Complainant

Respondent

Parties

The Complainant  Callanan

Maddens Buses Limited Maddens Buses

Representatives

Ruairi Guckian GHR Consulting

Alan Ledwith BL instructed by John O'Neill, John O'Neill & Company Solicitors

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-00034754-001

20/02/2020

The Complainant was employed by the Respondent from 12th September 2011 until November 2019. He was employed as a bus driver working approximately 30 hours per week for which he was paid €350 gross.

This complaint was received by the Workplace Relations Commission on 20th February 2020.

Background.

Having been diagnosed with cancer in Oct 2018, the Complainant went on sick leave to have surgery. He then received chemotherapy treatment but felt capable of returning to work in February 2019.

Due to the nature of the work and the Respondent’s association with the HSE the Complainant was informed that he would not be allowed to return at that time. The Respondent informed him verbally that his job would be kept open for him until he was deemed fit to return.

The Complainant had further surgery in July 2019 to remove another mass, he then had a recovery period and was granted Immunotherapy, which he would be on for the rest of his life however a treatment that you can lead a very normal life with.

The Complainant was cleared by his GP to return to full duties on 22nd October 2019, he contacted the Respondent on October 23rd and informed them, he was told the owner would be in contact. The Complainant did not receive a call. On the 4th November 2019 he phoned again to inquire about his return date. He was told to contact the owner that afternoon. When speaking to

her, she informed him that she had no work for him, she made comment that she had to hire someone else to fill the position as he had been out for so long and that she felt he may go off on sick leave very soon again and she couldn't take that risk. This phone call came without any forewarning.

The Complainant feels the nature of the job is suitable to his current health condition and so he was very much looking forward to returning to normality. At this stage of his life now, looking for permanent employment is made more difficult. He was a diligent employee and feels that has been

gravely mistreated. The Complainant received no payment from the company since 24th October 2018.

Facts of the case.

The Complainant commenced work as a professional driver for the Respondent’s bus company on 12th September 2011 and was a dedicated and model employee for seven years. The Complainant received his contract in November 2011 and signed it 25th November 2011. In September 2018, The Complainant informed the Respondent of his cancer diagnoses, he had become ill in August 2018 and was sent for tests, he kept his employers up to date throughout and up to this point. The Complainant continued to work as normal until his surgery. On the 24th October 2018 The Complainant had what was to be his final day at work. He finished working on half day in preparation for his surgery the following day he had a brief conversation in their house where he was paid for his three and half days that week and was wished luck with his operation. The Complainant’s surgery was performed on 25th October 2018 and he remained in hospital for several weeks. In December 2018 he began receiving chemotherapy and this was to continue for six months bi-weekly. Shortly after his surgery in late November or early December 2018 (date not certain) the Respondent owner and the Complainant engaged in a telephone conversation during which the Respondent informed the Complainant that they had temporarily hired someone. The Respondent owner didn’t want the Complainant to be worried as it was not his job this new driver was taking.

In February 2019 the Complainant made a phone call to the Respondent. He was enquiring about going back to work as although he was on chemotherapy he felt good. He was informed that as the company worked for the HSE, that the HSE would not allow someone receiving chemo to return to work. The Complainant accepted this on the grounds his chemo was due to finish after six months and he would then be able to return. The next correspondence was a happen chance meeting on the street whereby the Respondent asked the Complainant to call to her home. She asked the Complainant for a recommendation of someone he knew personally and as to whether they would be suited to work for them as a driver. The Complainant said " It’s very hard to recommend someone who will replace me" to which the Respondent replied that there was enough work for both of them and   not to be concerned his job was always there. Unfortunately, June 2019 The Complainant was informed  that his treatment had not worked, and he would need further surgery and possibly further treatment. The second surgery took place on 9th July 2019. The Complainant spent much of the next two months recovering from his surgery, during which time the Respondent exchanged text messages with the Complainant’s wife asking about him and his progress and abating his worries about his job. The Respondent and her daughter also dropped by The Complainant’s home house to enquire after the Complainant. The Complainant’s wife spoke to them as they sat in their car due to the Complainant not  being allowed any visitors outside of family to avoid infection.

On the 22nd October 2019 The Complainant was cleared by his GP to return to work. The doctor supplied him with a letter confirming such. The next day 23rd October 2019 the Complainant phoned the Respondent and informed her that he had been cleared by his GP to return to work. He wished to know if he needed any form of further clearance from a doctor for them. She informed that she would have to check with the HSE and would come back to him. Two weeks passed with no contact. November 4th, 2019 the Complainant phoned again to check the status of him needing clearance      and when he would be able to recommence his work. He spoke with the Respondent’s daughter and she informed him that he should call back later that day to speak with the Respondent, as she said, “she was dealing with it”. The Complainant phoned the Respondent later that evening as requested, he felt she was curt on the phone as she informed him that she no longer had work for him. She spoke of how she had to hire someone in the interim to fill in for him as "What was I supposed to do, I had to give him a contract". Upon the Complainant’s disillusion and shock at the conversation as she had continued to promise him his job all along she then said, "For all I know you could go out on sick leave in a couple of months’ time again”.

The discrimination shown to The Complainant due to his illness which was of course completely out of his control has caused him great distress. No attempt to accommodate him was made and a mass presumption was made about his ability and health moving forward. The Complainant was under a year out of work but was so eager to return as this was a job that he loved. It was one which would have very clearly suited his new lifestyle, which has been altered by his condition. The Complainant is at a delicate age where it can be difficult to find steady employment and with his current needs there are not as many jobs that would be suitable, it is unfortunate that being a profession driver with a company like the Respondent fulfilling the contracts they hold was very suited. The unprofessional manner and complete lack of recognition of being an employee for several years was an extremely harsh and upsetting thing for the Complainant to deal with as there was no forewarning or notice given. And after this point no further contact from the Respondent bus company.

Opening Summary

1.       The Complainant contends that he was dismissed by reasons of discrimination on the grounds of age and disability. He seeks adjudication by the Workplace Relations Commission.

2.       The Respondent disputes the Complainant's complaint in full. The Respondent submits that no discrimination arose. The Respondent will show that it gave considerable regard to the Complainant's capacity to work and considered appropriate measures to consider if the Complainant would be competent and capable of working on reasonable accommodation having regard to his illness. It was· considered that the Complainant could not be employed by the Respondent as his employment would impose a disproportionate burden on the employer having regard to the costs entailed and the scale and financial resources of the Respondent's business.

3.       The Respondent is not in receipt of submissions from the Complainant setting out a prima facia case pursuant to Section 85(a) of the Act establishing facts from which it may be presumed that there has been discrimination in relation to him. In any event, the Respondent is in a position to rebut any presumption of discrimination arising in light of the facts set out below.

Factual Background

4.      The Respondent is a very small family business providing transport services and was  incorporated in the year 2000. Its main business was contracts carried out with the then Western Health Board to supply transport for patients requiring dialysis. It also has contracts for the transport of patients to the Mental Health Training Centre and to the Day Centre for the elderly. Three part time workers are employed to drive buses to the Mental Health Training Centre and the Day Care Centre. The entire turnover of the business in 2018 was €249,135 and in the year 2019 was €250,397. In the year 2020 due to Covid-19 restrictions the turnover dropped to €130,060. In 2020 there was only one Bus Driver employed due to the severe impact of Covid-19. The company now has three employees.

5.      The Complainant was employed by the Respondent as a Bus Driver pursuant to a contract of employment on the 12th September 2011. The Complainant's duties involved collecting clients at their own homes and dropping them at two training centres and one day centre in Loughrea. The Complainant worked with the Respondent from the 12th September 2011 until 24th  October 2018 at which time the Complainant took ill and was hospitalised. Work   relations were always good between the Complainant and the Respondent. Over the period of the Complainant's illness the Respondent agents made visits to see the Complainant at his home and also made frequent telephone calls to enquire of his health and recovery.

6.      After a period of 10 months it became impossible for the Respondent to continue to complete the Complainant's work in his absence and another driver was employed.

7.      On the 23rd. October 2019 the Complainant indicated his desire to return to work. The Respondent agents made enquiries as to the feasibility of the Complainant returning to work considering his illness. The Complainant indicated that his GP told him he could return to work but that no Doctor's letter would be presented indicating that fact. He also advised that his Oncologist would not deem him fit for work as a professional Bus Driver. The Complainant advised that provisions would have to be made to meet his requirements as he also advised that he could not eat food before starting his work duties as he would need the use of a bathroom shortly after eating. The Respondent agent asked of the Complainant what he had in mind in that regard as there were no toilet facilities on the bus. The Complainant suggested that he could use the bathroom facilities of each of the clients he was collecting for the Adult Mental Health Services in Loughrea and St. Brendan's Community Nursing Unit who care for the elderly in the surrounding area.

8.       In light of the foregoing, the Respondent considered if it would be feasible to accommodate the Complainant's needs in terms of continuing his employment taking account of the financial and other costs entailed having regard to the scale and financial resources of their business.

9.       The Respondent took account of the following factors:

a.       The Complainant was not providing medical proof that he was in a position to return to work;

b.       The Complainant was advising that he could not have his breakfast before he started work in light of his treatments and during the day he would have to leave the bus unattended, so he could go to the bathroom. There are no bathroom or toilet facilities on the bus and the Complainant suggested he could use a house of the clients whilst on the routes to the Day Centre or Training Centre.

10.   The Respondent considered as to whether it would be appropriate to accommodate the Complainant in his suggestion to leave the bus unattended, so he could go to the bathroom during the transportation of clients. The Respondent considered it unworkable on the basis that the clients would be left unaccompanied on the bus giving rise to potential health and safety issues and secondly it would not be considered appropriate for agent employees of the Respondent to prevail upon clients in their private homes to use their toileting facilities. This would raise many indemnity insurance issues.

11.   The Respondent then considered if the Complainant could be accommodated in employment by fitting a chemical toilet to the Mercedes Sprinter wheelchair minibus. The fitting of such a toilet to the minibus would require the removal of four seats from the existing vehicle, the fitting of a chemical toilet to the saloon of the vehicle and the fabrication of a toilet cubicle and such works would block the rear door of the vehicle and would require the issuing of a small public services vehicle licence. The details of enquiries are set out in quotation for such works obtained from Paramount Conversions attached here at Appendix 2.

12.   The Respondent was not in a position to meet the financial and ancillary costs required in converting the bus to have a toilet facility. Taking all the factors into account, regrettably the Respondent was not in a position to employ the Complainant in the role of a Bus Driver in light of his illness.

Relevant Law

1.       The Respondent has not discriminated against the Complainant on the grounds of age or disability. The Respondent relies on Section 16 of the Employment  Equality Act 1998 in meeting their obligations in this case. The Respondent submits that it has made adequate enquiries to establish fully the factual position in relation to the employee's capacity. It is settled law that such enquiries will 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. Secondly, if it is apparent 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. This requires that the cost of such special treatment or facilities must be considered.

The Labour Court in An Employer v A Worker EDA 1312004 (reported at (2005) ELRJ59), noted that the provision of "special treatment or facilities" necessarily involved an element of favourable treatment, however it was held that the duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case.

The reasonable accommodation concept was given detailed consideration by the Supreme Court in the case of Nano Nagle School v Daly 2019 ELR 221 McMenamin J stated inter alia that the obligation on an employer did not require "a  situation where the duty of an employer is understood as having to provide an entirely different job"... "the duty of accommodation is not an open ended one. There is no obligation to redefine the employment of an Airline Pilot as an Airline Stewart or vice versa. The question is, rather, to consider whether the degree of redistribution, or accommodation, is such as to effectively create a different job entirely, which would almost inevitably impose a disproportionate burden on an employer. Even within the scope of compliance, a situation may be reached where the degree of rearrangements necessary, whether by allocation of tasks, or otherwise, might be such as to be disproportionate. It is a matter of degree, capable of being determined obiectively." [underlined emphasis added] The Learned Judge also noted that Section 16 does not provide for a mandatory duty of consultation with an employee in each and every case.

Notwithstanding the foregoing, the Respondent did engage fully in any event with the Complainant in this case and considered whether or not it was feasible to accommodate the Complainant. Regrettably, the accommodation of the Plaintiff would amount to a disproportionate burden being placed on- the Respondent being a very small business

The Complainant was cleared by his GP to return to full duties on 22nd October 2019, his absence from work had started on 25th October 2018.

When the Complainant informed the Respondent that he was fit to return to work he was informed that he would have to speak to the more senior director which he eventually did on 4th November 2019, during this conversation the Complainant felt that she was curt on the phone as she informed him that she no longer had work for him. She spoke of how she had to hire someone in the interim to fill in for him as "What was I supposed to do, I had to give him a contract". Upon the Complainant’s disillusion and shock at the conversation as she had continued to promise him his job all along she then said, "For all I know you could go out on sick leave in a couple of months’ time again”.

I note that there is an employment contract attached to the Respondent submission. Clause 6 C of said contract reads as follows: “The employee hereby undertakes to attend at any medical examination arranged by the Company and the Employee hereby authorizes the doctor appointed by the Company to disclose to the Company the results of the medical examination carried out by him”

There was never any request made to the Complainant that he attend a doctor appointed by the Respondent.

The Respondent claims that it gave considerable regard to the Complainant's capacity to work and considered appropriate measures to consider if the Complainant would be competent and capable of working on reasonable accommodation having regard to his illness. It was· considered that the Complainant could not be employed by the Respondent as his employment would impose a disproportionate burden on the employer having regard to the costs entailed and the scale and financial resources of the Respondent's business.

The Respondent produced a quotation showing the cost of work that would involve the removal of four sets from the bus and the fitting of a chemical toilet in the bus, the cost of such work would amount to €5,618.25. At no point did the Complainant request such accommodation be made. It is noted that this quotation was dated 29th October 2019, this date is after the date the Complainant notified the Respondent that he was fit to return to work. It is also noted that the Complainant was passed fir to return to normal duties.

In concluding on this complaint, I find that the complaint as presented under the Employment Equality Act, 1998 is well founded and now order the Respondent to pay compensation to the Complainant in the sum of €13,650.

This compensation sum should be paid to the Complainant within 42 days from the date of this decision.

In concluding on this complaint I find that the complaint as presented under the Employment Equality Act, 1998 is well founded and now order the Respondent to pay compensation to the Complainant in the sum of €13,650.

Employment Equality Act, 1998.