We expect all our employees to work on the onion line and no other employees have raised an issue in relation to cutting onions.  You have been spoken to on several occasions for refusing to carry out your duties as required. 

As a consequence therefore……..I have decided that your employment should be terminated”.

The reason given is clearly the refusal to process the raw onions.  This refusal was based on the Complainants disability. 

At the disciplinary hearing the Complainant stated

“I told him I could not do more time on onions at it was affecting my breathing” 

It follows, therefore, that the Complainant’s rights under the Act were breached, resulting in a discriminatory dismissal.

The Act requires me to assess compensation for the effects of discrimination.  I note that the Complainant was in employment with the Respondent for 12 years before her dismissal.  She was paid the minimum wage and worked a variable hourly week with a maximum of 39 hours. 

Having regard to all factors of the case, the failure to provide reasonable accommodation and the consequential discriminatory dismissal, I find that the appropriate award is €30,000.

The complaint is well founded and I award the Complainant compensation of €30,000.

Disability.