Complainant

Respondent

Parties

Robert  Hayden

Aurivo Consumer Foods Limited

Complainant

Respondent

Anonymised Parties

Representatives

Etain Boyce Boyce Kelly Solicitors  Patricia McCallum

Terry MacNamara  IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00018442-001

11/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00018474-001

12/04/2018

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

CA-00018476-001

12/04/2018

Employment Equality Act 1998   CA-00018476-001

In his complaint form regarding  alleged breaches of the   Employment Equality Act 1998, the claimant submitted as follows:

The complainant suffered a personal injury in the workplace on the 14th September 2017 due to the negligence of his employer and /or their servants/agents. While the complainant was working on the line as an operative, a pallet truck was driven into him from the rear, seriously injuring his leg. The pallet truck driver had overloaded the truck and could not see where he was going. The complainant notified his employer of the accident and the circumstances surrounding it immediately. He could not put any weight on his leg. His supervisor told him she had seen the footage on the cctv system and that he had gotten a bad knock.

An accident report form was filled in and the company doctor was called. The complainant was asked to go back on the line by his employer but he was in such pain and unable to place weight on his leg that he eventually went home when the doctor did not come. He went to his own doctor for treatment. He had a meeting with his employers at their request in the following days where they denied that the accident happened on their premises and denied the existence of CCTV footage or that there were any witnesses. The complainant is satisfied that there were witnesses as other people were  working with him at the time. The Complainant issued a letter of claim for personal injuries to his employer through his solicitor on the 19th September 2017. The Employer sent a letter to the Complainant on the 3rd November 2017 terminating his employment with immediate effect and no notice. The reason given was failure to attend medical appointments. They continue to deny that the accident occurred at their premises.

The complainant was on crutches and relying on his wife, who would have to arrange time off work, to drive him to medical appointments and the employer did not give him sufficient notice for the appointments. This was brought to the attention of the employer and two weeks notice sought for an appointment. A further appointment was arranged but again with insufficient notice. The employer gave the Department of Social Protection incorrect information surrounding the claimant and refused to confirm that the accident occurred in the workplace resulting in difficulties for the complainant in obtaining injury benefit. The complainant was on probation but no policy or procedure on probation was in place or followed to the knowledge of the complainant.

He was dismissed without proper reason given, without following any probationary procedure and without notice. He submits that the real reason for the dismissal is that he was suffering from a disability by virtue of the injury he suffered at work and because he had a letter of claim forwarded to them and because his solicitor wrote to the employer on the 28th September 2017 calling on them to cease harassing and victimising him in their treatment of him. No attempt was made at any time by the employer to provide reasonable accommodation to the complainant in respect of his disability.

The complainant' representative made the following written submissions :

 1.0        Background

1.1         The factual background to the Complainant's complaint is set out in detail in the Workplace Relations Complaint Form. The Complainant also relies upon correspondence between his solicitor and the Respondent which is   attached . Further, the Complainant relies upon the medical report of Dr.  S dated 13th March 2018 contained attached hereto, together with such oral evidence from  him which may be adduced at the hearing of the within matter. Furthermore, the Complainant will rely upon such oral evidence as may be deemed necessary together with oral submissions.

1.2         A number of specific facts which will be relied upon by the Complainant are as follows;

  i.            The Complainant commenced employment with the Respondent on 23rd August 2017;

ii.            The Complainant injured his foot/leg at work on Thursday 14th September 2017. This accident was witnessed by fellow employees and an incident report was completed in relation to same;

iii.            On the day of the accident, the Complainant was informed that he was to be examined by the company doctor, but was later that day informed that the Respondent was not able to make contact with its doctor. The Complainant was eventually allowed to go home at approximately 2 p.m. that day.

iv.            The Complainant attended his own GP on Monday 18th September 2017 in respect of his injuries, that being the earliest date the Complainant could obtain an appointment;

v.            Following the injury the Complainant's leg was bruised and very sore. The Complainant found it difficult to stand and found it difficult to put any weight on his leg. The Plaintiff was referred by his GP to the Emergency Department of the local  Hospital and the Complainant was given crutches to aid his mobility.

vi.            The Complainant's solicitor wrote to the Respondent's on 19th September 2017 wherein the Respondent was notified of the Complainant's intention to claim compensation in respect of the injuries he sustained;

vii.            The Complainant attended a meeting with servants and/or agents of the Respondent in the days following the accident wherein the Respondents denied that the accident had happened on their premises, denied the existence of CCTV and denied that there were witnesses to the accident;

viii.            Despite such a denial, the Respondent's requested the Complainant to attend a medical appointment with their doctor in respect of the injuries sustained. However, all 3 appointments were notified to the Complainant at very short notice and the Complainant was unable, but not unwilling, to attend. It is noted that the Complainant specifically brought to the Respondent's attention that he required reasonable notice as he was unable to drive and was reliant upon his wife to drive him to such an appointment and further, that as his wife was a nurse, she was required to give her own employer reasonable notice of time off.

ix.            The Complainant was dismissed from his employment by letter on the 3rd.Nov.2017

2.0       The Law

2.1       Section 77 of the Employment Equality Acts 1998-2008 states;

                        "(1) A person who claims —

            ( a ) to have been discriminated against or subjected to victimisation,

            ( b ) to have been dismissed in circumstances amounting to discrimination or        victimisation,

            ( c ) not to be receiving remuneration in accordance with an equal                            remuneration term, or

            ( d ) not to be receiving a benefit under an equality clause,

            in contravention of this Act may, subject to subsections (3) to (9) , seek redress by       referring the case to the Director General of the Workplace Relations Commission."

2.1       The Complainant was dismissed in circumstances which amounted to discrimination  or victimisation contrary to section 77(1)(a) and seeks redress on that basis.

2.2       Discrimination

In respect of Discriminatory Dismissal the Complainant notes that he was injured at work on 14th September 2017 whereby he sustained a soft tissue injury to his Achilles tendon. The Complainant was absent from work from  14th.Sept. 2017  until his dismissal from his employment on 3rd November 2017. In particular, the Complainant submits that he was dismissed because of the said injuries and those injuries amount to a "disability" within the meaning of the Act.

            2.2.1     As set out above "disability" is defined by section 2 of the Acts as;

              “(a) the total or partial absence of a persons bodily or mental function, including the absences of part of a persons 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 person’s body(d) a condition or malfunction which results in a person learning differently than a person without the condition or malfunction or(e) a condition, illness or a disease, which affects a person’s thoughts process, perception of reality, emotions or judgements of which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but which no longer exists, or which may exist in the future or which is imputed to a person”.

In particular, the Complainant submits that he was suffering from a disability in accordance with section 2(1)(c) i.e. a malfunction, malformation or disfigurement of his body.

            2.2.2     In that regard the Complainant will rely upon the Determination of the Labour Court in Customer Perception Limited-v-Gemma Leydon EED0317  wherein the complainant, Ms. Leydon, having been involved in a road traffic accident, sustained injuries which resulted in pain and reduced movement in her shoulder, back and neck. While these injuries were not permanent, they affected her ability to drive. In determining that Ms. Leydon's condition amounted to a disability within the meaning of the Act, the Labour Court stated;

              "Applying these well-known principles of statutory construction, it is clear that the term disability must only be given the meaning ascribed to it by section 2 of the Act. It would be impermissible for the Court to rely upon a definition derived from any other source..... Further, in construing the plain language used in this definition, words must be given their ordinary and natural meaning. Taking the ordinary and natural meaning of the term malfunction, (connoting a failure tofunction in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thusconstituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition."

            2.2.3     Other conditions which have been deemed to come within the definition of disability include hypertension which was effectively managed (A Government Employee-v-A Government DEC-E2010-055), repetitive strain injury (Carroll-v-H.J. Heinz Frozen & Chilled Foods Limited DEC -E2011-114) and neck injuries sustained in a road traffic accident which rendered the Complainant incapable of driving for a period of time (Banjoko-v-Linda Mellon T/A Dolman Nursery & Montessori School DEC-S2009-020)            2.2.4     The Complainant therefore submits that at the time of his dismissal he was suffering from a disability within the meaning of the Act.

            2.2.5 Further, as stated, the Complainant submits that the disability from which he was suffering was the reason for his dismissal. In particular, the Complainant had only commenced his employment with the Respondent in August 2017 and had no difficulties in his employment until he sustained injuries while carrying out his duties and it was only after this incident that difficulties arose. While correspondence from the Respondent dated 3rd.Nov. 2017 states that, "As you commenced employment on 23rd August, and you are still on probation period the company has no option but to terminate your employment with immediate effect due to your repeated failure to comply with company procedure.", the real reason for the Complainant's dismissal was not failure to comply with company procedures but his disability.  It is noted that the company procedure referred to therein is  attendance with the Respondent's doctor and again, while this is the purported reason for the dismissal as cited by the Respondent, the Respondent's request for such attendance, and the consequent decision to dismiss on the basis of the Complainant's alleged non-attendance, must be viewed in light of a number of issues such as;

         i.            The fact that the Complainant required the use of crutches at the time of the requests and was, for all -intents and purposes, relatively immobile and entirely reliant upon his wife to transport him to any arranged appointments;

       ii.            The fact that the Complainant was at all times engaging with the Respondent through his solicitor and at all times was willing to attend with the Respondent's doctor and never refused to do so;

     iii.            The fact that the Complainant only sustained his injury on 14th September 2017, and following the elapse of only 6 weeks, during which time the Complainant was submitting sick-certificates, the Respondent dismissed the Complainant on the alleged grounds of failure to comply with company procedure;

     iv.            The fact that there were no complaints against the Complainant at the time of his dismissal bar his alleged failure to attend a medical appointment;

       v.            The fact that no appeal of the decision to dismiss was made available to the Complainant;

     vi.            The fact that he was summarily dismissed by letter;

    vii.            The fact that no procedures, never mind fair procedures, were applied to the Complainant's dismissal;

  viii.            The fact that the Complainant being on probation was utilised as a ground for dismissing the Complainant in the absence of any other difficulty with the Complainant;

      ix.            The fact that the Complainant had attended his own GP, yet no effort was made by the Respondent to contact the Complainant's GP to ascertain the Complainant's condition.

2.2.6 It is submitted that, in all the circumstances,  the real reason for the Claimant's dismissal was his disability.

              2.2.7 In that regard, the Complainant refers to section 85A of the Act which states;

            " (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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1) , facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘ discrimination ’ includes —

( a ) indirect discrimination,

( b ) victimisation,

( c ) harassment or sexual harassment,

( d ) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void."

            2.2.8 In so far as the burden being on the Complainant to establish a prima facie case the Complainant refers to the case of A Sales Representative-v-A Book Wholesaler DEC-E2016-131 wherein the WRC stated as follows;

              "In this I am guided by the Labour Court in A Government Department and An Employee: “The requirement to establish that there was no discrimination whatsoever means that the Court must be alert to the possibility that a person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution (see Nevins, Murphy, Flood v Portroe Stevedores[2005] 16 ELR 282).”[8] Therefore I am satisfied that the complainant has established a prima facie case of discrimination on the grounds of disability and the respondent has failed to rebut it."

              2.2.9 In the circumstances, it is submitted that facts of sufficient significance, from which the occurrence of discrimination may be inferred, are present herein and the Complainant has established a prima facie case and the burden of proof is therefore upon the Respondent.

              2.2.10 Furthermore, in so far as section 16(3) of the Act is concerned and whether reasonable accommodation was made for the Respondent and whether such an issue was addressed by the Respondent prior to dismissing the Complainant, the Complainant refers to the case of A Health and Fitness Club-v-A Worker EED037  wherein The Labour Court stated;

              " This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity. 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 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. In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently. Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources. Finally, such an enquiry could 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."               2.2.11 It is submitted that the Respondent failed to comply with any of the above procedures and no consideration whatsoever was made by the Respondent as to what accommodations could be made for the Complainant.

2.3         Victimisation

In accordance with section 74(2) of the Act "victimisation" is defined as,

              " (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —

( a ) a complaint of discrimination made by the employee to the employer,

( b ) any proceedings by a complainant,

( c ) an employee having represented or otherwise supported a complainant,

( d ) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

( e ) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

( f ) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

( g ) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs."

              2.3.1     The Complainant submits that he was victimised by the Respondent and was dismissed as a reaction to the O'Byrne letter regarding intended proceedings sent on his behalf in respect of the injuries he suffered at work and/or as a result of his claims by way of letter from his solicitor setting out his complaint regarding discrimination and victimisation.

              2.3.2                    Additionally, the Complainant relies on the facts as set out above. 

              2.3.3     The Complainant submits that he is entitled to compensation as a result of same.

The  claimant’ s representative asserted that  there was considerable disagreement between the parties on a large amount of factual matters -  she asserted the claimant was working for the respondent , was injured arising from which he incurred a disability – it was advanced that as a result the claimant was penalised / victimised on disability grounds .

The representative referenced Doolin v.DPC the outcome of which was that the High Court allowed an appeal on a point of law against an earlier decision of the Circuit Court in which the Circuit Court had in turn upheld a statutory decision of the Data Protection Commissioner made under Section 10 of the Data Protection Acts , 1988 & 2003.The High Court held that a finding  made by the Circuit Court to the effect that the use of material derived from CCTV footage in the context of a disciplinary hearing amounted to processing for security purposes could not be sustained on the evidence.It was found that the DPC had made an error in law in holding that no further processing of the applicant’s personal data took place when material derived from the footage in question was deployed by the employer in the course of a disciplinary hearing , such material having been obtained for a different purpose , ie a purpose relating to security.

Safety Health & Welfare at Work Act, 2005 – CA-00018442-001

In his complaint form to the WRC under the Safety Health & Welfare at Work Act ,2005 , the claimant submitted as follows:

 The complainant makes this complaint under s 27 of the Safety, Health and Welfare at Work Act 2005. He claims he was penalised by way of being unfairly dismissed for notifying his employer of his being injured in the workplace and notifying them of his intention to take a claim for personal injuries suffered. In doing so, he made a complaint about his health and safety at work. He suffered a personal injury in the workplace on the 14thSeptember 2017 due to the negligence of his employer and or their servants/agents. While working on the line as a  production operative, a pallet truck was driven into the complainant from the rear, seriously injuring his leg.

The pallet truck driver had overloaded the truck and could not see where he was going. The complainant notified his  employer of the accident and the circumstances surrounding it immediately. He could not put any weight on his leg. His supervisor told him she had seen the footage on the cctv system and that he had gotten a bad knock.

She said that she tried to phone the company doctor but that he was not able to come to examine the complainant. He was asked to go back on the line which he tried to do but he was in such pain and unable to place weight on his leg that he eventually went home. An incident report form was filled in before he left. He went to his own doctor for treatment. He had a meeting with his employers at their request in the following days where they denied that the accident happened on their premises and denied the existence of cctv footage or that there were any witnesses. The complainant is satisfied that there were witnesses .The Complainant issued a letter of claim for personal injuries to his employer through his solicitor on the 19th September 2017. The Employer sent a letter to the Complainant on the 3rd November 2017 terminating his employment with immediate effect.

 The reason given was failure to attend medical appointments. The employer continues to deny that the accident occurred at their premises. The complainant was on crutches and relying on his wife, who would have to arrange time off work, to drive him to medical appointments and the employer did not give him sufficient notice for the appointments. This was brought to the attention of the employer and two weeks notice sought for an appointment. A further appointment was arranged but again with insufficient notice. The employer gave the Department of Social Protection incorrect information surrounding the complainant and refused to confirm that the accident occurred at the workplace resulting in difficulties for the complainant in obtaining injury benefit.

The complainant was on probation at the time of dismissal but no policy or procedure on probation was in place or followed to the knowledge of the complainant. He was dismissed without proper reason, without following any probationary procedure and without notice. He submits that the real reason for the dismissal was that he made a complaint about his health and safety at work to them and their treatment of him since the accident is reflective of that. It is submitted that this amounts to penalisation under section 27 and he seeks adjudication of his complaint under section 28 of the above Act.

Further submissions  on this complaint were received on the 5th.Jan 2021 and are set out below:

 1 .1Further to, or in the alternative, to the Complainant's submissions in

respect of Complaint CA-00018476-001, the Complainant submits as follows:

1.2 The factual background to the Complainant's complaint is set out in detail in

the Workplace Relations Complaint Form. The Complainant also relies upon

correspondence between his solicitor and the Respondent which is contained in

 in the previous submission. Further, the Complainant will rely upon

such oral evidence as may be deemed necessary together with oral submissions.

1.3 A number of specific facts will be relied upon by the Complainant as follows;

i. The Complainant was injured at work on Thursday 14th September 2017

when an overloaded power pallet truck hit him from behind. The truck driver

(Mr.L) could not see the Complainant as the truck was overloaded

and as a result the truck continued to push against the Complainant's

leg/ foot. When the truck driver alighted from the truck he stated to the

Complainant that he did not see him.

ii. The incident was witnessed on the CCTV feed by Ms.A who

attended on the Complainant in the immediate aftermath. Ms. A stated

to the Complainant words to the effect that he had "got some whack/got a bad

knock".

iii. The Complainant immediately made representations to the Respondent, its

servants and/or agents, regarding his safety, health and welfare at work and

in particular, that due to the aforementioned unsafe circumstances he had

been injured at work. Indeed, an accident/ incident report form was

completed on 14th September 2017 alerting the Respondent to the

Complainant's complaint

iv. The Complainant was obliged to leave work early that day due to his injury

and submitted a sick certificate to the Respondent on Monday 18th September

2017 for a period of one week until 25th September 2017.

V. At a meeting on Monday 18th September 2017 as requested by the

Respondent between the Complainant and Ms.A  and Mr.K – then

plant manager, the Complainant reiterated his complaint regarding what had

occurred and to the Complainant's astonishment, the Respondent mounted an

about turn and denied that the accident had occurred, denied the existence of

CCTV footage and denied that there were any witnesses to the accident. On

the same day the Complainant also requested that the Respondent sign his

Occupational Injury Benefit form to allow him to seek the appropriate

benefits in circumstances where he was unfit for work due to injuries he

sustained while at work. However, the Respondent refused to tick the relevant

box on the form to confirm that the injuries had been caused by an accident at

work and when a person from the Social Welfare Department telephoned to

seek clarity, that person was told by the Respondent that there was no such

accident. It would appear from the Respondent's submissions that they are

now stating that they refused to tick the relevant box and denied the accident

occurred as "a full  investigation" had not yet been completed, however, given

that the Complainant applied for, and was given, a full copy of his personal

file on foot of a data request and no investigative materials (e.g.

statements/ interviews etc.) are contained therein, it is clear that no

investigation was completed or indeed even commenced or contemplated.

vi. Further, despite having in its possession a sick certificate from the

Complainant's GP for a one-week period, the Respondent attempted to have

the Complainant medically assessed that day without any prior notice.

vii. The Complainant's solicitor, on the Complainant's instructions sent a letter

outlining the Complainant's complaint the following day .

viii. The Respondent thereafter engaged in harassing treatment of the

Complainant while he was on sick leave. In particular the Complainant

received a letter, dated 18th September, at approximately 12.20 on 20th

September requesting the Complainant to attend a medical appointment at

10.10 on 21st September (less than 24 hours notice). The Respondent then sent

another letter, dated 26th September, which the Complainant received at

approximately 11.45am on 27th September requesting that he attend at a

medical assessment at 11.00 am on 28th September (again less than 24 hours

notice). The Complainant was on certified sick leave through-out this period.

ix. Thereafter the Complainant's solicitor attempted to engage with the

Respondent in circumstances where the Complainant was always willing to

attend a medical assessment however without notice or warning the

Complainant was summarily dismissed by email on 3rd November 2020 on

the purported basis that he failed to comply with company procedures.

X. It is abundantly clear from the Respondent's submissions that the

Complainant's legitimate choice to highlight through his solicitors his

concerns regarding the health and safety incident which occurred in his

workplace aggravated and annoyed the Respondent and the Complainant's

understandable failure to meet the unreasonable demands of the Respondent

regarding medical assessments "further aggravated" and annoyed the

Respondent (see paragraph 4.3 of the Respondent's submissions). It is

patently clear from the calculated actions of the Respondent following the

Complainant's complaint, including the point-blank denial of the accident,

that the Respondent was intent upon dismissing the Complainant forthwith

and the unreasonable demands to attend medical assessment at short notice

were simply a charade and contrived reason upon which to base their

predetermined decision to dismiss.

xi. Finally, it is noteworthy that the Complainant lodged an application with the

Injuries Board in respect of the injuries he sustained as a result of the

aforementioned health and safety incident, and despite the Respondent's

protestations in these proceedings that the accident did not occur, the

Respondent accepted the Injuries Board assessment thereby accepting the

Complainant's claim.

2.0 The Law

2.1 Section 27(3) of the Safety, Health and Welfare at Work Act, 2005 (hereinafter

the 2005 Act) states as follows;

(3) An employer

shall not penalise or

threaten penalisation

against an employee

for —

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duly or exercising any right under the

relevant statutory provisions,

(c) making a complaint or representation to his or her

safety representative or employer or the Authority,

as regards any matter relating to safety, health or

welfare at work,

d) giving evidence in proceedings in respect of the enforcement

of the relevant statutory provisions,

(e) being a safety representative or an employee designated

under section 11 or appointed under section 18 to perform

functions under this Act, or

(J) subject to subsection (6), in circumstances of danger which

the employee reasonably believed to be serious and

imminent and which he or she could not reasonably have

been expected to avert, leaving (or proposing to leave) or,

while the danger persisted, refusing to return to his or her

place of work or any dangerous part of his or her place of

work, or taking (or proposing to take) appropriate steps to

protect himself or herself or other persons from the danger.

2.2 "Penalisation" for the purpose of the 2005 Act includes dismissal (see Section 27(2)(a)).

2.3 It is clear that the Respondent had no legitimate grounds upon which to

dismiss the Complainant either prior to or following submission of his complaint

regarding the health and safety incident which occurred on 14th September 2017.

However, following the submission of the complaint and reiteration of same by the

Complainants solicitor, the Respondent penalised the Complainant in the most

drastic of manners by dismissing him.

2.4 It is submitted that the case of O'Neill v Toni & Guy Blackrock Limited

120101 E.L.R. 1 provides a useful summary of the requirements to be met and the

burden of proof in cases involving Section 27 of the 2005 Act. In particular, in that

case the Labour Court states as follows;

In the instant case what is at issue is the motive or reason for the claimant s

dismissal. That is to be found in the thought process of the decision-makers at the time the

decision to dismiss the complainant was taken. That is something which is peculiarly within

the knowledge of the respondent. It would be palpably unfair to expect the claimant to adduce

direct evidence to show that the respondent was influenced by his earlier complaints in

deciding to dismiss him. Conversely, it is perfectly reasonable to require the respondent to

establish that the reasons for the dismissal were unrelated to his complaints under the Act.

Having regard to these considerations, it seems to the Court that a form of shifting burden of

proof, similar to that in employment equality law should be applied in the instant case. Thus

the claimant must establish, on the balance of probabilities, that he made complaints

concerning health and safety. It is then necessary for him to show that, having regard to the

circumstances of the case, it is apt to infer from subsequent events that his complaints were

an operative consideration leading to his dismissal. If those two limbs of the test are satisfied

it is for the respondent to satisfy the Court, on credible evidence and to the normal civil

standard, that the complaints relied upon did not influence the claimants dismissal.'

2.5 Further, in the O'Neill case the Court held that the respondent employer

adopted a formalistic approach to the use of its disciplinary procedure and appeared

to proceed, with inordinate haste, from one stage to the next until the point was

reached where the claimant employee's employment was terminated. In the

circumstances the Court indicated that it was difficult to avoid the conclusion that

the respondent employer, whether consciously or unconsciously, was proceeding

with a predisposition that the claimant employee's employment should be brought

to an end.

2.6 In the instant case, the Respondent did not even attempt to engage in fair

procedures. In particular, the following is noted;

1.At no point was the Complainant given a copy of the Company or Union

policy which the Respondent is now attempting to rely upon.

ii. At no point was the Complainant given any warning that his failure to attend

a medical appointment would result in dismissal or that his dismissal was

being considered. Indeed, the policy upon which the Respondent now seeks

to rely only indicates that "disciplinary action" may be taken in the event of

non-attendance;

iii. The Complainant was given no opportunity to engage with the disciplinary

procedure, a copy of which has not even been furnished;

iv. The Complainant was given no opportunity to appeal the Respondent's

decision to dismiss him, and again, a copy of the appeal procedure has not

been furnished.

2.7 While it is accepted that the fairness or otherwise of a dismissal is not relevant

to a claim under section 27, the behaviour of the Respondent and how they dealt

with the Complainant following his submission of a complaint is very relevant and

indeed telling in the within instance.

2.8 In the circumstances, the Complainant submits that his claimed under section

27 is well founded.

Summary of Pertinent Evidence of the Complainant

The claimant asserted that he was never furnished  with a copy  of the companies policies and procedures .The complainant set out his account of the injury at work sustained on the 14th.Sept. 2017 – he said he was struck from behind by an electronic pallet truck – he stated that he saw a guy shouting at the  machine operator telling him to stop. The claimant said that the driver of the truck – Mr.L had to lean out to see the claimant  because of the height  of the pallets  – the claimant stated that Mr.L apologised to him. The complainant  was not sure if it was a pallet or the truck that struck his achilles – at the back of his shoe. The claimant went to find his line manager  Mr.A who asked him to continue on the line while he contacted the plant manager  Ms.A .The claimant asserted that Ms.A arrived 20 mins later and said she saw the cctv footage and that the claimant “ had got some whack”.

The claimant stated that his foot was examined by both parties – he said Mr.A seemed concerned but Ms.A – not so much .They gave him an accident report form which the claimant filled in. He wanted to see a doctor – he was asked by Mr.A and Ms.A to return to work but he wanted to go home .The earliest he could see his GP was the following Monday morning.  The complainant said   he could not  attend work on Friday as he was still awaiting a doctors appointment .According to the claimant the doctor advised he had a soft tissue injury , he dispensed tablets , completed a social welfare form and told him – ie the claimant that he could be off for 6 months. The claimant asserted that when he relayed the 6 months recovery to Ms.A – he felt she did not want to know. When he attended the respondent’s premises after his doctors appointment , the claimant asserted that he had to go to the office – which was 2 flights of stairs up – and met Mr.K and Ms.A. The claimant stated he  wanted them to  fill in forms for the DSP  .He asserted that they said they did not believe he was injured or that there had  been an accident. The claimant said that they said  they could not fill in the forms  as they  would have to declare an accident on  the  premises. On the 19th.September  the claimant’s solicitor wrote to the respondent putting them on notice of the injuries sustained by the claimant , seeking an admission of liability and seeking an examination of the cctv footage by their engineer.

The claimant said that he went to his solicitor when the company tone changed – denying that there had been an accident and they had no cctv. He stated this was why he went to a solicitor. He said he felt sick and could not believe what the employer was saying .At the meeting on the week after the accident , the company said they had no record of the accident. The claimant said he completed a report form for Social Welfare who had advised him on the 25th.Oct. 2017 that the employer “ has stated that he has received no report of an accident involving you”. The claimant asserted that his difficulties re attending the company doctor arose from the fact that he could not drive and his wife worked as a PHN and could not get time off. The  request from the respondent to attend the company doctor  dated the 18th.Sept. 2017 was not delivered until 12.20 on Wed.20th.September for an appointment on the 21st.The claimant said he had no difficult in attending a doctor  if he got adequate notice – he did not accept that he was on unauthorised absence as the company knew why he was off sick. The claimant said he explained to Ms.A that he was not given sufficient notice and his wife was unable to take time off.

The claimant said he never got the company procedural agreement and doubted that the cctv was not working. He asserted that the company was no different than  Tesco or Aldi who would have to have proper tracing in place. He was asked if anyone said to him that he would be dismissed if he did not attend the company doctor – he replied that nobody did and he had  no problem in attending the appointment. The claimant confirmed he had pursued a claim through PIAB and the company had accepted the PIAB assessment. The claimant reiterated his contention that Ms.A had said that she had seen the cctv and he had received some whack. The claimant stated that he rang Ms.A immediately following his appointment with his own GP on Monday 18th.Sept.He thought the company representatives were shady people – he said they had referred to having seen the cctv on the date of the accident and were now denying it.

The claimant confirmed he  returned to employment  the following January 26th.- when he had recovered from his injury.

Under cross examination the claimant confirmed that the injury was incurred in the 4th.week of his employment. He reiterated his recollection of the accident and asserted that Ms.A was second in command and had told him she had seen the cctv footage and that she said he got some whack – when asked how he knew the system was working he said “ I wouldn’t know”. The  claimant said he could not put weight on his foot after the injury .The claimant said Mr.A was round the corner and the respondent’s representative stated that Mr.A ‘s evidence would be that he was at the milk holding tank and that the claimant  had ascended some steps to report the incident.

The complainant  said Mr.A asked him to carry on at work and that Mr.A was going to get him a physio. The claimant denied saying that it would take more than the injury to put him out of action and said this allegation was rubbish. It was put to the claimant that nobody forced him to continue working. When advised that Mr.A said  that the claimant was well able to carry his own weight , the claimant said he is entitled to say what he wants. The claimant stated that he told Mr.A and Ms.A that he was in great pain and  requested to be seen by a doctor after  Ms.A said she would not get the company doctor. The claimant said he did not remember Mr.L saying to Mr.A that he knew nothing about the accident. He accepted that Ms.A told him that she tried to get a doctor but the surgery was closed. In response to whether he considered the injury an emergency , the claimant replied that Mr.A had said a bag of frozen peas would help. The claimant was told by the respondent’s representative that Ms.A would confirm that the claimant left work on the 14th.Sept. and made no contact with the respondent until Monday 18th.Sept despite the efforts of Ms.A to  call him.

The claimant said at his meeting with Mr.K and Ms.A on the 18th.Sept. , his wife drove him to the company premises and he was on crutches which he had received from A&E. He did not accept that Ms.A said to him , our investigation is not complete .The claimant confirmed he received illness benefit .The claimant denied that in the course of the conversation Ms.A   said she would organise an appointment for him with DR. C – the claimant said the meeting was about CCTV , denial of the accident and references to a near miss. He said a doctors appointment was never discussed. It was put to him that because he had transport difficulties Ms.A offered to provide a taxi to attend a doctor which he rejected – he said it never happened .It was put to the claimant that he said to Ms.A that he was minding kids – the claimant replied that was not true as his kids were at school.

The claimant confirmed that he received the appointment for the 21st,Sept. on the 20th and stated that he contacted Ms.A to say he could not make it. The claimant stated that he never asked his GP to contact Dr.C. The claimant stated that his wife required a weeks notice before she takes time off.He said his wife took him to A& E during her lunch break. The A&E report was referenced by the respondent’s representative – it recorded an attendance time of 7.42 with completion at 8.35 – the claimant replied that his wife dropped him off before she started work and he was unsure what time she collected him. It was put  to the claimant that he was able to attend his GP and A&E on the same day even though he was looking for a weeks notice from the respondent to attend Dr.C and the claimant replied that his wife was working in the hospital and he had to await her finishing time. The claimant stated that he had no reason not to inform Ms.A  that he could not attend the Dr.C appointment on the 21st.Sept.With respect to a question from the respondent’s representative if  the claimant placed any importance on the Ms.A letter of the 26th.Sept 2017 about a revised appointment , the claimant replied that the appointment for the 28th.Sept. did not suit and he did not understand Ms.A’s letter. The claimant was asked  if he understood the letter to be an instruction and he replied I had no clue what it was and I don’t know what a procedural agreement is.

The claimant stated that he placed a   lot of importance on the appointment set for the 28th.Sept, but the appointment did not suit. The claimant stated that he needed at least a week’s notice to attend appointments. He said  when put to him that his solicitor was looking for 2 weeks notice of an appointment on the 19th.October 2017 , that everything depended on his wife’s circumstances , it could be a week or 2 weeks depending on her circumstances. The claimant was unclear as to when he instructed his solicitor to respond to the company –  he confirmed that he  normally gave instructions over the phone – the claimant said he attended 2 appointment over  period of 8 days and it was put to him that he still required2 weeks notice . The claimant responded that he attended appointment if it suited him but he did not have time to put anything in place – he asserted he contacted Ms.A on each of the 4 occasions .It was put to the claimant that he had a pattern of failing to respond to reasonable requests from the employer  .When asked if he considered his employer contacting him to be harassment , he replied “ I felt a lot of things were harassment”. He asserted that when the employer did nt change anything – “ that’s harassment”.The claimant denied that he made no effort to contact Ms.A . The claimant confirmed that he did not ask his GP to contact Dr.C . He said when he spoke with the company , he said feel free to contact my GP  and that he gave Ms.A permission to contact his GP. He alleged he told her to feel free to contact his GP. It was put to him that this was not set out in his submission and he accepted that. The claimant stated he placed importance  on the company letters but he could not attend owing to family circumstances. When asked if he called the company to say he did not attend  Dr.C  he replied I didn’t but my solicitor did. When asked if he followed up with the company on receipt of his letter of dismissal of the 3rd,Nov , the  claimant said it was close to Christmas , he had lost his job and he had a solicitor who did all the writing  for him. He stated that because he took a case to PIAB , the company wanted him out .The claimant stated that he had no knowledge of the company procedures or to the reference in same to the probationary period where employment may be terminated without recourse to the disciplinary procedures.

On re-examination , the claimant said he attended the meeting with the respondent on the 18th.Sept. at Ms.A s insistence .He did take forms with him to the meeting and was asked to sign an accident report form. He told Mr.K and Ms.A that the pallets were overloaded. The claimant asserted that when the appointments were made for  Dr. C he contacted Ms.A and told her he did not have enough time to attend and when she asked he explained about the kids – the same situation arose with other appointments .The claimant stated that there was no discussion about alternative work and he was never assessed for other work he could have done. He stated no one mentioned about occupational  health to him and the respondent’s representative replied that Ms.A would contradict that.

 Summary of  Pertinent Evidence of  Complainant’s GP Dr.S

The GP  reported that he had seen the claimant on the 18th.Sept. – the claimant was limping and reported being hit by a forklift – he had suffered an injury to his achilles tendon and the doctor described how he had suffered a similar injury himself – that it can be difficult to flex the joint and the bruising  would result in pain when bending the ankle. The doctor said the treatment would depend on the severity of the injury .He said the recovery time would normally be 6 weeks to a couple of months. The doctor charted the ensuing engagements with the claimant in October 2017 and January and March 2018. At that point the claimant reported pain in the back of his calf when he used the clutch while driving. Under cross examination the doctor reported on the claimant’s progress and advised on the treatment programme following the claimant’s attendance at A& E in Letterkenny on the 21st.Sept. The witness stated that he did not detect much of  change in the claimant’s condition following his October visit to the practise. He told the claimant to try and keep active and he was referred for physio in Jan 2018.He estimated a recovery of 6 weeks to a couple of months  and asserted that he would not have communicated a recovery  time line of 6 months.

In summing up the complainant’s representative asserted that the equality case had been made out in the submissions furnished .It was submitted that Ms.A had distinguished between accidents at work and sick leave. It was submitted that the evidence supported the complaint of a prima facie case of  discriminatory dismissal. It was submitted that it was a matter for the respondent to call evidence in relation to the cctv issue – the evidence presented had been totally unsatisfactory. Ms.A’s response to any contentious issues had been I don’t know , I cant recall , I don’t remember. When pushed on the reasonableness of requiring attendance at occupational health within a week of an injury , it emerged that there was no such requirement in the plant procedural agreement. The complainant had submitted a cert and was on certified sick leave. It was submitted that the complainant had a disability and the temporary malfunction suffered fell within the definition of a disability. At no point was the complainant told he was facing the loss of a job if he did not attend. Under Section 85 A it was a matter for the respondent to prove to the contrary. The respondent had failed to provide evidence to rebut the complaint and consequently the evidence of the claimant should be preferred.

It was submitted that if all were treated equally , the respondent could have presented evidence of how other workers had been dealt with and if they had been required to attend a doctor within a week. It was submitted that there was a dearth of evidence when these issues were highlighted.

It was contended that the company had taken a view on the complainant and decided to treat him differently . They relied on probation and no evidence of anyone else being treated in this fashion was presented.

There was no investigation on reasonable accommodation – if so, paperwork would have been presented. It was submitted that the company wanted to get rid of the claimant because of his disability; the claimant it was argued was victimised for the references set out in the O Byrne letter to the company. It was submitted that the company met the threshold required and had presented a prima facie case.

The respondent’s representative submitted as follows:

This case concerns a complaint by the claimant, against his former employer the Respondent, under the Safety, Health and Welfare at Work Act 2005, and the Employment Equality Acts 1998 to 2015.  The claimant alleges that he was unfairly dismissed, penalised, discriminatorily dismissed, victimised harassed, failed to be provided with reasonable accommodation for a disability and discriminated against by reason of a disability.   All claims are denied by the respondent.  The claimant was dismissed during his probation period for failing to comply with company procedures in accordance with the company/union procedural agreement. It is noted that there are several complaints submitted by the claimant arising from the same set of facts and the respondent submit that the claimant cannot pursue multiple claims for penalisation, unfair dismissal and discriminatory dismissal in circumstances where the cases are all founded on the same facts. 

The Safety, Health & Welfare at Work Act states in Section 27(5) that “If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Act”

1.0         The Company

The respondent company is located in the North West and employs in the region of 650 people directly and provides jobs for many others in transport, distribution and forestry.  Approximately 270 employees are represented by SIPTU, 50 by the Dairy Executive Association and 40 by UNITE while the balance are not unionised. 

2.0         Preliminary issues

Firstly, there are several factual inaccuracies in the claimant’s complaint forms sent to the WRC on 11, 13 and 16 April 2018 and I now take the opportunity to correct these as follows: -

“An overloaded pallet truck was driven into him” The driver of the pallet truck denies having hit the claimant.  In the normal course of duty, a pallet truck can carry ten pallets. On this occasion seven pallets seven pallets were carried which is not overloaded.

The claimant states that “his supervisor told him she had seen footage on the CCTV and that he had gotten a bad knock”.  There was no CCTV footage capturing the alleged incident and the supervisor Ms. A made no such statement.

“he could not put any weight on his leg” the claimant walked from the workplace and exterior footage of the entrance of the premises shows him walking, unencumbered, from a meeting with Ms.A on the morning of 18 September.

“He went to his own doctor for treatment” The alleged incident occurred on Thursday 14 September 2017.  It appears from the document furnished that the claimant did not attend his own GP until Monday 18 September, four days later.

“The employer denied the existence of CCTV footage and that there were any witnesses” as per no 2 above the respondent confirmed there was no CCTV record of the alleged incident and that any of the colleagues in the vicinity who were questioned in the investigation indicated they had not witnessed the alleged incident.

“The claimant was on crutches and relying on his wife to drive him to appointments” As per no 3 above.  The first medical appointment was arranged by the respondent for the afternoon of Monday 18 September 2017.  The claimant attended a meeting the external CCTV shows him walking from the meeting unaided afterwards.  Ms.A   had arranged a medical appointment with the company doctor for 2:50pm on 18 September and this was communicated to the claimant during the course of the meeting.  The claimant indicated he could not attend this appointment as he had no means of transport however when the respondent indicated that transport in the form of a taxi would be provided the claimant then responded that it did not suit as he had to mind his children.

“Two weeks’ notice sought for an appointment” Letter from BK Solrs indicated the claimant needed one weeks’ notice of a medical appointment.  The respondent scheduled an appointment for 18 October, by letter dated 10 October.  The claimant did not attend and subsequently BK  Solrs wrote to the respondent on 19 October indicating that now there was a 2 week notice period required for the claimant to attend a medical appointment.

“The employer gave incorrect information to the Department of Social Protection and refused to confirm the accident took place in the workplace”

“His (claimants) solicitor wrote to the employer on 28th September calling on them to cease harassing and victimising him”.  The claimant’s solicitor did write to the respondent on 28 September alleging that the claimant was being victimised and bullied.  The term ‘harassment’ is not recorded in this letter. 

“Our client is very distressed at the manner in which he is being treated by you”.   The respondent was merely following the normal protocol, contained in the Company Union Procedural agreement, in dealing with an employee off work due to illness.  How this could be construed as “bullying and victimisation” is beyond the respondent.

“He made a complaint about his health and safety at work” No such complaint was received by the respondent from the claimant.

“The pallet truck driver had overloaded the truck and could not see where he was going” The pallet truck can carry a load of ten pallets.  A load of seven pallets could not be deemed as overloaded.

“She said she tried to phone the company Doctor, but he was not able to come to examine the complainant” Ms .A tried to get an appointment at  X  Health Centre for the claimant to attend.

“No policy or procedure on probation was in place” The topic of probation is clearly covered in the Company Union Procedural agreement. 

“He was dismissed without notice”.  Under the Minimum Notice and Terms of Employment Acts 1973 to 2015 an employee must have at least 13 weeks service to be entitled to notice. The claimant had 10 weeks service when he was dismissed.

3.0         Background to the Complaints

3.1         The claimant commenced working for the respondent at the Y  plant on 21 August 2017 as a general operative.  The claimant was scheduled to work 3 days per weeks at an hourly rate of pay of €9.55 as a new starter.

3.2         The respondent recognises the Trade Union UNITE for the purposes of negotiation, collective bargaining and representation of the workforce.  As such, there is in place a Company/Union procedural agreement which establishes procedures, grading structure, rates of pay and conditions of employment at the company Plant in the Northwest.

3.3         The claimant completed his induction training and was issued with PPE on 23 August 201

3.4         At approx 11:00AM on 14 September 2017 the claimant reported to Mr.A that he had been hit from behind by a pallet truck being operated by a colleague.  Ms.A spoke to claimant in despatch at approx 11:30AM and he said he was “fine – just a little shocked after the incident”.

3.5         At 1:30 PM Ms.A, a qualified first aider, examined the claimant’s foot with Mr. A asking him to remove his shoe.  She could not see any evidence of any injury although the claimant said he had a pain on the inside of his left ankle.  Ms.A attempted to get an appointment with the company doctor in X  to no avail.  The surgery said they could only arrange an emergency appointment.  M.A, after examining the claimant’s foot and seeing no swelling, bruises or marks decided not to send the claimant to the doctor at that stage.   She told him that if he changed his mind later on he should call her and she would attempt get him an emergency appointment.

3.6         The claimant left the premises at approx 2:00 PM.  Ms.A  offered to get him a lift home, but the claimant said he had called his wife who was going to collect him who appeared to be available at short notice to do so.  Ms.A  attempted to call the claimant several times that evening to see how he was but got no response.

3.7         On Monday 18 September the claimant was rostered for work but did not attend nor did he contact the respondent.  The Company Union Procedural Agreement states that “If prior arrangements have not been made, then your absence or inability to be at work on time must be reported to your supervisor or a designated person no later than 30 minutes before your scheduled starting time on each day of absence”. Copy attached at Appendix 2.  As the claimant did not make any contact Ms.A  tried calling him at 10:15AM on Monday 18 September with no reply.  The claimant rang back at approx. 10:20AM saying he had gone ‘back to his doctor’ that morning.  Ms.A asked him why he didn’t respond to her calls and made no contact since Thursday evening and the claimant said his son was playing with his phone.  The claimant said he was “calling to see you (the respondent) as I have a lot of paperwork for you to sign”

3.8         The claimant arrived on site at approx 11:00AM and met with Ms.A  and Mr.K – then  plant Manager. The claimant gave Ms.A a medical certificate from his doctor stating that he was suffering from an “illness” and would be unfit for work until Monday 25 September 2017.     The claimant also asked them to sign an Occupational Injury Benefit form which they  declined to do so as a full investigation was not completed yet.   Ms.A  informed the claimant that she had arranged a medical appointment with the company doctor for that afternoon in X  at 2:50PM. The claimant initially said he could not attend this appointment as he had no means of transport however when offered a taxi the claimant then said it did not suit as he had to mind his children.  The claimant was observed om CCTV walking from the meeting without any crutches and appeared to walk with ease.

3.9         As the claimant had refused to attend the company doctor on the afternoon of 18 September Ms.A  invited the claimant to attend a second appointment for Thursday 21 September at 10:10AM by letter.  Ms.A  asked the claimant to contact Dr.C  if unable to attend.    The claimant did not attend this appointment, nor did he contact the respondent or Dr C to indicate that he would not be attending the appointment.

3.10       Ms.A  again rearranged a medical appointment with the company doctor for a third time for Thursday 28 September at 11:00AM asking the claimant to contact the respondent if unable to attend.     The claimant did not attend the appointment, nor did he contact his employer as requested by Ms. A.

3.12       Ms.A received a letter, dated 28 September, from the claimant’s solicitor on Monday 02 October incorrectly indicating that he had only received two previous invitations to attend the company doctor and that he would need more than “a couple of days” notice of an appointment.   In fact, the claimant’s solicitor demanded that any further communication with the claimant should take place through their office as directly communicating with their employee amounted to “bullying and victimisation”.  The claimant’s solicitor also indicated that the claimant needed a full weeks’ notice of any future planned appointment with the company doctor.

3.13       Mr.B Legal Counsel and Company Secretary, responded to the claimant’s solicitor on 10 October challenging their assertions made in their letter of 28 September to Ms.A.   Mr.B also informed them of arrangements for an appointment with the company doctor scheduled for 18th October indicating the claimant was obliged to attend the appointment under section 22 of the Company Union Procedural Agreement. Copy of letter attached at Appendix 7 and procedural agreement at Appendix 1.

3.14       The claimant did not attend the fourth medical appointment arranged for 18 October.  The claimant did not contact the respondent to indicate he would not be in attendance.  The respondent received a letter from the claimant’s solicitor on 20 October, dated Thursday 19 October, indicating that he would not be attending the medical appointment scheduled for 2 days earlier on 18 October and that he would now need a full two weeks’ notice of any future medical appointments.

3.15       On 03 November 2017 Ms.M wrote to the claimant terminating his contract of employment within the terms of the Company Union Procedural Agreement for repeated failure to comply with Company Procedures. Copy of letter attached .

3.16       On 04 May the Company received a set of complain forms from WRC. 

3.17       On 22 May 2018 IBEC responded to the WRC by letter.

4.0         Complaints Under the Employment Equality Acts 1998 to 2015 – CA-00018476-001

4.1         Prima Facie Case of Discrimination

It has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he/she was treated less favourably than another person is, has or would be treated, on the basis of the discriminatory ground cited. In Mary Margetts v Graham Anthony & Company Limited, EDA 038; 7 August 2003 the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court. That complaint involved claims in part based on family status grounds. 

The Labour Court said as follows:

“The Burden of Proof

The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place. The appellant must, on the balance of probabilities, prove those facts from which such an inference may be drawn. When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show on the balance of probabilities that it did not discriminate against the appellant. 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.”

The respondent also draws the Adjudicator’s attention to the case of Arturs Valpeters v Melbury Developments Ltd EDA0917 (Appendix 13) where the Court found that complainant had failed to establish a prima facie case of discrimination and accordingly those complaints could not succeed.  In their determination the Court stated that “Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the 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 they be of sufficient significance to raise a presumption of discrimination. However, they 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.

In this case it was submitted that the complainant was treated badly by the respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence”.

The respondent submits that a comparator probationary employee without a disability, who persistently did not comply with reasonable management requests to attend appointments and refused to communicate directly with their employer, would have their contract similarly terminated.

4.2         Notwithstanding that the circumstances of each case are different; 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 strongly submits that the complainant, in his complaint of 13 April 2018, has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

4.3         Discrimination on the grounds of Disability

              The claimant submits that he was dismissed because of injuries and those injuries amount to a disability as defined by the Employment Equality Acts 1998 to 2015. The facts of the matter are that the claimant’s dismissal did not come about due to an alleged disability.   As stated previously in this submission, the claimant’s actions demonstrated that he would not follow legitimate management instructions and would not be bound by the terms of his probation.  The respondent dismissed the claimant wholly for this reason.

4.4         It must be noted that the claimant’s medical certificates, as submitted to the respondent, indicated he was suffering from “an illness”.  The claimant’s submission refers to the case of Leydon V Customer Perceptions Ltd EED0317/2001 to assert that a soft tissue injury amounts to a disability.  The respondent refers to Sonia Chacon Navas V Eurest Collectividades SA, C-13/05 (Appendix 14) Which states that “by using the concept of 'disability' in Article 1 of that directive, the legislature deliberately chose a term which differs from 'sickness'. The two concepts cannot therefore simply be treated as being the same”.

The Court ruled that

“1.         A person who has been dismissed by his employer solely on account of sickness does not fall within the general framework laid down for combating discrimination on grounds of disability by Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

2.           The prohibition, as regards dismissal, of discrimination on grounds of disability contained in Articles 2(1) and 3(1)(c) of Directive 2000/78 precludes dismissal on grounds of disability which, in the light of the obligation to provide reasonable accommodation for people with disabilities, is not justified by the fact that the person concerned is not competent, capable and available to perform the essential functions of his post.

3.           Sickness cannot as such be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination”.

4.5         The respondent refers to the case of Sebastian Zdanowski V Des Watchthorn DEC-E2017-034 (Appendix 15) where the Equality found that “It is clear that the only medical related evidence submitted by the complainant in support of the contention that he had a disability within the meaning of the Acts were two medical certificates from his GP relating to the period of his sick absence in August, 2015 which indicated that he was unable to attend work due to tonsillitis. The complainant also submitted a letter from his GP which was addressed to the Department of Social Protection dated 15th September 2015 (i.e. after the termination of his employment) referring to his period of sickness in August 2015 due to a sinus and chest infection”.  In dealing with the issue of whether or not ‘illness’ constitutes a disability the Equality Officer found that “The issue concerning whether or not an illness or sickness can constitute a disability within the meaning of Section 2(1) of the Acts has been the subject of much consideration by both the Equality Tribunal and the Labour Court in recent years. The Labour Court held in the case of Cregg Labour Solutions Limited t/a Cregg Group –v- Gerard Cahill (Appendix 16) that “the definition of “disability” in Irish law, which preceded the Directive is sufficiently broad to cover certain types of illness although clearly it would be absurd to suggest that all forms of sickness could properly be classified as a “disability”. Whilst I accept that the definition of disability in the Acts is wider than that in Directive 2000/78/EC (which establishes a general framework for equal treatment in employment and occupation), I attach importance to the judgement of the CJEU in the case of HK Danmark –v- Dansk Almennyttigt Boligselskab where it was held that “that the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one”. In applying this test to the context of the present case, I am not satisfied that the complainant has demonstrated that the illnesses or sickness affecting him at the material time were of such a nature to constitute a disability within the meaning of paragraphs (a) to (e) above. Accordingly, I find therefore that the complainant is not covered by the disability ground this element of his complaint cannot succeed. The respondent submit that the medical certificates issued by the claimant’s own doctor indicated he was suffering from “illness” which is not a disability. 

Furthermore, the respondent’s efforts to make a full enquiry as to the claimant’s medical condition, in line with their own procedures and in accordance with the recommendations of the Labour Court in Humphreys V Westwood Fitness Club, EED0037, by arranging four medical appointments with the company doctor were thwarted by the claimant’s failure to communicate with the respondent and failure to attend any of these appointments.

4.6         Victimisation as defined in S74(2) of the Employment Equality Acts (EE Acts) is set to protect employees who seek redress under the Act, support a complainant, or give evidence in proceedings, by prohibiting their being victimised by dismissal or other penalty for doing so. Victimisation takes place where an employee is dismissed or suffers adverse treatment by their employer as a reaction to a protected act such as:

Making a complaint of discrimination

Being involved in a claim under the EE Acts either in the Workplace Relations Commission or in the Courts

Representing or supporting a complainant

The work of an employee having been compared with that of another employee for any of the purposes of the EE Acts (i.e. the employee who was the comparator)

Acting as a witness in any proceedings under the EE Acts or Equal Status Acts

Opposing by lawful means an act which is unlawful under the EE Acts

Having given notice of an intention to take any of the actions mentioned above

4.7         In order to be successful in a claim that an individual has been victimised, a claimant must establish that they have taken one or more of the protected acts listed above in relation to discrimination and have subsequently been subjected to adverse treatment by their employer as a result. 

4.8         The respondent submits that the claimant did not take any of the protected acts as listed prior to his dismissal.   The respondent submits that the claimant’s dismissal was solely for failure to comply with a legitimate management instruction during the probation period.  Section 28 of the Company Union Procedural Agreement states that “During the probationary period employment may be terminated without recourse to the Grievance or Disciplinary procedures”.

4.9         Harassment is defined in section 14A (7) of the Employment Equality Act as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.  In the letter from the claimant’s solicitor it would appear that the allegations of harassment arise from the respondent attempting to make direct communication with their employee in attempting to manage a period of medically certified absence from work.  The respondent submit that their actions were in line with those prescribed in the Company Union Procedural Agreement in attempting to have the claimant attend an occupational health assessment and thereby could not be considered as harassment.

4.10Reasonable Accommodation

 The concept of reasonable accommodation, provided for in the Employment Equality Acts 1998 to 2015, recognises that the inherent characteristics of disability and its accompanying impairment can result in individuals with disabilities having difficulties in performing the job or functions of the job in a traditional or conventional manner. This manifests itself in the form of barriers which, without an obligation being placed on employers to provide reasonable accommodation, could lead to individuals with disabilities being excluded from the labour market. Reasonable Accommodation allows for employers to take account (on an individual basis) of relevant characteristics of their employee/prospective employee and by doing so making changes, to allow the employee concerned to do the work. The respondent if fully aware of their responsibilities and obligations arising from section 16 of the Employment Equality Acts to do all that is reasonable to accommodate the needs of a person with a disability.  Indeed, the respondent has in several cases made such reasonable accommodations in the past to ensure employees with a disability can fully participate in work.

However, the issue of reasonable accommodation does not arise as the claimant’s contract was terminated not on the grounds of capability but on the grounds of misconduct and failure to comply with reasonable management requests to attend an occupational health assessment.

Complaint under the Safety , Health & Welfare at Work Act 2005-CA-00018442-001

 5.0        Section 27(1) of the 2005 Act provides that penalisation ‘includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.’

Furthermore, the detriment must be consequent on one of the six actions under s.27(3).

Section 27(3) is as follows: -

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c)          making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d)         giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e)         being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f)          subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

5.1         The claimant’s submission does not identify which sub section of the Act his case relies upon.  If the claimant’s claim relates to making a complaint to the employer as per s.27(3)(c), we note that ‘complaint’ is not defined in the 2005 Act.  The reference to complaint under s.27(3)(c) must therefore be given its literal meaning and in the context of the employment relationship, and specifically a complaint to an employer, such an action should be considered to have been taken when evidenced only as a grievance of a safety and health nature having been made to the employer.

So far as this claim is concerned, the Complainant made no complaint as envisaged by section 27 to his employer.

5.2         In Microsemi Irl Ltd Dominik Anndrezekczak HSD 1313/2013 (Appendix 17) the Labour Court stated that “It is clear from the language of this section that in order to make out a complaint of    penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the determent giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment”.    

The respondent submits that if the Adjudicator finds that the claimant’s solicitor’s letter of 19 September 2017 amounts to a complaint under s.27(3)(c) that his dismissal was not ‘imposed’ for having committed such an Act but, as stated, for his failure to adhere to the terms of his probation period.

 Summary of Pertinent Evidence  of Mr.A

Mr.A -   production supervisor-  clarified the claimant’ s assignment  which involved lifting off at the end of a packing line. The claimant had only started  3-4 weeks and was working a 3 day week. Mr.A stated that he told the claimant when he enquired that he could report the accident to him – he asked the claimant was he ok and the claimant replied he was fine. Mr.A  asked him to show him what happened and an accident report form was filled out at reception. The witness said he did not force the claimant to return to work – they went down to see where it happened and the claimant said to him “ it would take more than that to knock me down”.Mr.A said he went back to the claimant several times to see how he was and he never  said anything was wrong. At lunch time the claimant said he was going home and he was too sore and Mr.A said he would get Ms.A for him. Mr.A said he followed the claimant to reception and got him a seat and a glass of water  until Ms.A arrived. The claimant’s wife arrived to collect him and Ms.A told him she would give him a call later.

Under cross examination , the witness confirmed that the claimant said he wanted to report an accident. He stated that the claimant said he got hit by a stack of pallets – it happened in the fridge. When asked if he remembered going to the canteen , the claimant replied his memory was they went to reception. The witness  went to get Ms.A to look at the injury. It was put to the witness that the claimant would say the conversation took place in the canteen – the witness replied  that’s incorrect. The claimant did not recall the reference by the claimant to the advice the witness gave   regarding a bag of peas – the witness was a marathon runner. The witness stated that he spoke to Mr.L and he told him  he did not touch the claimant. He phoned Ms.A and told her. The witness said that the claimant said to him he only wanted to report it. He  repeated his contention that the claimant said “It would take more than that to knock me down”. The witness said the claimant continued working and seemed fine. The witness said the driver told him it never happened. The witness said he knew nothing about the cctv cameras. The witness recalled the claimant complaining of pain – he said Ms.A offered to get help but could not recall if she offered a doctor. He said Ms.A offered to get the claimant a lift home but his wife was on the way to collect him. According to the witness the claimant was nt in great  pain everytime he asked him. It was put to him that there was medical evidence that the claimant was hit , the witness replied “ he might have been like”. The witness advised that Ms.A normally filled in the accident report form .The witness denied telling the claimant to go back on the line. The witness confirmed that Mr.L was still in the employment of the respondent. He stated that when he spoke to Mr.L he told Ms.A that Mr.L denied  hitting the claimant and she came down to speak to Mr.L.

Summary of Pertinent evidence of Ms.A

The witness gave an outline  of her career with the company and presented an overview of the claimant’s induction and training including information on who   he would contact within the employment if he was absent. She referenced the company/union agreement on terms and conditions of employment and the claimant’s representative asserted that the claimant was never furnished with a copy of same. Unite represented the workers in the company  and it was suggested that there was agreement between the parties on the absence management policy. If absent or late there was a requirement to contact your supervisor. She advised that Mr.A had told her about the incident  and said that the claimant wanted to report it. She denied  the claimant’s allegation that she  referred  to him getting a whack and denied making  any reference to cctv footage .She denied telling the claimant he had to return to work. She explained that she was a qualified first aider and told the claimant to remove his boot. She tried unsuccessfully to get an appointment with  a doctor. She asserted that she told the claimant she would keep in touch and tried to make contact with him  on the 14/15th.Sept.

The claimant was  not due to work on Friday .She was unable to get a reply and heard from the claimant at 10.20  the following Monday.He did not contact the company 30 mins before starting time as was required. When she made contact and asked how he was he said he had attended the doctor and his son had being playing with his phone. The claimant told her he had a lot of paperwork for her to sign. She asserted he walked upstairs and met her in the meeting room – she recalled he had a slight limp – he said he could not go to the doctor because he had no child minder. She stated that Mr.K did not sign the paperwork as the investigation was being carried out. The witness set out the ensuing correspondence issued to the claimant about an appointment with Occupational Health. The witness did not recall the claimant saying he could not make the occupational health appointments. The witness referenced the letter she received from the claimant’s solicitor asking  to be notified of any fresh appointment with at least one weeks notice.The witness said she found this strange as normal practise was that absence was dealt directly with management. The witness said she did not review the cctv and did not tell the claimant he had to return to work. The witness said that the claimant did not contact her to say that the notice to attend occupational health was insufficient – “ not that she recalled”.

Under cross examination the witness  said she had access to the cctv , that she returned to check it and discovered the camera was not working. She denied referring to the claimant getting a fair whack and said this was not a phrase she would use. The claimant did not know at what point in the investigation  the exchange with Mr.L  emerged. It was put to her that the claimant was unaware of any investigation .When asked if she gave evidence , the witness replied we were awaiting a medical report but the claimant had not attended the doctor.

She said we spoke to a few people but was not sure if the claimant had been approached. It was put to her that she never came back to the claimant  and was that not correct – she replied yes. The witness could not recall if the claimant complained about pain when he took his shoe off – she said it was a while ago  and I don’t recall. She accepted that it was fair to say if someone wants to go home they were  talking about pain. The claimant then said “I cant recall if he told me about pain”.The claimant was not due to work on the Friday. The witnesss said she tried to call the claimant on Thursday , Friday and Monday and when he called on the Monday she enquired how he was and he told her he had a lot of paperwork that he wanted completed – she did not recall asking the claimant how long he would be off.

She denied a change in management’s attitude to the claimant and asked why would I treat him any different to anybody else. The witness was asked if she recalled saying during the meeting that the accident never happened – she replied I’m not sure. The witness said that this wasn’t said as they could not determine if an accident occurred. When it was put to the witness that Social Welfare were informed that no accident occurred – she replied it must have been Mr.K. She said she did not deal with Social Welfare .When it was put to her that Mr.A accepted the accident happened she replied we couldn’t confirm it as the investigation was ongoing. The witness confirmed receiving the claimant’s sick certificates .

She confirmed she sent the claimant a letter asking him to be assessed and she replied it was normal practise to send someone to a doctor .She said when an accident was reported it was common practise to refer someone to Occupational Health. She was  asked which provision of the company procedure required someone to attend occupational health she replied it doesn’t say it but it is company practise. She advised that it may not be documented but that everyone on site knows about going to the company doctor .The witness denied that workers on probation are dealt with differently to others .She reiterated its normal practise to send an employee on probation and accepted that this was not in the policy.

The witness stated that she thought 24 hours notice was sufficient in the context of  her letter of the 18th.Sept.  and  was referred to the requirement  that the claimant’s wife would have to take leave. She accepted she would give notice herself and was asked why the claimant was any different .The witness was asked if at any point she considered picking up the phone and saying to the claimant if that appointment does not suit I will make another appointment. She replied this did not occur to her. The witness insisted the company would always write to everybody .

The witness  was unclear as to whether the company’s insurers  were informed of the accident. The witness confirmed completing a Near Miss report dated 20.Sept. 2017.The witness advised that she was unaware that the claimant had pursued a claim to PIAB – an assessment of the injury was undertaken and the case was settled .It was submitted that it was  extraordinary that 4 witnesses had said an accident did not happen and that the company would settle at that point. The witness said “I don’t know how they work”. It was put to her that she had seen the footage and the accident and that was why the company settled the complaint.

The witness was questioned about the letter of the 26th.Sept. requesting the claimant  to attend the company doctor which was delivered at 11.45am on Sept, 27 with less than 24 hours notice.She replied we don’t contact employees off sick over the phone. She  advised it was standard practise to go to a doctor – it was pointed out the claimant was  on his first week of sick leave. It was put to the witness that this was written nowhere and that the witness was making it up on the spot. It was put to the claimant that the letter of the 26th.Sept was wrong as the claimant was not on uncertified sick leave and she replied that was correct. She accepted she was wrong about the cert having expired .It was put to her that the employer had decided the complainant  was going to go one way or another to which she replied no.The witness said circumstances differ depending on the individual .The witness did not respond when asked if at any point she had phoned the claimant , carried out an assessment , reviewed the prospect of light duties. The witness was asked where in the company procedure was there a requirement to attend the company doctor and the witness responded “It does n’t say it but its company practise”.-“It may not be documented but anyone on site goes to a company doctor”.

  When questioned about the capacity of a driver to see while transporting 7 pallets , the witness responded she was unsure.

  The witness was unable to recall whether or not the claimant had called her to advise of the unsuitability of the appointment with the company doctor. The witness said “ I don’t think he contacted me”.The witness indicated that the claimant was able to resume work on the line – the witness asserted that no one could confirm that an accident had taken place .When asked why she did not ring the claimant  about the medical appointment , the witness responded it was company policy that we don’t contact workers by phone. The witness was unable to  recall when the decision was made to refer the claimant to the company doctor. She reiterated the referral to a company doctor was not a policy but a practise. The witness was unclear with respect to when she reported the defective camera. The witness confirmed to her representative that she had offered a taxi for the claimant when the appointment was organised for Dr.C. It was pointed out that the part of the incident report from completed by the claimant made no reference to overloaded pallets. The witness said the claimant filled out his part and then she completed the form .The witness was unsure who made the report to the DSP regarding the accident .She asserted the Health & Safety Manager  had all of the information  about the cctv arrangements and the replacement company that had taken over security .The witness said they discovered the deficient camera when they went to look at it on the day of the incident.

 The witness advised that the invoice date  for the security company’s involvement in repair of the cctv system was dated the 13th.October – she stated that it had been  issued by the old company  and there  was now a new security company in place. She stated  that she discovered the camera was not working the day of the incident – 14th.Sep. 2017 – the camera was not repaired on the day but possibly the following week. She  said Mr.K and Mr.G dealt with this and she was unsure when the camera was fixed. The witness was unsure as to whether Mr.K was asked to attend to give evidence. The witness said the new security company came on board on April2020.The witness said there was no link between changing of security companies. The witness referenced an ongoing  investigation and indicated she could not sign the incident report form while the investigation had yet to be completed .The witness said she completed the investigation form as a matter of good practise .When asked if she was part of the investigation or not , the witness replied “ yes at the start” – she filled out the form. In answer to her contention that she could not fill out the form because of the ongoing investigation , the witness said the investigation was still ongoing – she stated we asked him to attend the doctor and he would not – it was referred to Mr.K and HR. She was not sure of the conclusions – she said T would know.  She suggested the conclusions would be referred to the Health & Safety Manager. When asked if anyone made a report to the Health & safety Authority after the accident  she replied T might know. The witness was unaware if the matter had been referred to the company engineer. The witness was unable to clarify why the accident report forms did not refer to the evidence of the 4 witnesses  and the problem with the cctv camera.

 The witness confirmed that none of the letters issued to the claimant from the company referred to dismissal if he did not attend the company doctor and she confirmed that no procedure was invoked with respect to the claimant. She stated she was not involved in the letter of dismissal which made no reference to the appeals procedure.

Summary of pertinent evidence of Mr.B

 The witness confirmed that the letter sent by the claimant’s solicitor to the respondent was referred to him for advice and he wrote the response dated the 10th.October 2017.The witness said that when he received the reply from the claimant’s solicitor on the 19th.Oct he was completely taken aback. He confirmed he had an input into the letter of dismissal– it was issued as a result of the claimant’s failure to adhere to all requests to attend to company doctor. The witness stated that the claimant had refused to attend 4 appointments and the witness referenced the plant procedural agreement which he stated deals with lack of adherence to disciplinary procedures. He suggested someone was avoiding a medical appointment and he viewed the request by the claimant’s solicitor for a weeks notice as an indication that a person did not want to attend a company doctor. He said there was no challenge to the letter of dismissal. He stated that the representation of the dismissal as penalisation for making a personal injuries complaint as “ nothing could be further from the truth”. He passed the PIAB referral to the insurance company and signed off on the settlement terms in conjunction with the insurance company. Accidents at work were not unusual  and “ would not put the company up or down”. The witness stated that he would not regard the claimant’s injury as a disability .He confirmed that the company had 6-7 workers off on long term sick leave and referenced the procedural agreement and the provisions contained therein regarding termination of employment  without recourse to disciplinary procedures during probation.

 Under cross examination the claimant advised that he was   unaware of who provides the cctv equipment – he was told that the camera was not working in that area at the time. He was unaware of when the system was fixed. He stated that no one in the area witnessed the accident .When asked if he accepted that the claimant was hit by a pallet truck he replied that any witness in the area did not see the accident. He said “ I can go on my instructions “  from the Site Manager and nobody in the area witnessed the accident. The witness advised that he passed the PIAB correspondence to the Insurance Company – the Operations Manager  deals with the Insurance company and consulted him on it. The witness said he was an inhouse counsel -and the assumption that he would go looking for an accident report form was inaccurate – he deals with the commercial side. When he referred the claim to the insurance company , they instructed him to pay the check – the check came from Aurivo and the company was reimbursed. It was put to the witness that if the company had 4 witnesses denying the accident happened – the company would not accept a PIAB assessment. It was put to the witness that he settled the case on foot of instructions that the accident did happen and this could be the only logical reason or settling. It was asserted by the claimants representative that Ms.A  saw the cctv and it provided evidence of the accident having happened. When questioned about the engineers report and visibility with pallets , the witness responded that he was not qualified in Health & Safety or engineering and did not see the engineer’s report .

 When questioned about his evidence that the claimant was not dismissed because of a disability , the witness said he would not classify the claimant as being disabled . – he was asked if that was his legal opinion and replied he would see a disability in the realm of a long term illness. When asked if this was what he advised the  company the witness said he wrote  letters and could not recall if that had been his advice – he could not recall giving a legal opinion. When asked if he advised the company on the claimant having less than a year’s service , the witness said the matter did not arise – it was dealt with by an experienced  HR  company. The witness confirmed he was aware that the claimant had raised an issue re disability and injury at work . The witness confirmed he was involved in scripting the latter of dismissal. The witness confirmed that he did not check if the claimant had been furnished with a copy of the plant procedural  agreement. He said HR and local managers looked after that. It was put to the witness that despite the claimant having raised the question of a disability , the witness did not think the claimant had a leg to stand on and that in conjunction with HR they decided to get rid of him – the claimant. The witness could not clarify how many other persons were sent for a medical appointment after an absence of one week and the witness replied he did not anticipate the level of detailed information  that was now  being sought. The witness confirmed he had seen the company submissions  and was referred to paragraph 4.3 and the reference to the claimant communicating only through his solicitor. The witness replied it was unfortunate that the claimant would not communicate directly with the company. He indicated that the preference would be to deal with the individual off sick or ill rather than having to deal with a solicitor. The claimant’s representative chronicled the letters regarding the appointments with the company doctor and asked the witness if he accepted the company was unreasonable in not giving sufficient notice and failing to take account of the requirements of his wife to have notice – the witness responded that is why we set up 4 appointments.

 The witness was unable to clarify the reasons for the long term absence of 6-7 workers in the plant or if they had been requested to attend a medical appointment within a week.

 The respondent’s representative asserted that the claimant’s  representative had misrepresented the submissions in par4.3 – he said it was expected that the claimant would deal with the company directly  and this was integral to keeping the lines of communication open between the parties.

In summing up the respondent’s representative submitted that the complainant’s injury did not amount to a disability  and that this was supported by the evidence of Dr.S when he referenced a 6 week recovery period. Sustaining a minor malfunction of a body part was it was submitted not sufficient to amount to a prima facie case. The claimant had admitted in his own evidence that he returned to work  a number of weeks after the incident. It was submitted that it was reasonable for the respondent to  dismiss the claimant for  failing to attend the medical appointments and refusing to keep in contact with the company. Any issues with respect to reasonable accommodation only arise when someone is ready to return to work. Ms.A had clarified in her evidence how the company responded to workplace accidents. It was submitted that a prima facie case had not been established. A distinction should be drawn in circumstances where in patient treatment was required. In this case , the complainant resumed work within a matter of weeks. It was submitted that the payment arising from  the PIAB referral was based on calculation of loss over a 7 week period. The dismissal it was submitted took place for the reasons set out in the letter of dismissal – probationary status and failure to attend the company doctor on four occasions. The collective/procedural agreement which provided for the clauses regarding probation had been agreed with the trade union UNITE. It was submitted that the claimant was given time to reorganise appointments. He persisted in refusing to attend and it was on those grounds and those grounds only that the dismissal was effected.

It was submitted that in order to sustain a complaint under the Safety , Health & Welfare at Work Act , one must suffer  detriment for having made a complaint. It was submitted that the operative clause “ but for” was significant in this context. It was argued that no such complaint was made out. The party was required to establish the detriment suffered for having committed a protected Act. The provisions of Microsemi Ireland t/a Microsemi Ireland  and D Andrezekczak were invoked in support of this contention. It was submitted that the procedural aspects were not at issue in the context of the Health Safety & Welfare at Work Act. Based on the plant procedural agreement the respondent felt they could terminate the claimant’s employment without recourse to disciplinary procedures. It was submitted that it was in no way influenced by reference to PIAB. It was contended that if the complainant had complied with the occupational health appointments it was most likely that his employment would not have been terminated. It was advanced that to sustain a complaint of detriment , Toni & Guy had set a very high threshold.It was submitted that the company had provided sufficient evidence to demonstrate that the reason for dismissal was the claimant’s failure to attend the medical appointments offered.

Complaints under the Employment Equality Acts  CA-00018476-001

FINDINGS & CONCLUSIONS

 The complainant claims that he was subject to discriminatory dismissal on the grounds of disability contrary to Section 8 of the Employment Equality Acts .He contends that the respondent failed to provide him with reasonable accommodation contrary to its obligations under Section 16 of the Employment Equality Acts. The complainant further claims that that he was subject to victimisation  contrary to Section 74(2) of the Employment Equality Acts.The complainant alleges that the respondent was in breach of the Act for harassing him.

Central to  these complaints are 2 polarised versions of events with respect to the workplace incident at the claimant’s work on the 14th.September 2017.On the one hand , the complainant argues that a workplace accident occurred , that he was injured in the course of same and arising  from which he acquired a disability as defined under the Employment Equality Act , that the plant manager confirmed she witnessed the accident on cctv  and that the accident was witnessed by a number of his colleagues .The claimant’s representative has submitted that when the claimant met with the Plant Manager and his line manager the following week , the respondent had done an about turn   and  was  now asserting that there were no witnesses to the accident and that the plant manager did not witness it or view it on cctv as the camera for the refrigerated area where the claimant was working was out of order. The claimant’s representative has submitted that the company were not acting in good faith , that the claimant’s  version of events was true and accurate and that the company decided they were going to get rid of the complainant because of his disability and were penalising him and victimising him for having made a complaint. It was further contended that respondent treated the complainant unlawfully  by discriminating against him in failing to give him reasonable accommodation  for a disability.

The respondent’s representative denies the claimant’s allegations with respect to the witnessing of the event and categorically denies the assertions on the claimant’s part to the effect that he was dismissed on the grounds of discrimination based on his disability. They contended the claimant was dismissed because he failed on 4 successive occasions to report for an independent medical and failed to comply with the company procedural agreement in this regard and that said agreement provided for dismissal during probation without recourse to grievance or disciplinary procedures. The respondent asserted that the issue of reasonable accommodation did not arise as the employment was terminated not on the grounds of capability but on the grounds of misconduct  and failure to comply with reasonable management requests to attend for an occupational health assessment.

   I have reviewed the submissions made , the authorities relied upon by the parties  and the evidence of the witnesses. While noting that the claimant exaggerated the advice from his GP with respect to the projected recovery time for his injury – the complainant  told the plant manager it could take up to 6 months while the GP confirmed in his evidence that he would not have predicted that time frame and he would have said a couple of months – I found his account of the accident and the ensuing interactions with his line manager and plant manager to  be persuasive  . I found the evidence of the plant manager to be evasive and inconsistent  and am obliged to take account of the fact that the company repeatedly asserted that none of the claimants 4 work colleagues witnessed the incident. Notwithstanding this It was open to the Respondent to request the workers who were on site at the time of the incident on the date in question to attend the hearing to give evidence in relation to the matter. However, the Respondent neither produced any such witnesses at the hearing nor did it provide an indication of any attempts made to request the attendance of such persons.Additionally  I am taking account of the evidence of the complainant’s GP who gave evidence of the injury to the Achilles tendon and of the documentary evidence from A&E at Letterkenny General Hospital confirming the injury.The credibility of the respondent’s witnesses has been undermined by their failure to give a plausible explanation for their  / their insurers settlement of  the case with PIAB in circumstances where they were asserting that they had 4 witnesses who were on site but did not witness the incident. Furthermore , the evidence of the respondents witnesses with respect to the undertaking of what appears to have been an incomplete investigation casts further doubt on their version of events.This has been compounded by the reports  by the company to Social Welfare  as set out in the DSP correspondence of the 25th.Oct. 2017 that …” we wish to let you know that your employer has stated that s/he has received no report of an accident involving you “.

Complaint of Discriminatory Dismissal

The complainant submits that he was dismissed because of the injuries sustained in an accident at work on the 14th.Sept 2017 and contends that the injuries amount to a disability within the meaning of the Act.I have considered all of the authorities submitted on behalf of the parties with respect to the matter as to whether the injuries constituted a disability within the meaning of the Act.In this regard , I found the deliberations of the Labour Court in EED0317 to be particularly pertinent and relevant.The temporary nature of a disability is explored in extensive detail and comparisons are drawn between different definitions of disability in the US legal system and the  Irish legislation which it was submitted was modelled on Australian statute.

The complainant’s representative submitted that his injuries amounted  to a temporary malfunction  and consequently fell within the definition of disability.The respondent for their part contended that the injury was temporary and relatively minor and consequently did not meet the definition of a disability . In the foregoing case , relied upon by the complainant , the Court states :

“It is settled law that where a statute defines its own terms and makes what has been called its own dictionary , a Court of Tribunal may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. Furthermore , if there is nothing to modify , alter or qualify the language which the statute contains , it must be construed in the ordinary and natural meaning of the words and sentences used.

Applying these well-known principles of statutory construction , it is clear that the term disability must only be given the meaning ascribed to it by Section 2 of the Act. It would be impermissible for the Courts to rely upon a definition derived from any other source , including the American authorities to which it was referred by the respondent .Further , in construing the plain language used in this definition , words must be given their ordinary and natural meaning.

Taking the ordinary and natural meaning of the term malfunction , ( connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body .It thus constituted a disability which existed but no longer exists , it is clear that a temporary malfunction comes within the statutory definition.

For all of the foregoing reasons , the Court has no doubt that the complainant’s condition amounted to a disability within the meaning of the Act “.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.   If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.   In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

 I heard  extensive oral evidence from the Complainant and the Respondent (Ms.A ) and both parties were afforded the opportunity to examine and cross-examine each other’s evidence as part of the hearing.

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.

The first issue that I will consider relates to the claim of discriminatory dismissal on the grounds of disability. Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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) ...”. Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ...   that one is a person with a disability and the other either is not or is a person with a different disability”.

The claimant presented medical evidence through his GP and documentation from A& E at Letterkenny University Hospital confirming his injuries which I am satisfied  come within the definition of disability under the Act.I believe this is consistent with the principles set out by the Labour Court in EED0317. The complainant engaged with the respondent through his solicitor – while I acknowledge the expressed preference of the respondent for workers to engage directly in relation to matters of terms and conditions of employment , in this case I find the complainant’s position was not unreasonable in circumstances where he contended that the respondent did an about turn with respect to the accident and events leading up to and post the accident. The claimant’s contention that he did not trust the respondent is plausible in such circumstances. The complainant did not refuse to attend for a medical but required advance notice because he was relying on his wife for transport. He was submitting sick certificates from his GP. The complainant was dismissed on the 3rd.November “ due to repeated failure to comply with company procedure ….”.

  I acknowledge that the claimant was not cooperating with the respondent’s request to attend a medical .I also acknowledge that the company was imposing a requirement to attend occupational health in circumstances where certificates were being presented and no evidence was advanced either documented or otherwise to support the employer’s contention that this was common practise and applied across the board to other  workers without a  disability or with  a different disability. No satisfactory explanation was presented to justify the company’s failure to  communicate with the claimant by telephone in an effort to agree an appointment with Dr.C. No plausible explanation was advanced for the company’s failure to seek to obtain permission from the claimant to liaise with his GP. While I acknowledge the  procedural agreement provided that dismissal of probationers was permissible without going down the disciplinary route , no evidence of having furnished the claimant with the procedural agreement was advanced. The fact is that the company gave the claimant no warning that his job was in jeopardy if he failed to go to Occupational Health. The company produced no evidence to demonstrate that any of the claimant’s colleagues without a disability or with a different disability were  similarly dismissed. The evidence of the respondent’s witnesses with respect to the cctv footage  and subsequent repairs/replacement was vague and inconsistent and consequently I prefer the complainant’s version of events.

In all of the circumstances I find the claimant  has produced a prima facie case of discrimination on the grounds of disability which the respondent has failed to rebut.

I uphold the complaint .

Complaint of Victimisation

  The complainant states that he was subjected to victimisation contrary to Section 74(2) of the Acts

  Victimisation is defined as : (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

I have considered  the  correspondence between the claimant ‘s representative and  the respondent  from the date of the initial incident on the 14th.September 2017 to the date of dismissal on the 3rd.November 2017.I have noted that in his evidence the complainant chose not to engage directly with the respondent and issued instructions through his solicitor. While I note that the documentation references generic proceedings  and complaints to the Injuries Board , bullying and victimisation , I find no evidence of the respondent being put on notice of a claim of discriminatory treatment under the Employment Equality Act 1998- 2015 prior to his dismissal on the 3rd.November 2017.Consequently , I do not uphold the complaint of victimisation.

Complaint of failing to provide Reasonable Accommodation

It was submitted on the claimant’s behalf that the respondent failed to comply with any of the procedures set out by the Labour Court in EED0037  A Health & Fitness Club -v-A Worker  wherein the Court determined that before coming to any decision regarding capacity , the employer would normally be required to  make adequate enquiries so as to establish fully the factual position  in relation to the employee’s capacity. It further determined that the employer should ensure that he/she is in full possession of  all of the material facts concerning the employee’s condition and the employee must be allowed an opportunity to influence the  employer’s decision. It goes on to set out the need to examine the medical evidence and the amended facilities that may be required.

The respondent for their part  contended that  the issue of reasonable accommodation does not arise as the claimant’s contract was terminated not on the grounds of capability but on the grounds of misconduct and failure to comply with reasonable management requests to attend an occupational health assessment.

Having considered the submissions made and the entirety of the evidence I find that the employer was not in a position to evaluate the matter of reasonable accommodation in circumstances where the complainant had not attended for an occupational health assessment   at any time prior to his dismissal. While I acknowledge the complainant’s arguments  with respect to the reasonableness or otherwise of the respondent in making the appointment  arrangements for an occupational health assessment  , I find no breach of Section 16(3) of the Act arose given the timeline of events as set out above.

Complaint of Harassment. Harassment is defined in section 14A (7) of the Employment Equality Act as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

The chronology of events indicates that the claimant met with  the respondent’s representatives on the Monday the 18th.September  following the accident .Having considered the claimant’s account of the meeting I find no compelling evidence of conduct by the respondent’s representatives was advanced  that met the definition of harassment as set out above  .I have considered the ensuing direct correspondence from the respondent to the claimant of the 18th.September and the 26th.September regarding  attending the company doctor  and find that the company was entitled to write to the claimant to request attendance  for a medical assessment by the company doctor. While I accept and it was acknowledged in Ms.A’s evidence that she was incorrect in describing the claimant’s absence in her letter of the 18th.Sept. 2017  as unauthorised absence , I do not accept that that error fell within the definition of harassment under the Act.

I do not uphold the complaint of harassment under the Act.

Safety , Health & Welfare at Work Act 2005 CA-000184442-001

It was submitted on behalf of the complainant  that”  he was penalised by way of being unfairly dismissed for notifying his employer of his being injured in the workplace and notifying them of his intention to take a claim for personal injuries suffered. In doing so, he made a complaint about his health and safety at work”.   The respondent contended that so far as this claim is concerned, the Complainant made no complaint as envisaged by section 27 to his employer.  was further submitted  that if the Adjudicator finds that the claimant’s solicitor’s letter of 19 September 2017 amounts to a complaint under s.27(3)(c) that his dismissal was not ‘imposed’ for having committed such an Act but, as stated, for his failure to adhere to the terms of his probation period.

The Law

Section 27 of   the Safety, Health and Welfare at Work Act, 2005, states:

“(1) In this section “penalisation”   includes any act or omission by an employer or a person acting on behalf of   an employer that affects, to his or her detriment, an employee with respect   to any term or condition of his or her employment.

(2) Without prejudice to the generality   of subsection (1), penalisation includes –

(a) suspension, lay-off or dismissal (including a dismissal within the   meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of   suspension, lay-off or dismissal,

(b) demotion or loss   of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in   wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a   financial penalty), and

(e) coercion or   intimidation.

(3) An employer shall not penalise or   threaten penalisation against an employee for –

(a) acting in   compliance with the relevant statutory provisions,

(b) performing any  duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety   representative or employer or the Authority, as regards any matter relating   to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the   relevant statutory provisions,

(e) being a safety representative or an employee designated under section   11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the   employee reasonably believed to be serious and imminent, and which he or she   could not reasonably have been expected to avert, leaving (or proposing to   leave) or, while the danger persisted, refusing to return to his or her place   of work or any dangerous part of his or her place of work, or taking (or   proposing to take) appropriate steps to protect himself or herself or other   persons from the danger.”

Section 27(5) of the Act states:

“(5) If penalisation of an employee, in   contravention of subsection (3), constitutes a dismissal of the employee   within the meaning of the Unfair Dismissal Acts, 1977 to 2001, relief may not   be granted to the employee in respect of that penalisation both under this   Part and under those Acts.”

In the   instant case, the Complainant claims that he was subjected to penalisation by   the Respondent contrary to Section 27 of the Act by dismissing him in   circumstances where it was aware that he had injured himself at work .

The   Respondent disputes the Complainant’s claim that he was subjected to any act   of penalisation contrary to the Act. The Respondent submits that the   Complainant did not commit an act protected by subsection (3) of Section 27   and did not impose a detriment on him because of, or in retaliation for   having committed a protected act.

The Act is silent on the question of who the burden of   proof should be allocated to as between the parties. In the case of Toni   & Guy Blackrock Limited -v- Paul O’Neill[12]   the Labour Court held that: “it seems to the Court that a form of shifting burden of proof, similar to   that in employment equality law should be applied in the instant case. Thus,   the Claimant must establish, on the balance of probabilities, that he made   complaints concerning health and safety. It is then necessary for him to show   that, having regard to the circumstances of the case, it is apt to infer from   subsequent events that his complaints were an operative consideration leading   to his dismissal. If those two limbs of the test are satisfied it is for the   Respondent to satisfy the Court, on credible evidence and to the normal civil   standard, that the complaints relied upon did not influence the Claimant’s   dismissal.”

I am satisfied that the aforementioned test as outlined by   the Labour Court in relation to the shifting of the burden of proof is   applicable to the present case.

The issue of whether or not the Complainant committed a   protected act within the meaning of Section 27(3) of  the Act was in dispute   between the parties. The Complainant gave   evidence of his engagement with his line manager and plant manager on the day of the accident. The evidence of both managers supports the claimant’s contention that he reported the incident to them.

Section 13(1)(h)(i) of the Act provides that an employee has   a duty to report to his or her employer any defects in the place of work or   the systems of work which might endanger the safety, health and welfare at   work of the employee or that of any other person. I am satisfied that the complainant’s reporting of the incident meets the definition set out in Section 27 ” making a complaint or representation to his or her safety   representative or employer or the Authority, as regards any matter relating   to safety, health or welfare at work”, Accordingly, I find that the Complainant’s actions in this   regard constitute a protected act within the meaning of Section 27(3)(a) of   the Act.

The Labour Court has held in the case of Toni   & Guy case that: “It is clear from the language of this   section that in order to make out a complaint of penalisation it is necessary   for a claimant to establish that the determent of which he or she complains   was imposed “for” having committed one of the acts protected by subsection 3.   Thus, the detriment giving rise to the complaint must have been incurred   because of, or in retaliation for, the Claimant having committed a protected   act. This suggested that where there is more than one causal factor in the   chain of events leading to the detriment complained of the commission of a   protected act must be an operative cause in the sense that “but for” the   Claimant having committed the protected act he or she would not have suffered   the detriment. This involves a consideration of the motive or reasons which   influenced the decision maker in imposing the impugned determent.”

Therefore, in order to make out a complaint of   penalisation contrary to the Act, it is necessary for the Complainant to   establish that the detriment which he has complained of was imposed “for” having committed the   aforementioned protected act. The detriment claimed by the Complainant is   that he was dismissed from his employment as a result of having made the   complaint about health and safety in the workplace.

It was common case that the Complainant’s employment was   terminated by the Respondent in November 2017. However, the actual reason why   the Complainant’s employment was terminated was very much in dispute between   the parties. The respondent reiterated the probationary status and the failure to attend for a company medical in accordance with procedures as the basis for termination of the complainant’s employment. In light of the chronology of events leading up to the dismissal as outlined in the foregoing paragraphs , the manner in which the situation was managed by the respondent   post the accident, the denial to the Dept of Social Protection that any accident occurred ,   and having regard to the respondent’s failure to conclude an investigation into the incident as detailed   in the testimony of the line manager and the plant manager  , I must conclude   that the reporting by the claimant to his line manager and the plant manager of the accident/ incident was an operative consideration  in the decision to dismiss. Accordingly , I am upholding the complaint.

Discriminatory Dismissal

Penalisation under the Safety, Health & Welfare at Work Act 2005