Complainant

Respondent

Parties

Janos  Smohai

Rosderra Irish Meats Group Ulc

Representatives

Hugh O’Donnell BL

Terry MacNamara Ibec

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-00033967-001

24/01/2020

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

CA-00033967-002

24/01/2020

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

CA-00033967-003

24/01/2020

The Claimant brings this claim on the basis that he was discriminated against and dismissed on the grounds of disability under Section 6(2)(g) of the Employment

Equality Acts 1998 -2016 ("the Acts").  He contends that the Respondent failed to provide him with reasonable accommodation.  The case law of Humphries v Westwood and Flavin v Marks & Spencer is cited in support of the Complainant’s arguments in relation to the discriminatory treatment of him by the Respondent.  The claim is not for loss of earnings, as this will be addressed in a separate forum.

Between 6 January 2016, and 18 September 2017, the Plaintiff was obliged to perform a series of physically demanding, repetitive and unduly stressful manual boning operations at the Respondents factory. He was required to perform these tasks despite repeated oral requests for a reassignment to less physically demanding work. He was certified as unfit for work on a number of occasions due to a chronic left shoulder condition. His condition continued to deteriorate throughout this period. On 18 September, 2017 , he was pulling bone from a frozen or semi-frozen carcass when he felt an acute pain injury to his left shoulder.

The Claimant was unable to return to work as a boner in the Respondent's factory in the months following his accident as the pain to his shoulder prevented him from carrying out his normal duties. He was certified as being unfit for work by his General Practitioner from the 19th of September 2017 onwards. During this time, the Claimant made an application to the Personal Injuries Assessment Board and further initiated a personal injuries action against the Respondent on the basis that his injuries had been caused by negligence in the workplace.

 The Claimant was referred by the Respondent to a medical assessment to Dr G on the 11th of January 2019. While attending Dr G the Claimant informed her of his medical history and the ongoing issues with his shoulder. The Claimant explained his treatment to date and the fact that he continued to suffer from significant pain and restricted movement, and that he was unable to return to work while this pain continued.

Following this examination, Dr G provided the Respondent with an opinion that that the Claimant was fit to return to work of light physical demand whereby he did not lift in excess of certain weights. The Claimant has not been provided with a copy of Dr G's opinion in this regard. The Respondent wrote to the Claimant on the 25th of January 2019 inviting him to a return to work meeting on the 30th of January 2019.

At the said meeting the Claimant informed the Respondent's HR Manager that he had been advised by his treating doctors not to return to work and that he was to attend a Consultant for examination in February. The matter was postponed to allow the Claimant continue his treatment and no date for a return to work was decided upon.

Throughout the following months the Claimant continued to attend his General Practitioner in respect of his injuries and continued to suffer from pain to his shoulder.  He remained unfit for a return to work on the advice of his treating doctors. The Claimant continued to provide the Respondent with medical certificates certifying that he was unfit for a return to work.

The Claimant was invited by the Respondent to attend a "welfare meeting" on the 29th of May 2019. 

Present at the meeting were the Claimant, his translator, the HR Manager and the Health & Safety Manager. At this meeting, the Claimant was asked by the HRM about his sport activities and his recreational activity, including his weight training. The Claimant had not been able to engage in any of these activities since his injuries. The Claimant was also asked about his attendance at certain hospitals and the costs of medical treatment and pain injections. The Claimant answered each of these questions fully with the assistance of his translator. During this meeting, the Claimant was further requested to provide the Respondent with "medical reports" from his treating doctors.

Following this meeting the Claimant's solicitors in his personal injury action wrote to the Respondent to address the request for the Claimant to provide the Respondent with "medical reports". The Claimant's solicitors explained that it would not be able to provide the Respondent with the medical reports as requested. Such reports were obtained in the context of his personal injury action and are legally privileged; it is entirely improper for the Respondent to attempt to seek such material through its internal workplace procedures. The letter detailed the Claimant's medical treatment to date and further stated that the Respondent's Doctor is free to contact and liaise with both the Claimant's GP and treating Orthopaedic Surgeon to discuss the injuries and his return to work. 

Despite this the Respondent wrote to the Claimant on the 6th of August 2019 informing him that it would be commencing disciplinary procedures against him. The Claimant was invited to attend a disciplinary meeting on the basis that the Claimant was refusing to return to work. The correspondence also refers to the fact that the Claimant had failed to provide a "medical report" to support his contention that he could not return to work of light physical demand. The Respondent further wrote to the Claimant on the 12th and 15th of August 2019 in respect of the proposed disciplinary meeting.

The Claimant's solicitors responded to this by way of letter dated the l5th of August 2019 entitled "Urgent" and again informing the Respondent it could not accede to the request of providing it with medical reports, but that the Respondent’s Doctor was free to liaise with the Claimant's treating doctors.  The letter further expressly stated that the position in the "packing line" that had been offered to the Claimant was advised against by his GP on the basis of his ongoing issues, and that a letter would be obtained by the Claimant from his GP confirming same and provided to the Respondent in due course.

Despite these assurances the Respondent decided to proceed with the disciplinary meeting on the 21st of August 2019. At the said meeting the Respondent again pressed the Claimant to provide medical reports from his treating doctors. On the 30th of August 2019 the Claimant was provided with a letter entitled "Termination of Employment" which confirmed that the Respondent had taken the decision to terminate the Claimant's employment with immediate effect for the reason that he had failed to provide "supporting documentation since January 2019 regarding Dr G's report".

The Claimant appealed this decision to dismiss in accordance with the Respondent's procedures and provided the Respondent with a letter from his GP stating that "Janos is unfit to work presently including on modified physical work duties”.  

An appeal meeting was held on the 13th of October 2019 chaired by the Group Operations Manager. The decision to dismiss was ultimately upheld by way of letter dated the 4th of December 2019 on the basis that, in failing to provide the Respondent with medical reports, "there was a deliberate attempt to deny the Company vital information in its decision making process which could have been avoided with your cooperation".

The Claimant has suffered considerable distress and upset as a result of the decision of the Respondent to dismiss him. The Claimant had worked for the Respondent for in excess of fifteen years. The Claimant is disappointed that after his many years of service that the Respondent would fail to allow him sufficient time to recover from his injuries and receive treatment, and further that the Respondent would fail to take the opinions of his doctors into account by instructing Dr G to communicate with them.

Discrimination on the ground of disability

It is submitted that at all material times the Claimant was suffering from a disability as defined by Section 2 of the Employment Equality Acts.

Discriminatory Dismissal

The Claimant submits that the behaviour of the Respondent and in particular the decision to terminate his employment amounted to discriminatory dismissal. The Claimant was dismissed without notice and in the absence of fair procedures: in particular, the Respondent failed to engage with the Claimant's medical advisors via its company doctor to adduce whether the Claimant was in fact fit to return to light duties as alleged.

Discriminatory Treatment

Further, the Claimant submits that he was subjected to discriminatory treatment by the Respondent as defined under Section 6(l) of the Acts in the following:

(i) The Claimant was required to provide the Respondent with medical reports from his treating doctors which were legally privileged in circumstances where he was involved in a legal action against the Respondent for personal injuries;

(ii) The Claimant had the Respondent's disciplinary procedures initiated against him without reason or proper cause;

(iii) The Respondent failed to consider evidence in support of the Claimant's contention that he was unfit to return to work, in particular it failed to consider the letter from the Claimant's GP and failed to instruct its company doctor to liaise with the Claimant's medical advisors.

The Claimant further submits that the Respondent has failed in its duties to provide "reasonable accommodation" under the Acts. Section 16 of the Employment Equality Acts outlines the nature and extent of an employer's obligations to provide reasonable accommodation to its employees. The provision states that:

(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 measure, where needed in a particular case, to enable o 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. An employer is obligated by Section 16 to positively engage in the process of finding effective and practical measure to allow an employee suffering from a disability to return to work. The employer has a positive duty to appraise themselves thoroughly of their employee's medical condition.

The Labour Court in the case of Humphries v Westwood Fitness Club 120041 l5 ELR 296 considered the duty of employers in respect of Section 16. The Court stated that:

The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she is in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

This decision also states that the enquiry required of an employer will normally necessitate a two-stage process. The employer must examine the factual position concerning the employee's capability with reference to the medical evidence available to the employer and also consider what special treatment or facilities are available by which the employee can become fully capable. Such an enquiry can only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.

The Respondent failed in its duty to obtain all relevant evidence by allowing its company doctor an opportunity to liaise with the Claimant's treating doctors, so as to appraise itself of all relevant evidence prior to taking the decision to dismiss.

The Claimant relies on the case of Clavin v Marks & Spencer where The Tribunal considered that an appropriate measure would have been to allow the claimant to recover from her operation and explore a return to work based on medical expertise in the following months.  The Claimant further intends to rely on the decision of the Labour Court in Dunnes Stores v Doyle Guidera [ADE/18/4]. In this case the failure of the employer to adequately inform itself of all material facts, including specialist treatment, prior to making a decision to dismiss an employee was considered discriminatory dismissal and a breach of its obligations under Section 16 of the Acts.

Complainant’s evidence

Following making an affirmation, the Complainant gave evidence as follows:

He stated that he began his employment with the Respondent in 2003.  He was a certified Boning Worker, working mainly on shoulders of meat.  He worked 39 hours a week and his weekly pay was €494.  He stated that the work was very physically difficult, hard on the shoulders, arms and neck.  He said he requested many times to change his role / duties but this was never facilitated.  He described getting a pain in his shoulder on 18th September 2017 around 12.45pm and he had to go home.  He submitted sick leave certificates from then.  He stated that he usually dropped them in to reception every Thursday.  He stated that he has been certified fit to work now by a Specialist since May 2021.   He stated that at the meetings with the Company in 2018, he was offered a job in the Packaging area, but no other offer aside from that was made.  When the Respondent’s representative put it to him that he was offered 5 alternative roles by the Managers in the meeting in January 2019, the Complainant stated “I don’t want to swear, but that’s not the case”.                   He reckoned that working in packaging would involve carrying boxes of around 5 – 6 KGs in weight.  He confirmed that he had never received Dr G’s report.  He stated that when he was called to a disciplinary meeting, he did not understand what company rule he was alleged to have breached. He did not attend two of the meetings as he had not received the notice on time.  He stated that he was very disappointed in the treatment he received from the Company and expected better considering his years of service.

Background

The Complainant was employed by the Respondent from 29 July 2003 and was provided with a permanent Contract of Employment in the capacity of boner.           The complainant underwent full Health and Safety Training including manual handling and received documentation to that effect in his native language, Hungarian. As part of the contract the Complainant acknowledged under section 9 that he had been introduced to the Company Works Agreement which was drawn up in consultation with the Trade Union SIPTU.  Part of that agreement contains Clause 17 contains an Attendance at Work Policy which includes a statement “The Company will have a right to review in light of medical evidence the future continuation of employment of the employees”.

The Complainant alleges that an accident took place in the workplace on 18 September 2017.  This matter is the subject of personal injury proceedings elsewhere.  The Complainant commenced a period of sick leave and deemed unfit for work by his GP. Review welfare meetings between the Complainant and the HR Manager took place on 5th March 2018 and 29th May 2018.  The Complainant attended, at the invitation of the Company, an occupational health assessment with Dr G on 11th January 2019.  Dr G’s assessment was that the Complainant was fit to return to work of light physical demand.  She noted that in her discussions with the Complainant that he “does not appear to believe that modified duties are available at his place of work and is not inclined to even attempt to return to work at this stage.”  The HR Manager wrote to the Complainant inviting him to a review welfare meeting on the 30 January 2019 to discuss Dr Gleeson’s report.   In this letter he indicated that Dr G had assessed that the complainant was fit to return to work of light physical demand whereby he could not lift in excess of 9.1 kilos on occasion and 4.5 kilos frequently. The HR Manager further indicated that during the meeting the company would answer any questions the complainant and may have regarding alternative roles to facilitate him in his return to work.  Also, he indicated that the complainant could bring any medical reports he may have for review considering Dr G’s assessment.  Finally, he indicated that the complainant could be accompanied by a fellow employee of his choice or trade union representative at this meeting.  During this meeting the complainant again indicated that he felt he was unfit for any form of duties even though the respondent put forward several options which would have complied with Dr Gleeson’s recommendations including roles in Labelling, Lairage, Sweeping, Hennessy Probe and Stamping.  All these roles required minimum physical exertion and complied with the parameters set by Dr G in her report.  The Complainant refused to engage or attempt a trial at these light duties.      The complainant indicated that he was to attend assessment with his consultant in February 2019 and the respondent indicated that they would have a meeting thereafter.  The HR Manager indicated to the complainant that if he contested Dr G’s report, he should either submit a medical report from his own GP Dr M or get Dr M to contact Dr G. The Complainant did neither and he did not return to work after the meeting of the 30 January 2019 and continued to submit medical certs. At the meeting on 30th January 2019 with the Complainant to discuss Dr G’s report, the Respondent put forward several options which would have complied with Dr G’s recommendations. 

The Complainant was invited to a further meeting on 29 May 2019.  In this letter the HR Manager again indicated that Dr G had recommended that the complainant returned to work on light duties and that the complainant had advised the company that he was not fit to conduct any work. Again, the Manager highlighted that at this juncture the company had kept the complainant’s job open for a period of 20 months with no indication of a return-to-work date highlighting that the company may have to decide to terminate the complainant's employment on the grounds of incapacity, in line with the Company Works Agreement, as he would not be able to return to work.

During this meeting the HRM again indicated the assessment of the company, based on Dr G’s advice, was that the complainant was fit to return to light duties as previously offered in January and that if he felt that he was unfit to do so, in contradiction of Doctor G’s assessment of January 2019, that he should submit a medical report indicating same. He also highlighted the significant issues that the complainant's absence was causing in terms of the routine rostering of work and that although they had kept his role open for 20 months this could not continue indefinitely with no sign of a return to work. The complainant again opted not to be represented at this meeting by the recognised trade union SIPTU.

On 04 of June 2019 the HRM received a letter from McGuigan solicitor’s stating it would not be possible for the complainant to provide a medical report as requested within a two-week timeframe and that the respondent should have Doctor Gleeson contact with the complainant's GP.

On 12 June 2019 the HRM wrote to the complainant’s solicitor highlighting that Doctor G had certified the complainant fit to return to work of light physical demand back in January 2019.  He highlighted that the complainant had refused to return to work of a light physical demand as offered and had provided no evidence to support his decision and had rejected the assertion that the respondent had any light work to offer him. The HRM highlighted in the letter that the complainant had been given several options of light work, but the complainant had indicated he had no interest in these roles.   As such it was reasonable for to respondent to seek a report from the complainant’s consultant or GP to confirm that he was not able to engage in any light work as proposed by Doctor G back in January 2019.  The complainant continued to submit medical certs but did not submit any medical evidence contradicting Doctor G’s assessment that he was fit to return to light duties.

On 06 August 2019 the HRM wrote to the complainant inviting him to a disciplinary hearing scheduled for 09 August.  In this letter he highlighted that there were several issues of concern for the respondent namely: -

·       the complainant's failure to engage with the company in compliance with Doctor Gleeson’s assessment that he was fit to return to light duties.

·       that the complainant had now been absent for a period approaching 2 years with no indication of a likely return date to work and that the complainant could not confirm any date in the future that he may be able to return to work in any capacity.

·       The complainant’s continued failure to provide any medical report to support his assertion that he could not return to work of light physical demand

The HRM highlighted that potential outcome of this meeting may lead to termination of contract of employment and that the complainant could be represented by a colleague or a trade union official at the meeting.

The complainant did not attend the meeting scheduled for the 09 August 2019 and the meeting was rescheduled for the 15 August 2019.  Again, the complainant failed to attend this rescheduled meeting.

On the 15 August the HRM invited the complainant to a third and final meeting scheduled for the 21 August indicating that this was one final opportunity to attend the rescheduled disciplinary meeting and that should the complainant fail to attend the company would have no alternative but to deliberate on the information at hand and draw its own conclusions in the complainant's absence.

In response the HRM received a letter from the complainant’s solicitor on the 18 August making explanations for the complainant's failure to attend at the previously scheduled meetings.  Also, even though several discussions had taken place with the complainant in terms of roles of a lighter physical demand, the complainant’s solicitor asserted that the only offer was in the ‘packing line’ and that the complainant was advised that this was not suitable due to his ongoing medical condition.   The complainant’s solicitor also indicated in this letter that the complainant was in the process of obtaining a letter from his GP confirming his inability to conduct work of a light duty.

The hearing took place on the 21 August 2019.  The complainant declined the opportunity to be represented by his trade union SIPTU and a certified translator was in attendance on the complainant’s behalf. The HRM put it to the complainant that he had been assessed as being fit to return to work on light duties on 11 January 2019 and had failed to do so.   During the meeting the complainant confirmed that he was not fit for any work including light duties and was not able to confirm any date in the future where he might be able to return to work in any capacity.   The HRM highlighted that on previous occasions he had indicated that although the company had kept his role open for a lengthy period and they were unable to do so indefinitely, and he may have to decide to terminate the complainant's employment.  The complainant showed no interest in any adjustments the company proposed regarding light work and did not present any medical reports or evidence contradicting Dr G’s assessment of January 2019.  The complainant indicated that he was advised by his solicitor that he could not provide any medical report because he had a personal injury case against the company.  The HRM gave the complainant a final opportunity to submit a medical report on or before 30 August 2019 to support his contention that he continued to be unfit for light duties in contradiction of Doctor G’s assessment of January 2019. The HRM scheduled a follow-on meeting for the 30 August 2019 to review the situation.  The complainant did not turn up at the meeting of 30 August nor did he submit any medical report as requested.

On 30th August 2019 the HR Manager wrote to the Complainant to advise that his contract was terminated as of 30th August 2019 on the basis of the Complainant’s incapacity to conduct his role over a period of two years, the Complainant’s failure to engage with the Company in returning to work on light duties as per the Dr G’s assessment of 11th January 2019.

The Complainant appealed the decision to dismiss, albeit submitting the appeal late and the Respondent accepting the late submission.  The Complainant’s appeal against his dismissal was heard on 13th November 2019 by the Group Operations Manager.  The Complainant was accompanied by Trade Union Official Mr B and Shop Steward Mr K.  The Manager discussed with the Complainant options proposed by the Company in relation to adjustments or supports that could be offered to help the Complainant return to work.  However the Complainant confirmed that in his opinion and that of his treating doctors he remained unfit to engage in alternative lighter duties for the foreseeable future, in contradiction of Dr G’s assessment of 11th January 2019.  Having taken all matters into consideration the Appeal Manager wrote to the Complainant on 4th December 2019 with his decision to uphold the dismissal due to incapacity, failure to attend the disciplinary meeting on 30th August 2019 and the failure to provide any medical evidence from his treating doctors to support his contention that he was not fit for light duties.

Prima Facie

The Respondent contends that the Complainant has failed to establish a prima facie case of discrimination in that he has not provided any evidence to demonstrate that he was treated less favourably than any other employee on the grounds specified.  He has also failed to provide details of any comparator.  The Respondent cites case law including Melbury Developments Limited v Arturs Valpeters (EDA0917), ICON Clinical Research and Tsourova (EDA 071) Southern Health Board v Mitchell [2001] ELR 201 and Margetts v Graham Anthony & Company Limited EDA038 in support of their argument that the Complainant has failed to establish a prima facie case or facts from which an inference of discrimination can be made. 

In the instant case, the Complainant has alleged discrimination on the grounds of disability and failing to provide reasonable accommodation for a disability but has hitherto produced not a shred of evidence to support this allegation. The Act under s2 (1) defined disability as follows:

                    “In this Act, unless the context otherwise requires— ... “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 Complainant has not produced any evidence that such discrimination occurred and has failed to name a comparator against which such alleged unequal treatment may be judged. Furthermore, he has not set out how this alleged unequal treatment influenced the behaviour and decision making of the Respondent such that it resulted in the Complainant being the victim of discrimination.

The Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Respondent submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

Reasonable Accommodation

The Respondent submits that in line with Dr G’s medical advice, they offered to reasonably accommodate the Complainant with lighter duties however the Complainant refused to engage or attempt such duties.  They actively explored and considered any and all potential alternatives to no avail.

Dismissal for incapacity

In accordance with s6(4)(a) the Unfair Dismissals Act 1977 to 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the capability of the employee:

“Without prejudice to the generality of subsection (1) of this section, 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 one or more of the following:

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

It is a long - established principle of jurisprudence that persistent absence from work, whether certified or not, may render an employee incapable of doing his/her job and as such justifies dismissal. One of the earliest cases to address this was the case of Reardon v St. Vincent’s Hospital, UD74/79, and the principle has stood since. In that instant case, the Complainant had a number of prolonged absences over a period of time, all of which were medically certified. The tribunal found the dismissal not to be unfair on the grounds that he was not capable under section 6(4) of the Unfair Dismissals Act 1977 of carrying out the job for which he was employed.

Moreover, in Behan v An Post, UD 320/2006, for example, this position was reaffirmed where in the case of an employee with a prolonged absence record, the Tribunal determined:

“[T]he complainant had rendered himself incapable of fulfilling his obligations to his employer under his contract of employment. […] In the circumstances because of the complainant's incapacity to fulfil his contract with his employer in a reasonable fashion the Tribunal consider his dismissal fair in all the circumstances”.

It is the Respondent’s position that the same principles apply in this instant case. In light of, the Complainant’s prolonged absence, considered in addition to the failure to engage with the advice of the company doctor in terms of light duties it was reasonable for the Respondent to assess that the Complainant would likely not achieve a return-to-work capability at any time in the future which rendered him incapable of conducting the job for which he was employed to do. Accordingly, the Complainant’s dismissal was fair in light of the principles as established through the case law of the Tribunal.

The case of Bolger v Showering’s (Ireland) Limited, ELR 184 outlines four key requirements needed for a dismissal on the grounds of incapability to be fair:

         I.            ill health must be the reason for the dismissal.

       II.            this must be a substantial reason.

     III.            the employee must have received fair notice that the question of dismissal for reason of incapacity was being considered

    IV.            the employee must be given the opportunity of being heard.

It is clear for the facts of the case that the Respondent company in this case can show all of the above:

(i) it was clearly the case that the termination of employment was on grounds of incapability based on a continue absence of two years with no indication of a return-to-work date.

(ii) there was no other reason for the dismissal.

(iii) the Complainant was informed throughout the welfare meeting process, and by letter following an investigatory process, that his employment may have to be terminated on the grounds of incapability.

(iv) the Complainant was given every opportunity to provide representations on his behalf and throughout the process including the opportunity to provide a medical report supporting his contradiction of Dr Gleeson’s assessment of 11 January 2019.

Furthermore, the Complainant was provided with the right to appeal the decision to dismiss.

In summary, the Respondent has in place a clear policy for managing absence, agreed with the Trade Union SIPTU in a company works agreement.  The Respondent adopted an incremental and consistent approach, involving regular monitoring and reviews in order to provide assistance and clarity to the employee.  The ultimate step where the Complainant was unable to achieve a return to work capability after a two year period of absence was termination.   Procedurally the Respondent conducted a fair process and was open minded in their approach allowing representation throughout.  The Complainant was afforded the right to appeal.  In light of all of the above, the Respondent believes it to be clear that the dismissal of the Complainant was procedurally fair and the decision to terminate the Complainant’s employment was justified and the claim for discriminatory dismissal should fail.

Respondent’s Evidence

Evidence was given under affirmation by the HR Manager.   He stated that he is HR Manager of the Plant in which the Complainant was employed, along with some 430 employees, as part of the Group which employs some 1,200 workers.  The workplace is highly regulated, with Dept of Agriculture on site, Bord Bia regulation and Trade Union organisation.  He would be surprised if any allegation of lack of training could be substantiated.  SIPTU would let the management know if there were any shortcomings in that matter.  He disputes the Complainant’s evidence that no other roles except packaging were offered to him.  He specifically referred to alternatives in his letter to the Complainant inviting him to review/welfare meetings.    The meeting of 30th January 2019 to discuss the Complainant’s absence and possibility of return to work was not acrimonious.  At that meeting, which was attended by the Complainant, the Financial Accountant Mr H and himself (HRM), several alternative roles with light duties were put to the Complainant.  The Complainant was totally disinterested in returning to the workplace, and not interested in the alternative duties offered.  He blatantly said no to offers of the duties, labelling, sweeping, stamping, Hennessy Probe or packaging.  At each meeting, with the exception of the appeal meeting, the Complainant was offered but he refused representation.

Evidence was givenunder affirmation by the Financial Accountant Mr H.  He confirmed that he attended the meeting on 30th January 2019.  He confirmed that the HRM outlined the findings in the Dr G report which certified the Complainant fit to return to work with light duties.  He recalled that duties such as Stamping, Labelling, and Lairage were put to the Complainant.   He stated that the Complainant would not agree to return to light duties without his doctor’s agreement.

Evidence was given under affirmation by the Group Operations Manager who conducted the appeal.  He confirmed that in attendance at the appeal meeting were the Complainant accompanied by his SIPTU Official and Shop Steward.  He stated that he asked the Complainant to provide the necessary medical  certification to confirm that he was unable to perform light duties but the Complainant told him he was advised not to do so.

Claim under the Organisation of Working Time Act 1997

In a supplementary submission, the Respondent submitted the following in relation to the complaint under the Working Time Act 1997:

This additional submission is made in response to the Claimant’s claim for payment for holiday/annual leave entitlement pursuant to the Organisation of Working Time Act 1997 (as amended) (“the 1997 Act”).

For the purposes of the calculation of annual leave the statutory leave year is recognized within the organization and working time act 1997 as running from the 1st of April to the 31st of March.

The Claimant was dismissed by the Respondent on the 30 August 2019.  The Claimant's last day of work was on, 18 September 2017.

The statutory entitlement to annual leave is 4 weeks or 20 days per annum.  The statutory leave year runs from 01 April to 31 March as confirmed in the case of Waterford County Council -v- O’Donoghue DWT0963 where the Labour Court stated:

“The only leave year which, is cognisable for the purposes of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1 April and ending on 31 March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that court can only have regard to the leave allocated to an employee in the statutory period”

Annual leave does not accrue indefinitely during periods of sick leave. There is a 15-month carry-over period. Section 20(c) of the Organisation of Working Time Act 1997, as amended, provides that where the employee: -

·     is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the 6 months thereafter, and

·     has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer

·     then the leave must be taken within the period of 15 months after the end of that leave year.

Calculation of annual leave entitlement as follows:-

The Third Schedule of the 1997 Act provides

“Each of the following are the cases mentioned in section 21 (5) of absence by the employee concerned from work immediately before the relevant public holiday:

such an absence, in excess of 52 consecutive weeks, by reason of an injury sustained by the employee in an occupational accident (within the meaning of Chapter 10 of Part II of the Social Welfare (Consolidation) Act, 1993)”

Public Holiday Entitlement

There is no acceptance on the Respondents behalf that a workplace accident took place or that the injury was sustained by the employee in an occupational accident (within the meaning of Chapter 10 of Part II of the Social Welfare (Consolidation) Act, 1993). 

The Respondent submit that in accordance with third schedule of the 1997 Act that “such an absence, in excess of 26 consecutive weeks, by reason of an injury sustained by the employee in any accident (not being an accident referred to in paragraph 1) or by reason of any disease from which the employee suffers or suffered” applies in this case.

That being the case, an entitlement to four (4) public holidays arises as follows: -

·       28 October 2019

·       25 December 2019

·       26 December 2019

·       01 January 2020

CA-00033967-001

The Complainant contends that he was discriminated against by the Respondent by dismissal on the grounds of disability. He further contends that he was not given reasonable accommodation to allow him to return to work following an extended period of sick leave.        The Respondent contends that the Complainant has not established a prima facie case that allows the burden of proof of discrimination to be transferred to the Respondent.  The Respondent also submitted testimony in relation to seeking the agreement of the Complainant to return to work on light duties.  The Complainant in his evidence, initially denied that he was offered any alternative duties except packaging and then stated that he did not want to swear but it was not the case that he was offered alternative duties except packaging.

In the first case, I will examine the issue of whether the Complainant has established a prima facie case.

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(1) 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 her or her, it is for the Respondent to prove the contrary.”

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred.  If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant 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 these 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 was no infringement of the principle of equal treatment”.

In Elephant Haulage Ltd v Garbacevs The Labour Court stressed that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”  The Court observed that the language of Section 85A admitted of no exceptions to the evidential rule laid down.

 In Margetts v Graham Anthony & Company Ltd EDA038, the Court concluded on the discharge of the evidential burden as follows:

“the mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The Complainant must adduce other facts which it may be inferred on the balance of probabilities that an act of discrimination has occurred”.

Section 6 (1) of the Act states:

“(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned..

Section 6 (2) (g) states:

(2)  As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act are –

(g)   that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”).

The Complainant’s employment was terminated with effect from 30th August 2019 on the basis of his incapacity to conduct his role over a period of two years and his failure to engage with the Company in returning to work on light duties as per the Occupational Health GPs assessment of 11th January 2019.  The Respondent has a managing absence policy, agreed with the Trade Union SIPTU in a company works agreement and has followed this policy in monitoring and reviewing the Complainant’s ability to return to work.  I note the position of the Respondent that a number of roles involving light duties were put to the Complainant at the meeting on 30th January 2019.  The Complainant has not put forward a comparator or established facts that he has been treated less favourably than another employee in the same or similar situation.  Having considered the foregoing and oral and written submissions, I am not satisfied that the Complainant has established that he was treated less favourably than another employee.  I find that the Complainant has not established facts from which it may be presumed that there has been discrimination against him.  In that case, the burden of proof to establish a prima facie case has not been discharged by the Complainant.

CA-00033967-002

Section 19 (1) of the Organisation of Working Time Act 1997 Act provides for paid annual leave up to 4 working weeks, or 20 days. 

Section 86 (1) of the Workplace Relations Act 2015 amends Sections 19, 20 and 23 of the Organisation of Working Time Act 1997 to provide for accrual of and carry over of annual leave while on sick leave and compensation for the loss of same on cessation of employment.

Section 86(1)(b) provides for a carry over period of 15 months.

Section 2 (1) of the Act defines the leave year as “a year beginning on any 1st day of April”.

The Complaint was received on 24th January 2020.  By application of the time limit provided for in Section 41(6) of the Workplace Relations Act 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC.  Therefore the cognisable period covered by the complaint is the six-month period from 25th July 2019 to 24th December 2019.   The Complainant’s employment was terminated with effect from 30th August 2019.

In the period 18th September 2017 to 31st March 2018, the Complainant accrued 10 days annual leave.  The carryover period for this leave expired on 30th June 2019.      In the period 1st April 2018 to 31st March 2019, the Complainant accrued 20 days annual leave.                      In the period 1st April 2019 to 30th August 2019, the Complainant accrued 8.3 days annual leave.

I find that on cessation of the Complainant’s employment he had accrued 28.3 days annual leave.    

In relation to the claim for Public holidays the Respondent submits that in accordance with the provisions of Schedule Three of the 1997 Act, the Complainant’s entitlement is to four public holidays.

CA-00033967-003

The Complainant, having had 16 years service was entitled to eight weeks notice.

Employment Equality Acts, prima facie, Annual leave, public holidays, minimum notice