Complainant

Respondent

Parties

Brian  Kiernan

Annix Software Limited trading as Quest  Systems

Representatives

Laura Lynch BL     

Jean Conway Solr  

Deirdre O’ Halloran Solr

Corrigan & Corrigan Solicitors

Anna Butler                                        

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-00038960-001

30/07/2020

This complaint herein was triggered by workplace relations complaint form which issued on the 11th of September 2020. The Complainant outlines one complaint relating to a discrimination in the workplace on the grounds of disability.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.  I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Complainant was fully represented, and the Complainant made an Affirmation as appropriate.

I was provided with a comprehensive submission dated the 12th of January 2021. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence – such as emails etc. in tabulated format, in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he was discriminated against on the grounds of his disabilities. The Complainant asserts that had reasonable accommodation been given to him by his Employer he would have been in a position to return to the workplace.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent is one of Ireland’s leading technology and Office providers.  The Respondent had representation at this hearing. The Respondent provided me with a written submission together with supporting documentation. I have additionally heard from 1 witness for the Respondent. All evidence was heard following an Affirmation. The Respondent was cross examined by the Complainant representative.

The Respondent rejects that there has been Discrimination.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to the evidence adduced in the course of two days of hearing. The Complainant started with this Respondent company in 1999 – over twenty years ago. The Complainant had started out on the road providing technical support and servicing to photocopiers and similar machines (supplied and fitted by the Company) and over time he worked his way into the position of technical support Manager working form the headquarters in Belgard. He organised all the technical support (machine installation and ongoing maintenance), he managed client accounts and did the pricing. The Company had grown over the years with employee numbers going from 5 to about 20.

The Company is owned by Mr JS and his Wife, and the Complainant had originally always worked under the direction of Mr. JS. In 2016 Mr. St came into the company as Sales Director, and he became the Complainant’s line Manger.

The Complainant recalled a conversation he had had in and around 2015 when he had agreed with Mr. JS that he (the Complainant) would be committed to working in the office on the sales floor in the generation of work and the maintenance of client accounts and to work less in the warehouse where he would be physically looking after and moving the machines and getting orders ready for delivery. By 2015, the Respondent company was working with a large section of the aviation industry and the Complainant believed that Mr. JS wanted these clients to have a direct and constant contact point in the person of the Complainant. There was a huge emphasis placed by Mr. JS on the Complainant’s need to develop new business and upskill his knowledge of potential clients and product. There was also a big drive to reduce cost whilst still delivering on service.  The document called New and Revised Roles and Responsibilities from Mr. JS to the Complainant was opened to me. It appears clear from this document that the Complainant was expected to be at his desk generating work for the bulk of the working day. Any visits to the Warehouse would be of short duration and the Complainant was expressly told not to be away from his desk for any extended period – Communicate with Z or K or me when you are not going to be at your desk for an extended period. I note in cross-examination that a number of attempts were made to suggest that the Complainant was in fact still regularly loading, delivering and carrying but these assertions did not ultimately stand up to scrutiny. For example, an allegation that he delivered to the incorporated Law society was found to be completely incorrect.

To be fair Mr. St (giving evidence on behalf of the Respondent) did agree that the Complainant worked mainly at his desk, but that the Complainant had the skillset that meant he was also handy in the warehouse and on delivery. They had both gone to England to deliver a heavy printer together though with the use of manual handling equipment the full weight of any of these pieces of machinery was never borne borne by an one individual.

After this said revision of roles and responsibilities, the Complainant says he was very rarely involved in the installations or maintenance of office machines. In fact, the parties could only identify two occasions when he had assisted in the field work. By 2019 he says he was effectively barred from being in the warehouse.

The Complainant had a road traffic accident on the 5th of November 2019. He appears to have sustained a whiplash type injury which developed into quite debilitating neck and back pain which forced him out of the workplace. The Complainant was fitted with a brace and advised to rest for a number of weeks. The Complainant says he made himself as available as he could from home and that there was no initial sense of impatience with his absence. It was clear several people were stepping up and taking over aspects of his job and he advised on his practises over the phone. There is a fairly personable series of text messages coming from St asking after the Complainant and trying to ensure the Complainant is not worrying about work.

The Complainant says he worked closely with Mr. St on a few issues at this time. The Complainant noted that he was receiving fewer and fewer work emails until there were none. Then on or about the 29th of November Mr. St indicated that he required the Complainant’s mobile phone so that any work-related phone calls could be taken up in the workplace. The Complainant was very distressed at this request as the phone number in question was his personal phone with all his personal contacts going back to before 1999. Such was his resistance to this request that he instructed his Solicitor to send a letter stating that the Complainant was willing and able to continue taking work calls. By way of reply, Mr. St stated that the primary objective was to ensure that the Complainant got the rest and recuperation needed post-accident. In fact, without obtaining the Complainant’s consent, the company simply diverted all incoming phone calls to the office. This resulted in the Complainant missing vital medical calls from his G.P. which further compounded his distress.

I would make the observation that this interaction between the parties – including the intervention with up to three Solicitors’ letters - would tend to suggest that relations between the parties were already at a pretty low ebb. Neither party averred to any particular difficulties between the employer and the employee before the road traffic accident so the rapid decline in relations is surprising. There is no doubt that a practical solution for handing over the phone could have been found but the willingness and immediacy of both parties to engage in hostile and confrontational correspondence suggests to me that all was not well.

I should say though that the final email from Mr. St does seem to restore some balance wherein he states that the complainant can retain the number and he will ensure that all clients are contacted independently to ensure that the Complainant is not contacted with work problems and queries. Mr. St says he was motivated by the desire to ensure that the Complaint recuperates though also advises the Complainant be …reminded not to engage in any work activities on his phone or laptop while off on certified sick leave. In his evidence Mr. St stated that he believes that the complainant got the wrong end of the stick at the time. He  (Mr St) was under pressure from the Managing Director (JS) and he needed to be sure that clients were not aggravated by the Complainant’s unavailability.

The Complainant submitted his medical certificates for back pain as appropriate. The Complainant contacted Mr. St regarding a return to the workplace before the end of February 2020. His most recent medical cert was due to expire on the 20th of February 2020. The Complainant was particularly anxious to get back to earning money. By way of response Mr. St puts into an email (dated the 17th of January 2020) that there will be a requirement to have the Complainant assessed by an independent medical expert especially in circumstances where the Complainant has been talking about returning to the workplace before the termination of the most recently certified period of sick leave. To my mind the tone of this email seems appropriate and the request for an independent medical assessment seems reasonable. However, there can be no doubt that there is an emphasis placed on the Complainant’s ability or inability to perform tasks which are physical and involve lifting. The Respondent states that this is consistent with a general requirement that employees be competent in manual handling and that there are courses on manual handling provided periodically in the workplace. The Respondent also repeatedly asserted in the course of evidence that these tasks were not as rare as the Complainant had suggested.

It should be noted that I accept that the Complainant’s back injury is a disability within the meaning of the Acts.

The Complainant is invited to take part in an over the phone health assessment to be taken by the Respondent HR experts and is additionally advised to consult with a Doctor Sc to determine fitness for work. The outcome of this medical assessment/report (conducted over the phone) is that the Complainant is found to be immediately ready to return to the workplace where his job is described as sedentary (on instruction form the Complainant). There is a suggestion that the Complainant would benefit from having an ergonomic office chair when he returns to his workstation. The Complainant noted that he was asked by Dr. Sc was he not expected to lift weights of up to 70kg? The Complainant confirmed that he hadn’t lifted such weights for years. In fact, it seems unlikely, given health and safety considerations, that any employee would be asked to lift such a weight on their own at any time.

The Complainant was happy that he was to be allowed to return to work and agreed to meet with Mr St the following day for an off-site meeting which the Complainant believed was intended as a meeting about easing back into the workplace. The Complainant and Mr. St met in a hotel lobby on the 19th of February 2020. He says he was completely shocked to be told that his job had been largely absorbed by others or outsourced. He said that taking him back would require a re-shuffle. Mr. St said that as the Complainant was financially struggling that perhaps he would take a financial settlement instead of returning to work. When the Complainant asked if he (St) didn’t want the Complainant back to work? Mr. St backtracked and said that he was wanted back, but that he would also need a further physical examination before he could return to the workplace. In his evidence St stated that he was not entirely happy with the first medical report as it had not accurately addressed the manual handling issue. As the complainant had had trouble once before lifting things in the past, he wanted to be sure he was fully fit to return.

I have to assume that Mr. St was on instruction from his line Manager JS to open up this conversation and certainly the evidence is that Mr. JS sanctioned a package be put together to secure the Complainant’s departure.

The Complainant said in evidence, that he believed at the end of this meeting that there would be an opening back into the workplace but there was a definite pressure being applied to consider not returning. In the circumstances the Complainant was happy to consider any offer being made and asked that St put together the proposed facts and figures in this regard.

The next day – February 20th, 2020 - the Complainant was provided with a proposed settlement agreement which involved the payment of a lump sum in full as compensation for the termination of the employment. It is noted that the sum involved barely represented the Statutory Redundancy package the Complainant might be entitled to given his length of service, and it is therefore, not surprising that he was not enticed into taking same. It is also noted that the document came with a Restrictive Covenant purporting to prevent the Complainant from working in the area of office supplies. When consulted, the Complainant Solicitor indicated to the Complainant that the restrictions being placed would make it next to impossible for the Complainant to write a CV for a year. The Complainant contacted Mr.St to decline the offer and indicate he was ready to return to work.

The Complainant was advised at 4.30 pm on the 27th of February of a proposed second medical assessment on the next day at 11am. The Complainant indicated that that was not enough notice for him to attend. Mr St came back immediately asking when he could attend? The Complainant described feeling very pressurised and worried at this time. He was not particularly clear on why he was being sent for a second medical report when he had already been certified as fit for work albeit with a workplace station assessment still to be done. He felt any such assessment could be done with him on site. Rightly or wrongly, the Complainant asked that all communication should now be conducted through his Solicitor. This direction was ignored, and the Respondent organised a new appointment for the following Monday at 1.30pm. However, in the meantime Mr. St also sent a letter threatening disciplinary investigation if there is any further refusal to attend medical appointments. This position was justified by Mr. St in circumstances where the final note of certified medical leave had expired, and the Complainant was now in a state of employment albeit out on paid suspension. The Complainant had never been advised that he was on paid suspension and believed that the description suggested he was in some sort of trouble. I note that this was not something that had ever been put to the Complainant who would have happily returned to the workplace as of the expiration of the last cert but had actively prevented he says from doing so by the Respondent.

I am satisfied that this letter (which is undated in my version at Tab 10), in terms  tone and content operated to create a deep mistrust in the complainant and marked a clear change in attitude towards him.

The Complainant attended the second medical assessment and was surprised to be again asked questions regarding the lifting of heavy weights up to 70 kg (which I understand to be about the weight of six or seven passenger car tires). The Complainant confirmed in consultation with Dr. W that lifting such a weight would never be part of his job description as he was primarily phone and desk based. However, the Complainant was immediately suspicious that Dr. W had been invited to form a view of what his position was based on mis-information. The Complainant noted in his evidence that the issue of manual handling had been raised by the Employer when engaging Dr. W. In the circumstances, it seemed to the Complainant that the Employer was having the Complainant medically assessed to have his fitness to return to work determined on tasks he was not regularly performing, and which would automatically cause him to fail the medical. The Complainant formed the view that his Employer was using a perceived disability to block his return to the workplace and that his Employer was also refusing to contemplate introducing any form of appropriate measures which might be required to safely bring the Complainant back into the workplace. He makes the case that even if he did ever have to help in the warehouse again that he could always carry light weights and there was safety equipment there to operate the heavy lifting.

At a later date, the Complainant does indeed discover that (when the Company sought to have this second medical assessment) Mr. St had specifically stated that the Complainant’s position involves lifting some printers which can weigh approximately 80kg (shared lift), we would like to clarify that he is fit to fulfil his duties.

To my mind there can be no doubt that the Complainant was set up to fail.

Dr. W provided a medical report on the 4th of March which described the Complainant as not fit to return to work in circumstances where manual handling formed part of his role but could certainly return if manual handling was removed form his role.

Based on the medical interview, the Complainant believed that he had no alternative other than to tender his resignation (which he did as of the 6th of March 2020). He was clearly not wanted and saw no future for himself in the workplace. This amounted to a discriminatory constructive dismissal.

 I fully accept the Complainant’s evidence that there was no demand for him in the performance of his day to day tasks to carry or lift significant weights. I accept based on the interaction in 2015 and the evidence of the Complainant largely corroborated by the Respondent that by 2019 the Complainant was almost entirely desk bound. For reasons only known to themselves, the Respondent set the Complainant up to fail a medical assessment so that the Respondent could use his disability (which had kept him out of the workplace for three months on bed rest) against him. The Respondent actively sought to use his disability against him and actively set out to bar his return to the workplace.

I am absolutely satisfied that the Employer put the Complainant into an impossible position. The Employer forced a finding of fact concerning a disability which, even if the Complainant had any such disability, is and was irrelevant to the functions and roles he performed in the workplace. This was a peculiarly clumsy attempt to prevent the Complainant from returning to the workplace and forcing him to retire by reason of ill-health. The motivation was presumably because his job had already been absorbed by others int eh workplace. I am satisfied that the Complainant’s resignation was grounded in the unreasonable position and positioning adopted by the Employer. I am further satisfied he was left with no alternative other than to tender his resignation.   

This was not even a case of refusing to provide reasonable accommodation or take appropriate measures. This was using a disability – weaponizing it - and forcing the Complainant to resign his position where no alternative was open to him. I am satisfied that this was a Discriminatory Dismissal.

I accept that the timing of the resignation – pre-dating as it did, having had sight of the second report – might suggest that he was premature in his action. However, the report said exactly what he anticipated it would say and which he deducted and knew from the way in which he was interviewed by Dr. W that the Respondent employer was moving in one direction only.

It is worth noting that the general silence emanating from the Managing Director was somewhat surprising given the length and loyalty of service given by the Complainant to this workplace. A curt letter dispatched after the resignation certainly didn’t try and persuade the Complainant to not tender his resignation.

I accept that the Complainant was financially at a loss. He has also lost his long service. I accept that  this Employer’s treatment has had a negative impact.

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

CA-00038960-001 - The Complainant was discriminated against. In assessing compensation, I can consider the effect that the discriminatory treatment has had on the Complainant and in the circumstances, I award €58,000.00.