ADJ-00028520

Complainant

Respondent

Parties

Pat Moloney

Eurostyle Ltd

Representatives

Deirdre Canty, SIPTU

David Gaffney, Gaffney 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-00035626-001

08/04/2020

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

CA-00035629-001

08/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035642-001

Withdrawn

09/04/2020

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

CA-00035949-001

Withdrawn

30/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035964-001

01/05/2020

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

CA-00035965-001

Withdrawn

01/05/2020

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

CA-00035966-001

Withdrawn

01/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00036175-001

15/05/2020

The complainant joined the respondent’s clothing business in 1995, working initially in production and eventually becoming their IT manager.  He sustained a back injury and has had surgery and various treatments which meant that the was frequently absent from work.  He was absent from August 3rd 2018 until he was dismissed due to incapacity on March 10th 2020.

The complainant claims that his employer failed to provide him with reasonable accommodation for his disability so that he could return to work.  He claims that he was unfairly dismissed and that he was not paid in lieu of his entitlement to eight weeks’ notice.  He also claims that he was not paid in lieu of his full entitlement to holidays which accrued during his absence.

Chronology Leading to the Complainant’s Dismissal

Having gone absent due to his back problem in August  2018, the complainant sent regular medical certs to his employer.  On December 12th 2018, he sent a cert with a covering email to FC to say that he was due to have surgery, and that, with time to recover, he wouldn’t be back until May 1st 2019.  FC replied and asked the complainant to let him how when the surgery was due to take place and how long he might be out.  Concluding his email, FC said,

“I would also like to wish you a speedy recovery and once you have clarified the above, it is important that you keep me up to date with any developments that may arise which may either result in you returning to work sooner than expected or prolonging such return.”

Five days later, on December 18th, the complainant replied and commented tersely that he had enough concerns without having to think about how the company was managing in his absence.  He ended his email with the following:

“As I stated in a previous email, once I am fully fit to return to work, I will supply a certificate of fitness from my doctor(s) that outlines any recommendations and/or restrictions they deem necessary to facilitate my return to work.”

On May 1st 2019, the complainant sent in a medical cert which stated that he would be unfit for work for a further eight weeks until July 1st 2019.  On May 2nd, FC wrote to him saying “…your absence continues to cause operational difficulties and we cannot keep your position open indefinitely.”  He was informed that an appointment would be made for him to be examined by the company doctor, Dr Pat Hill. 

The complainant attended an appointment with the company doctor on May 31st 2019.  The doctor provided a note to the company the following day in which he stated that the complainant would be absent for at least three more months, and perhaps longer.  He said that “There are no adaptations or modifications to his work station which would be of benefit to his current state of health.”

On September 16th 2019, the complainant returned for an examination by the company doctor.  The following day, the doctor wrote to FC and gave his opinion that the complainant would be absent for “at least the next four months.”  He explained that he was due to have further interventions and possibly, more surgery and that it was unlikely that he would be back at work “this side of early January.”  He said, “He continues to take high dose medication and but (sic) is still very symptomatic with only minimal control of his symptoms.”  The doctor repeated that “There is no modification at work which would make the workplace suitable for him in his current situation.”

FC wrote to the complainant on September 23rd, enclosing a copy of the doctor’s report of September 17th.  He asked the complainant to bring the report to his general practitioner (GP) and to ask him for his opinion on his condition and an assessment of when he would be able to return to work.  FC said that as the complainant had been absent since August 3rd 2018, his position would not be kept open indefinitely.

On September 27th, the complainant’s GP wrote a note saying simply, “I would concur with Dr Pat Hill’s report dated 17/09/2019.”

In early January 2020, the complainant sent a medical cert to let the company know that he would be absent until April 9th.  FC replied on January 10th as follows:

“Dear Pat

I am in receipt of your most recent medical certificate certifying you as unfit to work from the 9th January 2020 to the 9th April 2020.

I recall that you were scheduled to undergo further medical treatment and possible surgical intervention in the weeks following my letter to you of the 23rd September last and I would be grateful if you would kindly advise whether or not this occurred.

You have been absent for in excess of 16 months and, as you would appreciate, such absence does present operational difficulties.

I intend to arrange a further medical examination with Dr Pat Hill and thereafter the situation shall be further considered, but it is now getting to the stage where the company may have to consider terminating your employment on the basis of incapacity.  In this regard, any comments that your own general practitioner may wish to make are most welcome and once we receive the report from Dr Hill, we shall be in contact again.

Should you have any queries in relation to anything raised above, please do not hesitate to contact me.

Kind regards…”

On January 20th 2020, the HR / Payroll administrator wrote to the complainant providing details of the cost of the employee’s pension contributions, hospital fund and union subscriptions that were remitted during his absence.  The total due to the company was €2,508.48.  He was also informed of his entitlement to annual leave and public holidays which had accrued during his absence, valued at €5,408.72.

In early February, the complainant was assessed for a final time by the company doctor.  Having reviewed the details of the complainant’s consultation with his specialists, on February 12th, the company doctor wrote to FC and said,

“I feel he is not fit to return to work now.  The interventions which he has availed of in recent months have done nothing to improve his overall condition.  He remains on strong medication with again only minimal control of his symptoms.”

The doctor concluded his report by saying,

“In my view, it is highly unlikely that he will be returning to work in the short to medium term because of his disability.  It is very unlikely that he will substantially improve and be fit for his previous job inside the next six months.

I am happy to review him upon your request.”   

On March 6th, the complainant wrote to FC and said that he had spoken to his own doctor and that he had “nothing to add to his previous report.”

On March 10th 2020, FC wrote to the complainant and informed him that “the company have taken the decision to terminate your employment by reason of incapacity.”  He was informed that he could appeal this decision to the managing director.  He did not submit an appeal and, on April 8th, he sent the first of eight complaints to the WRC.

In her submission, Ms Canty referred to section 16 of the Employment Equality Act 1998 (“the EE Act”) and the requirement, at sub-section 3 of that section, for an employer to provide reasonable accommodation for a person with a disability.  I will address this requirement under the heading of “Findings and Conclusion” below.  It is the complainant’s contention that his employer did not provide reasonable accommodation and that instead, his employment was terminated due to incapacity.  Ms Canty said that the respondent did not discuss or explore any alternatives or options that may have been open to the complainant to enable him to return to work and perform his duties.

In support of the complainant’s claim, Ms Canty referred to the following legal precedents:

In Kehoe v Convertec Limited[1], Mr Kehoe was dismissed because he could not work as quickly as other employees.  He claimed that he had a disability and the equality officer found that the employer’s failure to send him for a medical assessment amounted to a failure to reasonably accommodate his disability.  In the case under consideration here, the company doctor stated that the complainant would be unlikely to be fit for work “inside the next six months.”  However, no risk assessment was carried out and no proposals were presented to the complainant regarding working from home, a phased return to work or a return to restricted duties.

Ms Canty said that the complainant relies particularly on the decision of the Labour Court in Dunnes Stores v Mary Doyle Guidera[2] where the Court determined that the “respondent was not in a position to objectively evaluate which appropriate adjustments could be made to her working arrangements so as to render her capable of participating in the employment.” 

The case of Shannon Regional Fisheries Board v A Worker[3] concerned an appeal to the Labour Court of a decision of an equality officer.  The Court placed some relevance on the evidence of the respondent’s witness that he gave little or no weight to the opinion of the claimant’s specialist that there was a low risk of the recurrence of a seizure, and the recommendations of the company’s medical consultant that the claimant be reviewed after 12 months.  The Court found that the employer could not have reached an informed decision that the claimant was not capable of fulfilling his duties and, on this basis, they could not avail of the defence provided at section 16(1) of the EE Act.

Referring to the burden of proving that discrimination has not occurred resting with the employer, Ms Canty referred to the decision of the Labour Court in Mitchell V Southern Health Board[4] and Portroe Stevedores v Nevins[5].

Concluding her submission, Ms Canty said that the complainant has established the primary facts which show that he was discriminated against by his employer on the basis of their failure to provide him with reasonable accommodation for his disability, a prolapsed disc in his spine.

Evidence of the Complainant

Responding to questions from Ms Canty, the complainant said that he was the company’s IT manager, and the only person in the IT department.  Around 55 people are employed and he looked after about the same number of computers.  The company uses a software product that is specifically developed for the clothing industry. 

Asked about his consultation with the company doctor about returning to work, the complainant said that Dr Hill relied on his experience of an IT person coming into his surgery, and crawling under desks to disconnect and re-connect cables.  The complainant said that, given the changes that had occurred regarding his role before he went out sick, that 90% of his job could have been done from home over two or three days a week.

Cross-examining of the Complainant

Mr Gaffney asked the complainant if a risk assessment had ever been carried out regarding his disability at work.  The complainant replied that in 2016, he was referred to a company doctor, who recommended that he be provided with an orthopaedic chair.  He said that he got a new chair, but that it wasn’t of any help.  He said that he brought in his own orthopaedic cushion to use with the chair.

Mr Gaffney referred to the email the complainant sent to FC on December 18th 2018 in which he said,

“…once I am fully fit to return to work I will supply a certificate of fitness from my doctor(s) that outlines any recommendations and/or restrictions that they deem necessary to facilitate my return to work.”

The complainant said that he is still not fit to come back to work, but that he could have done some work from home.  He said that he has not looked for a job working from home because his skills are not up to date and he needs to re-train.  He intends to enrol for a course provided through the Department of Social Protection.  He  has not done this to date because he couldn’t commit to a date for training because of his on-going treatment for pain.  His last operation was in March 2020 and he had an epidural in October 2021. 

Returning to the consultation he had with the company doctor, the complainant said that the company should have provided the doctor with a list of his duties so that the doctor could tick off what he could and couldn’t do.  He said that the company doctor had no inclination that the consultation was to determine if he was incapacitated.

Mr Gaffney referred to the letter dated September 23rd 2019 from FC in which he asked the complainant to provide his GP with a copy of the company doctor’s report of September 17th.  The letter states,

“Essentially, we could like to have a better understanding as to what likely effect the forthcoming medical treatments may potentially have on the future timeframe that you shall likely remain unfit to return to work.”

On January 10th 2020, FC wrote to inform that complainant that the company “may have to consider terminating your employment on the basis of incapacity.”  The complainant said that he had no queries as a result of this letter and that he was “working towards the consultation.”  He said that he thought “they would have given him a list of duties that I could perform.”

Mr Gaffney asked the complainant why he didn’t raise any queries about the letter of January 10th, or about the purpose of the consultation with the company doctor in February 2020.  The complainant said that he was busy keeping a roof over his head, keeping his medical appointments and taking his medication.  He said that the “last thing on his mind was the concerns of the company.”  He said that he assumed that they would send his duties to the company doctor.  He agreed that he didn’t send any information from his GP.  He said his GP had signed him off work until April 2020.

The complainant said that his GP has nothing to add to the report of the company doctor.  He said that his GP doesn’t know what his duties are and he is not competent to suggest that he could work from home.  He said that the company doctor is an orthopaedic specialist and that he would be superior to his GP.

Mr Gaffney referred to the letter of March 10th 2020, confirming that the complainant was dismissed due to incapacity.  He asked him why he didn’t exercise his right to appeal against that decision, as outlined in the letter.  The complainant replied that he had difficulties contracting his union representative in March 2020, the Covid restrictions had commenced and he thought that he had eight weeks to appeal.  He then discovered, through the Department of Social Protection, that he was removed from the payroll on March 31st.  He said that he submitted a complaint to the WRC because he realised that the company wasn’t waiting for an appeal.

Mr Gaffney asked the complainant if he ever spoke to his employer about the duties he could have gone back to.  He said that, before he went out sick, there were issues with his duties and that he wasn’t sure what they were.  He said, “it’s not my job to list my duties.”

Mr Gaffney suggested that, if he had submitted an appeal against his dismissal, he could have asked about his duties.  The complainant said that an appeal would fall on deaf ears.  He previously complained about bullying and harassment and nothing was done.  When he was dismissed, he said that he was in shock, he couldn’t get  hold of his SIPTU representative and Covid had started.  He didn’t know what to do about an appeal.  He said that he company made its decision based on bad information.

Mr Gaffney said that in two emails, the complainant told the company that there may be a need for adaptations and that he would tell them when he was fit to return.  He asked the complainant how he could write this and now say that it’s up to the company.  The complainant replied, “when I’m fit for work, I would then tell my employer what I need.”

Mr Gaffney said that the complainant never suggested that he could work from home and the complainant said that in September 2018, he did a job remotely to fix a problem and he was instructed that he was not to work from home while he was sick.

It is the respondent’s position that the complainant has failed to establish a “prima facie” case of discrimination.   In fact, Mr Gaffney submitted that, from the reports of the company doctor, the medical evidence is that “there are no adaptations or modifications to his work station that would be of benefit to his current state of health.” 

Evidence of the Financial Controller

In his evidence, FC said that he was the HR manager and that he is now the financial controller.  He said that he had been dealing with the complainant since his absence in August 2018 up to his dismissal in March 2020.

Describing the complainant’s job, FC said that, while he was the IT manager, he did everything involving computers in the company.  He produced financial reports, he was very good at business intelligence, he maintained the servers, dealt with the anti-virus systems and he fixed laptops.  He said that the company recently moved to Microsoft 365 and they were recommended to get support from an external IT provider.  An IT consultancy was brought in to migrate the respondent’s systems to MS 365.  FC said that the complainant was the main contact between the company and the IT consultants.  Following a full review of the company’s IT systems, the consultancy company was engaged to provide ongoing support.  They then looked after the IT infrastructure and the complainant’s job was to look after the hardware on site and the company’s system.  FC said that the complainant is very strong on the technical side and that the consultants were more focussed on the infrastructure.

Regarding the complainant’s contention that he should have been provided with reasonable accommodation to enable him to come to work with his disability, FC said that the complainant sent medical certs in regularly and he attended consultations with the company doctor.  FC said that both doctors said that the complainant was not fit to work and there was no discussion about reasonable accommodation.  Asked why he did not suggest some form of accommodation for the complainant, FC said that he was not asked about it. 

Referring to the final report of the company doctor of February 12th 2020, FC said that, on March 6th, the complainant replied saying that his doctor had nothing to add to his previous report.  The previous report was dated September 27th 2019 in which the GP stated that he would concur with the report of the company doctor of September 17th 2019.  FC said that he understood from the doctor’s report that the complainant would not be fit for work in the short to medium term.  He said that the complainant did not suggest that he might be capable of light duties, a phased return or any alternative to his previous working arrangements.  The company doctor did not suggest any modifications.

Mr Gaffney asked FC about the complainant’s assertion that the company should have sent the company doctor a list of his duties.  FC said that on January 9th 2020, the complainant submitted a medical certificate saying that he was unfit for work until April 9th.

Mr Gaffney asked FC what happened regarding the IT function after the complainant went absent.  FC said that they “muddled along for a while.”  He said that the IT consultants now do more.

Mr Gaffney asked FC how he would have responded if the complainant had come back with “something different” or if the doctor had said that he wasn’t incapacitated and that something could be done, such as lighter duties.  FC said that they would have been flexible, but that the doctor simply said that he was not fit.

Cross-examining of the Financial Controller

Ms Canty said that there is an onus on the employer to carry out a test to determine if an employee who is disabled can do their job with reasonable accommodation.  FC replied that the company doctor did not suggest any modifications in the complainant’s job, but gave his opinion that he was unfit.

Ms Canty asked FC if he had considered adjustments to the complainant’s job and he replied that the company was told by two doctors that the complainant was not fit for work.  He said that it would be wrong, in his opinion, to force him to come back to work on a part-time basis.

Referring to the letter of January 10th 2020 in which FC told the complainant that they were getting to the stage when the company would have to consider terminating his employment, Ms Canty asked FC what he asked the company doctor to do.  FC replied that he asked him to examine the complainant to see if he was fit to return to work.  He said that he did not tell the doctor that they were considering terminating the complainant’s employment.

Referring to the last line of the company doctor’s report of February 12th in which he said, “I am happy to review him upon your request,” Ms Canty asked FC why the company didn’t wait and send the complainant back to the doctor at a later date.  FC replied that the doctor advised in this letter that the complainant would not be able to return to work in the short to medium term.  He agreed that the doctor did not use the term “indefinitely.”

FC said that the complainant has not been replaced as IT manager.  The consultants do some of his job, everything that can be done remotely.  The remainder of the work is shared between a couple of employees.

At the conclusion of the evidence regarding the claim for reasonable accommodation, I asked Ms Canty what type of reasonable accommodation would have been necessary to help the complainant to return to work.  She replied that they expected the employer to ask this question, but that the options were not explored.  She said that most of his work could have been done online.

The Legal Framework

The issue for consideration here is discrimination on the disability ground, which is listed at section 6(2)(g) of the Employment Equality Act 1998 – 2015 (“the EE Act”) as one of the nine discriminatory grounds.  It is the complainant’s case that, as a person suffering from a prolapsed disc in his spine, his employer failed to provide reasonable accommodation to support his return to work.

In Section 2 of the EE Act, 

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 most recent medical certificate that was included in the respondent’s book of papers is from the complainant’s GP and is dated January 8th 2020.  The cert states that the complainant is suffering from “a medical illness” and that he will be absent until April 9th 2020.  A letter dated September 27th 2019 which was also submitted by the respondent shows that the complainant’s GP agreed with the company doctor’s assessment of September 17th 2019.  In that assessment, the company doctor did not identify or name the condition that the complainant said that he suffers from.  Having reviewed his MRI scan and notes from his GP and specialist, the company doctor said that despite high doses of medication, the complainant “is still very symptomatic with only minimal control of his symptoms.”

Almost five months later, in February 2020, the company doctor reviewed the complainant again.  In his report dated February 12th, he did not name the condition that the complainant suffers from, but said that he had reviewed updated medical reports and that he carried out a physical examination of the complainant.  He concluded that the interventions that he availed of over the previous months “have done nothing to improve his overall condition” and that that it was “highly unlikely that he will be returning to work in the short to medium term because of his disability.”

At the hearing, the complainant said that he suffers from a prolapsed disc in the spine.  Despite the absence of medical evidence, the respondent’s side did not challenge the complainant’s contention that he suffers from a disability and, in his final report of February 12th 2020, the company doctor clearly referred to him having a disability.  I am satisfied therefore, that a prolapsed disc in the spine is encapsulated by the definition at section 2(c) of the EE Act, as “a malfunction… of a part of a person’s body.”

Reasonable Accommodation

Section 16 of the EE Act sets out the obligation of employers to employees with disabilities:

“(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.”

Sub-section 2 is not relevant to the consideration of this complaint.  Sub-sections 3 and 4 were inserted as amendments to the 1998 Act by the Equality 2004 and have the effect of “carving out an exception” (see Daly v Nano Nagle below) to section 16(1) by the introduction of the requirement for appropriate measures to support the employment of a person with a disability:  

(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.

(4) In subsection (3) -

‘appropriate measures,’ in relation to a person with a disability  -

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of  paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but 

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

(The remainder of this sub-section (c) is not relevant to the complaint under consideration here).

The remarks of Mr Justice McMenamin in his decision on the appeal to the Supreme Court of Marie Daly against Nano Nagle School[6] are useful here.   At paragraph 84 of the majority decision, he addresses the effect of section 16(3) on section 16(1):

“Section 16(1) sets out a premise.  That, 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 regard 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.”

It is apparent that the intention of this amendment is to place an obligation on an employer, subject to the “disproportionate burden” criterion, to put in place certain measures to enable a person with a disability to be fully competent to undertake the duties of their role. 

The Burden of Proof

Section 85A of the EE Act transposes into Irish law Article 19(1) of the EU Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.  Sub-section 1 of section 85A states:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Ms Canty referred to this evidential burden as it was described in the decision of Mitchell v Southern Health Board (cited on page 6 above),wherethe Labour Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

“It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

My task therefore, is to consider if the complainant has shown that, based on the primary facts, he was discriminated against by the respondent when he wasn’t provided with reasonable accommodation for his prolapsed spine.

The Primary Facts

At the hearing, it was evident that the communication regarding the out-sourcing of some of the IT function in 2017 resulted in the complainant feeling side-lined and unappreciated.  While the out-sourcing was not core to this complaint of discrimination, it appears to have damaged the relationship between the complainant and his manager.  It is apparent from the tone of his correspondence in the months before his dismissal, and from his demeanour at the hearing, that any positive disposition that he had towards his employer had, by 2018, been firmly extinguished.

The complainant was absent from work on a continuous basis from August 2018 until his dismissal in March 2020.  During that time, he had an operation on his back, and he was prescribed very strong medication for pain.  In February 2020, the company doctor indicated that his overall condition did not improve while he was absent.

In his evidence, the complainant said that the reasonable accommodation that would have been acceptable to him was working from home for one day a week, while remaining on disability benefit.  He said that, as he got better, he could have done more.  During his absence, the complainant did not contact his employer to discuss the possibility of working from home. 

In May 2019, the company doctor, an orthopaedic specialist, gave an opinion that the complainant would be out of work for three months or perhaps longer.  In September 2019 and February 2020, he found that the complainant was not fit for work and that it was unlikely that he would return “in the short to medium term because of his disability.”  When he was asked to comment on these findings, in September 2019, the complainant’s doctor agreed with the company doctor, and in February 2020, the complainant said that his doctor had “nothing to add.”

In January 2020, the financial controller wrote to the complainant and said,

“…it is now getting to the stage where the company may have to consider terminating your employment on the basis of incapacity.  In this regard, any comments that your own general practitioner may wish to make are most welcome and once we receive the report from Dr Pat Hill, we shall be in contract with you again.” 

The complainant did not respond to the warning that his employment was at risk and he did not initiate any discussions to suggest that, as an alternative to dismissal, he would like to discuss some measures that might enable him to continue in his job.

At the hearing, the complainant said that he has not looked for another job because he would not be able to fulfil his duties due to pain and absenteeism.

After he was dismissed, the complainant did not contact his employer to ask them to re-consider, or to suggest that he could return to his job on a part-time basis, working from home.

Findings

The requirement for reasonable accommodation at section 16(3) of the EE Act was inserted by the provisions of the Equality Act 2004, which, in its turn, was enacted to transpose Article 5 of Council Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation.  The rights of people with disabilities “to gain a living by work freely chosen” is further established at article 27 of the UN Convention on the Rights of People with Disabilities, which was ratified by the Irish government in March 2018. 

Reasonable accommodation for people with disabilities at work, described in our legislation as “appropriate measures, where needed in a particular case,” is a practical response of employers to the objective of society to benefit from the contribution of people with disabilities.  It is a far-reaching legal instrument that has the potential to change lives, to enhance the culture in workplaces and to bring about a more inclusive and civilised society.  As the right to work is a fundamental human right, it is a serious matter to withhold from an employee the entitlement to reasonable accommodation to enable them to remain in employment.  It is with all this in mind that I will now set out my reasons for finding that the complainant has not established the burden of proof that demonstrates that he has been discriminated against by the failure of his employer to provide him with reasonable accommodation for his disability.

Ms Canty referred to the Supreme Court decision in Daly v Nano Nagle (cited at page 12 above).  Ms Daly was involved in an accident that resulted in a five-month stay at the National Rehabilitation Hospital.  At the end of her treatment, a senior occupational therapist concluded in a report that she could return to work on a phased basis.  For the duration of his absence from August 2018 until March 2020, the complainant was certified by his GP as unfit for work.  In September 2019 and February 2020, the company doctor, a specialist in orthopaedics, agreed that he was unfit for work.  The complainant did not challenge these findings, he did not produce a contradictory opinion and he never suggested that, subject to certain measures, he might be able return to work.

M Canty also relied on the decision of the Circuit Court in Humphries v Westwood Fitness Club[7], where the decision of the Labour Court that Ms Humphries had been discriminated against on the grounds of her disability was upheld.  I note that the Circuit Court was critical of the fact that,

“…the respondent made no effort to obtain a prognosis of the claimant's condition. They did not discuss the situation with her before taking a decision on her future. They came to the conclusion that she could not be retained because of her disability without the benefit of any form of professional advice or assessment of the risks associated with her condition.”

This is not what occurred in the case we are considering here.  The respondent made a reasonable effort to determine if the complainant could return to work by sending him on three occasions to their own doctor, and by asking his GP for his opinion on the company doctor’s findings.  Neither of the medical professionals suggested that the complainant could return to work, or that he could return, subject to reasonable accommodation.  In fact, in two reports, the company doctor stated that “there is no modification that would make the workplace suitable …in his current situation.”

In the Labour Court decision in Dunnes Stores V Mary Doyle Guidera (cited on page 5 above), the respondent dismissed the complainant although their company doctor noted that she had experienced some improvements in her conditions.  The company doctor indicated that he wanted to keep her under review pending her consultation with a specialist.  It seems that Dunnes Stores ignored this advice and dismissed Ms Doyle Guidera.  Regrettably, in the case of the complainant here, on February 12th 2020, the company doctor stated that his treatment has “…done nothing to improve his overall condition.” 

On behalf of the complainant, Ms Canty argued that the employer had a responsibility to consult with him to discuss possible measures to facilitate his return to work.  I agree that the respondent would have had such a responsibility if any one of the following had occurred:

§    If the complainant had indicated that he wanted to return to work;

§    If his GP had provided an opinion that the complainant’s condition was improving and that, subject to certain measures of support, he could return to work;

§    If the company doctor had not concluded that the complainant would not return “in the short to medium term” because of his disability;

§    If the GP had not agreed with the opinion of the company doctor that the complainant was not fit for work;

§    If the company doctor had not stated that there were no modifications that would make the workplace suitable for the complainant.

The duty of an employer to provide reasonable accommodation, is not, in my view, intended as a freestanding initiative whereby an employer encourages a person with a disability to come back to work.  Rather, it must be the response of an employer to a proposal from an employee concerning appropriate measures that might facilitate their return when they have been deemed by their doctor or the company doctor as able to do so, subject to some form of accommodation. 

I am satisfied that the respondent’s communications with the complainant were reasonable and that it was open to the complainant at any stage to ask for an alternative to working full-time or to ask if he could work from home.  As early as December 2018, FC wrote to the complainant and said, “It is important that you keep me up to date with any developments that may arise which may result in you returning to work sooner than expected or prolonging such return.”  In later emails, FC asked the complainant to keep him up to date, to let him know when he was having surgery, if he had had further treatment and how long he would be out.  It is my view that it was always open to the complainant to ask for a meeting to discuss the possibility that he could return to work by working from home on a part-time basis.  The fact that he did not do so leads me to unfortunate conclusion that he was not able, because of his health, to return to work, or that he had no interest in going back to work.  My sense is that the truth is a combination of both.

I note the remarks of Mr Justice McMenamin, in the Nano Nagle decision that,

“…as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the [EE] Act.  But absence of consultation cannot, of itself, constitute discrimination under s.8 of the Act.”

It is my view that this employer engaged in meaningful communication with the complainant in the months prior to his dismissal, and the failure to engage in specific communication, or to initiate discussions regarding reasonable accommodation to enable him to return to work does not establish that discrimination has occurred.

I am not satisfied that the primary facts put forward by the complainant are adequate to raise an inference of discrimination and, on this basis, the burden of proving that discrimination did not occur does not shift to the respondent.

In his submission in advance of the hearing of this complaint, Mr Gaffney asserted that the complainant was dismissed on March 10th 2020 “as a result of incapacity, pursuant to section 6(4) of the Unfair Dismissals Act 1977.”  In a report from the company’s doctor of February 12th 2020 which was provided to the complainant, the doctor stated that, “…it is highly unlikely that he will be returning to work in the short to medium term because of his disability.  It is very unlikely that he will substantially improve and be fit for his previous job inside the next six months.”

On March 9th 2020, the complainant sent an email to the respondent’s HR manager in which he said that he had “…spoken with my doctor who advises that he has nothing to add to the previous report.”  When he wrote this email, the complainant was aware that if he was not in a position to provide a reasonable date when he would be fit to return to work, that this may result in the termination of his employment.

Mr Gaffney submitted that the failure of the complainant to appeal the respondent’s decision to dismiss him is “fundamentally fatal” to his claim that his dismissal was unfair.  As he was capable of corresponding with the respondent during his absence, and capable of instructing a representative to act on his behalf, then he must have been capable of appealing the decision to dismiss him, but he chose not to.  For this reason, Mr Gaffney submitted that his complaint is unsustainable.

Mr Gaffney said that, in January 2020,  the complainant was “given the heads up” and told that he might be dismissed.  He was advised to speak to his doctor. 

He had the option to appeal against his dismissal, but he didn’t appeal.  He made no effort to find another job.  Mr Gaffney submitted that, if the complainant is incapable of taking on another job, then he has suffered no loss.

Evidence of the Financial Controller

In response to questions from Mr Gaffney, FC said that he communicated with the complainant and he told him that his absence was causing difficulties for the company.  He said that, during the period leading to his dismissal, the complainant was given any information he asked for.  He asked for a copy of the reports of the company doctor, and then a copy of his personnel file.  FC said, “we gave him a say on the reports.”  He said, “we told him that we were considering termination” and he had a right of appeal.

Cross-examining of the Financial Controller

Responding to Ms Canty, FC said that they did not consider any option other than the dismissal of the complainant.  He said that the doctors said that he wasn’t able to come back, and “we afforded him the last chance.”  FC said that no warnings were issued, but that in a letter of January 10th 2020, the complainant was told that the company was considering his dismissal.

FC said that the company was open all during the pandemic, as they provide protective clothing to some industries. 

He said that an IT manager has not been appointed since the complainant’s dismissal.

Ms Canty referred to an email to all staff dated August 24th 2017 from the general manager regarding changes to how the IT function would be carried out.  FC said that the general manager was the complainant’s line manager and that the changes in the IT function were discussed with him.  Ms Canty said that the complainant’s evidence will be that his duties were transferred to the consultancy company without any discussions with him.  FC listed the complainant’s duties and the consultants’ duties.   He said that the complainant’s role was to look after the company’s main systems programme and its web intelligence system.  He said, “in my opinion, I don’t think he could do the job to the best of his ability from home.”

Further Questions from Mr Gaffney

FC said that, since the complainant is no longer in the role of IT manager, the consultancy company has to do more, and that, as a result, the company’s IT costs have increased significantly.  He described how employees look for assistance by logging a ticket with the consultancy company.

Asked why the complainant was dismissed, FC said that he was not capable of doing his job and that this was causing operational difficulties.  He said that “we couldn’t keep going” and that the company needed to sort its IT system.  He said that, over the last two years, they have invested significantly in IT.

In her submission at the hearing of this complaint, Ms Canty said that the dismissal of the complainant due to incapacity was disproportionate and unwarranted.  In support of this contention, she referred to the decision of the Employment Appeals Tribunal in Bigaignon v Powerteam Electrical Services Limited[8].  Here, the claimant was dismissed after testing positive for cannabis.  Finding that the dismissal was unfair, the Tribunal concluded that,

“The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissal will be rendered unfair.”

Ms Canty submitted that, at the time of his dismissal, the complainant was following his doctor’s orders and was not able to return to work.  Also, from the August before he went out sick, Ms Canty said that most of the complainant’s job had been out-sourced to an IT company.  She asserted that he was dismissed because his role had been out-sourced and that there was no job for him.

Evidence of the Complainant 

The complainant referred to the email from the general manager of August 24th 2017 in which staff were informed of changes in the IT function.  He said that he was left with the software systems programme, business objects, telephones and printers.  A month later, when he didn’t respond to a request to fix a laptop, he said that the general manager accused him of not doing his job.  He said that if his role was to focus on more value-added work, that this wasn’t discussed with him.  He said that, single-handedly, he migrated all the company’s computers to MS 365.

Also in 2017, the complainant said that he was absent for a month due to gallstones.  He said that the general manager said that they would bring in the IT consultancy company in case he was out again.  Around January 2017, the complainant said that a letter was placed on his file regarding his absenteeism.

Regarding his dismissal, he said that it was disproportionate.

Cross-examining of the Complainant

Referring to the role of the consultants in the migration of Office 365, the complainant said that “they took money for licensing and consultation, they were not on site, I was.”  He said that the job of migration “was handed to me to set up 14 domains for different types of emails.”  He said that he supported the employees to get set up.  On a number of occasions, the complainant said that he told the company that he could do the work that the consultants were doing.  He said that the response was that someone was needed to provide cover.

Referring to the email from the general manager telling employees about the involvement of the consultants, Mr Gaffney asked the complainant if he said to his manager, “I can do that.”  He replied, “I’m not on the board.”

Referring to the operational difficulties the company said were being caused as a result of his absence, the complainant asked, “how could there be disruption, when I only had three things to do?”

Considering the possibility that a lesser sanction than dismissal could have applied, Mr Gaffney asked the complainant what would have been a better outcome than being dismissed.  The complainant replied that he wasn’t 100% sure.  He said that there should have been a face to face meeting.  He said that they never outlined what their problems were, and that he could have made suggestions.  He could have worked a day a week.  He said, as he is in receipt of disability benefit,  he could have worked a certain number of hours a week and he could have done more as he got better.

Mr Gaffney replied, “you never said this.”

In his closing comments, the complainant said that he has an integral knowledge of the company’s IT systems, and that not many companies use the systems that he is experienced in.

He said that he needs to re-train.  For a new employer, he would not be able to take on a job, because, due to his back problem and his pain, he would be absent.  He said that his current employer could have provided some flexibility, as he could have worked from home.  He is sometimes awake at night and he could have worked at night and had problems resolved for the opening up of business the next day.

Conclusion of the Complainant’s Case

Summing up the complainant’s case, Ms Canty repeated that the company’s decision to terminate his employment was disproportionate.  She said that no alternative option was considered.  She submitted that the employer failed to make adequate enquiries regarding what the complainant might be capable of doing and that most of his role has been out-sourced.  She argued that this is evident in the fact that he has not been replaced.

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 (“the UD Act”), provides that:

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

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant.  In the case of this complainant, the conduct which resulted in his dismissal is the respondent’s belief that, based on the reports of their doctor, with no contradictory information provided by the complainant’s doctor, he was unfit for work.

Section 6(4)(a) of the UD Act provides that;

 “…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from

(a)    the capability, competence or qualifications of the employee for performing the work of the kind he was employed by the employer to do.”

In the case under consideration here, the issue is the complainant’s capability – is he capable of coming to work and carrying out his duties?  When an employee is ill, it is accepted that they should not attend work, and an employer is expected to exercise forbearance and to give the employee a chance to get better and return to work.  However, in the unfortunate circumstances where an illness interferes with an employee’s ability to attend work in the long term, a dismissal may not be unfair.

Was the Decision to Dismiss the Complainant Reasonable in the Circumstances?

As was established almost forty years ago in the case at the Employment Appeals Tribunal (EAT) of Bunyan v UDT (Ireland) Limited[9], the fairness or otherwise of an employer’s decision to impose the most serious sanction of dismissal must be judged by an objective test:

“…the fairness or unfairness of the dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved.  The Tribunal therefore does not decide the question whether or not on the evidence before it, the employee should be dismissed.  The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

Taking the circumstances confronting this employer and this employee into account, my role, as the adjudicator and the successor to the EAT is to determine if the decision of the respondent to dismiss the complainant was the action of a reasonable employer.

All contracts of employment are based on a simple premise that an employee will attend work regularly and carry out a specific job for an agreed wage.  When an employee fails to attend work, an employer must give some consideration to the cause.  The complainant was dismissed because he was absent continuously for 18 months, and there was no indication from him or his doctor that he was going to be able to return.  In his evidence at the hearing, we learned that the complainant has been through a very difficult time with a back problem, that he suffers from chronic pain, and that his treatment has not resulted in any improvement.  I have no doubt that, when he said in his letter of March 10th 2020, “This is not an easy decision to make,” that the financial controller meant what he said.  It is my view that, another reasonable employer in similar circumstances would have made the same decision.  I find therefore, that the decision to dismiss the complainant was not unfair.   

Was the Process Fair?

The process that ended with the complainant’s dismissal started when FC wrote to him on May 2nd 2019, telling him that his absence presented operational difficulties and that his job would not be kept open indefinitely.  On September 27th, FC wrote again, enclosing the company doctor’s report and asking the complainant to get his doctor to provide an indication of when he would be back at work.  On January 10th, FC wrote again to the complainant, telling him that he would arrange for him to be seen by the company doctor for the third time.  On this occasion, FC said, “it is now getting to the stage where the company may have to consider terminating your employment on the basis of incapacity.”  I am satisfied that the three letters sent to the complainant by FC between May 2nd 2019 and January 10th 2020 served as warning letters to let him know that his continued employment was at risk.  I accept that, due to his illness, the complainant could do nothing to address his employer’s concerns.

Although he was advised in his letter of dismissal on March 10th 2020 that he was entitled to appeal the decision to dismiss him, the complainant did not appeal, and instead, he submitted eight complaints to the WRC.  As he was properly informed, and, as he was a member of a trade union, it was unreasonable that, before he submitted these complaints, he did not exhaust the procedures of his workplace.  The opportunity of an appeal allows a dismissed employee to challenge their employer informally and immediately after the dismissal.  I am satisfied that if, with the support of his trade union, he had brought his concerns about his dismissal to the attention of the management, and, if he had demonstrated that he was willing and capable of doing some work on a part-time basis, that this would have been facilitated.

I have found that the decision of the respondent to dismiss the complainant in this case was reasonable and I also find that the process was fair.  On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded.

It is the complainant’s case that, as he was dismissed on March 10th 2020 with immediate effect, he is entitled to eight weeks’ pay in lieu of notice.

The respondent’s case is that the complainant was not entitled to pay in lieu of notice, in circumstances where he was not capable of working his notice.

I have concluded above that the dismissal of the complainant was not unfair, in circumstances in which he was not able to come to work because of illness.  It follows therefore that he was not able to work during the period of his notice.  Section 2 of the Minimum Notice and Terms of Employment Act provides for certain minimum periods of notice, relative to an employee’s length of service.  Apart from the provisions at section 8, where an employer or an employee may waive their right to notice, or accept pay in lieu of notice, an employee who is not capable of working their notice is not legally entitled to pay in lieu.

I decide that this complaint under the Minimum Notice and Terms of Employment Act 1973 is not well founded.

It is the complainant’s case that he did not receive his full entitlement to pay for the holidays accrued  while he was absent due to illness from August 3rd 2018 until he was dismissed on March 10th 2020.

The respondent’s case is that the complainant received all his statutory entitlement to annual leave during his absence.  He has produced no evidence in support of his complaint and, in the absence of any corroboration, Mr Gaffney submitted that the complaint is spurious and vexatious.

A letter to the complainant from the HR / Payroll administrator dated January 20th 2020 was submitted with the respondent’s book of documents.  The administrator confirmed that the complainant accrued 32 days of annual leave and 9 public holidays from the date that he went absent, August 3rd 2018 until that date.  The value of the untaken annual leave and public holidays was €5,408.72.  Regarding any future entitlements, the letter stated,

“As you have been on certified leave for longer than 15 months, you have now ceased to accrue any further leave or bank holidays.”

The Legal Framework Regarding Annual Leave and Absence Due to Illness

Prior to the amendments of sections 19, 20 and 23 of the OWT Act by section 86(1) of the Workplace Relations Act 2015, there was no provision for the accrual of annual leave during absences due to illness.  Before these amendments were enacted, holidays were treated in much the same way as wages, being accrued or “earned” in line with attendance at work.

Five years after the passing of the OWT Act, Directive 2003/88/EC, concerning certain aspects of the organisation of working time (“the Working Time Directive”) was adopted by the member states of the European Community to improve the health and safety of workers by providing “a codification of the provisions” on working time, night work, breaks and holidays established in the earlier Directive 93/104/EC. 

Under the heading of Annual Leave, Article 7.1 of the Directive provides as follows:

“1.  Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.”

In 2006, the decisions of the Court of Justice of the European Union (CJEU) in case C-350/2006, Schultz-Hoff v Deutsche Rentenversicherung Bund[10], and case C-520/2006, Stringer and Others v. Her Majesty’s Revenue and Customs[11], resulted in a finding that the accrual of annual leave based on attendance at work was incompatible with Article 7 of the Working Time Directive and that the Directive allowed for the accrual of annual leave during periods of absence due to illness.

In 2015, the objective of the amendments of sections 19, 20 and 23 of the OWT Act was to bring this judgement into effect in Irish law and, at the same time, to limit the accrual of holidays to avoid an onerous financial burden on businesses where employees are absent for a long time. 

Amendment to Section 19 of the OWT Act:  Entitlement to Annual Leave

To bring the treatment of holidays in Ireland into line with the jurisprudence of the CJEU, the new section 19(1A) of the OWT Act changed the law in relation to the accrual of annual leave.  The Act now provides that annual leave is accrued during periods of absence due to illness:

“(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was -

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.”

Amendment to Section 20 of the OWT Act:  Times and Pay for Annual Leave

(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(Sub-sections (a) and (b) are not relevant to this complaint.  The amendment, which is key to this complaint, is at sub-section (c)).

(c) to the leave being granted -

(Sub-sections (i) and (ii) are not relevant to an employee who is not absent due to illness).

(iii) where the employee —

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and 

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, 

within the period of 15 months after the end of that leave year.  

The effect of this amendment is, that an employee who is medically certified as unable to attend work due to illness is entitled to the benefit of the annual leave that accrues during the leave year in which they are absent.  We know that the amount of leave is limited to the statutory entitlement of 20 days.  This amendment provides that an employee must take the holidays within 15 months from the end of the leave year, after which, they are lost. 

Amendment to Section 23 of the OWT Act:  Compensation on Cesser of Employment

There is a difference in the treatment of employees who resign or whose employment is terminated after a period of absence due to illness. 

(1) (a) Where -

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, 

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

(b) In this subsection -

‘relevant period’ means -

((i) and (ii) are not relevant to this complaint.)

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, (this refers to Section 20(1)(c)(iii) of the OWT Act) that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) -

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii)  -

(I) the current leave year, and

(II) the 2 leave years immediately preceding the current leave year.

It is apparent from (iii) and (iv) above that the legislation intends that employees are to be compensated differently for annual leave not taken, depending on:

(iii)  whether their employment ends during the first 12 months following the end of the year in which they went absent, in which case they are entitled to compensation for holidays accrued during the leave year in which their employment ends and the preceding leave year.

Alternatively,

(iv)  If their employment ends during the final three months of a period of 15 months after a leave year in which they have been absent, they are entitled to compensation for holidays accrued during the leave year in which their employment ends and the preceding two years.

Based on the outcome from the decisions of the CJEU and the objective of the amended legislation to place some limit on the entitlement to compensation for holidays not taken as a result of long periods of sickness absence, my understanding is that the maximum compensation to which an employee is entitled is equivalent to pay for holidays accrued in the 24 months before the year of termination, plus the leave that accrues in the year of termination.

Findings:  Compensation for the Number of Days’ Holidays Not Taken

The complainant was absent due to illness from August 2018 until his employment ended on March 10th 2020.  While his contract stipulated that he was entitled to 22 days’ holidays a year, holidays that accrue during absence are limited to the statutory entitlement of 20 days.

In her letter of January 20th 2020, the HR / Payroll administrator informed the complainant that he had accrued 32 days’ holidays between August 2018 and November 2019.  She said that as he was on certified sick leave for longer than 15 months, he had ceased to accrue any more annual leave or public holidays.  This approach fails to correctly apply the amendment to section 23 of the OWT Act.  The section provides for a difference in treatment for employees whose employment ceases during the first 12 months following the end of the year in which they went absent, or in the final three months in a period of 15 months following the end of the year in which they went absent.  The second of the two alternatives applies to the complainant, because:

§    He went absent due to illness on August 3rd 2018;

§    His employment ceased on March 10th 2020;

§    December 2018 was the end of the leave year in which he went absent;

§    March 10th 2020 was in the final three months of a period of 15 months after December 2018.

Based on the intention of the amended section 23(1)(c)(iv), the complainant is entitled to compensation for holidays not taken during the leave year in which his employment ended, (2020, “the current leave year”) and for the holidays not taken in 2019 and 2018 (“the 2 leave years immediately preceding the current leave year”). 

In her letter of January 20th 2020, the HR / Payroll administrator advised the complainant that he had accrued 32 days’ annual leave up to November 1st 2019.  In the leave year 2019, he was entitled to 20 days’ statutory holidays, and he must therefore, have accrued 16.7 days up to November 1st 2019.  That leaves an accrual of 15.3 days from 2018.  I accept that this is based on the complainant’s contractual entitlement of 22 days, and I may therefore, have over-estimated his 2018 accrual by two days.

In summary (recognising the over-estimation for 2018), the complainant is entitled to the benefit of 38.6 days’ holidays not taken which accrued over a period of 19.5 months.  It is interesting to note that, if the complainant’s employment had ended on April 1st 2020, and not March 10th, he would not have been entitled to pay for the holidays that accrued in 2018, because the time limit from the end of December 2018 would have been greater than 15 months.  

In addition, the complainant is entitled to pay in lieu of the public holidays that fell during his absence.  He claims that his employment ended on March 31st 2020; however, it is apparent that he was dismissed without notice in the letter of March 10th 2020.  He is not therefore, entitled to the benefit of the public holiday that fell on March 17th 2020.  I find that he was entitled to pay in lieu of the following public holidays:

2018:  3 days – Last Monday in October, Christmas Day and December 26th

2019:  9 days

2020:  1 day - January 1st

Conclusion

I find that, at the termination of his employment, the complainant was entitled to pay in lieu of 38.6 days of annual leave and pay in lieu of 13 days of public holidays, a total of 51.6 days.  In the documents submitted by the respondent, I note that the complainant was paid €5,408.72 gross in respect of 41 days (32 days of annual leave and 9 public holidays), leaving a shortfall of 11 days’ pay. 

I decide that this complaint under the Organisation of Working Time Act is well founded.  As the value of a day’s pay is €131.92, I order redress of €2,250, as cessor pay, of which €1,450 is arrears of pay and €800 is for breach of a statutory right, which does not constitute arrears of pay.

Absence due to illness, reasonable accommodation, dismissal, pay in lieu of holidays not taken.