Complainant

Respondent

Parties

Valerij  Rynkevic

Corcoran Brothers UC

Representatives

  Self Represented

William Wall Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042349-001

05/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00042349-002

05/02/2021

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

CA-00042349-003

05/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00042349-004

05/02/2021

The Complainant submitted four complaints to the WRC.  Two were withdrawn at the Hearing. The issue of notice pay had been resolved between the parties since the complaints were lodged with the WRC and the Complainant withdrew his redundancy complaint. The complaints remaining for adjudication were the Unfair dismissal complaint and the complaint under the Pensions Act.

The Complainant was employed from April 4th 2005 and received notice of the termination of his employment on August 8th 2020 and his employment terminated on September 9th 2020.

The Complainant set out his case that he was unfairly dismissed in the complaint form that he was dismissed due to raising an issue re the national minimum wage but in the supporting section of the complaint set out his dismissal arose from his long term illness. The Complainant relied on his complaint form for his submission and only gave very brief evidence of his complaints to the Hearing. The Complainant did not pursue the minimum wage ground at the hearing.  

The Complainant set out in his complaint form that he was not allowed join the pension scheme and was treated less favourably and discriminated compared to others.

The Respondent trades as Manor Farm and operates as a producer of Manor Farm Chickens. The Respondent operates a hatchery, feed mill and a processing factory

The Complainant was employed with the Respondent as a General Operative in the Main Cut Pack Hall in the processing factory. The Complainant commenced his employment on the 7th of April 2005. The Complainant has taken complaints under the Unfair Dismissals Act, 1977, the Pensions Act, 1990, the Minimum Notice & Terms of Employment Act, 1973 and the Redundancy Payments Act, 1967. The Respondent denies these claims.

Preliminary Issue; The Complainant has taken a claim under the Pensions Act, 1990. This Act states at section 80 “80.— (1) Where an employee is dismissed from an employment solely or mainly because, in good faith, the employee— (a) made a reference under section 75, 76 or 77 (b) gave evidence in any proceedings under this Act, or (c) gave notice to his employer of his intention to do anything referred to in subparagraph (a) or (b), the employer shall be guilty of an offence and shall be liable—" The Respondent submitted that the Complainant has raised an issue regarding disability and age. The Respondent submitted that this was a misconceived claim and that the Complainant was dismissed on the grounds of capability.

Preliminary Issue 2. The Complainant has taken claims under both the Unfair Dismissals Act 1977 and the Pensions Act, 1990. In both claims the Complainant has made the same allegation regarding a date of the 7th of September 2020. The Respondent submitted that the Complainant is seeking to vex the same claims under multiple pieces of legislation in breach of the well-established doctrine of res judicata. The Respondent would refer to the well settled precedent set out Henderson v Henderson (1842) 3 Hare 100.

In respect of the claim under the Pensions Act, 1990 the Complainant ticked the box to say that they were discriminated against due to their disability. Similarly, in respect of the claim under the Unfair Dismissals Acts the Complainant has alleged that he has been dismissed due to his long-term illness. The Respondent also submitted that the Complainant is precluded for pursuing both claims by virtue of s.101 (4A) of the Employment Equality Acts and S.I. No. 126/2016 - Employment Equality Act 1998 (Withdrawal of Certain Claims) (Relevant Date) Regulations 2016. It was submitted that the Complainant can only lawfully pursue their complaint under one of the Acts and the Respondent requested that the Complainant elect which claim he wishes to pursue.

The Complainant was employed as a General Operative in the Main Cut Pack Hall. The Complainant tied up raw chickens in conditions that had to be 4 degrees at all times. The Complainant was required to wear safety boots and gloves to complete this task.  The Complainant had begun to suffer with his long-term illness in September 2015. On the 6th of March 2019 the Complainant was asked to attend an occupational health nurse on site. He did not attend. The Respondent rescheduled this to the 27th of March 2019. The Complainant did attend this appointment and he was diagnosed with rheumatoid arthritis on his right hand. The occupational health nurse recommended that if the Complainant did not return to work within three weeks, he be reviewed again. The Complainant returned to work on the 15th of April 2019, however he then went on long term sick leave on the 3rd of July 2019, providing medical certificates which stated “Polyarthritis”.  On the 10th of July 2019 the Complainant was asked to attend an occupational health nurse on site. He did not attend. The Respondent rescheduled this to the 17th of July. The Complainant did attend this appointment and he was diagnosed with arthritis in both hands. The OCC health nurse requested a doctor-to-doctor report and a follow up within 3 weeks.  On the 7th of August the Complainant was asked to attend an occupational health nurse on site. He did not attend. On the 14th of August the Complainant was asked to attend an occupational health nurse on site. He did not attend. On the 28th of August 2019 the Complainant did attend with the occupational health nurse, and it was recommended that the get referred for a further occupational health review regarding his fitness to work.  On the 3rd of September a doctor-to-Doctor confidential form was received by the Complainants GP. This referred to returning to work as “Difficult offsets at present.”

 On the 18th of November 2019 the Complainant attended an appointment with Medwise. The Doctor noted that the Complainant was limping and there was clear evidence of a large gout topi on his elbows, forearm, base of thumb and right foot. There was a reported reduced grip strength with the right hand. The Complainant was diagnosed with advanced Gouty arthritis. The Doctor gave an opinion that the Complainant was unfit for work and would remain unfit for work for the foreseeable future. He felt that even with proper pain control the condition was chronic, widespread and disabling. Mr John O’Brien arranged a meeting with the Complainant on the 5 th of August 2020 following this report. On this date the Complainant stated “he was in the process of trying to get Disability allowance from Social Welfare. If he is successful with his application, he said he would resign his position on medical grounds. He did not know how long this process would take or when a decision would be made.”  The Respondent arranged for a further occupational health appointment on the 23rd of July 2020. In this report it was stated “Valerij is totally unfit for work. I do not expect that he will be fit to return to work for the foreseeable future. He is unfit for heavy manual work and will never become fit for such work again. I have given Valerij a letter for social welfare to help his application for invalidity benefit. I believe he is a very genuine case. Valerij is fit for sedentary work duties. Please confirm with Valerij if this cannot be reasonably accommodated on a long-term basis. In that case, he will be suitable for early retirement on medical grounds.”

 The Respondent submitted that they had no sedentary work for the Complainant to complete in order to accommodate him. The Complainant was employed in a working factory. All of the roles were physical in nature and took place in a reduced temperature setting. The Respondents evidence was that the Complainant was finding it difficult to wear the necessary PPE such as gloves and safety boots. On the 5th of August 2020 the Respondent held a meeting with the Complainant to put him on notice that he may be dismissed for medical capability. The Complainant during this meeting reported that things were getting worse. During this meeting the Respondent asked the Complainant if he accepted the Report that said he would be unable to work now or in the future. The Complainant responded stating “I don't want to go on my own will. If you like you can sack me. My lawyer advised for me not to leave of my own will.”

The Respondent dismissed the Complainant on the grounds of medical incapability on the 24th of August 2020. The Respondent in this correspondence offered the Complainant an opportunity to appeal which he did not utilise. The Respondent closed the letter stating “Finally, on a personal note, may I say how sad I am that your employment with us has ended in this way. I would like to take this opportunity on behalf of the company to thank you for your contribution and service over the years and to wish you well for the future.”

 Submission – Unfair Dismissals Act & Section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004.

The Complainant has taken a claim under the Unfair Dismissals Act 1977 stating “I think I lost my job due to my long-term illness, arthritis, high blood pressure, gout.” .

The Complainant has also taken a claim under the Pensions Act, 1990 stating he has been discriminated against by reason of disability and age. The Respondent submitted that the Complainant has not made a prima facie case of discrimination. The Respondent refers to the case of Melbury Developments v Arturs Valpetters EDA0917 in which the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that it be of sufficient significance to raise a presumption of discrimination. However, it must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The Complainant has stated that he has been discriminated against due to his disability and age. However, the Complainant has not outlined how he was discriminated against, just that these two factors exist. The Respondent refers to the case of Margetts v Graham Anthony & Company Limited, EDA038, where the Court noted 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 from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”  On this matter the Respondent also refers to Southern Health Board v Mitchell, DEE011, [2001] ELR 201 where the Court stated: “The first requirement is 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 Complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.”  The Respondent submitted that the Complainant was dismissed for reasons of capability due to an illness which prevented him from returning to work. As set out above, the Respondent went through a thorough process inviting the Complainant to welfare meetings and occupational health examinations with doctors and nurses

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. The Respondent submitted that each of these requirements has been met. The Respondent further submitted that there was no way that they could accommodate the Complainant, as he was unable to continue working in his current role. The Respondent claimed all roles in the Complainants department would have had the same issues as the role that the Complainant held.

The Respondent set out a number of statues and precedent cases to support its position;

 Section 16(3) of the Employment Equality Acts sets out the grounds for reasonable accommodation: “(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 (c) In determining whether the measures would impose such a burden account shall be taken, in particular, of— (i) the financial and other costs entailed, (ii) the scale and financial resources of the employer’s business, and (iii) the possibility of obtaining public funding or other assistance.”

In the case of Humphreys v. Westwood Fitness Club (2004) ELR296,it was determined that an employer should ensure that they are in full possession of material facts regarding an employee’s condition; the employee should be given fair notice that dismissal for incapability is being considered; the employee must be given a chance to influence the employer’s decision; if it is apparent that the employee is not fully capable, the employer must consider what reasonable accommodation can be offered to make the employee fully capable. The Respondent submitted that they sent the employee to numerous occupational health visits over a two-year period and relied on two occupational health reports over two years in coming to their decision.

The Respondent referred to the Supreme Court decision in Nano Nagle School v Daly [2019] IESC 63 at paragraph 84 where it confirms: - “But s. 16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employers place of business, including the premises, equipment, patterns of working time, and distribution of tasks or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.” At paragraph 105 the judgment states: - “I respectfully disagree with the Court of Appeal’s conclusion on this issue, but I do not go so far as to say there is a mandatory duty of consultation with an employee in each and every case, the section does not provide for this, still less does it provide for compensation simply for the absence of consultation in an employment situation. But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act. But absence of consultation cannot, in itself constitute discrimination under s.8 of the Act.”

The Supreme Court in Nano Nagle School v Daly [2019] IESC 63, held that employers were obliged to consider all appropriate measures which could be undertaken to provide reasonable accommodation and to demonstrate, if no such measures were taken, that this was only because those measures would be disproportionate or unduly burdensome. The Supreme Court did accept that “the test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee” and that in most instances “removing all the duties which a disabled person is unable to perform” would inevitably become a disproportionate burden.

In William Hayes v. Boliden Tara Mines Ltd. UD1218/2014, the EAT accepted that there was no obligation on an employer to create a role in terms of alternative work to facilitate an employee’s return to work. The Respondent was unable to create a role for the Complainant and did not have any alternative roles available. The Complainant was dismissed on the 24th of August 2020. The Complainant was given his right to appeal this decision within 5 working days. The Complainant did not utilise this appeals procedure.

 In the case of Melinda Por and MBCC Foods (Ireland) Limited UD584/2015 the EAT held that “the appellant had an obligation to exhaust the internal disciplinary process prior to seeking to enforcing her rights externally. She had not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process. Furthermore, the appellant made admissions in relation to the allegations” .  Similarly, the Labour Court concluded in Aryzta Bakeries -v- Cacs (UDD1812) as follows: “The Court also finds that there is an obligation on the Complainant to exhaust available internal procedures and that the Complainant failed to do so. For the reasons stated above and taking account of the failure of the Complainant to exercise his right of internal appeal, the Court finds that the Complainant was not unfairly dismissed.”  In the case of A Sales Manager -v- A Manufacturing Company (ADJ-00023644) it was held as follows: “In relation to an appeal the Complainant decided not to appeal the decision to dismiss him. I believe this was a serious error of judgement on the part of the Complainant.” In the case of An employee v An employer (ADJ – 00000381; 12/04/2017) the Adjudication Officer commented as follows: ‘An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction’.”.

The Complainant was on long term sick leave and was dismissed on the grounds of capability. The Complainants role still exists. The Respondent submitted that the Complainant was fairly dismissed on the grounds of medical capability.

The Complainant confirmed to the Hearing that he had received his 8week notice pay as required by the Minimum Notice and Terms of Employment Act 1973 for his length of service and that claim was withdrawn. (CA-00042349-003).

The Complainant advised at te hearing that he wished to withdraw his claim for redundancy and pursue his claim for unfair dismissal. (CA-00042349-004).

With regard to the complaint under the Unfair Dismissals Act the employee was requested to clarify his complaint at the commencement of the Hearing as the complaint form contained a number of issues stating why he was constructively dismissed, primarily  that he was dismissed for seeking minimum pay and that he was dismissed due to his illness. The Complainant clarified that the complaint relating to his dismissal was related primarily to why the Respondent did not wait for him to get a reply to his disability payment from Social Welfare before dismissing him and why he was not given a job sitting down for his entire shift.

The Complainant gave very brief oral evidence to the Hearing and stated he was on sick leave and that the Doctor told him he could do work sitting down and he had worked sitting down before and he was told by the Respondent there was no such work available.

The Complainant was cross examined by Mr. Wall and asked when did the Complainants long term illness start and the Complainant replied approximately 2012-2013.  The Complainant was asked how his illness affected him and the Complainant advised he experiences some pain and he could not stand on his feet for a long time. The Complainant added he had given in sick notes and he was diagnosed with arthritis and that he could not be at work for long hours. The Complainant was asked what was the state of the arthritis in his hand in March 2019 and he replied he had some health attacks, could not stand for long and had to go to the Kitchen and was told his illness would be progressing. The Complainant was asked why he did not attend many of the medical appointments set up by the Respondent. The Complainant stated he was advised about the visits but his health was not good at the time, he was not capable of getting there by himself, he had no way of getting to the appointments as he had sold his car and would have attended if the Respondent had provided transport. Mr. Wall put it to the Complainant that he was to attend two appointments with an independent doctor and the Complainant advised he had no way of getting there. Mr. Wall asked the Complainant when he was out sick during 2019 and 2020 did he attend some appointments and the Complainant confirmed he did. The Complainant was asked did he attend a meeting with Mr O Brien, on August 5th 2020 to discuss the report from Medmark and the Complainant confirmed he did. The Complainant was asked did he recall stating at the meeting he was trying to get disability payment from Social Welfare and he did not know how long it would take and he would resign. The Complainant recalled this conversation and confirmed he was approved for disability on January 27th 2021. The Complainant advised he was laid off in September 2020 and he had applied for Social Welfare disability prior to this date. The Complainant was asked about the operating conditions in the plant, the physical nature of the work, the fact the plant operates at 4 degrees and that there were no sedentary positions.

Mr. John O Brien, Head of Planning and Logistics gave evidence there were no sedentary positions available in the plant and there were no positions available were the Complainant would not be required to use his hands at work, that staff had to be flexible to move from location to location and he had to consider both the Complainants safety and the safety of others in the situation.

The Respondents case was the Complainant was dismissed due to his capability to work and this was not ground for an unfair dismissal.

The Law

“6.1. 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 Adjudicator has given consideration to both submissions and to the evidence presented. It was clear from the evidence of both the Complainant and the medical evidence submitted the Complainant was suffering from severe arthritis to the point where he was accepted for Social Welfare disability payments which continued to the date of the Hearing. The Complainant commenced periods of long term illness from 2015 and from April 2019 could not attend for work due to his disability. The Complainant attended many medical examinations which concluded he was suffering from a serious arthritis condition, particularly in his hand. The Complainant offered various reasons for not attending a number of scheduled medical appointments during this period and these reasons are not deemed acceptable by the Adjudicator.  It is common case that the Complainant was unable to fulfil his functions at work. The evidence of the Respondent witness that there were not sedentary roles and that the job had to be fulfilled in 4 degree weather with stell gloves on the hands was conclusive that the Complainant, with his disability, could not perform his role and the Respondent had no suitable alternative employment for the Complainant. The Complainant was dismissed due to incapacity (capability) in September 2020 and this is a permitted ground for dismissal under Section 6.4a of the Act. I find the Complainant was dismissed for incapacity (capability) and he was not unfairly dismissed.  

With regard to the complaint under the Pensions Act the Complainant alleged he was discriminated against because of his disability. The Complainants very brief evidence to the Hearing was the Respondent should have waited until he received approval from Social Welfare for his disability before dismissing him. This argument has nothing to do with the Pensions Act.  The Complainant also advised he was offered membership of a pension scheme while he was out sick and he questioned why he had not been offered this before in his employment. The Complainant offered no comparator to justify his exclusion from any pension scheme was unfair. The Respondent denied any breach of the Act had been identified by the Complainant and the claim must fail accordingly. The complaints put forward by the Complainant in his evidence were not a breach of the Act and the Complainant failed to advance any specific breach of the Act. In this circumstance it is not necessary to analyse the legal situation in detail.  I find the complaint is misconceived and fails accordingly.

I would like to thank the Interpreter for their professional assistance with the lengthy interpretating at the Hearing.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I find that the Complainant was not unfairly dismissed. (CA-00042349-001)

Part VII of the Pensions Acts, 1990 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Part. I find the complaint not well founded. (CA-00042349-002)

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. The Complainant withdrew his complaint under the Minimum Notice and Terms of Employment Act 1973 at the Hearing and I find the Act was not contravened. (CA-00042349-003).

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. Based on the withdrawal of the complaint I disallow the appeal of the complaint under the Redundancy Payments Act 1969 (CA-00042349-004).

Unfair Dismissal