FULL DECISION
SECTION 44, WORKPLACE RELATIONS ACT 2015 PARTIES: MAGNA INTERNATIONAL AUTOLAUNCH IRELAND LIMITED DIVISION:
SUBJECT: Appeal of Adjudication Officer Decision No's: ADJ-00036079 (CA-00047300-001) DECISION: Mr Colman Curran (“the Complainant”) has appealed a decision of an Adjudication Officer made under the Employment Equality Act 1988 (“the Act”). The Adjudication Officer held that Mr Curran’s claim against his former employer, Magna International Autolaunch Ireland Ltd (“the Respondent”), was not well founded. This appeal is linked to PW/23/30. Background The Complainant who worked as a production operative was absent from work following a workplace incident on 25 June 2021. His resigned his employment in September 2021. The Complainant contends that following an assault at his workplace he suffered a disability and that during his subsequent absence from work the way he was treated by his former employer amounted to discriminatory treatment under the Act. He asserts that the Respondent (i) did not treat the incident as an assault and threatened him with unjustified disciplinary proceedings, (ii) withheld payments due to him, (iii) delayed his social welfare application, and (iv) denied him reasonable accommodation. The Respondent refutes that it discriminated against the Complainant because of a disability. It asserts that the Complainant has failed to establish a prima facie case of discrimination under the Act and has failed to demonstrate that he was treated less favourably than any other workers. Position of the Complainant On 25 June 2021 the Complainant was seriously injured in a vicious, unprovoked assault by a co-worker. The assailant was subsequently dismissed. The Complainant suffered a disability by reason of the injuries sustained in the unprovoked assault. He suffered a deviated septum to his nose and concussion as well as injuries to his neck and right hand. The Act provides that a disability can constitute “the malfunction, malformation or disfigurement of a part of a person’s body” and “shall be taken to include a disability which exists at present, or which previously existed but no longer exists”. A temporary injury to the nose, in the form of a deviated septum, clearly constitutes such a disability within the meaning of the Act. The Occupational Injury Report clearly refers to a significant nose injury albeit one that was expected to recover from. As a result of his injuries, the Complainant was certified unfit for work for a prolonged period of over 3 months. The Complainant was discriminated against by reason of his disability arising from an injury sustained at work. The hypothetical comparator is an able-bodied employee who was absent from work and subject to an investigation. He was subjected to the threat of unjustified disciplinary proceedings. He was denied his full wages when absent contrary to custom and practice. His perilous financial state was exacerbated by the Respondent’s delay in completing the relevant social welfare forms. He was denied reasonable accommodation. The Complainant was an entirely innocent party and to date has not received a formal exoneration from any wrongdoing by the Respondent. Following the Respondent’s unsatisfactory handling and investigation of the workplace assault, the cessation of his pay and failure to deal with his grievances, the Complainant resigned his position. His employment ended on 24 September 2021. Position of the Respondent The Respondent refutes that it discriminated against the Complainant because of a disability or that it failed to provide him with reasonable accommodation. The Complainant was one of two people involved in a violent physical altercation in the workplace. He was certified as unfit to attend work from 28 June 2021 to the date of his resignation. An investigation was conducted into the altercation, in accordance with the disciplinary procedure. The Complainant was treated the same as the other party. As the Complainant was on certified sick leave it was not appropriate to suspend him. The complainant was not denied any benefits and received his full entitlements under the company sick pay scheme. The company has a workplace injury scheme which allows a person to receive six days pay following a work-related injury or illness. A discretionary payment may apply thereafter. It is up to the employee to request an extension to this payment. No such request was made by the Complainant even though he was fully briefed on the policy. A delay occurred in processing the Complainant’s social welfare forms due to an outbreak of Covid-19 in the HR department, which was outside the control of the company. As the Complainant was not medically fit to attend work, no discrimination on the grounds of reasonable accommodation could have occurred. He was not “fully competent” or “fully capable” of carrying out duties in the workplace. The Complainant has failed to establish a prima facie case of discrimination under the Act. He has failed to demonstrate that he was treated any less favourably than other workers. Testimony of the Complainant – Colman Curran On 25 June 2021, the Complainant was physically assaulted at work by a colleague, who punched him about the head and kicked him to the floor. He did not respond in retaliation. He went to his supervisor who took him to the HR office. He had a nosebleed and felt nauseous. There was no doctor available, and he was not allowed to drive, so was taken home by taxi. His wife and children were shocked at his appearance as his face was badly swollen. At A&E the X-rays were inconclusive because of swelling. He was told to wait two weeks for the swelling to subside. His nausea gave rise to concerns about concussion, so he was asked to stay in hospital, but he wanted to go home. He assumed the company would contact the Gardai about the assault and lock down the CCTV footage. He was happy to speak with the Gardai. There were five cameras in the area, which would have captured what had happened. He was not fit to attend work the following week. Siobhan Mellamphy from HR suggested conducting a meeting by phone with a representative present. He did not know why this was necessary, as he thought the matter was clear cut. He told her that he was still unwell and had an appointment at the Ear, Nose, and Throat hospital in Waterford as soon as the swelling and pain subsided. He requested that all CCTV footage be reserved. Ms Mellamphy advised that he could give a written statement and requested that he submit a medical certificate. He felt that she did not believe him. He sent her a written statement on 6 July 2021. He attended an outpatient clinic on 7 July and was diagnosed with concussion and a deviated septum. The consultant was not happy to manipulate his nose into place due to concerns about bleeding behind his eye and referred him to an eye specialist. He had a procedure to manipulate his nose back into place the following day. He remained on sick leave and submitted sick certificates, which all stated, ‘head injury at work’, aside for the initial one which stated ‘illness’. He attended an occupational health appointment on 26 July 2021. He was suffering from headaches and had elevated blood pressure. He was anxious and was not sleeping as he kept thinking about what had happened. The physician advised him to seek further assistance if his symptoms persisted. He expected to be paid for his absence, as on previous occasions he received full pay, and his medical expenses were covered. He was paid in full on 7 July 2021, which was consistent with what he thought would happen. However, on 13 July, he was advised that the payment was made in error and the company would deduct the overpayment or reclassify it as holiday pay. When he queried his medical expenses and pay, he was referred to the company sick pay scheme in the handbook. The scheme provides a top up payment to 50% of pay. He never received any payment under that scheme in the past. No reference was made to a Workplace Injury/Illness Policy. His only source of income was social welfare payment. He raised a grievance about the non-payment of wages with the Managing Director, the Production Manager, and with Siobhan Hellamphy in HR. He also raised the matter with the Magna Hotline, which is run by European HR. He was informed that the company had made a discretionary decision to consider that he had completed four years of service when calculating his sick pay entitlement, and that any “top-up” payment made to him would amount to 50% of his weekly wage. This was the full extent of the payment offered. When he applied to Social Welfare, he submitted the wrong claim and was advised to apply for occupational injury benefit. Siobhan Mellamphy delayed completing the claim form, either deliberately or by accident, and said that his absence was related to illness and not a workplace injury. He again contacted the Magna Hotline, and his forms were filled without further questions. He attended two investigation meetings on 9 August 2021 and 6 September 2021. He was advised that the fight was considered gross misconduct. He explained that it was not a fight as he was assaulted. He was asked why he didn’t push him back. He was told that a statement from a colleague SH described the assault as a two-way fight, yet he was not there at the time. He was not given a copy of the report or the witness statements. He did not agree with the investigation process. He did not agree with the minutes of the meeting, which were not accurate. There were five CCTV cameras in the area, but he was not shown any footage and was told it needed to be redacted because of GDPR. The investigation was a disgrace, as he had not caused the assault and never punched back. He had reported an incident that the assailant had slammed into his shoulder in the corridor two days earlier. He asked if his medical expenses would be paid and was told that would be considered once there was an outcome. He was told that the matter would be referred to the next stage and that Siobhan Hellamphy would be involved. He resigned his position and his employment ended on 24 September 2021. He started a new job on 27 September although certified unfit, as he had bills to pay. He accepts that did not submit any medical or hospital reports to the Respondent to verify that he had a disability or concussion. He acknowledged that it was not possible to provide accommodation to facilitate his return to work when certified unfit by his own GP and by the Occupational Physician. He was subject to shoddy treatment by the Respondent. The incident was not treated as an assault, and no-one contacted him about victim support. The matter was not handled fairly by the company. They should have involved the Gardai, who would have taken ownership of CCTV footage. He later reported the matter to the Gardai. He was subject to an unfair investigation. He received no payment, although he did nothing wrong and should have been paid in full. He was questioned about his social welfare application. He was left in a deplorable situation with his kids going back to school. Evidence of Seamus Dermody – Production Manager Mr Dermody conducted the investigation into the incident on 25 June 2021. The investigation was a fact find investigation. He met the other worker involved directly after the incident and again on the following Monday. He spoke with several people. He met with SH to get his statement on 3 September. He met with another colleague CC. He met with the Complainant on 9 August, who had submitted a written statement on 6 July. He met with the Complainant again on 6 September 2021. The statements from other colleagues contradicted the Complainant’s evidence, which he was not happy about. The Complainant also took issue with the minutes of meetings. Mr Dermody explained that he would draft a report which would be sent to Ms Melamphy and Mr Dempsey to review and consider next steps. No decision was made at that time. Under cross examination, Mr Dermody said he did not give the statements to the Complainant as he understood they were emailed to him. He could not say if minutes of meetings were shared with him. He had watched the CCTV footage, but the footage was unclear. Only two cameras were working, and they did not show the whole area. Most of the altercation took place behind a press out of sight. In his view there was a fight between two people rather than an assault, but he could not say for sure who instigated the incident. He wanted to find out what caused it. He acknowledged that the Complainant was assaulted, as the other worker threw the first punch. The other worker was dismissed the following week. He recommended that the matter be reviewed, as he wanted a second opinion. He did not recommend any action. Evidence of Ms Siobhan Mellamphy, HR Manager The Complainant was brought to the HR office on the day of the incident. She asked a colleague to get him some water and to call a doctor. A taxi was ordered after he confirmed that he was ok to go home. The Complainant was not fit to attend work the following week. She was in contact with him and requested that he make a formal statement, as she wanted to establish the facts. She did not know realise how unwell he was initially. She was not aware of an injury until she received medical evidence. She always waits for medical evidence. Somehow, she mislaid his medical certificate so wrote to him on 13 July 2021 using standard wording to advise him that he was in breach of the attendance policy. She also referred him to the sick pay scheme and notified him of an overpayment made to him in error. She later apologised about the mislaid medical certificate, and he was very good about it. She did not delay the Complainant’s social welfare application. There was a fear of a Covid outbreak in the HR Department at the time that his claim form was sent to the office. Everyone was working from home and the Complainant was treated no differently to other employees when correspondence was left unanswered. She explained the situation to him and offered to contact Social Welfare on his behalf. She went out of her way to help him. It transpired that he had an open social welfare claim that delayed his benefit payment. She advised Social Welfare that she did not know if the Complainant’s absence was connected to an altercation in the workplace, as his medical certificates referred to an illness. She could not recall when the medical certificates referring to a head injury were submitted. She had never dealt with a workplace incident of this nature. He was reviewed by occupational health on 26 July 2021. She received the medical report in early August. She understood from the report that he had an injury to his nose but was fit to participate in an investigation. There was no medical evidence to say that he suffered from a disability. The Complainant received all his entitlements and was not denied any benefits. He was entitled to three weeks’ pay under the sick pay scheme. The Complainant raised queries regarding pay with her, and subsequently with the Magna Hotline. There are different avenues available to employees to raise matters. The Magna Hotline is a confidential avenue to raise matters at a corporate level and not the appropriate avenue for raising grievances. He never raised a formal or informal grievance under the grievance procedure. There is a zero-tolerance approach to violence. There was a violent outburst, and an investigation was required to establish the facts. When she instigated the investigation, she was not aware of the extent of the Complainants injuries at the time. It was described as an altercation, but there wasn’t a conscious decision to use that language. It is not policy to notify the Gardai. She was not involved in the investigation. She could not recall who recommended that the matter be progressed to a disciplinary investigation. Ms Hellamphy accepted that employee welfare was part of her job brief. She accepted that the Complainant had raised queries but disputed that they constituted a grievance as he did not follow the formal process. She did not bring the Workplace Injury/Illness Policy to his attention as she believed he was aware of it, and his first medical certificate referred to “illness”. He had signed for receipt of company policies. There was no intention to omit referring to the policy and in retrospect it would have been the right thing to do. He was paid injury benefit in error, as there had no medical evidence at that point. Evidence of Mr Petrus Wall, Environmental Health & Safety Manager Mr Wall was responsible for investigations into workplace incidents. The Complainant was a health and safety representative. He arranged for the investigation into the incident to be handled by others, and he had a very good working relationship with the Complainant, and he was not comfortable conducting it. He notified the Health & Safety Authority that the Complainant had suffered an injury at work. In his view the Complainant’s injury fell within the ambit of the Workplace Injury/Illness Policy, and he was entitled to six days payment under the policy The Applicable Law Section 2 of the Act defines the term “Disability” includes in relevant part:- (c ) the malfunction, malformation or disfigurement of a part of a person’s body; AND (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;
Section 85A (1) of the Act provides:- 85A.—(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 him or her, it is for the respondent to prove the contrary.
Section 16 of the Act provides in relevant part. (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.
Deliberations This appeal is linked to PW/23/30 and during the Court hearing testimony was heard from witnesses which related to both appeals. The Court’s jurisdiction in the within appeal is confined to assessing whether the Complainant was discriminated against and treated less favourably on the grounds of his stated disabilities during the relevant period. In any case involving an allegation of discrimination the Court must first consider the allocation of the burden of proof between the parties. Section 85A provides that where a Complainant establishes facts from which discrimination may be inferred it then falls to the Respondent to prove that the principle of equal treatment was not infringed. The established test for ascertaining if the burden of proof shifts to the Respondent was set out by this Court in Mitchell v Southern Health Board [2001] E.L.R. 201. That three-tier test provides: - 1) It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so, he or she cannot succeed, 2) If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination, 3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent. In this case the Complainant submits that he suffered from a disability at the material time, and that because of that disability he was treated less favourably than a hypothetical comparator without a disability who when absent from work, was subject to a disciplinary process. The Complainant contends that following an assault at his workplace there was no concern for his welfare and the way he was treated amounted to discriminatory treatment under the Act. The primary facts contended by him are that the Respondent (i) did not treat the incident as a welfare issue and instead threatened him with unjustified disciplinary proceedings, (ii) withheld payments due to him, (iii) delayed his social welfare application, and (iv) denied him reasonable accommodation. Did the Complainant have a disability at the time material to his claim? The Complainant says that he suffered from a disability arising from injuries he sustained from a workplace assault in June 2021 and that the disability relates to two matters - (i) “cartilage injury to the nose “and (ii) his “state of mind” following the incident. He asserts that the injury sustained from the assault gave rise to a malfunction of a part of his body that falls within the definition of disabilities contained at Section 2 of the Act, and furthermore that the impact of the assault affected his state of mind. He further asserts that a temporary bodily malfunction such as he suffered is a disability comprehended by the statutory definition. The Respondent accepts that the Complainant suffered an injury at work but asserts that it was not classified as a disability by the occupational physician whose occupational assessment report dated 28 July 2020 states that “There are no objective clinical signs to indicate any sinister pathology”. The Respondent accepts that the same report referred to the Complainant as “feeling anxious” but submits that there is no medical evidence to say that he was suffering from “anxiety”, and that matters regarding his “state of mind” were not detailed as an alleged disability on the original complaint form. What evidence is there of a disability? The Court heard evidence from the Complainant that because of an assault he suffered a deviated septum to his nose and concussion. His evidence was that he needed a procedure to remedy his septum which was manipulated back into place. He was certified unfit to attend work and remained on certified absence from work until he left the employment of the Respondent in September 2021. He further submits that he suffered anxiety during this period. Copies of medical certificates covering the period of the Complainant’s absence were opened to the Court. The initial certificate states that he was unfit to attend work due to a “medical illness”. Six medical certificates, covering the period from 7 July 2020 up until he resigned his employment, state that the Complainant was unable to attend work due to a “Head Injury at Work”. The Complainant relies on these medical certificates to ground his complaint of discrimination on the disability ground. A copy of an Occupational Medical Report dated 28 July 2020 stating “There are no objective clinical signs to indicate any sinister pathology” was also opened to the Court. Under the section of the report titled “Recommendations”, the occupational physician cites the “medical issues” as follows: - “Colman is recovering from soft tissue strains to his neck and shoulders. I advised him to avail of four to six sessions of physiotherapy to assist with his recovery. Colman appears to have sustained cartilage injury to his nose. I advised him to ask his GP to refer him to an ENT consultant for assessment. Colman is quite anxious, I advised him to avail of counselling. Please advise Colman if this is available under an employee assistance programme. I expect Colman’s health to improve over the coming four to six weeks”. In the Court’s view, both the medical certificates submitted by the Complainant, and the Occupational Medical Report relied upon by the Respondent, support the contention that the Complainant suffered a workplace injury. The Occupational Medical Report refers to a cartilage injury to the nose albeit one that was expected to recover over time. The Court heard evidence from the Complainant that he underwent a procedure to manipulate his nose back into place and was on certified sick leave for a prolonged period. The veracity of his evidence or his medical certificates was not challenged by the Respondent. It is not disputed that the Claimant was unfit for work for a period of over three months. Taking the ordinary meaning of the term malfunction, i.e., a failure to function in a normal manner, the injuries suffered by Complainant because of an incident in the workplace gave rise to a malfunction of parts of his body. The Act expressly provides that a temporary malfunction is sufficient to come within the term disability. As a result, the Court is of the view that injuries sustained by the Complainant from the assault, namely a “cartilage injury to the nose”, which required a procedure to remedy the injury, can be classed as a temporary malfunction as defined within the meaning of the Acts. Having regard to the testimony of the Complainant and the medical certificates and occupational medical report opened to the Court, we are satisfied that the Complainant has established that he was suffering from a disability under the Act at the time material to his claim, namely a “cartilage injury to the nose”. The Court further finds that the Respondent was on notice of the Complainant’s disability when it received medical certificates, which covered the period from 7 July 2020 up until the Complainant resigned his employment, and which stated that the Complainant was unfit due to a “Head Injury at Work”. The Complainant submits that he suffered from a second disability arising from the assault relating to his “state of mind” which he asserts constitutes a disability within the meaning of the Act. His evidence was that he suffered from headaches, was anxious, and had difficulty sleeping. While the Occupational Medical Report refers to the Complainant as being anxious, the Court notes that the Report, and the medical certificates submitted by the Complainant, expressly state that was he unfit to attend work due to a head injury. No medical evidence was submitted to the Court to support the contention that the Complainant suffered from a disability relating to anxiety or other mental health issues. As a result, the Court finds that the Complainant has not established that he was suffering from a disability under the Act at the material time that related to his state of mind or anxiety. Having regard to the evidence and submissions made, the Court finds that the Complainant suffered a malfunction of a body part, namely a “cartilage injury to the nose”, that comes within the definition of disability under the Act. Shifting Burden of Proof The Complainant asserts that because of his disability he was treated less favourably than a hypothetical comparator (a person without a disability) who when absent from work was subject to a disciplinary process. The Complainant contends that following his assault there was no concern for his welfare and the way he was treated amounted to discriminatory treatment under the Act. The primary facts contended by him are that the Respondent (i) did not treat the incident as an assault and threatened with unjustified disciplinary proceeding, (ii) withheld payments due to him, (iii) delayed his social welfare application, and (iv) denied him reasonable accommodation. He submits that these facts are of sufficient significance to raise an inference of discrimination such that the burden of proof rests with the Respondent to prove that the principle of equal treatment was not infringed. Several of the facts relied upon by the Complainant are not in dispute. On previous occasions he was paid when absent from work for workplace related injuries. There was a delay in the processing of his social welfare claim. He was notified that he had breached the Attendance Management Policy and that his failure to provide medical certificates for his period of absence may result in disciplinary action. He was invited to attend a disciplinary meeting in relation to gross misconduct. Having regard to the submissions and oral evidence presented to it, the Court concludes that, on the balance of probabilities, the Complainant has established sufficient facts from which an inference of discrimination can be drawn. Such an inference is not the only inference which can be drawn from the facts established by him, but it is, in the view of the Court, within the range of inferences which can reasonably be drawn. As a result, the Court is satisfied that the factual matrix of this case is of sufficient significance to raise an inference of discrimination on the disability and so shift the burden of proving the absence of discrimination on to the Respondent. This requires the Respondent to provide cogent evidence to rebut and discharge that burden. i. Was the Complainant subjected to discriminatory treatment when the Respondent threatened him with disciplinary proceedings? The Complainant contends that following an unproved assault at work there was no concern for his welfare and instead his employer sought to apportion significant blame for the incident to him. The Complainant cited two separate disciplinary proceedings in support of his claim that he was subject to less favourable and discriminatory treatment on the grounds of his disability. The first proceedings relate to the company’s Attendance Management Policy. On 13 July 2021, the Complainant was advised by letter that he was in breach of that policy as the first medical certificate provided by him was dated 13 July 2021. He was advised that breaches of the policy may result in disciplinary action. The Complainant was advised by email later the same day: -” my apologies, we have located the missing medical certificate – no further action is required on this“. The Complainant was clearly notified of potential disciplinary proceedings when the Respondent mislaid his medical certificate and incorrectly stated that he breached the Attendance policy. Ms Mellamphy’s evidence was that she immediately apologised when the missing certificate was located and that the letter was drafted using a standard template. In the Court’s view Ms Mellamphy’s provided sufficient evidence to explain the reason for sending the letter of 13 July 2021 to the Complainant, that is, she inadvertently mislaid his medical certificate. As a result, the Court does not find that the Complainant was subject to discriminatory treatment on the ground of his disability when threatened with disciplinary proceedings for failing to submit a medical certificate. A second set of disciplinary proceedings related to the investigation into the incident of 25 June 2021. The Complainant attended two investigation meetings on 9 August 2021 and 6 September 2021. Both meetings were conducted under the company disciplinary policy. He was advised by letter that the purpose of the meetings was “to investigate an alleged incident which occurred in 25 June 2021 between yourself and another employee in which workplace violence occurred. The incident may constitute “Gross Misconduct” …Please note, anyone who is proved to have engaged in workplace violence will be subject to disciplinary action up to and including summary dismissal, once a full and thorough investigation has occurred”. The Respondent’s position is that it was obliged to carry out an investigation to establish the facts of a workplace altercation on 25 June 2021 and that it did so in accordance with the disciplinary policy. It asserts that the Complainant was treated in the same way as the other employee involved in the incident, and as the Complainant was on certified sick leave it was not appropriate to suspend him. An investigation report issued on 8 September 2021. The outcome of the investigation was a recommendation that the matter be brought forward for disciplinary action. The Complainant submitted a letter of resignation on 10 September 2021, in which he stated that his position was untenable given “managements unsatisfactory handling surrounding the assault” on 25 June 2021. He left the employment before a disciplinary hearing was held. The Complainant is clearly dissatisfied with many aspects of the investigation process. He asserts that he was an entirely innocent party, who was not believed. He is dissatisfied that the incident was dealt with under the disciplinary procedure rather than as a welfare issue. He raises issues about how the process was conducted, including the lack of access to CCTV footage, and the fact that the Gardaí were not notified. While he highlights many issues about way the investigation into the incident on 25 June 2021 was handled, the sole matter for consideration by the Court in the within appeal is whether the Complainant was subject to less favourable treatment on the ground of his stated disability. In the Court’s view the Complainant’s treatment by the Respondent was influenced, rightly or wrongly, by the fact that a violent incident occurred in the workplace on 25 June 2021, rather than the fact that he had a disability. The Respondent was entitled to investigate that matter. It decided to do so under the disciplinary procedure. The Complainant may feel that he was treated badly and may have valid issues about the type of investigation and the way it was conducted, however, that matter is not before the Court, and we make no findings in relation to it. Having regard to the evidence and oral and written submissions, the Court finds that the Complainant’s treatment was due to the fact that he was involved in a violent incident in the workplace and not due to the fact that he had a disability at that time. For the reasons already outlined, the Court cannot support the assertion that, because of his disability, the Complainant was subject to discriminatory treatment when the Respondent did not treat the incident as an assault and threatened him with disciplinary proceedings. Accordingly, the Court finds that the Complainant was not discriminated against by the Respondent on the disability ground as a result of the way he was treated following his absence from work after 25 June 2021. ii. Was the Complainant subjected to discriminatory treatment in relation to withheld payments due to him? The Complainant contends that he was subject to discriminatory treatment on account of his disability when the Respondent withheld payments due to him. He asserts that there was an implied term in his contract of employment, by virtue of an established custom and practice, to be paid in full during any absence from work due to workplace injury. The question of what payments were properly payable to the Complainant during the relevant period is addressed in a linked decision (insert PW reference number) under the Payment of Wages Act, 1991. In that decision, the Court found that a practice in place prior to the introduction of a formal written Workplace Injury/Illness Policy in 2020 was not a contractual entitlement. The Court found that the Complainant received his full contractual entitlements under the sick pay scheme. The Court found there was a shortfall of one day’s pay due to the Complainant under the illness/injury policy. In the Court’s view the shortfall in payment was due to a misclassification of the Complainant’s absence as illness related, rather than related to an injury in the workplace. As a result, the Court finds no basis to the assertion that the Complainant was subject to less favourable or discriminatory treatment on the ground of his disability in relation to that matter. iii. Was the Complainant subjected to discriminatory treatment when his social welfare application was delayed? The Complainant asserts that the Respondent, either deliberately or by accident, delayed completion of his social welfare claim form by stating that his absence was related to a medical illness and not a workplace injury. He said that the matter was eventually resolved when he escalated the issue to the Magna Hotline and his forms were filled without further questions. The Complainant applied for Injury Benefit from the Department of Social Protection and submitted the relevant claim form to HR for completion on 19 July 2021. The Court heard evidence that the HR Department was closed at that time as two staff had Covid-19. It is clear to the Court that the closure of the HR Department gave rise to an initial delay in completing the form. Ms Hellamphy contacted the Social Welfare Office by email on 22 July 2021. The ensuing emails exchange opened to the Court demonstrates that the Complainant had a previous benefit claim which had remained open, and which had also contributed to a delay in payment to the Complainant. It is evident from the email exchanges with the Social Welfare office that Ms. Mellamphy was clearly of the view that the Complainant’s absence related to a medical illness, where she states as follows: - “…he was involved in an altercation with another employee (still under investigation). However, he is having trouble getting his claim processed. He is currently off on medical certificates due to illness. We have not substantiated that the illness is in any way related to the altercation as Colman claims….” The Court had some difficulty with the rationale for Ms Mellamphy’s reluctance to record the absence as an occupational injury rather than a medical illness, in circumstances where all but the first certificates attributed his absence to a “head injury at work”, however, the Court accepts that she was acting on behalf of the Complainants behalf to assist him access a social welfare benefit. Having regard to the above, the Court finds that several factors, unrelated to the Complainant’s disability, gave rise to a delay in processing the relevant social welfare form. The HR Department was closed at the time due to a Covid-19, a previous social welfare claim by the Complainant remained open, and the HR Manager queried how the reason for his absence was recorded. For these reasons the Court cannot support that assertion that the delay was due to a discriminatory treatment by the Respondent on the ground of his disability. Accordingly, the Court finds that the Complainant was not discriminated against by the Respondent when his social welfare claim was delayed. iv. Was the Complainant denied Reasonable Accommodation? Section 16 of the Act places an obligation on employers to provide appropriate measures to assist an employee with a disability to undertake their role. In this case it is accepted that the Complainant was on certified sick leave for the duration of the period encompassed by the claim. The Court finds that in circumstances where the Complainant was not certified fit to work, and no reasonable accommodation was sought by him to assist him with his return to work, the claim that he was denied reasonable accommodation has not been made out. Determination The Complainant contends that following an assault at his workplace there was no concern for his welfare and the way he was treated amounted to discriminatory treatment under the Act. For the reasons set out above, the Court is satisfied that the Complainant was not discriminated against on the ground of disability. The complaint is not well founded. The Complainant’s appeal fails. The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Decision should be addressed to Garrett O'Grady, Court Secretary. |
