Complainant

Respondent

Parties

Louisa  Higgins

Analog Devices International – amended by consent

Representatives

Richard Leonard Parker BL instructed by Leahy Reidy Solicitors LLP

Niamh McGowan BL instructed by  Arthur Cox

Act

Complaint Reference No.

Date of Receipt

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

CA-00043612-001

16/04/2021

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

CA-00051382-001

27/06/2022

The Complainant commenced her employment with the Respondent on 11 August 2005 as a Manufacturing Team Member.

She referred her claim to the Director General of the WRC on 16 April 2021 alleging that she was discriminated against by the Respondent by reason of her disability. She further alleged that the Respondent failed to provide her with reasonable accommodation. The most recent date of discrimination was stated as 18 October 2017.

On 27 June 2022, the Complainant referred a further claim to the Director General of the WRC alleging that she was unfairly dismissed on 21 March 2022.

The Respondent rejects the claims.

In the WRC complaint forms, the Complainant incorrectly named the Respondent as Analog Devices BV Limited. The name of the Respondent was amended on consent and the correct name is reflected in this decision.

Due to the overlapping nature of the parties’ submissions and the evidence it was agreed that all submissions and evidence proffered at the hearing would be considered in the context of both claims.

Remedies Sought

The Complainant is seeking an adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977 as amended. The Complainant contends that she was unfairly dismissed by the Respondent on 14 March 2022. The Complainant contends that her dismissal on the grounds of incapacity was not well-founded and was unfair on the basis that, if the Respondent had reasonably accommodated the Complainant’s disability, she would have had the capacity to continue in her employment and reasonably carry out in whole or, in a large part, her duties with the Respondent. In such circumstances the Complainant contends that her dismissal was unfair. The Complainant seeks re-engagement or re-instatement or compensation.

The Complainant is seeking an adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act 1998 as amended. The Complainant contends that the Respondent has failed to comply with section 16 of the Employment Equality Act 1998 as amended in that having regard to the Complainant’s disability, the Respondent has failed to reasonably accommodate the Complainant and/or failed to take appropriate measures to enable the Complainant to participate in her employment with the Respondent. The Complainant seeks re-engagement, re-instatement and compensation.

Background

The Complainant commenced work with the Respondent as a Manufacturing Team member on or about 11 August 2005. The Complainant did shift work with the Respondent on a “five cycle swing shift” pattern which included a significant amount of night shift work.

The Complainant suffered and suffers from, inter alia, anxiety and depression and has been medically treated for same. From November 2014 to August 2015 the Complainant was absent from work due to depression.

While the Complainant was being treated for her depression, it was confirmed by her GP that the so-called “five cycle swing shift” pattern of her employment involving shift night work was adversely affecting her mental health and contributing and/or causing and/or exacerbating her depression. The Complainant sought on a number of occasions to have her hours of work altered essentially to day shifts in order to alleviate the symptoms of depression and chronic fatigue but she was not accommodated by the Respondent in that regard.

By virtue of the foregoing, the Complainant issued proceedings CA-00000746-001 dated 10 November 2015 in the WRC seeking adjudication under Section 77 of the Employment Equality Act 1998 as amended on the grounds that the Respondent had failed to comply with the provisions of section 16 of the Act in failing to reasonably accommodate the Complainant’s disability in order to facilitate her return to work. That case was heard on 22 November 2016. A decision was issued on 23 March 2017. The Adjudication Officer found in favour of the Complainant. Adjudication Decision Reference: ADJ-00000557 dated 23 March 2017.

Following that decision, the Complainant attempted to return to work but notwithstanding the decision of the WRC found herself once again obliged by the Respondent to engage in night work. The Complainant found this extremely difficult and attended the Respondent’s occupational health physician, Dr Lee, who reviewed the Complainant on 14 June 2017 and 23 August 2017 who advised the Respondent that, in his view, the Complainant was not suitable for night work. Once again, the Complainant sought reasonable accommodation from the Respondent in relation to her disability. Soon thereafter, while still engaging in ongoing night shift work, and without appropriate accommodation been made for her, the Complainant became increasingly ill and once again went on sick leave in August 2017 and did not return. Correspondence ensued between the parties between August 2017 to March 2018 with no resolution.

In December 2017 the Complainant was diagnosed with Neurocardiogenic Syncope, a fainting disorder.

The Complainant issued further proceedings in the WRC CA-00015965-001 dated 23 November 2017 seeking a further adjudication under Section 77 of the Employment Equality Act 1998 as amended on the basis of the Respondent’s ongoing and continuing failure to comply with the provisions of Section 16 of the Act in failing to reasonably accommodate the Complainant’s disability in order to facilitate her return to work.

The Complainant attended an occupational health assessment at the company’s request on 13 June 2018 carried out by a Dr Madden.

The further set of proceedings came on for hearing before the WRC on 2 July 2019. A decision was issued on 31 October 2019 which found against the Complainant. Adjudication Decision Reference: ADJ-00012037 dated 31 October 2019.

This decision was appealed by the Complainant to the Labour Court by Notice of Appeal dated 14 November 2019. The Complainant continued to be an employee of the Respondent. The Complaint continued to engage with the Respondent seeking to return to work.

The Labour Court, of its own motion, struck out the Complainant’s appeal on 22 January 2021 despite ongoing correspondence from the Complainant dated 9 October 2020 to the effect that the Complainant had every intention of pursuing her appeal. The Labour Court refused to accept the Complainant’s application citing section 48 of the Workplace Relations Act 2015 as grounding its decision. In such circumstances, the Complainant issued further proceedings in relation to the discrimination complaint.

Various correspondence and medical reviews dated 27 August 2020 and 14 May 2021 ensued to no avail and the Complainant was not re-engaged or redeployed. It is the Complainant’s case that no reasonable accommodation was made for her disability by the Respondent which was an ongoing state of affairs.

Further and detailed correspondence including a face-to-face meeting ensued between the parties between 24 June 2021 and 17 January 2022 with no resolution and, it is the Complainant’s case, the Respondent continued to fail to reasonably accommodate the Complainant’s disability in order to facilitate her return to work.

A termination/dismissal letter was issued by Ms Sinead Cassidy, Human Resources Manager on behalf of the Respondent on 17 January 2022 on the grounds of the Complainant’s alleged incapacity to do her job, last day of service being date of issuing of the letter although also informing the Complainant that she was entitled to 8 weeks’ notice and that the Complainant would be paid her notice entitlement in full. The Complainant was notified of her right to appeal the decision to terminate her employment on grounds of capacity.

The Complainant duly appealed the decision, which was a document only appeal, which was dealt with by Mr John Liddy the Respondent’s General Manager Manufacturing Operations who issued his decision on 21 March 2022 wherein he upheld the decision to dismiss the Complainant confirming that no payment in lieu of notice was made (at the Complainant’s behest) and the date of termination/dismissal was confirmed as being 14 March 2022.

The Complainant’s Case

The Complainant’s case is that the aforesaid termination/dismissal was unfair and therefore the Complainant issued the further herein unfair dismissal proceedings. Under the 1977 Act the Complainant’s case is that she would have been able to carry out her role within the company in full, or in large part, had the Respondent reasonably accommodated her disability. In such circumstances, if reasonable accommodation had been made, she would have had the capacity to continue. In such circumstances, the termination of her employment on the grounds of incapacity was unfair, flawed and was contrary to the findings of the medical assessments which were carried out by Dr Madden on various dates which, it is the Complainant’s case, showed quite clearly that, with reasonable accommodation, the Complainant could have returned to her role or a reasonably accommodating version thereof which would not have placed a disproportionate burden on the Respondent in implementing same.

The Complainant’s case is also that there was ongoing and continuing discriminatory treatment of the Complainant in breach of the Employment Equality Acts in that the Respondent failed to reasonably accommodate the Complainant’s disability in the workplace by facilitating her return to work.

It is submitted that both issues, the discrimination issue and the unfair dismissal issue centred around a consideration of the Complainant’s disability and a medical assessment of what the Complainant was or was not capable of doing having regard to her disability. It appears to be common case that the Complainant was suffering from a disability having regard to the broad definition of the term in case law. In broad terms, the question to be addressed is was the Complainant capable with reasonable accommodation of doing the work required or was the Complainant incapable because there was no reasonable accommodation to be found having regard to the structure of the work required and the work specifications.

It is submitted that the key documents in this analysis are the reports of Dr Madden dated 13 June 2018 and 14 May 2021. The importance of these reports is highlighted in a letter dated 24 June 2021 from Ms Cassidy Human Resources Manager to the Complainant:

Based on Dr Madden’s findings from his assessment of you in June 2018, the review of your core duties, the review of Dr Madden’s recommendations from his most recent assessment of view, the review of the company’s ongoing resourcing requirements, and in light of the fact that Dr Madden’s findings have not changed in any material respect between the first assessment in June 2018 and the most recent assessment in May 2021 we have concluded that it is not possible for you to return to your role as a MTM in the white fab. Furthermore, we have not identified any suitable role on an eight hour shift, with a starting time ideally between 8 am and 9 am as per Dr Madden’s latest report of 14 May 2021.

The report of Dr Madden was dealt with extensively by the Adjudication Officer in his decision in the second case and it is proposed to outline the findings of Dr Madden both in 2018 and 2021. In particular, the Complainant takes issue with the conclusion of the Respondent’s Human Resources Manager quoted above in relation to findings of Dr Madden, specifically “that Dr Madden’s findings have not changed in any material respect between the first assessment in June 2018 and the most recent assessment in May 2021”. The Complainant contends that the review and report of Dr Madden dated 14 May 2021 contains further significant opinion and material which substantially alters the position in relation to what the Complainant was or was not capable of doing such that the level of reasonable accommodation required of the Respondent in 2021 had significantly diminished in comparison to what reasonable accommodation was required in June 2018 and which formed the basis of the decision of the WRC in the second case.

The Report of Dr Madden 13 June 2018

The starting point is the report of Dr Madden dated 13 June 2018 to be read in conjunction with the submissions of the Respondent in the second WRC case and in particular pages 18 to 24 thereof and  which essentially analyses the report of Dr Madden on behalf of the Respondent.

a) the Complainant was not fit to work the five-cycle shift pattern with a 12-hour day or night;

 b) the Complainant was not fit to work Friday, Saturday and Sunday on 12-hour shifts;

c) the Complainant was fit to work days, 8 am or 9 am to 4 pm or 6 pm;

d) the Complainant was fit to work an eight-hour shift.

Due to her neurocardiogenic condition, on a typical shift the Complainant was recommended to spend in the region of 75% or more in a seated activity. Dr Madden deemed her capable of standing and walking ideally for short periods and spread throughout her shift. From the submissions of the Respondent at that time, and it appears as of 2021 this had not changed, it is alleged by the Respondent that typically in this area and dealing with the Complainant’s role, she would be obliged to spend 60% of her shift standing and 40% of her shift sitting. The Respondent enumerates the difficulties in relation to the Complainant, should she faint or fall handling chemicals et cetera and this concern continued into 2021. This 75% 25% split is juxtaposed with what the Respondent says is the split between sitting and standing at 40% and 60% respectively. Looking at the raw data figures contained in the Respondents submissions, previously referenced, the amount of time spent at each task in minutes particularly in relation to walking and standing is usually approximately 3 minutes and indeed most of the tasks which required standing are done in a very short period which, it is submitted, fits the criteria contained in Dr Madden’s opinion namely that that the Complainant can stand and walk but ideally for short periods only and spread throughout her shift;

e) Dr Madden recommended that the Complainant should lift no more than 5 kg. As per the Respondent’s submissions, the boxes of silicon wafers which the Complainant was required to lift weigh circa 3.4 kg;

f) Dr Madden considered that the Complainant was not fit to work alone having regard to her history of fainting. On behalf of the Respondent, and again referring to the Respondent’s submissions in the second WRC case, there is a detailed analysis of how the team structure for a team of 6 MTM’s works. Essentially, the Respondent’s position on this point is that although there are teams, teams are broken down and regularly individuals work in a different part of the workspace and are unsighted and, in those circumstances, the risk of something happening to the Complainant while on her own is high, having regard to her admitted weaknesses and fainting difficulties and it appears this concern and difficulty continued as part of the Respondent’s case.

It is submitted that the core difficulties in finding a reasonable accommodation at the time of that report in 2018 were the fact that the Complainant would require 75% time sitting 25% standing when the Respondent’s analysis of tasks required showed that she would only spend 40% of time sitting, a gap of 35% in relation to ability to complete the tasks required. Secondly, there was the difficulty that having regard to the Complainant’s history of fainting and having regard to the tasks/duties required of her and taking into account the recommendation of Dr Madden, the Complainant would be required to work on her own albeit for short periods of time. In that case the company could not risk the Complainant being on her own, being unsighted from co-workers, working with a chemical for example which might be spilled and/or carrying a valuable box of silicon wafers which might be dropped.

The Report of Dr Madden 14 May 2021

Now turning to the report of Dr Madden dated 14 May 2021.

a) the Complainant was not fit to work a five-cycle shift as described by the Respondent, long-term and was deemed to be not fit for such a role;

b) the requirement of 75% sitting remained. Dr Madden expanded on this requirement and indicated that this was the ideal work status/stand balance with a degree of safety built in. He considered that standing for too long, in excess of 30 minutes, would likely be problematic. This was a significant clarification and differentiation as compared to his original May 2018 report wherein he stated that the Complainant should only be standing and walking ideally for short periods and spread throughout her shift. It is submitted that this is an important nuanced clarification of what the Complainant was or was not capable of doing particularly when one takes into account the raw data figures contained in the Respondent’s submissions, previously referenced. The amount of time spent at each task particularly in relation to walking and standing is usually approximately 3 minutes and indeed most of the tasks which required standing are done in a very short period which, it is submitted fits even more readily into the requirements of Dr Madden, building in a requisite safety cushion. In those circumstances, it is respectfully submitted on behalf of the Complainant that this extra clarification on the part of Dr Madden and contained in his report of 2021 is indicative and persuasive of the Complainant’s case that, at that stage, she was capable of doing more, that she was capable, with reasonable accommodation, of standing for up to 30 minutes and on the basis of the Respondent’s own data this would be ample to allow her to return to her role if the Respondent was at any stage so minded;

c) in relation to standing for a prolonged period, in one position, in excess of 30 minutes involving the use of chemicals, Dr Madden considered that this would be an unsafe activity. For a period, shorter than 30 minutes he considered the task could be executed safely. He emphasised that the Complainant knew when she began to feel unwell and, in the unlikely event that she was changing chemicals for an unexpectedly prolonged period of time, he anticipated she would be able to stop the process and presumably seek assistance from a co-worker, although Dr Madden does not specify that last presumption. Again, on behalf of the Complainant, it is emphasised that this is a significant clarification and elaboration on the part of Dr Madden in May 2021 in comparison to what he considered the Complainant to be capable of in June 2018. It is submitted that from the contents of the report of May 2021 it is clear that the Complainant had, as of May 2021, succeeded in whole or in part in managing and controlling her condition which, with reasonable accommodation would allow her to complete her tasks. This is a material alteration in the factual matrix of the case which clearly sets it apart from the analysis contained in the June 2018 report and indeed the findings of the Adjudication Officer in the second WRC case particularly in relation to any claim of res judicata raised by the Respondent;

d) a further point of concern which was also subject to further elaboration by Dr Madden was in relation to the Complainant’s propensity to faint which was alluded to briefly in his report of June 2018 wherein he stated that the Complainant was “not fit to work alone having regard to her history of fainting”. In his report of 14 May 2021, he once again addresses this issue and elaborates on same. In particular, he emphasises that the Complainant has been living with this condition for many years. As of May 2021, he opined that the Complainant had adapted her lifestyle to avoid such incidents. He confirmed that the Complainant had not fainted for over 10 years as the Complainant had learned to manage her condition to the best of her ability. He accepted and understood the Respondent’s concerns about machinery, chemicals and the risk of fainting in the workplace. However, when considering how the Complainant had adapted to her condition (and this is a significant difference between his analysis in 2018 and 2021) and taking into account that the Complainant would have a prior warning prior to potentially fainting, Dr Madden anticipated that the Complainant would be able to manage in such an environment safely. Again, it is respectfully submitted on behalf of the Complainant that this is a significant alteration in the position in relation to what was required to reasonably accommodate the Complainant such that the task was made significantly less burdensome on the Respondent and certainly not a disproportionate burden in order to reasonably accommodate the Complainant;

e) the issue of lifting boxes was also dealt with. Although this point does not appear to be of major contention, Dr Madden does again confirm that the Complainant is capable of lifting boxes of up to 5 kg for short periods of time and intermittently during the day. Again, he cautions against any lifting or standing for a lengthy period of time such as 30 minutes which he considered problematic. As the average weight of these boxes was up to 3.4 kg again it is submitted that there does not appear to be any issue in relation to reasonable accommodation;

f) in relation to the issue of the Complainant working on her own, Dr Madden was of the view that the Complainant was not fit to work on own for an entire shift. However, he considered that the Complainant could work on her own for a short period and this would be acceptable. This again, it is respectfully submitted, is a significant alteration and improvement in the ability of the Complainant to carry out the tasks assigned, with reasonable accommodation, in comparison to the conclusions of the report completed in June 2018. In the 2018 report, Dr Madden opined that the Complainant was not fit to work on her own whereas as of May 2021 his view was that the matter had moved on, he being mindful of the fact that the Complainant had not fainted for over 10 years. In those circumstances, he considered that the Complainant could work on her own for a short period. Again, it is respectfully submitted that this is reflective of an improvement in the Complainant’s condition, that she had learned to control her ongoing disability and, as of May 2021 that a reasonable accommodation was more achievable by the Respondent without placing a disproportionate burden on the Respondent.

The Report of Mr Rickard 24 September 2021

On or about 24 September 2021 Mr George Rickard the Respondent’s Environment, Health and Safety Manager was asked for his views on the Occupational Health Assessments of Dr Madden. In that report dated 24 September 2021 Mr Rickard purports to have reviewed Dr Madden’s assessments. Notwithstanding the detail contained in Dr Madden’s report, it appears the Health and Safety Manager’s view is that on general principles a risk of fainting could have serious consequences. He then goes on to enumerate the general consequences of falls in the workplace. He deals with the issue of hazardous chemicals and gases in the workplace and the protocols for evacuation if gas and/or chemical detectors are activated such that people working in the area can evacuate in a timely manner. He considered that if an employee suffers from a fainting episode during an evacuation then the ability to evacuate would be impeded thereby potentially creating greater risk of injury. He deals with the emergency response team and the Fire Brigade, and the risks associated with their involvement. With respect, there is no attempt in this report to deal with the specific proposals for a reasonable accommodation contained in the report of Dr Madden. It is submitted that this report is indicative of the general attitude being displayed by the Respondent wherein while appearing to reasonably accommodate the Complainant, there is no actual engagement and/or no actual attempt to reasonably obtain an accommodation. There is no engagement with the specific proposals as to a solution/reasonable accommodation, particularly in relation to the amount of time required for tasks and the Complainant’s improved ability to control her physical condition.

Having regard to the foregoing, and the Complainant’s continued employment with the Respondent until her dismissal on 14 March 2022, is submitted that there was a continuing failure to reasonably accommodate the Complainant’s disability, that there was a failure to have due and proper regard to the advice and recommendations of Dr Madden which clearly would have allowed for the reasonable accommodation of the Complainant’s disability. In such circumstances, it is submitted that the Complainant is entitled to succeed under the statutory scheme.

In relation to the unfair dismissal element of the case, the Complainant’s position is that with reasonable accommodation she would have had the capacity to carry out her tasks. As that reasonable accommodation was not afforded to her, the dismissal on the grounds of incapacity was unfair and the Complainant seeks the remedies as set out above.

There are a number of other ancillary points which should be made in order to ensure that the parties are aware of.

Further Internal Opportunities to Reasonably Accommodate  

The Complainant submits that aside from the issue of the Respondent reasonably accommodating her to return to work in the specific environment as outlined above, on a number of occasions the Complainant became aware of job opportunities/vacancies within the company which would have more readily fitted the restrictions imposed on her by her disability by which the Respondent could reasonably accommodate the Complainant’s disability. A number of these vacancies arose in reliability and IPD. When the Complainant sought to explore the possibility of being reasonably accommodated with employment in those positions, she was informed by the Respondent specifically Mr Nagle HR Director and Ms Cassidy HR Manager that she would have to apply for any such position in the same manner as other employees. It is respectfully submitted that this is not in conformity with the duties of the employer pursuant to the statutory scheme which obliges the Respondent to reasonably accommodate the Complainant’s disability. It is submitted that referring the Complainant to open competition for a position is a failure to reasonably accommodate her disability. While the Respondent may put forward the proposition that such preferential treatment might be deemed to be discriminatory against other employees, on the basis that they were dealing with an employee with an identified and recognised disability it is submitted that this is not the case.

‘The salient point from Reilly v United Parcel Service which in my opinion also applies in the within case is that the statutory right of a disabled worker to reasonable accommodation is very much not a grace-and-favour affair which depends on whether a suitable alternative position happens to come up just at the right moment when it is needed, and for which the disabled worker has to compete with others. The right to reasonable accommodation is not dependant on any such operational contingencies but is limited only by the financial resources of the respondent and whether the measures identified as necessary place a disproportionate financial burden on a respondent employer’.

As per Higgins V Analog Devices B.V. Ltd ADJ-00000557 23 March 2017.

The Appeal

In relation to the Complainant’s appeal of her dismissal undertaken by John Liddy GM Manufacturing Operations two specific issues arise. Firstly, although Mr Liddy does reference the reports of Dr Madden dated 13 June 2018, 27 August 2020 and 14 May 2021 it is specifically submitted that in considering the Complainant’s appeal, Mr Liddy bases his synopsis of the case and his determination/conclusions on the report of Dr Madden dated 13 June 2018 without any reference, it appears, to the up-to-date report of Dr Madden of 14 May 2021 which considerably altered the position in relation to what was reasonably required to accommodate the Complainant’s disability. In those circumstances, it is submitted that the appeal failed to consider relevant and material opinion and/or evidence which ought to have been considered. There was a failure to consider material which was clearly relevant and under such circumstances there was a basic lack of fairness of procedure in relation to how the appeal was processed. Furthermore, the Complainant has specific concerns that her health insurance was cancelled as of 14 March 2022. The decision of Mr Liddy on the appeal was dated 21 March 2022 and, in those circumstances, the Complainant can only conclude that, on the basis of the cancellation of the policy of insurance, the matter had been decided before issuing the decision on the appeal.

Case Law Applicable

In relation to any legal submissions which may be made at the hearing of the action in support of the Complainant’s contention, the Complainant will rely on the general principles of law as applicable to the instant case which are well established and such case law on res judicata as is appropriate. In particular, the Complainant will rely on the judgement of the Supreme Court in Nano Nagel School v Daly 2019 IESC 63 and/or such further and other matters as they arise during the course of the hearing.

Oral submission re: preliminary matter raised by the Respondent

At the adjudication hearing on 10 May 2023,  the Complainant’s representative asserted that res judicata does not arise in the within case as the Complainant’s appeal of the Adjudication Officer’s decision of 31 October 2019 to the Labour Court was struck out and no decision was made by the Labour Court on its merits. It was argued that, as per section 102(5) of the Employment Equality Act and section 48(5) of the Workplace Relations Act, the Complainant can “go again”.

It was submitted that it was an ongoing state of affairs and, after 31 October 2019, the Complainant remained in employment. There was a significant change in circumstances particularly after May/June 2021 when Dr Madden issued his report.

The Complainant’s representative asked for this claim to encompass the period after the 31 October 2019 (the date the second WRC decision was issued).

Regarding the time limits, the Complainant’s representative asserted that the date stated in the WRC complaint form, October 2017, was inserted in error. He said that the Complainant was in a continuous employment and there was engagement over time.

On 18 May 2023, the WRC received a note of oral submissions made on behalf of the Complainant at the adjudication hearing on 10 May 2023 as follows.

Res Judicata

The Complainant’s first complaint commenced in 2015, was heard in November 2016 and a decision issued on 23 March 2017. The Complainant’s complaint was upheld.

The Complainant sought to return to work in 2017, again was engaged in shift work which was unsuitable. Again, her case was that she had not been reasonably accommodated. She issued a further set of proceedings in November 2017. This came before the WRC in July 2019, a decision was issued 31 October 2019 which found against the Complainant.

So, essentially, a one all draw at that stage, one Adjudication Officer finding that there had been a failure to reasonably accommodate, another Adjudication Officer that there had not been a failure to reasonably accommodate.

The second decision was appealed to the Labour Court by the Complainant. The Labour Court, of its own motion, struck out the appeal despite the Complainant’s objections and the Complainant’s solicitors correspondence stating that the Complainant had every intention of pursuing the appeal.

There is law on this in relation to what constitutes res judicata.

In order for a plea of res judicata to succeed, the judgement on which it is sought to ground the estoppel must be a final and conclusive judgement on the merits. For an estoppel to arise there must have been an adjudication by the court on the issues raised by parties, sometimes expressed as a requirement that there must have been a decision on the merits...

Delaney: Civil Procedure in the Superior Courts (3rd edition) paras 32-12 and 32-15.

In the Labour Court, the Complainant’s case was simply struck out. There was no adjudication on the merits, there was no hearing, there was no evidence given, there was no conclusive judgment on the merits. In such circumstances, it is submitted that the decision of the Labour Court to strike out the Complainant’s case for want of prosecution does not fall within the parameters of what is clearly required for there to be an estoppel or a res judicata.

Similarly, no bar to fresh proceedings is created by the dismissal of an action for want prosecution or because it is premature or where it is struck out during the course of hearing.

Delaney: Civil Procedure in the Superior Courts (3rd edition) para 32-17.

If there had been a decision on the merits of the case in the Labour Court and that decision had been against the Complainant then that would have been a decision, on the merits, made by a tribunal of competent jurisdiction. In such circumstances, the Complainant would be bound by that finding on appeal, and there would be an operative res judicata. But that is not the case here. What we have is one decision in favour of the Complainant, one decision against the Complainant and an appeal that was struck out, not on the merits of the case, but at the insistence of the Labour Court. In such circumstances, it is submitted that the law is quite clear in that, as there was no determination on the appeal on the merits of the case, the Complainant is not estopped, and the discrimination /reasonable accommodation case should proceed.

The Statutory Scheme

It is submitted that the statutory scheme supports the contention, and the Complainant seeks to rely on the following.

The case was struck out by the Labour Court on 22 January 2021 pursuant to Section 102 of the Employment Equality Act 1988.

The Complainant relies on subparagraph (5) of that section:

102. (5) Where a reference or appeal is struck out under this section, no further proceedings may be taken in relation to that reference or appeal; but nothing in this section prevents any person from making a further reference in relation to the same matters (subject to any applicable time limit).

When the Complainant’s solicitor sought to actively pursue this decision and to ask the Labour Court to reconsider its decision to strike out the case, having regard to the previous correspondence which stated that the Complainant had every intention of pursuing her claim, further correspondence was received from the Labour Court quoting section 48(5) of the Workplace Relations Act 2015.

48 (5) Where a complaint or appeal is struck out under this section, the complainant or appellant shall not be entitled to prosecute the proceedings any further.

It is submitted that this provision on its face is clear i.e., placing an express statutory bar on any further progression of the case whether by way of further review and/or it is submitted by way of Judicial Review of the decision of the Labour Court. In those circumstances, it is submitted that this provision is supportive of the view that the correct procedure is to start again pursuant to Section 102(5) of the Employment Equality Act 1998.

Ongoing State of Affairs

Following the determination by the Adjudication Officer on 31 October 2019, the Complainant continued to be an employee, she continued to be reviewed, there was ongoing correspondence, she was examined on a number of occasions to see whether or not reasonable accommodation could be found.

Equally, following the striking out of the Complainant’s case by the Labour Court on 22 January 2021, the Complainant continued to be an employee, she continued to be reviewed, et cetera. In other words, there was an ongoing state of affairs rather than a static position which might allow for a finding of res judicata.

Issue Estoppel

Which leads to a consideration of what is called issue estoppel. For issue estoppel to arise, the issue to be determined must be identical to the previous issue determined.

The issue determined in the previous action and that upon which it is sought to raise an estoppel must be identical and where the previous determination involved a finding of fact, no estoppel will arise if there has been any change in circumstances….

Delaney: Civil Procedure in the Superior Courts (3rd edition) para 32-67.

It is submitted that the change in circumstance following the striking out of the Complainant’s appeal on 22 January 2021 is evidenced in the report of Dr Madden 14 May 2021.

It is submitted that this report of Dr Madden showed firstly an improvement in circumstances of the Complainant and her capacity to do more generally and he elaborates on what she is or is not able to do. He specifically mentions her long-standing ability to control her fainting, and it is submitted that he considered her to be medically fit with limitations.

Furthermore, as emphasised previously, there was an ongoing state of affairs namely the Complainant’s continued employment with the Respondent, the ongoing and continuous correspondence and the ongoing reviews.

Statutory Time Limits

In relation to the Respondent’s claim that the Complainant’s case is stature barred, this hinges on the date contained in the current WRC complaint form when the Complainant is asked what was the most recent date of discrimination: 18 October 2017.

It is patently not and never was the Complainant’s case that the discriminatory behaviour i.e., the failure to reasonably accommodate the Complainant ceased in and around October 2017. The Complainant’s case is that there was an ongoing state of affairs of failure to reasonably accommodate her, right up and continuing up to her dismissal on 14 March 2022. The single error on should not be allowed to prejudice the Complainant’s complaint which was always based on the proposition that there was an ongoing and continuing failure to reasonably accommodate.

At the adjudication hearing on 10 May 2023, the Complainant’s representative asserted that the Labour Court was with seisin when it decided on its own motion to strike out the case in January 2021. It was argued that the time when the claim was with the Labour Court should be disregarded in the determination of time limits in the within proceedings. The Complainant’s representative requested that the Adjudication Officer in the within case considers the period from October 2019 to the date of the new claim of 16 April 2021.

At the adjudication hearing on 13 July 2023, Mr Parker BL exhibited a copy of Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 7-105 to 7-168. He emphasised the following paragraph in support of the Complainant’s claim:

7-137

The obligation to provide reasonable accommodation can only be properly satisfied where an employer has done some sort of an assessment, whether that is medical, ergonomic or occupational, in order to see whether reasonable accommodation can be made. Assumptions that there is nothing to be done or failure to take any action will more than likely lead to a finding that reasonable accommodation has not been made. On the other hand, an employer who actually engages in the process of the medical or ergonomic assessment and then finds that there is nothing which can be done or there is nothing which can be done at a reasonable cost is more likely to be able to avail of the defences in s.16(3).

7-138

The misinterpretation of medical advice provided to an employer, is likely to be a breach of s.16(3), as this results in the employer not being in possession of the necessary material facts in order to take adverse steps against an employee with a disability and shows the employer is not acting in full knowledge of the employee’s disability. In effect, this recognises that the scope of the duty of reasonable accommodation is not met, nor properly understood or considered by the employer if recent medical advice is ignored.

7-139

Similarly the failure to involve an employee in all parts of the consideration of reasonable accommodation—including being provided with the opportunity to influence the decision of the employer—will also be in breach of the Acts, as an employer will not be in possession of all material facts or knowledge of the medical condition of the employee and the reasonable accommodation required.

7-150

In summary, the case law expects an employer to be proactive in considering the forms of suitable reasonable accommodation which could apply to employees or potential employees, that the employer carries out a full assessment of the need of the person with the disability, that the employer consults with the person with a disability throughout the process and that the employer becomes aware of the individual needs of the employee and what is required by way of medical or occupational assessment (including taking account of the findings of this assessment).

Discriminatory dismissal and reasonable accommodation

7-157

In cases of alleged discriminatory dismissal, the employer will generally seek to rely on s.16(1) of the Acts to justify the dismissal of the employee, asserting that the employee’s disability was such that they were unable or incapable of undertaking their duties of employment. Section 16(1) can provide a full defence to a claim of discriminatory dismissal or to less favourable treatment, given that an employer is entitled to have capable and competent employees who are able to perform the roles attached to the position.325 Any reliance on s.16(1) is contingent on the obligations of reasonable accommodation being adhered to in full by the employer prior to the termination of employment. Any knee jerk or summary dismissal of an employee due to their disability without first conducting the procedural steps required pursuant to s.16(3) will render any dismissal in breach of the Acts. Any assumptions about the ability of the employee to continue in employment due to their disability in the absence of any medical or occupational assessment will render the dismissal a discriminatory dismissal. An excellent example of this is McCrory Scaffolding (NI) Ltd v A Worker326 where the employer claimed it was entitled to dismiss the employee, a scaffolding labourer, due to health and safety concerns following a number of seizures. Although the Labour Court acknowledged the health and safety aspect of the particular case, the nature of the working environment and the nature of the business, nevertheless the fact remains that the respondent acted without the benefit of receiving or assessing the medical evidence. No consideration appears to have been given before dismissal, as to what specific treatment or facilities might be considered so as to provide reasonable accommodation under s.16(3) of the Act. In those circumstances, the dismissal was found to be discriminatory and the sum of €13,600 in compensation was awarded.

Summary of direct evidence and cross-examination of Ms Higgins, the Complainant

The Complainant said that she initially started to work for the Respondent in 2001 but she left the employment. She then returned in 2005. The Complainant said that the job involved loading machines, changing chemicals, taking loads for the machine (standing for 2 minutes), and loading more loads (standing max 10 minutes). She said that she worked day and night shifts, four days and three nights, then off. The Complainant described the five cycle shifts.

The Complainant said that in 2014 she moved to a different area where she was standing all the time. She said that that was where the difficulties started. She was out of work from November 2015 to August 2015 with anxiety and depression. She went back to work in January for three days. Her GP issued a letter stating that shifts did not agree with her and recommended day shift only.

The Complainant said that three jobs became available after her sick leave expired but she did not get them.

The Complainant was back to work after August 2015. She was seeing the Respondent’s doctor, Dr Lee. The Complainant said that she felt tired, and her supervisor discussed her work matrix and made an appointment with Dr Lee. Dr Lee said that the Complainant could not work nights. The Complainant referred to a letter from the HR Manager dated 27 June 2017. The Complainant said that there were jobs available in “Quality” at the time that she would be qualified for. The Complainant said that she shouldn’t have to apply for jobs. The Complainant felt that the Respondent did not try to accommodate her. She referred to a position that was outlined in the HR letter of 7 July 2017 and said that the proposed role involved working shifts on her own. She believed she would be ostracised and it was not fair accommodation.

The Complainant referred to the letter of 16 August 2017 from the HR outlining that the situation whereby she was working her day shift only and not working the night shift but was paid for same, was not sustainable from the Respondent’s perspective. She said that it was Dr Madden who advised that she was not to work nights but go to work for her day shifts.

The Complainant referred to a further letter from HR dated 4 September 2017. She said that she would have done anything, she needed a job.

The Complainant said that in March/April 2018, two day jobs became available she was not notified of.

On 30 June 2018, the Complainant saw Dr Madden for the first time, she was still out of work. The Complainant said that there was no engagement since March 2018, and she was on a disability allowance. She has not been back to work since June 2017.

The Complainant said that Ms Cassidy of HR reached out to schedule an absence review meeting. The Complainant was reviewed by Dr Madden. The Complainant said that her symptoms were the same, difficult to manage but she could adapt her lifestyle.

Regarding her assessment on 14 May 2021, the Complainant said that she felt good, she was confident she could go back to work. The Complainant said that she could manage the risk, she knew when she was going to faint, she has never been caught suddenly and never fainted at work. She knew that she had to sit down for a few minutes. The Complainant said that any time she fainted there was a reason such as tiredness, sickness or being hungover.

The Complainant said that after this report she was in correspondence with Ms Cassidy, she was at the Respondent’s mercy.

The Complainant said that in her letter of 24 June 2021, Ms Cassidy talked about one job in IPD/Probe Fab. The Complainant said that the Respondent never got into any discussion about this job with her.

Regarding the Respondent’s assertion that the Complainant did not have relevant skills, the Complainant said that there was no suggestion of upskilling, she could do an operative role.

The Complainant said that a risk assessment was conducted after she had questioned Ms Cassidy’s previous risk assessment. The Complainant said that Mr Rickard did not speak to her, he did not have any details about her, she has never met him until the date of the adjudication hearing. The Complainant said that the previous Risk Officer never met her either, but that Officer was included in, copied with Dr Lee’s emails.

The Complainant said that after the report of May 2021, Ms Cassidy said that it was not safe environment for the Complainant. It contradicted what Dr Madden, who was given a detailed report on her job, said. There was a difference between Dr Madden’s report and Ms Cassidy’s take on it.

In relation to Ms Cassidy’s letter of 24 June 2021, the Complainant also said that Ms Cassidy relied heavily on the report of June 2018. The Complainant asserted that the report was not about her, it was a general description i.e., it referred to “patients” not to her specifically.

The Complainant accepted that the date of dismissal was 14 March 2022.

The Complainant said that she had concerns about the appeal process. She said that she expected that everything would be reviewed but it appears that the decision was based on Dr Madden’s 2018 report, and the decision was nearly word for word what Ms Cassidy and Mr Rickard said.

In relation to her attempts to mitigate her loss, the Complainant said that she did not feel that she could find another job or go to a college. She said that she wanted to go back to work for the Respondent.

In  cross-examination, the Complainant confirmed that up until June 2018, Dr Lee certified her unfit for shift work. She agreed that Dr Madden was independent, it was agreed that he would examine her.

In relation to the “Quality” job, the Complainant agreed that at the time she was certified as fit for shift work. The Complainant did not dispute that the recruitment was in process when she drew the Respondent’s attention to the fact that she would be interested in the job. It was put to the Complainant that it was reasonable of the Respondent to ask her to apply. The Complainant said that she did not apply. She said that Dr Lee certified her as unfit for shift work and the Complainant thought that she would have an advantage as compared to her colleagues who applied for the job so she decided not to apply.

In relation to weekend work, the Complainant said that she would be ostracised, she would be on different shifts every weekend and it would not be beneficial to her mental health. The Complainant agreed that, after Dr Madden’s 2018 report she would not be able to do 12-hour shifts in any event.

Regarding the letter from Dr Flynn dated 25 September 2017, it was put to the Complainant that the Respondent asked her to provide her doctor’s clarification on the content of the letter and the Respondent explained the difficulties it had with understanding the letter. The Complainant said that she was hurt by the Respondent’s email, she thought it was another attempt not to reasonably accommodate her. The Complainant agreed that she could have provided her doctor’s clarification. She was aware that she could not come back to work pending this clarification.

With regard to a position offered in 2017 (‘Probe’), it was put to the Complainant that she never talked to the Respondent about whether she would have to give up her permanent position. The Complainant asserted that she did, she thought she would have to give up her permanent position and that nobody told her that it would be a permanent role.

The Complainant said that from March 2018 she was on disability allowance. She said that she was fit to work with restrictions, she could have worked 20 hours.

Regarding Dr Madden’s report, it was put to the Complainant that it was not a  general assessment, that Dr Madded did assess her. The Complainant agreed but asserted that Dr Madden gave a description of the condition to the Respondent which did not specifically reflect her circumstances.

The Complainant agreed that Dr Madden’s report of 2020 remained unchanged except the matter of 30 minutes standing. She said that while it did not change the original report, it was positive.

The Complainant agreed that the next communication was on 24 June 2021 in relation to the Complainant’s capability.

It was put to the Complainant that she asserted that two jobs were available but she did not give any details. She replied that she had no details as she was not notified of these jobs.

Regarding the card probe reader position, the Complainant agreed that there was someone already in this position. She said that it was not her case that someone should have been taken out of the job to give it to her, but a colleague could have been moved if they had capability, it should have been looked at.

Regarding the Complainant’s assertion that the Respondent could have created a position in ‘Defect’ the Complainant agreed that the Respondent was not required to do so. It was put to the Complainant that the Respondent did create a job for weekends that matched her needs. The Complainant did not dispute that but said that because of the size of the Respondent, more effort should have been made. It was put to the Complainant that there were two solutions: move someone and give the job to the Complainant or create a job in Defect, which on unchallenged evidence could not be seated.

In relation to the Complainant calling into question Mr Rickard’s risk assessment, it was put to her that it was conducted because she was critical of the previous risk assessment. The Complainant said that Mr Rickard should have met her for additional information. It was put to the Complainant that Mr Rickard had to rely on the facts that she gave to the doctor.

With regard to the appeal and the Complainant’s criticism that the 2018 Report was relied on, the Complainant confirmed that she made a decision not to attend the appeal meeting despite being urged to do so. She said that she could not think that there was any other information that she could provide. She also said that the appeal should review everything from 2017 onwards.

Regarding her attempt to mitigate loss, the Complainant said that she applied for a couple of jobs but she did not have the required qualifications. She said that she did not look for a job because she wanted to go back to work for the Respondent.

The Complainant confirmed that she is in receipt of disability benefit since 2017 and she can work up to 20 hours per week.

INTRODUCTION

By Workplace Relations Commission (“WRC”) complaint form submitted on 16 April 2021, the Complainant submitted a complaint against the Respondent (the “2021 complaint”) under the Employment Equality Acts 1998 - 2015 (the “EE Acts”). Specifically, the Complainant alleges that:

·       she was discriminated against by the Respondent on the basis of her disability;

·       the Respondent treated her unlawfully by failing to provide reasonable accommodation in light of her disability; and

·       the Respondent treated her unlawfully by discriminating against her in relation to her conditions of employment.

By WRC Complaint Form submitted on 27 June 2022, the Complainant submitted a complaint against the Respondent (the “Unfair Dismissal Complaint”) alleging that she had been unfairly dismissed pursuant to the Unfair Dismissals Acts 1977 – 2015 (the “UD Acts”). 

For the reasons set out below, the Respondent disputes the Complainant's complaints and respectfully requests that her complaints be rejected.

THE 2021 EQUALITY COMPLAINT - PRELIMINARY OBJECTION – JURISDICTION - RES JUDICATA

In the Complainant’s complaint form relating to the complaint referred under the Employment Equality Acts in 2021 (“2021 complaint”), the most recent date of discrimination is listed as 18 October 2017, i.e. over five years ago.  Without prejudice to the Respondent’s below submission that the Complainant’s 2021 complaint has clearly not been submitted within the appropriate statutory timeframe, the complaint has already been the subject of a decision of an Adjudication Officer of the WRC, which the Complainant chose to appeal but thereafter did not pursue.

The Complainant submitted a complaint which was received by the Respondent by way of letter from the WRC dated 8 December 2017 (the “2017 complaint”).  In the complaint form relating to the 2017 complaint (copy exhibited at the adjudication hearing), the Complainant made precisely the same complaints against the Respondent as those made in the 2021 equality complaint, including but not limited to providing the most recent date of discrimination as 18 October 2017.  Specifically, the Complainant claimed in the 2017 Complaint that the Respondent had:

·       discriminated against her on the basis of her disability;

·       failed to provide reasonable accommodation in light of her disability; and

·       discriminated against her in relation to her conditions of employment.

By decision dated 31 October 2019, an Adjudication Officer of the WRC found that the 2017 complaint was not well founded.  A copy of that decision was exhibited at the adjudication hearing.  Specifically, the Adjudication Officer concluded in relation to the 2017 Complaint that:

“I find that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability in accordance with the provisions of section 16(3) of the [Employment Equality] Acts.  Accordingly, I find that the Complainant has failed to raise a prima facie case of discrimination on the grounds of disability contrary to the [Employment Equality] Acts and that her complaint fails.”

By letter dated 21 November 2019, a copy of which was exhibited at the adjudication hearing, the Respondent’s representative was notified of the appeal by the Complainant against the decision of the Adjudication Officer in relation to the 2017 Complaint.  The Complainant’s Labour Court appeal form in relation to the 2017 Complaint was dated 14 November 2019.

The Complainant failed to make submissions to the Labour Court in respect of her appeal, in accordance with the Labour Court’s statutory procedures, or at all, and failed to prosecute her appeal in any way other than confirming to the Labour Court, by email dated 9 October 2020, that she intended to proceed with her appeal.  The Complainant’s appeal was ultimately struck out by the Labour Court on 22 January 2021 pursuant to its powers under section 102 of the Employment Equality Acts.  A copy of the letter from the Labour Court to the Respondent’s solicitors, confirming that the Complainant’s appeal had been struck out, was exhibited at the adjudication hearing.  

The Complainant’s 2021 equality complaint is identical in every respect to her 2017 complaint.  The Complainant is not entitled to resurrect her now defunct Labour Court appeal and neither is she entitled to reinstate her unsuccessful 2017 complaint by repackaging it as a new complaint when it is identical in its terms to the 2017 complaint already determined by the WRC.  The Complainant is estopped from re-litigating her prior complaint by application of the doctrine of res judicata.

Relevant Law – Res Judicata

Legal principles grounding preliminary objection – res judicata/cause of action/issue estoppel

The doctrine of res judicata (or cause of action/issue estoppel) has already been considered by the WRC in a decision issued on 17 July 2019, A Teacher v A Government Department[1], where the Adjudication Officer held that:

“The doctrine of res judicata prohibits reopening an issue which has already been decided between the parties by a competent court or tribunal. Case law provides for finality in proceedings and to protect a party from being harassed by successive actions by another party when the issues between them were determined in the first proceedings (Henderson v Henderson (1843) 3 Hare 100). The maxim “interest republicae ut sit finis litium” translates as “it is in the public interest that there be an end to litigation”. This maxim is routinely applied by Irish courts to ensure inter alia that attempts by new litigation (rather than by appeal) to attack collaterally a court’s findings will generally be prevented as an abuse of process.”

The Labour Court considered cause of action/issue estoppel in Jahan Company t/a Irema Ireland v Anne Power[2]in respect of a complainant who referred a claim to the Rights Commissioner Service of the Labour Relations Commission under the Maternity Protection Acts 1994 – 2004 alleging that “[her] terms and conditions of employment changed when [she] came back to work following maternity leave on the 4th May 2010”.  The complainant subsequently submitted a complaint to the Equality Tribunal alleging discrimination on the grounds of gender, family status and marital status (as it was then) in respect of the same issue. In Power,the Rights Commissioner case had been heard and compensation awarded before the matter came before the Equality Tribunal.  The Labour Court noted that while there is an express statutory prohibition in the EE Acts which prevents the duplication of a complaint for discriminatory dismissal and a complaint under the UD Acts, there was no express statutory prohibition on duplication of claims between the Maternity Protection Acts 1994 – 2004 and the EE Acts.  The Labour Court went on to consider whether the complainant was estopped by the doctrine of res judicata,which normally prohibits a party from seeking to litigate the same issue twice, from pursuing the claim before the Equality Tribunal.

The Labour Court considered that a concise definition of cause of action estoppel (and issue estoppel) was offered by Blayney J. in Gilroy v McLoughlin[3] where he stated:[4]

“In cause of action estoppel the question is whether a plaintiff is estopped from bringing a particular action by reason of having brought a similar action previously against the same party, while issue estoppel is concerned with whether a particular issue has previously been determined between the same parties by a Court of competent jurisdiction.”

The Labour Court set out the underlying rationale for the doctrine of res judicata as was explained by Keane J. (as he then was) in Dublin Corporation v Building and Allied Trades Union[5] as follows:

“The justification of the doctrine is normally found in the maxim interest rei publicae ut sit finis litium and it is important to bear in mind that the public interest referred to reflects, in part at least, the interest of all citizens who resort to litigation in obtaining a final and conclusive determination of their disputes.  However severe the stresses of litigation may be for the parties involved – the anxiety, the delays, the costs, the public and painful nature of the process – there is at least the comfort that at some stage finality is reached.  Save in those exceptional cases where his opponent can prove that his judgment was procured by fraud, the successful litigant can sleep easily in the knowledge that he need never return to court again.”

The Labour Court’s conclusion in Power was that any cause of action that the complainant may have had under the EE Acts was merged in the decision of the Rights Commissioner under the Maternity Protection Acts 1994 – 2004.  The Labour Court found that:

“This, as the Court understands it, also arises from the application of the legal doctrine of merger or transit in rem judicatem.  It follows that the redress ordered in the earlier case was intended to cover the totality of her complaint and she cannot use the present proceedings to obtain an additional or better remedy for what is undoubtedly the same wrong for which she has already been compensated.”

The Labour Court was clear that the issues in contention in the equality case had been ventilated before the Rights Commissioner, that a Decision had been given by the Rights Commissioner, and that the same issues cannot be pursued again in other proceedings between the same parties.  The Court also held, in reliance on Divine-Bortey v London Borough of Brent[6], that “common law estoppel can also apply in proceedings before quasi-judicial tribunals, such as this Court”.

The Respondent submits that the doctrine of res judicata applies even more stronglyin the Complainant’s 2021 complaint, where she seeks to vindicate precisely the same case as her 2017 Complaint under the Acts based on precisely the same factual matrix. It follows therefore that the Complainant is estopped from proceeding with the 2021 complaint. 

On this basis, the Respondent therefore submits that the Complainant’s 2017 Complaint failed “to raise a prima facie case of discrimination”, and that it should therefore be prevented from progressing in the guise of the 2021 complaint.  It is the Respondent’s view that the 2021 complaint should be dismissed on the grounds that it has already been decided by the WRC.  Further or in the alternative, the Respondent submits that the 2021 complaint is frivolous and vexatious and should be dismissed pursuant to the powers of the WRC under section 42 of the Workplace Relations Act 2015.

The Respondent urges the WRC to consider its preliminary objection prior to embarking on a consideration of the 2021 complaint, as it submits that a determination of the preliminary objection in favour of the Respondent will be determinative of the entirety of the 2021 complaint. 

THE 2021 EQUALITY COMPLAINT - PRELIMINARY OBJECTION – JURISDICTION – TIME LIMITS

In the Complainant’s WRC complaint form in respect of the 2021 complaint, the most recent date of discrimination is listed as 18 October 2017, i.e. over five years ago.  It is clear to the Respondent that the Complainant is statute barred from pursuing the 2021 complaint pursuant to the Employment Equality Acts.

Section 77(1) of the Acts provides that a Complainant may seek redress for alleged discriminatory treatment by referring the case to the Director General of the WRC to seek redress. 

Section 77(5)(a) provides that:

“subject to paragraph (b) a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates, or as the case may be, the date of its most recent occurrence.” 

Section 77(5)(b) provides that:

“On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.”

The Complainant submitted her 2021 equality complaint on 28 April 2021.  On the Complainant’s own account, the most recent date of alleged discrimination on the disability ground occurred on 18 October 2017, some four years and six months prior to the date of the complaint form. The Complainant is therefore statute barred from proceeding with her claim of discrimination on the ground of disability, and the Adjudication Officer has no jurisdiction to hear the claim. 

In circumstances where the Complainant has already litigated the very same case within six months of the most recent date of alleged discrimination (i.e. by submitting the 2017 complaint in December 2017), she is not entitled to rely on section 77(5)(b) of the Acts as there is no basis on which the Complainant can allege there was reasonable cause why she failed to present her complaint within six months of the alleged acts of discrimination.  In any event, the alleged acts of discrimination, with the most recent being 18 October 2017, on the disability ground will still fall outside the extension period of six months.

It is submitted that the preliminary objection be determined and a decision reached in order to save time and costs and the Respondent respectfully asks that the WRC decline jurisdiction in relation to the 2021 complaint for discrimination on the disability ground under the Acts, on the basis that it was presented outside the time limits set out in section 77(5)(a) of the Acts and it does not fall within the exception set out in section 77(5)(b) of the Acts.

CONCLUSION –  the 2021 Equality Complaint

The WRC has no jurisdiction to hear the Complainant’s 2021 complaint in circumstances where it was submitted almost four years after the last alleged discriminatory act, substantially outside the statutory time limits provided.  Further or in the alternative, the WRC lacks jurisdiction to hear the 2021 complaint as a new matter when, on exactly the same complaint form and factual matrix, the matter has already been determined by the WRC, in favour of the Respondent which determined that the Complainant had not made out a prima facie case that she had suffered discrimination on the ground of disability.

Respectfully, the Respondent asks the WRC to dismiss the 2021 complaint on any or all of the below bases:

·       the complaint was brought outside the time limits provided in the Acts and the WRC has no jurisdiction in the matter;

·       the matter is res judicata, having already been determined by the WRC and as such the WRC lacks jurisdiction to hear the matter;

·       pursuant to the powers under section 42 of the Workplace Relations Act 2015, the matter should be dismissed as frivolous and vexatious as it amounts to an effort to have the 2017 Complaint adjudicated on for the second time;

·       the complaint has no prospect of success, having already been determined not to meet the prima facie threshold of proof.

Accordingly, the Respondent submits that the Complainant is not entitled to the reliefs claimed by her under the Acts.

For the reasons set out above, the Respondent requests that the 2021 equality complaint be dismissed.

THE UNFAIR DISMISSAL COMPLAINT: BACKGROUND & CHRONOLOGY

The Respondent specialises in the design and manufacture of high-performance digital signal processing (“DSP”) integrated circuits (“ICs”). The Respondent was founded in Boston, Massachusetts in 1965 and has been operating in Ireland for over 40 years. It currently employs approximately 1,300 employees at its original and main Irish hub in Co. Limerick, which is home to the Respondent’s European research and development (“R&D”) centre and global operations manufacturing facility. The Respondent also employs approximately 100 employees at its R&D facility in Co. Cork and 100 in Dublin.

The Respondent’s Limerick facility operates on a 24-hour, seven-day basis and accordingly has a need to engage employees on shift patterns that include working unsociable hours in the evening, at night and at weekends.

More than 85% of the Respondent’s workforce in Ireland is educated to diploma or degree level, with a significant proportion holding master’s and/or PhD degrees. All employees in R&D have a minimum of a degree. There is a 2:1 ratio of non-technical to technical employees employed in global operations manufacturing, with a minimum requirement of a diploma for technical employees. All other manufacturing personnel have a minimum of a Leaving Certificate. The Respondent understands that the Complainant has no third level qualifications. All services such as reception, security, cleaning etc. are outsourced.

The Complainant commenced employment with the Respondent in August 2005 as a manufacturing team member (“MTM”). A copy of the job description for an MTM and a copy of the Complainant’s contract of employment were exhibited at the adjudication hearing. 

As part of her role, the Complainant was required to work a 5-cycle shift which includes day shifts, evening shifts and night shifts, midweek and at weekends, and 12-hour shift patterns. The Complainant worked the 5-cycle shift since she commenced employment in August 2005.

The Complainant was one of 200 MTMs employed by the Respondent. The MTMs are employed in the following work patterns:

5-cycle shift:

Essentially, the 5-cycle shift operates as follows:

a)       Week one - the shift pattern consists of four 12.15 hour day shifts (Monday, Tuesday, Wednesday and Thursday 8am to 8.15pm);

b)      Week two - this is a flexi week in which an employee is obliged to be available when requested by Analog for 23.5 hours in total which consists of two shifts (days or nights);

c)       Week three - this consists of three-night shifts of 12.15 hours each (Friday, Saturday and Sunday 8pm to 8.15am);

d)      Week four - this consists of one 12.15 hour night shift immediately following week three (Monday 8pm to 8.15am) and three 12.15 hour weekend day shifts (Friday, Saturday and Sunday 8am to 8.15pm); and

e)      Week five - this consists of three 12.15 hour mid-week night shifts (Tuesday, Wednesday and Thursday 8pm to 8.15am).

A copy of the work schedule and the flexi-week (Flexible Schedule Week) operation for the 5-cycle shift was exhibited at the adjudication hearing.

In the 5-cycle shift working pattern, the Complainant was required to work between seven and nine nights in any period of five consecutive weeks (35 days).

Fixed shifts:

There are three fixed shifts as follows:

a)       Day shifts – 8am – 4pm;

b)      Evening shifts – 4pm – midnight; and

c)       Night shifts – midnight – 8am.

Out of the 200 MTMs, only approximately eight to ten employees work the fixed day shift.

Rotating weekend shift (Saturdays and Sundays):

Employees on this shift work every weekend, Saturdays and Sundays.  Employees work 8am-8pm or 8pm-8am every alternate weekend.

The Complainant fell ill with depression in 2014 and was absent from work from 4 November 2014 until 29 August 2015, save for five days in January 2015. The Complainant was certified as unfit for work until 4 February 2015 when she attended Occupational Health who deemed that the Complainant was unfit for night work for at least 12 months but that she would be fit to return to work on “days” if she could be accommodated. The Respondent was unable to accommodate this request.

After the Complainant had exhausted the Respondent’s sick pay scheme, she returned to work in August 2015, working the normal shift pattern. The Complainant was certified as fully fit to return to work (days and nights). The Complainant initiated a complaint under the EE Acts in November 2015 claiming that the Respondent had discriminated against her on the ground of disability and had failed to reasonably accommodate her disability (the “2015 complaint”).

On 29 June 2016 the Complainant attended Dr Pat Lee, Occupational Physician who deemed the Complainant “fit to continue working normal duties”. Dr Lee also stated that the Complainant reported no “workplace issues” and he would review the Complainant in two months’ time.

On 7 September 2016 the Complainant attended Dr Lee again who reported “[The Complainant] is working normal duties. She finds the change from nights to days difficult but she is managing to stay at work. I have again counselled her. She is fit to continue her normal duties. I suggest a review again in two months’ time.”

On 16 November 2016 the Complainant attended Dr Lee again who reported “[The Complainant] feels a little better. She remains on treatment. After meeting with her today she is in my opinion fit to continue her present duties and I should review her again in two months’ time.”

The hearing of the 2015 complaint took place on 22 November 2016 and the decision of the Adjudication Officer issued on 23 March 2017.  In her submission to the WRC, the Complainant sought compensation and an order directing the Respondent to accommodate the Complainant by placing her on a day shift. The Adjudication Officer found that the Respondent had failed to reasonably accommodate the Complainant and ordered the Respondent to pay the Complainant compensation in the sum of €20,000. The Respondent complied with the decision and paid the sum of €20,000 to the Complainant. The Adjudication Officer made no order directing the Respondent to place the Complainant on a day shift or any other similar relief. A copy of this decision ADJ-00000557 was exhibited.

On 25 January 2017, the Complainant attended Dr Lee again who deemed the Complainant “fit to continue working normal duties and we should review her again in three months’ time.”

On 10 May 2017, the Complainant attended Dr Lee again who reported that the Complainant “reports some recurrence of symptoms towards the end of her shift work. I counselled her. She is fit to continue working normal duties and we should review her again in three months’ time.” Copies of these medical reports were exhibited at the adjudication hearing.

On 19 May 2017, the Respondent received a letter from the Complainant’s solicitor referencing the reasonable accommodation claim that the Complainant had initiated and requesting proposals as to how the Respondent is “going to commit to Louisa to have her put on a day shift from henceforth.” A copy of this letter was exhibited at the hearing.

On 14 June 2017, the Complainant attended Dr Lee who deemed the Complainant “not suitable for night work”. A copy of Dr Lee’s report was exhibited at the hearing.

On 14 June 2017, the Complainant’s solicitor emailed Mr Jim Nagle of the Respondent attaching a job description for the role of “Quality Administrator” and querying whether the Complainant could do this job. A copy of this correspondence was exhibited at the hearing.

On 20 June 2017, the Complainant’s solicitor wrote again to the Respondent querying day jobs that were available which would suit the Complainant. A copy of this letter was exhibited at the hearing.

On 27 June 2017, the Respondent replied to the Complainant’s solicitor noting that while a sum of money was awarded to the Complainant by the Adjudication Officer, the Adjudication Officer “did not make any other award including the award of a day job” and that the Respondent had complied in full with the decision of the Adjudication Officer. Mr Nagle also stated that in line with the Respondent’s procedures, the Respondent would meet with the Complainant to discuss the matter on her return from holiday. A copy of this correspondence was exhibited at the hearing.

On 30 June 2017, the Complainant’s solicitor wrote again to Mr Nagle of the Respondent stating that it was the Respondent’s duty to make reasonable accommodation for the Complainant and therefore to give her a day job. A copy of this letter was exhibited at the hearing.

On 3 July 2017, Mr Nagle wrote to the Complainant to invite her to a meeting with him to discuss “recent work performance issues and now [the Complainant’s] inability to work nightshift.” A copy of this letter was exhibited that the hearing.

On 5 July 2017, Mr Nagle met with the Complainant to discuss the accommodations that could be made for her.  Mr Nagle followed up this meeting with a letter dated 7 July 2017 which outlines the matters that were discussed at that meeting. In this letter Mr Nagle referred to a position in Quality Assurance in which the Complainant had expressed an interest.  Applications for this role had closed, but Mr Nagle informed the Complainant that should she wish to apply for the role, the Respondent would accept her application but final selection would be through the Company’s normal recruitment and selection processes. The Complainant did not apply for this role.

In a letter to the Complainant of 7 July 2017 Mr Nagle further outlined the Respondent’s proposal that the Complainant work day shifts at weekends, notwithstanding that the Complainant had immediately emailed Mr Nagle after their meeting on 5 July 2017 to state that she could not “see how working weekends [would] help [her] situation as most of [her] friends and family work Monday to Friday and socialise on weekends…” Specifically, Mr Nagle stated that “… I am sorry to see that you are experiencing issues again in relation to your health and are seeking a day job in relation to same. I have since followed this up with your manager. Given your recent history and taking the current situation into account, we will make reasonable accommodation for you by creating a day job in your own work. This will involve working 12hr days only Friday / Saturday / Sunday and we can accommodate this arrangement and allow you to work up the extra three hours during the week so that you will work a 39hr week. We are willing to let you work this for a period of time (suggest one month) to try it out while maintaining your current shift allowance of 33.33% before making it a permanent arrangement with a revised shift allowance. I hope this reasonable accommodation with the provision of a day job is acceptable to you and if so, we are willing to commence this arrangement from Friday 4 August 2017”.  A copy of this letter and email was exhibited at the hearing.

The Complainant’s solicitor wrote again to the Respondent on 13 July 2017, stating that an offer of a day job over weekends was completely unacceptable, although no medical basis was given for such an assertion. A copy of this letter was exhibited at the hearing.

The Respondent wrote to the Complainant on 16 August 2017, again outlining the reasonable accommodation of day shifts over the weekend. Mr Nagle noted that the Complainant was currently on full pay (including shift premia) but was only working the day shifts and that this was unsustainable from the Respondent’s perspective. The Respondent arranged another medical assessment for the Complainant. A copy of this letter was exhibited at the hearing.

The Complainant attended Dr Lee on 23 August 2017 who deemed that the Complainant was “fit for “days” but unfit for her normal 5 cycle shiftwork”, and Dr Lee did not foresee this situation changing in the foreseeable future. A copy of this assessment was exhibited at the hearing.

Mr Nagle met with the Complainant again in early September 2017 to discuss this matter including the Respondent’s offer of reasonable accommodation. Mr Nagle informed the Complainant that it was not sustainable that she continue working the day shifts of the 5-shift cycle only, and informed the Complainant that she was not required to work the day shift, and that the Company would continue to pay her sick pay in accordance with its policy. Mr Nagle wrote to the Complainant on 4 September 2017 and the Complainant responded by way of email dated 22 September 2017 querying why she was being required to take sick leave when she was not sick and was willing and able to work day shifts. A copy of this correspondence was exhibited at the hearing.

The Complainant was unable to meet with Mr Nagle in late September 2017 to further discuss the matter, as she was feeling unwell. On 20 October 2017, the Respondent received a letter from the Complainant’s solicitor dated 18 October 2017, enclosing a letter from Dr Alicia Flynn in respect of the Complainant. This letter from Dr Flynn states as follows “Louisa informs me that she has been offered day work at weekends only which is not suitable for her mental health and medical needs.”  In addition, the solicitor’s letter stated that the Complainant would work the weekend day shift “under protest”. A copy of this correspondence was exhibited at the hearing.

On 7 November 2017, the Complainant emailed Mr Nagle regarding Dr Flynn’s letter expressing her view that the certificate meant that she was 100% fit to work the day shift except the shifts every weekend as it would hinder the process of her mental health issues. A copy of this correspondence was exhibited at the hearing.

Mr Nagle met with the Complainant again on 19 October 2017 and followed up this meeting with a letter dated 9 November 2017 (exhibited at the hearing).  In this letter, Mr Nagle asked the Complainant for clarity in relation to Dr Flynn’s letter as the Respondent interpreted it to read that the Complainant herself deemed the offer of weekend work to be unsuitable rather than Dr Flynn herself expressing this as a medical opinion. Mr Nagle also informed the Complainant that the Respondent was not in a position to allow her to return to day shift work at weekends pending clarification of Dr Flynn’s letter and that her entitlement to sick pay would cease on 2 November 2017.

On 1 December 2017 the Respondent wrote to the Complainant, highlighting that it had not received any correspondence or medical certificates from the Complainant since 11 November 2017 and requesting to meet with the Complainant. A copy of this letter was exhibited at the hearing.

Mr Nagle met with the Complainant on 5 December 2017 and again explained that the Respondent required clarity on Dr Flynn’s letter before it could allow the Complainant to return to work.  At this meeting, other reasonable accommodations were discussed such as fixed shifts and a temporary day job in Probe / IPD in which the Complainant expressed no interest. The Respondent assured the Complainant that it would like to see her return to work and would continue to facilitate her return as much as possible. A copy of the letter dated 12 December 2017 outlining the discussions at this meeting was exhibited at the hearing.

On 8 December 2017, the WRC sent notification to the Respondent of the 2017 complaint, which the Respondent understands was submitted in October 2017.

On 6 March 2018, the Respondent wrote to the Complainant highlighting that it had received no communication, correspondence or medical certificates from her since the meeting between Mr Nagle and the Complainant on 5 December 2017.  Mr Nagle invited the Complainant to a meeting with him on 9 March 2018. The Complainant did not respond to this request or attend the meeting.  Mr Nagle wrote again to the Complainant on 9 March 2018 highlighting her failure to keep the Respondent appraised of her absence and to provide medical certificates for her absence. A copy of this correspondence was exhibited at the hearing.

The Complainant attended a meeting with Mr Nagle on 20 March 2018.  During this meeting the Complainant provided Mr Nagle with a letter from Dr Flynn dated 13 March 2018 stating that

“Louisa informs me that she has been offered day work at weekends only which is not suitable for her mental health and medical needs. She is on an antidepressant for depression and anxiety. She informs me that she has been offered day work on weekends only and that would lead to social isolation and further aggravate her mental health situation in my professional opinion”.

Mr Nagle wrote to the Complainant on 26 March 2018.  In this letter Mr Nagle states “We spoke again about the options that have been discussed with you in terms of facilitating your return to work. None of these are acceptable to you as your belief is that while you are not sick, you have a disability which can only be accommodated by offering you a full-time day job. As stated in previous correspondence, we would like to see you back at work. However, it seems at this stage you are no longer capable of performing your role. Unfortunately we cannot hold your position open indefinitely and need to agree on a return to work date as soon as possible. The Company remains available for further discussion with you in relation to this matter.” A copy of this correspondence was exhibited at the hearing.

By agreement between the Respondent and the Complainant, the Complainant attended a medical assessment with an independent occupational health physician, Dr David Madden, who had not assessed the Complainant previously. The agreed referral letter to Dr Madden was exhibited at the hearing.  The Complainant attended Dr Madden on 13 June 2018 and Dr Madden’s report of same date was exhibited at the hearing.

In his report, Dr Madden advised that the Complainant was suffering from a further medical condition of which the Respondent was not previously aware.  In light of the Complainant's medical condition, Dr Madden stated as follows in his report:

“Question 1

This lady is under medical care for the following health issues, depression, anxiety and Neurocardiogenic Syncope. While she is on appropriate treatment for these medical conditions, the impact on her health due to these underlying medical issues has not resolved. These unresolved health issues impact her ability to participate in many routine day to day activities including employment. I feel this lady will experience reduced health issues longterm.

Question 2

I feel this lady is not fit to return to her current role as MTM on a five cycle shift indefinitely.

Question 3a.

Ms Higgins inability to work as an MTM in a 5 cycle shift will be long-term / indefinite.

Question 3b.

Ms Higgins is attempting all appropriate treatment intervention to facilitate resolution of her medical issue. I am not in a position to suggest any additional medical or other intervention that is likely to facilitate her recovery and result in fitness to return to work as an MTM on a five cycle shift. I feel she will remain unfit for the role of MTM on a five cycle shift longterm.

Question 4a

Ms Higgins is not fit to work nights due to depression / anxiety / Neurocardiogenic Syncope. She is not fit to work a twelve hour shift, day or night, due to Neurocardiogenic Syncope. She is not fit to stand for prolonged periods at work.

Question 4b

Ms Higgins is fit for some work. She is fit to work days, such as 8am – 4pm or 9am – 5pm. She is not fit to work evenings due to her Neurocardiogenic Syncope condition. She is not fit to work nights due to her depression / anxiety condition.

Question 4c

Ms Higgins is not fit to work evening shift. I feel an evening shift typically starts anytime between 3pm and 5pm and usually finished between 11pm and 1am. She is not fit to work evenings due to her Neurocardiogenic Syncope condition. Finishing late would also impact her sleeping pattern, resulting in a delayed presentation for bed, possibly sometime in the early hours of the morning. This is likely to also impact her mental health condition.

Question 5

Ms Higgins is fit to work days, starting typically between 8am and 9am and finishing between 4pm and 5pm. She is not fit to work Friday, Saturday and Sunday on 12 hour shifts.

a)      Ms Higgins is not fit to work evenings or nights.

b)      Ms Higgins is not fit to work a twelve hour shift, day or night.

c)       Ms Higgins is fit to work an eight hour shift, starting between 8am / 9am.

d)      This lady as an MTM is more suited to a seated role due to her Neurocardiogenic Syncope condition. She should in a typical shift, spend in the region of 75% or more in a seated activity at work. She can stand and walk, but ideally for short periods only. The standing and walking part of her role ideally should be spread throughout her shift and ideally not altogether.

e)       Ideally this lady should keep lifting light, less than 5kgs at work, as a precautionary measure, in the unlikely event that she might feint [sic] / fall at work while lifting a product.

f)        Ms Higgins is not fit to work as a lone worker.

g)      I feel Ms Higgins can work any days of the week or weekend.”

The Complainant attended further occupational health assessments with Dr Madden on 27 August 2020 and 14 May 2021.  Neither of the reports deviate in material terms from the June 2018 report. Copies of Dr Madden’s reports were exhibited at the hearing.

The Respondent had to consider the position regarding the Complainant who, by reason of her medical condition, was unfortunately considered unable (on a long term / indefinite basis) to:

·       perform a five-cycle shift rota;

·       work night shifts;

·       work evening shifts;

·       work 12-hour shifts, day or night;

·       spend more than 25% of a typical shift standing;

·       lift more than 5kg; and

·       work as a lone worker.

Further, the Complainant was, by reason of her medical condition, at risk of sudden fainting and collapse. 

In the period between 24 June 2021 and 17 January 2022, the Respondent and the Complainant were engaged in regular correspondence leading to the Respondent preparing to make a decision in relation to the Complainant’s continued employment in circumstances where she had been absent from work continuously since August 2017. The Complainant had requested that all communications between her and the Respondent, with the exception of one meeting on 23 July 2021, take the form of written correspondence. This correspondence comprised a letter from Ms Sinéad Cassidy (Human Resources Manager, Global Operations & Technology) to the Complainant dated 24 June 2021 which was exhibited at the hearing.

It also comprised further correspondence to the Complainant dated 2 July 2021; 9 July 2021; 15 July 2021; 28 July 2021; 30 September 2021; 7 October 2021; 26 October 2021; 29 October 2021; 21 December 2021; and 13 January 2022; and emails from the Complainant dated: 25 June 2021; 3 July 2021; 12 July 2021; 16 July 2021; 3 August 2021, 1 October 2021; 8 October 2021; 26 October 2021; 1 November 2021; 20 December 2021; 21 December 2021; and 14 January 2022 a copy of which was exhibited at the hearing.

Ms Cassidy’s letter to the Complainant, dated 24 June 2021 sets out comprehensively the consideration given by the Respondent to accommodating the Complainant within the confines set out by Dr Madden.  Despite extensive efforts on the part of the Respondent, it appeared, at the time of that correspondence, that it would not be possible for the Complainant to return to her role as an MTM.  A review meeting was set up for the Complainant so that all available options could be discussed.  This review meeting between the Complainant (who was accompanied by her brother), Ms Cassidy and Mr Martin O’Halloran (Manufacturing Operations Manager) took place on 23 July 2021.  Summary notes of that meeting were exhibited at the hearing.

Subsequent to the meeting of 23 July 2021 and arising from queries raised by the Complainant, a review of the Complainant’s occupational health assessments, as well as the health and safety implications of same as regards the role of an operator in the production area of the Respondent’s business, was carried out in September 2021 by Mr George Rickard, Environmental Health and Safety Manager with the Respondent.  Mr Rickard was the appropriate person to carry out the review on behalf of the Respondent given his over 15 years environmental, health and safety experience as well as his academic qualifications including a Bachelor’s Degree in Manufacturing Technology from the University of Limerick; a National Certificate in Health and Safety at Work from NEBOSH and a Higher Diploma in Occupational Health and Safety from University College Cork.  Mr Rickard’s report concluded that, in light of Dr Madden’s reports, it was not safe for the Complainant to continue to work as an operator in the production area for her own safety.  A copy of Mr Rickard’s report, dated 24 September 2021, was exhibited at the hearing.

Regrettably, despite the Respondent’s best efforts, having devoted significant time and resources to determining whether there was a role available for the Complainant in the Respondent which would conform with the recommendations made by Dr Madden, a conclusion was reached that it would not be possible for the Complainant to return to her MTM role without deviating substantially from Dr Madden’s recommendations. Neither was the Respondent able to identify any suitable alternative roles, for which the Complainant was qualified, on an eight-hour shift with a starting time ideally between 8am and 9am as per Dr Madden’s most recent report of 14 May 2021.

By letter dated 30 September 2021, Ms Cassidy wrote to the Complainant outlining that her current opinion was that the Complainant was not fit for work by reason of her ongoing incapability and that there is no reasonable prospect of the situation changing (exhibited at the hearing). The Complainant was invited to submit any comments she might have, in particular with regard to Mr Rickard’s report which had been provided to her, before any final decision would be made by the Respondent.  Once again, the Complainant was reminded that a possible outcome of the review was that her employment would be terminated on capability grounds.  No substantive response was received from the Complainant.

By email dated 13 January 2022, Ms Cassidy advised the Complainant that a decision had been made regarding her continued employment with the Respondent and proposed a meeting with her, with the same attendees as the 23 July 2021 meeting, for 17 January 2022 at 2.00pm. 

In the absence of a response from the Complainant by the proposed time/date of the meeting, the Respondent issued a letter to the Complainant, dated 17 January 2022, notifying her that the Respondent had regrettably decided to terminate her employment by reason of incapability.  The letter set out that the Respondent had concluded that the Complainant was “not fit for work by reason of [her] ongoing incapability, and that there is no reasonable prospect of the situation changing”.  The letter went on to say that the Respondent had “explored alternative roles with the Company, guided by Dr Madden’s expert medical advice, and have concluded that unfortunately there are no such roles available, given the nature of our work and the level of physicality required for any role for which [she is] qualified.” A copy of the email of 13 January 2022 and the letter of 17 January 2022 were exhibited at the hearing.

The Complainant’s employment terminated on 14 March 2022 upon the expiry of her statutory notice period of eight weeks (not on 21 March 2022, as set out in the Complainant’s WRC complaint form).

The Complainant was advised of her right to appeal against the decision to terminate her employment and exercised her right of appeal.  The appeal was heard by an independent appeals officer, Mr John Liddy, General Manager Manufacturing Operations.  The Complainant set out her appeal grounds in an email dated 24 January 2022, which was exhibited at the hearing. The Complainant requested that the appeal be conducted by reference to the documentation between her and the Respondent and declined to attend an appeal meeting despite being requested to do so by Mr Liddy.  The Complainant’s appeal was not upheld and this was communicated to her by letter, from Mr Liddy dated 21 March 2022. A copy of the appeal outcome letter together with correspondence leading up to this letter was exhibited at the hearing.

THE UNFAIR DISMISSALS COMPLAINT:  RELEVANT LAW

The Complainant alleges that the termination of her employment was an unfair dismissal within the meaning of the UD Acts and seeks redress of reinstatement/reengagement/compensation as provided for within the UD Acts.

Section 6 of the UD Acts provides:

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

…

…

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

the capability, competence or qualifications of the employee for performing work of the kind which he was employed to do,

the conduct of the employee,

the redundancy of the employee, and

the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

In respect of the unfair dismissal complaint, the Complainant’s dismissal resulted wholly from her incapability to perform the work she was employed to do in circumstances where she was continuously absent from work from August 2017 with medical assessments determining that she was not capable of meeting the  requirements of her role.  The legal test in respect of capability arising from ill health was succinctly set out by Lardner J in Bolger v Showerings (Ireland) Limited[7] as follows:

“In this case it was the ill-health of the plaintiff which the company claimed rendered him incapable of performing his duties as a forklift driver.  For the employer to show that the dismissal was fair, he must show that:

It was the ill-health which was the reason for the dismissal;

That this was the substantial reason;

That the employee received fair notice that the question of his dismissal for incapacity was being considered; and

That the employee was afforded the opportunity of being heard.”

The chronology set out above demonstrates that the Respondent, over a period of six years, had the Complainant assessed on nine occasions by independent occupational health professionals,  including four assessments carried out since commencement of her latest period of absence in August 2017.  The occupational health assessments identified a further health condition in addition to the Complainant’s existing diagnosis of depression, which had caused her earlier extended periods of absence from November 2014 until August 2015.  The Complainant returned to work in August 2015 and remained at work until August 2017.  Thereafter the Complainant did not attend work. 

In 2018 it was agreed between the parties that the Complainant would attend an independent occupational health physician, Dr Madden, who had not previously assessed the Complainant.  An agreed referral letter was sent, as detailed above, and the resulting report identified a further medical condition and  set out a range of restrictions which were to be adhered to if she were to return to work safely.

Prior to Dr Madden's report, which was issued in June 2018, the Respondent was not aware and had no knowledge that the Complainant was suffering from the medical condition of Neurocardiogenic Syncope.  In his report, Dr Madden described that this condition resulted in a failure in patients’ ability to regularise the functioning of their heart rate, their blood pressure and the neurological control. Patients can experience low blood pressure for prolonged periods resulting in fatigue/collapse. Dr Madden outlined that as time progresses, the condition may become more prevalent and problematic, resulting in a gradual reduction in health over time for the Complainant.  Dr Madden stated in his report that the Complainant’s Neurocardiogenic Syncope condition will remain unresolved and difficult to manage long term.  Even though the Complainant has been on treatment for this condition, she was only experiencing marginal benefit. Dr Madden further stated that the Complainant would experience reduced health issues long term.

Accordingly, the Respondent worked to determine if any reasonable accommodation could be made for the Complainant in the context of Dr Madden’s recommendations in his report. The core duties of the role for which the Complainant was employed required her to:

a)      work a five cycle shift pattern which includes 12 hour day, evening and night shifts and shifts over the weekend:

Dr Madden's report was explicitly clear that the Complainant was not fit to work the five-cycle shift pattern on a long-term/indefinite basis and the Complainant was not fit to work evenings or nights. Dr Madden’s report provides further that the Complainant was fit to work a 12-hour shift, day or night. Dr Madden’s report further provides that the Complainant was fit to work an eight-hour shift only, starting between 8am and 9am.

b)      spend 60% of a shift standing and 40% of a shift sitting:

Dr Madden deemed that the Complainant was more suited to a seated role due to her existing medical condition. Dr Madden stated that the Complainant should spend in the region of 75% or more in a seated activity at work which equates to six hours of an eight-hour shift. Dr Madden advised that the Complainant could stand and walk but for short periods and this should be spread out throughout her shift and ideally not altogether. Within the Respondent’s manufacturing floor where the Complainant carried out her duties, chairs are not positioned at every piece of equipment or machine as the majority of manufacturing equipment has to be operated from a standing position. The Complainant was required to manually change chemicals up to four times a shift from a standing position. While every precaution with regard to health and safety is taken in handling these chemicals and wearing protective clothing, there was a substantial risk to the health and safety of the Complainant and her colleagues if she were to faint or collapse while changing chemicals. The only equipment within the Litho manufacturing area that can be operated from a seated position are the microscopes and the computer terminals used to assess production data and record production data. The Complainant was seated when completing the following tasks:

·       using a microscope – inspecting a wafer after the Litho process. Even though this is a seated task, it involved carrying a box of wafers to the scope and back to storage;

·       using Promis – internal Analog system for displaying production; and

·       using Smart – internal Analog system for recording and reviewing data. 

In the Litho Work Centre of the manufacturing fab, the Complainant was seated for approximately 40% of her time on a 12-hour shift (5 hours) and spends 60% of the 12-hour shift standing (7 hours).

On review of Dr Madden’s recommendation that the Complainant should spend in the region of 75% of her time or more in a seated position, together with a review of her daily tasks, the Respondent  identified that the Complainant performed eight out of nine of her essential tasks from a standing position. It was not possible in the Litho area for the Complainant to spend six hours at a seated position as the equipment and observation of the product while on the equipment require to be completed from a standing position.

c)       work in a manufacturing environment where the majority of floor space is occupied by large machinery, equipment and hazardous chemicals that are classed as corrosive irritant and/or flammable:

Dr Madden outlines in his report that patients with Neurocardiogenic Syncope experience low blood pressure for prolonged periods resulting in fatigue/collapse. This is of major concern to the Respondent given the work environment, equipment and chemicals that the Complainant worked with in her role. The Complainant worked in a manufacturing environment where the majority of floor space is occupied by large machinery and equipment (relevant floor plans were exhibited at the hearing) and with hazardous chemicals that are classed as corrosive, irritant and or inflammable. Working in this type of environment posed a real and substantial risk to the Complainant’s health and safety, and to that of her colleagues, particularly if she were to faint or collapse while at work.

d)      lift boxes of silicon wafers (which contains 25 silicon wafers and weighs 3.4kg including the storage box):

The Complainant would typically lift a box of silicon wafers numerous times during the shift, in order to load and unload the box of wafers onto the cluster machine so that the product can be processed. Boxes of silicon wafers are moved throughout the shift by MTMs to process the silicon wafers but also to inspect them following the process. The loading/unloading of wafers onto a machine or microscope and the checking in and out of wafer boxes from storage are considered an essential element of the Complainant’s role and is a required manual intervention in the process of wafer production. It is not possible to automate this manual intervention. Boxes are transported by hand by MTMs if carrying just one box, or on trolleys if more than one box requires transportation (relevant pictures were exhibited at the hearing).

There is a risk that if the Complainant were to faint or collapse while carrying a box of silicon wafers that it could result in shards of broken silicon (fine particles of sharp glass) which would present an abrasion hazard and serious eye injury risk, coupled with damaged product. Furthermore, depending on the stage of the manufacturing process that the box of silicon wafers is at, the cost of damage to one box of silicon wafers could be in the region of €60,000.

e)       Work alone:

Dr Madden states that the Complainant is not fit to work as a lone worker. The Complainant worked on a team of six MTMs. The team of six MTMs is split into two smaller teams of three MTMs, and each MTM is paired with another MTM whereby they cover each other’s tasks and equipment while they are on breaks. All the tasks are completed on an individual basis by the MTMs and, depending on the equipment that they are operating, they may not always be in close proximity to each other. There were times where the Complainant could be in one area of the manufacturing floor on her own using a piece of equipment or a machine, and she could find herself alone during break times when there are fewer MTMs on the manufacturing floor. While there are other operatives on the manufacturing floor, it would be very challenging for the Respondent to guarantee that the Complainant is not on her own at any stage during her shift.

Given the identification by Dr Madden of the threat of the Complainant’s sudden fainting and collapsing while at work, the Respondent arranged for the risk assessment to be carried out by Mr Rickard in September 2021 (as referred to above).  This concluded that it was impossible for the Respondent to implement a reasonable accommodation that would mitigate this risk and ensure the Complainant’s health and safety and the health and safety of those working alongside her, while she is at work. It would also be extremely difficult to guarantee that the Complainant would not be alone at any time when she was at work. There would likely be times during the shift where the Complainant would be alone (e.g. walking to and from the building, comfort breaks etc.).

Even excluding the two recommendations from Dr Madden’s report that the Complainant cannot work alone and that her condition puts her at risk of sudden fainting or collapse, the type of reasonable accommodation that would be required to accommodate the Complainant with an eight hour day shift starting between 8.00am/9.00am as recommended by Dr Madden would involve the creation of a new and reduced role for the Complainant, and one that can be performed from a seated position. Such a new and reduced role would involve the Complainant not performing the essential tasks of her role within Litho, of loading and unloading the cluster machine, and changing of Litho chemicals. This would require the Respondent to create an entirely new role for the Complainant, or to remove the core duties of the job for which the Complainant has been employed, such as would substantially alter the character of that job.  As noted by the Supreme Court in Nano Nagle School v Daly,[8] the test “is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee…”.

Due consideration was given by the Respondent to any possible alternative roles which may be available in other departments outside of the manufacturing fab and within Global Operations and Technology, with a view to reasonably accommodating the Complainant in line with Dr Madden’s report, i.e. an eight hour shift with 75% of the working time in a seated position with limited lifting, and working as part of a team. The types of departments that work the pattern of an eight-hour shift starting at 8am or 9am are the following: Human Resources, Accounts and Purchasing. A number of other roles such as security, catering and reception are outsourced to a third-party contractor which provides these services to the Respondent.

Having reviewed the roles that became available in the Company in and around the summer of 2021, the Respondent found that the majority were engineering roles which require a third level qualification. In addition, there were two manufacturing supervisor roles, two manufacturing operative roles and two equipment maintenance technician roles.

Outside of engineering roles and roles within the manufacturing fab, four roles became vacant in Human Resources during the relevant period.  The Complainant did not have the necessary skillset, qualifications or experience required for any of the roles, all of which have now been filled.  The roles are summarised below:

a)       Talent Acquisition Specialist EMEA – a minimum of 3 years recruitment experience was required for this role;

b)      College Recruitment Specialist – previous experience working with large scale recruitment, and a high level of IT literacy, were required for this role;

c)       Human Resources Business Partner – a third level qualification in Human Resources is required for this role;

d)      Human Resources Administrator (Maternity Leave cover for 11 months) – a third level qualification in Human Resources, or training and education in the area, is required for this role.

Three roles became available in Purchasing and Accounts during the relevant period.  The Complainant did not have the necessary skillset, qualifications or experience required for any of the roles, all of which have now been filled.  The roles are summarised below:

a)       Senior Buyer Role – a minimum of five years’ buying experience, or relevant experience within procurement, was required for this role;

b)      Accounting Payable Co-Ordinator (Part Time Role (28 hours)) – three to five years’ experience using the SAP software system, as well as a European Computer Driving Licence (“ECDL”) qualification, were required for this role;

c)       Accountants’ Assistant – an Accounting Technician qualification, or relevant third level qualification, was required for this role.

Unfortunately, there was no way in which the Complainant could be reasonably accommodated by the Respondent in line with the recommendations in Dr Madden’s report and there were no non-MTM roles available for which the Complainant was qualified, even without considering Dr Madden’s criteria.  The central reality is that the Complainant could not perform her MTM role and unfortunately no reasonable accommodations could change that. 

In those circumstances, and having regard to the fact that the Complainant had been absent from work for more than four years by the time her employment was terminated, with no improvement in her condition(s) likely and where the recommendations of Dr Madden remained unchanged for three years, it is submitted that it was entirely reasonable for the Respondent to conclude that the only reasonable option open to it was to terminate the Complainant’s employment.

The Respondent engaged in a lengthy period of consultation with the Complainant including three occupational health reviews in 2018, 2020 and 2021 with a view to finding a resolution that would enable the Complainant to return to work.  Regrettably, it was not possible to achieve that outcome. The Complainant was afforded the opportunity to put forward proposals that would assist her to return to work, but none were forthcoming.  At all material times, the Complainant was on notice that the question of her dismissal for incapacity was being considered. 

It is submitted that the Respondent is in the same position as the employer in McCormack v Ashford Castle Hotel[9], where the Labour Court found, in the context of a dismissal for incapacity following a period of absence of three years, that “the Respondent honestly believed that the [Appellant] was incapable of carrying out the work he was employed to do as a result of his ill health”.

The situation the Respondent found itself in was that:

·       the Complainant had been absent from work for a continuous period of more than four years;

·       the Complainant was unable to perform the vast bulk of her MTM role if she (and the Respondent) were to follow the medical guidance issued by the occupational health professional who assessed the Complainant on three separate occasions over a three year period;

·       there was no prospect of any improvement in the Complainant’s condition(s) in the long term (or at all);

·       there was no suitable role for which the Complainant was qualified which could be carried out in compliance with medical guidance; and

·       there was no accommodation which could be put in place which would enable the Complainant to perform her MTM role. 

MITIGATION/FINANCIAL LOSS

In her Complaint Form in respect of the Unfair Dismissal complaint, the Complainant maintains that she has not secured employment since she was dismissed by the Respondent.  Without prejudice to the Respondent’s clear (and it is submitted compelling) submission that the termination of the Complainant’s employment was a fair dismissal, on the Complainant’s own account, and that of Dr Madden, she has the capability to work daytime hours if seated 75% of the time.

The Complainant has a statutory obligation to mitigate her loss. In Sheehan v Continental Administration Co Ltd[10], the Employment Appeals Tribunal ruled that a proactive approach was required holding that:

“A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.  It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work… The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

Accordingly, the Respondent places the Complainant on strict proof of her efforts to mitigate her financial loss.

Strictly without prejudice to the foregoing submissions, if the Adjudication Officer finds that the Complainant has been unfairly dismissed (which is denied), it is submitted that she must satisfy themselves that the Complainant has, in fact, suffered financial loss.  Any award for compensation in respect of an unfair dismissal is limited strictly to the loss arising from the dismissal and not for any other reason. 

The Respondent’s solicitors have sought information in relation to the Complainant's alleged actual loss, however, at the time of writing the within submission, particulars of same have not been provided.

THE UNFAIR DISMISSALS COMPLAINT:  CONCLUSION

The Complainant was dismissed only after the Respondent had exhausted all potential avenues to retain her in employment. The Complainant’s ill health and consequent incapacity to perform her role was the sole reason for her dismissal. She received fair notice from 24 June 2021 onwards that the question of her dismissal for incapacity was being considered by the Respondent and she was afforded the opportunity of being heard at every stage of the process. It is submitted that the Respondent met all of the criteria set out in the Bolger case in reaching the conclusion that the Complainant should be dismissed on the grounds that she was incapable of performing the work she was employed to do.

The Respondent submits, in accordance with section 6(4) of the Acts that the Complainant’s dismissal was not unfair as it resulted “wholly or mainly from … the capability…of the employee for performing work of the kind which he was employed to do”.

The Respondent respectfully asks that the Complainant’s claim be dismissed in accordance with section 8(1)(c) of the Acts.

At the adjudication hearing on 10 May 2023, Ms McGowan BL contended that there is no requirement that res judicata applies to a higher court. The Complainant’ representative confirmed that the decision of 2019 stands. It was noted that the Labour Court met as a division and struck out the appeals. It was asserted that the 2019 decision stands and cannot be revisited.

With regard to the time limits, Ms McGowan BL contended that the Complainant was represented at the time and the amendment of the form should not be allowed.

In response to the Complainant’s representative’s submission of 18 May 2023, the Respondent’s representative furnished its replying submission on 26 May 2023 as follows.

RES JUDICATA

The Respondent submits that the Complainant’s submissions with regard to res judicata are fundamentally misconceived.

The Complainant submitted at the hearing of the matter on 10 May 2023 that if the principle of res judicata were to apply to the Decision of 31 October 2019 (in relation to the 2017 complaint), that the same could be said in respect of the Decision which issued on 23 March 2017 (in relation to the 2015 complaint).

The Respondent does not accept that characterisation of the legal position and clearly (by her actions in proceeding with the 2017 complaint) the Complainant did not consider that to be the correct application of the law at the material time.

The Respondent urges the Adjudication Officer to critically review both decisions of the WRC and submits, as can be seen from the contents therein, that there was a fundamental difference between the 2015 complaint and the 2017 complaint.

In the 2015 case the Respondent’s position with regard to the operation of a transfer request process, which was applied irrespective of an employee’s disability, was deemed inappropriate by the WRC. The operation of this approach to day transfers has been discontinued by the Respondent and was not an issue in respect of the 2017 complaint.

Further, it can be seen from the 2017 complaint that substantial changes had taken place in the period between the 2015 Complaint and the 2017 complaint, in respect of the Complainant’s position, including but not limited to the medical reviews which were conducted in 2018 and the substantial efforts which had been made by the Respondent to accommodate the Complainant in respect of alternative employment and positions within the Respondent.

The Respondent disputes the Complainant’s efforts to characterise the current state of affairs as being a “one-all draw” in respect of the WRC decisions of 23 March 2017 and 31 October 2019. What is clear is that in the absence of an appeal continuing to the Labour Court, that the WRC decision of 31 October 2019 remains as a final and conclusive judgement on the merits of the Complainant’s case.

There is case law in the Respondent’s original submissions to the WRC which makes it clear that the principle of res judicata applies to the WRC (and/or the employment law fora which preceded it): A Teacher v A Government Department ADJ-00019194; Jahan Company t/a Irema Ireland v Anne Power EDA1326.

For clarity, it is not the case, as evidenced by the Complainant’s own exhibits to her supplemental submission, that the Labour Court struck out the Complainant’s proceedings for want of prosecution on its own motion. The correspondence reveals that the Respondent urged the Labour Court to dismiss the Complainant’s appeal for want of prosecution by the Complainant and that a properly constituted division of the Labour Court considered the matter before reaching a decision to strike out the Complainant’s appeal, which it did in accordance with its statutory powers. A copy of the Respondent’s correspondence with the Labour Court in respect of the Complainant’s appeal was furnished by the Respondent’s representative.

The WRC’s decision of 31 October 2019 is the “… final and conclusive judgement on the merits” of the Complainant’s case. It is not relevant that there was no appeal on the matter and/or that the appeal lodged by the Complainant did not proceed. In circumstances where the Labour Court validly struck out the Complainant’s appeal for want of prosecution the decision of the WRC in respect of the matter stands and is a valid final and conclusive decision on the merits of the case. It was open to the Complainant to have proceeded with her appeal to the Labour Court and she had multiple opportunities to do so, as evidenced by the correspondence exhibited to the Complainant’s submission.

Notwithstanding the Complainant’s single communication with the Labour Court in October 2020 that she intended to proceed with her appeal, which was approximately 11 months after she lodged her appeal and approximately 10 months after the deadline to lodge her written submissions with the Court in accordance with Rule 6, Part 1 of the Labour Court’s Rules, no submissions were provided by her to the Labour Court in the intervening period of almost four months prior to the Labour Court lawfully reaching its decision to strike out the appeal. A period of over one year had elapsed before the Labour Court struck out the Complainant’s appeal.

As the appeal of the WRC decision did not proceed, it is not appropriate or legally correct to state that there was no final decision on the merits. In the absence of an appeal or in circumstances where an appeal is not proceeded with and it is validly struck out in accordance with the statutory powers of the Labour Court, then the WRC decision remains the final and conclusive judgement on the merits of the case.

The Complainant accepts (in the note of oral legal submissions) that had the Labour Court made a decision on the merits of her 2017 Complaint “there would have been an operative res judicata”. The Respondent respectfully submits that there is no requirement for an appeal to have been heard for the principle of res judicata to apply. Once there has been a final and conclusive judgement on the merits of the case (which there was at the WRC) the principle applies which it does in this case.

The Respondent submits that where the Complainant accepts that res judicata applies where there has been a final and conclusive judgement on the merits of her case this applies to the WRC decision as much as it would apply to a Labour Court decision on appeal if there had been one.

THE STATUTORY SCHEME

The Complainant’s submissions in respect of the prevailing statutory scheme are not accepted. The Complainant has not provided any legal basis on which it submits that the strike out decision of the Labour Court was not amenable to judicial review.

The communication from the Complainant’s solicitor to the Labour Court (dated 3 February 2021) was a request for the Labour Court to revisit its decision to strike out the case which the Labour Court correctly identified was not within its jurisdiction to do. That did not limit the Complainant in either appealing the strike out decision if it considered there was a point of law arising or judicially reviewing the decision of the Labour Court or indeed challenging the legislation if she believed it purported to impose an unacceptable limitation on her ability to prosecute her case. The Complainant took none of these courses of action.

Insofar as the Complainant submits that section 102(5) of the Employment Equality Acts is supportive of the view that the correct procedure is to start again, the Respondent submits that only applies where the Complainant is within time to make a further reference. It is submitted that it was not open to the Complainant to resubmit her 2017 complainant given the applicable time limits and also given that all of the matters had been finally and conclusively determined by the WRC in respect of its decision of 31 October 2019.

ONGOING STATE OF AFFAIRS/STATUTORY TIME LIMITS

The Respondent does not accept the Complainant’s submission that the most recent date of discrimination of 18 October 2017 can be characterised as a single error on the face of the record.

It is submitted that the Complainant is statute barred from proceeding with the 2021 complaint in circumstances where it concerns all of the same matters which were ventilated and decided upon in the 2017 Complaint.

The Complainant’s written submission to the WRC in respect of her 2021 complaint makes clear that she is advancing her 2017 complaint again in response to the strike out of the appeal of the WRC decision in respect of that complaint. The Complainant’s stated intention in relation to the 2021 complaint pursuant to the Employment Equality Acts was to re-activate the matter in respect of which the Labour Court had struck out her appeal.

That the Complainant subsequently seeks to characterise the matter as an “… ongoing and continuing failure to reasonably accommodate” does not change that situation.

The Respondent had not failed to reasonably accommodate the Complainant neither at the time of the WRC decision on 31 October 2019 nor at the time of the striking out of the Complainant’s appeal on 22 January 2022. This is evidenced in the WRC decision which remains a valid final and conclusive judgement on the merits of the Complainant’s case. The Complainant was not at work at the time of the WRC decision and had not been for some time and remained out of work at the time she submitted her 2021 Complaint. There was no ongoing and continuing failure to reasonably accommodate the Complainant because there had not been any failure to accommodate her from 2017 onwards.

The Complainant’s submissions regarding alleged ongoing and continuing failure to reasonably accommodate the Complainant are made in an attempt to resurrect a complaint already determined, an appeal already struck out, and/or to initiate a new claim where there was no change to the Complainant’s restrictions and the Respondent’s ability to accommodate them. It is submitted that the Complainant is statute barred and estopped from proceeding with her 2021 complaint.

ISSUE ESTOPPEL

The fact that there was no change in circumstances in respect of the Complainant indicates clearly (in reliance on the Complainant’s own reference to Delany: Civil Procedure in the Superior Courts (3rd Edition), para 32-67) that issue estoppel arises.

The Complainant’s submission that the Complainant’s circumstances changed following the striking out of her appeal on 22 January 2021 is not accepted by the Respondent.

The Complainant’s only submission in this regard is that the report of Dr Madden of 14 May 2021 evidenced “… an improvement in circumstances of the Complainant and her capacity to do more generally” which the Complainant submits renders her “medically fit with limitations”. This does not reflect the reality of the medical assessment and the restrictions it imposed on the Complainant and, by extension, on the Respondent’s ability to accommodate the Complainant.

It is clear from any plain reading of the report of 14 May 2021 that there was no change to the Complainant’s condition between her review on 13 June 2018 and subsequent reviews in August 2020 and May 2021. The Complainant was, at the time of the WRC decision on 31 October 2019, unable to meet the fundamental requirements of her job in that specifically she was unable to work shift, unable to work nights, unable to work evenings, unable to work weekends, she was unable to work for longer than an eight hour period, where all of the shifts in the Respondent covered a 12.25 hour shift. The Complainant was only suitable to work an eight-hour day shift commencing at 8.00am or 9.00am, Monday to Friday and there was no such work available in the Respondent for which the Complainant was qualified to perform. The Complainant was also medically required to sit for 75% of the shift. None of those restrictions changed in either of the subsequent reports of Dr Madden. Notwithstanding the Complainant’s efforts to somehow obfuscate the medical requirement for the Complainant to be seated for 75% of her shift by focusing on her ability to stand for up to 30 minutes, the requirement to sit for 75% of her shift has been acknowledged by the Complainant as remaining as a prerequisite to her working.

While nothing changed in respect of the medical restrictions on the Complainant neither did anything change in the Respondent in respect of its assessment of the situation regarding its inability to accommodate the Complainant working an eight-hour day shift in a seated position for 75% of the shift.

It is evident from the decision of the WRC of 31 October 2019 that the Adjudication Officer had regard to the advices of Dr Madden of 13 June 2018 and the response of the Respondent to that report. It is submitted that there was no change in assessment and no accommodation which could be reasonably applied to the Complainant. In this regard the Respondent submits that there was no change in either the Complainant’s condition or the Respondent’s ability to accommodate it in the period after 31 October 2019, being the date of the final and conclusive judgement of the WRC.

Any review that was conducted by the Respondent after that date was in the context of the Complainant’s continuing employment and, it is submitted, is a matter which falls for consideration under the Complainant’s claim under the Unfair Dismissals Acts and not her claim under the Employment Equality Acts for reasonable accommodation.

CONCLUSION

In circumstances where the Complainant’s medical condition did not change, where the restrictions on her were the same as applicable at the time of the WRC decision of 31 October 2019, where the Respondent had been determined not to have failed in its obligations to reasonably accommodate the Complainant, where no further reasonable accommodation was available, it is submitted that there were no changes to the circumstances applicable to the Complainant and there was no basis for any new complaint in respect of a failure to provide reasonable accommodation for the Complainant’s disability.

On the Complainant’s own account, she has not been at work at any time since the WRC decision of 31 October 2019. The Respondent’s assessment of the Complainant subsequent to that date was in respect of the continuity of her employment on capability grounds which led to consideration of any possibility of reasonable accommodation and none was identified.

It is submitted that, on application of the principle of res judicata in respect of the WRC’s decision of 31 October 2019 and the statutory time limits imposed by the Employment Equality Acts, that a preliminary decision in favour of the Respondent would be determinative of the matter in its entirety.

The Respondent submits that by application of the principle of res judicata and the statutory time limits the WRC has no jurisdiction in respect of the 2021 complaint and asks the WRC to so find.

Summary of direct evidence and cross-examination of Ms Cassidy, HR Manager

Ms Cassidy said that when she joined the Respondent, the Complainant was already out of work.

Ms Cassidy said that the Complainant agreed to be reviewed by Dr Madden on 13 June 2018. Prior to the review, the Complainant was suffering from depression. The new report included a new condition, NeuroCardioGenic Syncope, which the Respondent had no knowledge of previously. It was understood that  the Complainant was not fit to return to her role indefinitely as per the report. The restriction and modifications were also listed in the report.

Ms Cassidy said the role required standing quite a lot, there was some sitting but not at the ratio of 75/25. Ms Cassidy also had concerns regarding the Complainant not being fit to work as a lone worker. She said that the factory floor is quite large and it was a big concern.

Ms Cassidy said that she spoke with the Complainant’s supervisors to understand the role. She asked the supervisor to breakdown the role into tasks to see how much of the role was in a sitting/standing position.

Ms Cassidy said that, as the previous report was of 2018, she reached out to eth Complainant around July 2020. She wanted to check if there was any change. THE Complainant agreed to an assessment by Dr Madden which took place on 27 August 2020. Ms Cassidy received the Report on 24 October 2020. Ms Cassidy said that previous report indicated 75% proportion of sitting, the new report for the first time noted that the Complainant could not stand continuously for longer than 30 minutes. The Respondent asked Dr Madden to clarify information in the report, in particular the difference between 75% and 30 minutes recommendations. On 14 May 2021 Dr Madden reverted with a report. Ms Cassidy said that her understanding was that 30 minutes was the maximum period the Complainant could stand for. She still needed a chair close to her; there was no hairs in the aisle.

Ms Cassidy said that she wrote to the Complainant on 24 June 2021 as she wanted to establish how difficult it would be to accommodate her. She took time to review other roles. She looked at other departments but the Complainant did not have the required qualifications or experience.

Ms Cassidy said that the Complainant was offered a day role in IPD but she did not take it up. The Complainant now says that she was not offered this role. Ms Cassidy referred to a letter of 12 December 2017 which outline the details of a meeting on 5 December 2017 when the role was offered to her. (It was clarified at the hearing that the Complainant accepted that the role was offered to her. However, she understood that the role was a temporary one).

Ms Cassidy said that the nature of her engagement with the Complainant as to understand if there was anything the Respondent could do. Dr Madden’s findings did not change in any material way. 30 minutes standing time was not a material difference.

Ms Cassidy said that she appreciated that the Complainant did not faint in a while but she did not know what would happen if there was warning but no chair to sit down or if the Complainant did not get the warning and fainted.

Regarding the Complainant’s statement in the email of 25 June 2021 that Ms Cassidy made “unqualified medical assumptions”, Ms Cassidy said that she read the report and took what any reasonable person would take of it.

Ms Cassidy said that she invited the Complainant to a meeting that took place on 23 July 2021. Ms Cassidy said that at the meeting she discussed all potential options with the Complainant. For the benefit of the hearing Ms Cassidy went through the minutes of the meeting.

Regarding the Complainant’s query about a role in Defect, Ms Cassidy referred to her letter to the Complainant of 30 September 2021 where she clarified why the role was not suitable.

Ms Cassidy said that the Complainant challenged why would she have to apply for as role in a different department. She said that the closing date for applications had passed, there were a lot of applicants, the role was in a different part of the organisation.

Ms Cassidy said that she asked MR Rickard, Senior EHS Manager for his assessment, Mr Rickard outlined his concerns regarding evacuation and emergency response, etc. Ms Cassidy gave Mr Rickard the Complainant’s correspondence as she wanted him to see both sides and be aware of the issues raised by the Complainant. Ms Cassidy said that the Complainant was asked for her comments regarding Mr Rickard’s assessment.

Ms Cassidy said that she wanted to meet the Complainant to communicate in person the decision the Respondent had reached . However, the Complainant preference was email correspondence. Ms Cassidy sent a letter of 17 January 2022 informing the Complainant that her employment would be terminated. Ms Cassidy clarified that the Respondent’s handbook provides for the payment in lieu of notice. She said that there was no PILON in this case and the dismissal date was 14 March 2022. Her letter informed the Complainant of her right to appeal this decision to Mr Liddy.

In cross-examination it was put to Ms Cassidy that the Complainant wanted to work, it was “a job for life”, there were jobs she could have done but she was told to apply. Ms Cassidy said that the Respondent employs some 1,300 people. Any administrative roles are done by a third party. Any roles in finance and planning require relevant qualifications. Ms Cassidy said that she put huge amount of time to try to find a role for the Complainant, she said she did not want to terminate her employment but the Complainant did not give much back, she had no proposals.

Ms Cassidy disagreed with Mr Parker’s BL assertion hart there was a significant difference between Dr Madden’s reports. Ms Cassidy said that one task follows another, there is no time to sit down and relax.

It was put to Ms Cassidy that one cannot guarantee that another person would not fall, faint, etc. Ms Cassidy said that she would be knowingly putting the Complainant in a dangerous environment. It was put to the witness that Dr Madden said that the Complainant could manage safely. Ms Cassidy said that Dr Madden said that the Complainant’s condition would remain unresolved / difficult to manage long-term. It was put to Ms Cassidy that the Complainant believe that she could do some of the roles and that she disagreed with Ms Cassidy’s view that there was no change between the 2018 and 2021 report.

It was put to Ms Cassidy that the Complainant made suggestion regarding her work pattern in the email of 16 July 2021.

It was put to Ms Cassidy that Mr Rickard should have interviewed the Complainant. Ms Cassidy said that it was up to Mr Rickard to come back and tell her what he needed. Mr Parker BL put it to Ms Cassidy that a consultant engineer would carry out a risk assessment. Ms Cassidy disagreed.

Ms Cassidy said that the restrictions were so great that a new role would have to be created to accommodate the Complainant.

Ms Cassidy said that it was non-disciplinary dismissal but the Complainant was afforded an appeal. It was put to Ms Cassidy that the Complainant health insurance was cancelled prior to the appeal outcome so it was prejudged.

It was put to the witness that there is a chair on the fab floor for every operator, Ms Cassidy was not aware of that. She was not in a position to answer whether it would be possible to remain seated in the Lith area. Details of the areas looked at as per the letter of 24 June 2021 were outlined and discussed.

In re-examination, Ms Cassidy clarified that the Complainant’s proposals in the email of 29 July 2017 involved 12.5 hours shifts and standing. Ms Cassidy said that there are over 200 operatives in the Fab area on 5-week cycle. There were 8 hours shifts in IPD Probe but there were only 10 employees working this pattern which narrows opportunities, the role is a standing one.

Regarding the assertion that it is not possible to guarantee that people would not trip and fall, Ms Cassidy said that given the Complainant’s propensity of fainting, the risk would be heightened. She said that she had duty of care towards the Complainant and other employees.

Ms Cassidy confirmed that all the Complainant’s emails were given to Mr Rickard so her side was heard. The Complainant never raised any concerns about Mr Rickard not meeting with her, she preferred email communication.

Mr Cassidy said that there is not provision for an appeal in non-disciplinary dismissal but the Complainant was afforded the opportunity to appeal the decision. She objected to PILON. The termination date was 14 March 2022 and her health insurance was cancelled as of that date.

Ms Cassidy said that the Complainant did not put forward any reasonable accommodation proposals except what was in her email.

Summary of direct evidence and cross-examination of Mr Rickard, Senior EHS manager

Mr Rickard outlined his qualifications and experience.

Mr Rickard said that due to the nature of the Respondent’s business, there are additional requirements under relevant legislation and regulations, particularly in terms of management of chemicals. There is also a higher level of responsibility towards employees.

Mr Rickard said that he had never met the Complainant. His role was to assess whether it was safe for a person to work on the basis of the medical reports and to assess the potential risks. Eth Witness said that fainting is falling, which is the major contributor to accidents in workplaces. Because of eth Complainant’s condition she was at a higher level of risk e.g. in terms of being on her feet a lot, handling of toxic, corrosive chemicals, carrying of silicane wafers, etc. Mr Rickard said that while the Complainant usually gets warning of fainting, there might not be a chair available, she could be carrying chemicals, it is a dynamic environment. He said that he considered the fact that the Complainant had not fainted for some 10 years but he said that, from the report it seems that the condition gets worse over time, he had no knowledge how that could change.

Mr Rickard said that employees work on their own at times, for up to 1 hour so if the Complainant had an accident it could be an issue with additional risk if she carried chemicals.

Mr Rickard said that he formed a view that it was not safe fir the Complainant to return to work. He said that he had Occupation Health reports, he did not believe that it would be of additional benefit to have met with the Complainant. He said that it was not a “generic assessment”, he did take into consideration the Complainant’s situation and the risks associated. He said that, give the nature of the job, consequences could be severe. The nature of the job would not allow to perform work in seated position. He said that everything is designed to work from a standing position so to try to perform it from a seated position would create another risk from ergonomic perspective.

Mr Rickard confirmed that he had no input in dismissal decision.

In cross-examination, Mr Rickard confirmed that historically there was one alarm a month with different level of risk.

Mr Rickard disagreed that not fainting for some 10 years means low risk of it happening, he said that the consequence of fainting and falling while carrying chemical could have life changing consequences. While he agreed that fainting could happen to those without illness, he said that eth Complainant’s illness worsens over time.

Mr Rickard said that if it can happen, the risk is always there and the severity of consequences needs to be noted.

Summary of direct evidence and cross-examination of Mr Owen Joyce, Director of Manufacturing Operations

Mr Joyce outlined his 25 years’ experience in the Respondent’s company.

With the assistance of the photographs provided by the Respondent, he described the layout of the floor and the work system in place. Mr Joyce said that inspection was the seated part of the job. However, due to an element of fatigue, detection drops if inspection is carried out for a prolonged period.

Mr Joyce said that it would be impossible to perform the job and sit for 70% of time as the process is designed to be performed in a standing position e.g., it would be physically impossible to reach equipment from a seated position.

In cross-examination, Mr Joyce went through the process and clarified that the job is an ongoing process, “you are back and forth”. He said that one cannot seat for 18 minutes.

In reaching my decision, I have considered all the submissions and evidence both written and oral presented to me.

Preliminary matters

Res Judicata

Before considering the substantive issues, I must first consider the procedural points raised by the Respondent that this complaint is identical to another complaint previously submitted by the Complainant which has already been heard and decided upon in the first instance by the WRC. 

There was no dispute that the Complainant referred her first complaint to the Director General of the WRC on 10 November 2015 alleging that the Respondent refused her reasonable accommodation for her disability. The Adjudication Officer in his decision dated 23 March 2017 found that the Respondent discriminated against the Complainant.

There was also no dispute that the Complainant referred a further complaint to the Director General of the WRC on 23 November 2017 alleging that she has been subjected to discriminatory treatment by the Respondent on the grounds of disability in relation to her conditions of employment and that the Respondent has failed to provide her with reasonable accommodation. The Adjudication Officer issued his decision on 31 October 2019 and found that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability. In this case, the Adjudication Officer clarified that the scope of his investigation was confined strictly to the period from 18 October 2017 to 2 July 2019.

The Complainant appealed the latter decision to the Labour Court. Pursuant to section 102 of the Employment Equality Acts, the appeal was struck out on 22 January 2021 by a Division of the Labour Court due to non-pursuance of the appeal within a period of one year from the date of the bringing of the appeal.

On 16 April 2021, the Complainant referred the within claim to the Director General of the WRC alleging that she has been discriminated against in conditions of employment by reason of her disability and that the Respondent failed to provide her with reasonable accommodation for her disability. The most recent date of discrimination was stated as 18 October 2017.

The Respondent’s representative asserted that the matter complained of has been decided upon by the WRC and, therefore, the within claim is res judicata.

The Complainant’s representative asserted that, in the absence of a Labour Court determination regarding the appeal, there is no decision on the merits made by a tribunal of competent jurisdiction. The Complainant’s representative seemed to disregard the fact that, due to the failure to pursue the appeal, it was struck out. Consequently, the decision of the Adjudication Officer on 31 October 2019 stands.

The Complainant’s representative further asserted that pursuant to section 102(5) of the Acts the Complainant is not prevented from making a further reference in relation to the same matter. It was further suggested that the time between the 31 October 2019 decision and 22 January 2021 when the Complainant’s appeal was struck out should be somewhat disregarded and the within decision should consider all matters from 31 October 2019 to the date of the referral of the latest claim on 16 April 2021.

The term “res judicata” is the Latin term for “a matter (already) judged”.  The doctrine of res judicata prohibits the reopening of an issue between parties which has already been decided by a competent court or tribunal. Case law provides for finality in proceedings and to protect a party from being harassed by successive actions by another party when the issues between them were determined in the first proceedings (Henderson v Henderson (1843) 3 Hare 100).  The maxim “interest republicae ut sit finis litium” translates as “it is in the public interest thatthere be an end to litigation”.  This maxim is routinely applied by Irish courts to ensure inter alia that attempts by new litigation (rather than by appeal) to attack collaterally a court’s findings will generally be prevented as an abuse of process.

In Marie Cunningham v Intel Ireland Ltd [2013] IEHC 207, Hedigan J.held that “…all matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances”.

Reliance on section 102(5)

Section 102(5) of the Employment Equality Acts, in my view only relates to complaints that have been struck out by the Director General of the WRC and/or the Labour Court in the specific circumstances as set out in subsections (1) and (2) of section 102.

Therefore, in effect the right of a complainant to make a further reference in relation to the same matters (as per subsection (5)) only applies in circumstances where the Director General or the Labour Court has already struck out a complaint on the basis that a period of 1 year from the date of the reference or the appeal to the Labour Court has expired and the complainant has ceased to pursue the matter.

In the above circumstances, the Director General or the Court having struck out the initial complaint would not have completed the investigation/appeal in the matter and therefore, no decision would have issued. Therefore, the complainant would be entitled to make a further reference in relation to the same matters again (i.e., the same complaint) given that no decision would have been issued in relation to the initial complaint/appeal.

However, in the within case the Adjudication Officer of the WRC has already conducted an investigation and made a decision in relation to a complaint which covers a specific period of time (i.e. up to 2 July 2019). Therefore, the provisions of section 102(5) cannot apply in relation to the matters that were already dealt with under this complaint as it has not been struck out by the Director General in accordance with the provisions of subsection (1). Any new complaint by the Complainant under the Acts would have to cover matters which were not encompassed by the initial complaint i.e., it would have to be a new complaint.

I note that the Complainant was in employment with the Respondent up until the date of the referral of her most recent claim under the Acts on 16 April 2021. Therefore, the Complainant had a period of employment with the Respondent which was not covered by her previous WRC referral under the Employment Equality Act 1998 i.e., from 3 July 2019 (any events up to 2 Jul 2019 were considered by the Adjudication Officer in the decision dated 31 October 2019) to 16 April 2021, when the Complainant referred the within claim.

I accept the Respondent’s position that the wording in the two complaint referral forms submitted by the Complainant is identical save for two immaterial sentences in the 2017 referral form.

I also note that there was some engagement between the parties in the period between July 2019 and 16 April 2021. In particular, I note that a report was issued by Dr Madden on 27 August 2020. The report clarified that the Complainant “cannot stand for more than 30 minutes, as she becomes unwell. In relation to fainting, this issue can be avoided, due to following a prolonged period of standing, up to 30 minutes, she begins to feel unwell, and provided she can have access to as seat to allow resting for a period, she can avoid the risk of fainting.”

Accordingly, I find that the Respondent is entitled to rely on the doctrine of res judicata up to 2 July 2019, the latest date that was considered in the previous decision.  However, I also find that the Complainant is entitled to submit a complaint in respect of the period of employment which post-dated the period encompassed by the previous decision, subject to the appropriate time limits.

The issue for decision in the within case are whether the Respondent discriminated against the Complainant on the grounds of disability in relation to her conditions of employment and whether the Respondent has failed to provide the Complainant as a person with a disability within the meaning of Section 2 of the Acts, with reasonable accommodation contrary to Section 16(3) of the Acts.

Time limit

Section 77 provides as follows:

‘(5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice.

(6A) For the purposes of this section—(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operated over a period, throughout the period,

(b) a deliberate omission by a person to do something occurs when a person decides not to do it, and

(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either—

(i) does an act inconsistent with doing it, or

(ii) the period expires during which the respondent might reasonably have been expected to do it.’

The time limits which govern the referral of complaints under the legislation are provided for in Section 77 of the Acts (as set out above). The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the WRC (subject to  S.77(5)(b)) unless the discrimination in issue is part of a continuum of events.

I note the Respondent’s assertion that, in her WRC complaint form, the Complainant stated that the most recent date of discrimination was 18 October 2017 and, consequently, her claim is out of time. The Complainant asserted that the alleged discrimination was continuous up until the referral of the within claim, and the date of 18 October 2017 was a clerical error.

In considering the matter, I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370 where it was held at paragraph 6.2;-

‘I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.’ 

I note that McGovern, J. also stated in this judgment at paragraph 6.3 that this can only be done so long as "the respondent in the claim must be given a reasonable opportunity to deal with these complaints, and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."

I also note the dicta of MacMenamin J. in the Supreme Court in County Louth VEC v Equality Tribunal [2016] IESC 40:

‘It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.’

I further note that in the judgment in Clare County Council v Director of Equality Investigations [2011] IEHC 303 Hedigan J. stated at paragraph 6.5:- 

‘It is clear from the foregoing that because the EEI form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise, or alternatively given adequate time to answer, there can be no injustice therein.’

I further note the dicta of Charleton J. in Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210:

“It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

Applying these dicta, I note that the WRC complaint form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the Respondent knows the issues it faces. In the present case, the Complainant in her Complaint form dated 16 April 2021 stated that “discrimination is ongoing. I have sought and been refused permanent day shift. What has been offered is unsuitable and I feel I am being forced out of my job.”

I am satisfied that the Respondent was on notice of the claims and the date of 18 October 2017 was inadvertently inserted by the Complainant.

In accordance with the consistent approach applied by the Labour Court and the WRC, I must first consider whether an act or acts of discrimination occurred within the cognisable period for the within complaint before I can consider whether events outside of that period can be considered to be part of a continuum or regime of discrimination and within my jurisdiction.

The Complainant referred the within complaint to the Director General of the WRC on 16 April 2021. Therefore, the cognisable period  for the purpose of the complaint in accordance with the time limits provided for in Section 77(5) of the Acts is the six-month period prior to the referral of the complaint, namely is from 17 October 2020 to 16 April 2021.

Existence of disability

The definition of disability in Section 2(1) of the Acts is as follows:

“disability” means—

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

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

There was no dispute that the Complainant suffered from a disability at the relevant time. I find that the Complainant’s medical condition constitutes a disability within the meaning of Section 2(1) of the Acts.

Burden of proof

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 her. If she 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. 

The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v. Valpeters EDA0917 where it held that Section 85A: 

"…. 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 Margetts v Graham Anthony & Company Limited EDA038, 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 further outlined by the Labour Court. The Labour Court stated as follows:

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

Direct discrimination

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".

Comparator

Section 28 of the Acts in relevant parts provides that:

“28. The comparators

(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

(f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities;”

It is clear from section 6(2)(g) and section 28(1)(f) that the very first requirement for a complaint of discrimination to be established is that a complainant must show that a comparator without a disability or with a different disability was treated more favourably.

The Complainant in the within case did not name a comparator. The Complainant did not proffer any evidence to show that the treatment she was subjected to was less favourable than the treatment afforded to a comparator, actual or hypothetical, who does not have the characteristic relied upon.

I have carefully considered the submissions and all the evidence that was put before me and, it appears that the treatment complained of in terms of direct discrimination on the grounds of disability in relation to the Complainant’s conditions of employment was, in fact, the Respondent’s alleged failure to provide her as a person with a disability with reasonable accommodation.

Having considered the matter, I am satisfied that there has been no evidence proffered to support the Complainant’s claim that she was directly discriminated against by the Respondent on the ground of her disability. Accordingly, I find that the Complainant has failed to establish a prima facie case of direct discrimination on the grounds of her disability in relation to her conditions of employment.

Provision of reasonable accommodation

Section 16 of the Acts stipulates as follows;-

(3)

(a) For the purposes of this Act a person who has a disability is fully competent to undertake and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as “appropriate measures”) being provided by the person's employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer's business, and

(iii) the possibility of obtaining public funding or other assistance.

(4) In subsection (3)—

…

“appropriate measures”, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

Section 16 requires an employer to identify any appropriate measures that would accommodate a disabled employee in performing her contracted role. For the purposes of this section, a person with a disability is to be considered fully competent and capable to undertake the duties attached to a job, if the person could do the duties with the assistance of special treatment or facilities.

The Complainant alleges that the Respondent has failed to provide her with reasonable accommodation as a person with a disability contrary to its obligations under Section 16 of the Acts.

Caselaw:

In Nano Nagle School v. Daly [2019] IESC 63 (“the Nano Nagle Case”), the Supreme Court addressed the obligation to provide reasonable accommodation to an employee in the following terms:

In this judgement MacMenamin J. held at paragraph 84 that: “… s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself”.

“89. This does not, of course, mean that the duty of accommodation is infinite, or at large. It cannot result in removing all the duties which a disabled person is unable to perform. Then, almost inevitably, it would become a "disproportionate burden". If no real distinction can be made between tasks and duties, there is no reason, in principle, why certain work duties cannot be removed or "stripped out ". But this is subject to the condition it does not place a disproportionate burden on the employer. But to create a new job will almost inevitably raise the question as to whether what is in contemplation is a disproportionate burden. It is necessary to ensure that, even with reasonable accommodation, proper value is imported to the words of s.16(1), to ascertain whether an employee is, or is not, "fully capable of undertaking the duties" attached to the position. But it is hard to see there would be any policy or common good reason why simply the distribution of tasks, or their removal, should be confined only to those which are non-essential. The test must be one of fact, to be determined in accordance with the employment context, instances of which are as illustrated in s.16(3). The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee. It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought in an entirely different job. Section 16(1) of the Act refers specifically to "the position", not to an alternative and quite different position.

[…]

106. But I would again wish to emphasise these conclusions are not to be understood as requiring a situation where the duty of an employer is understood as having to provide an entirely different job. The duty of accommodation is not an open-ended one. There is no obligation to redefine the employment of an airline pilot as an airline steward, or vice versa. The question is, rather, to consider whether the degree of redistribution, or "accommodation", is such as to effectively create a different job entirely, which would almost inevitably impose a disproportionate burden on an employer. Even within the scope of compliance, a situation may be reached where the degree of re-arrangements necessary, whether by allocation of tasks, or otherwise, might be such as to be disproportionate. It is a matter of degree, capable of being determined objectively.”

In Cunningham v. Irish Prison Service [2020] IEHC 282 (the “Cunningham Case”), Barr J. noted at paragraph 72:

“In addition, the case law makes it clear that the employer does not have to create a job for the person with the disability nor do they have to provide measures that are unduly burdensome. This is the test of proportionality or reasonableness: see Nano Nagle judgment at paras.89 and 106.”

Barr J. concluded that there was no one-size-fits-all approach and the nature of the obligation to provide reasonable accommodation depended on the circumstances.

In HR Rail C-485/20, CJEU (Third Chamber), 10 February 2022 (the “HR Rail Case”), the Court of Justice of the European Union determined that “reassignment to another job may constitute an appropriate measure”, albeit not to such an extent that it poses a “disproportionate burden” on the employer. The employee must also have the necessary competence, capability and availability for the new role. There must also be a vacancy available for the employee to fill.

The Complainant in the within case was employed by the Respondent as a Manufacturing Team Member (‘MTM’) on a five-cycle shift rota which entailed working a combination of shifts over seven days a week (day, evening, night, 12 hours).

There has been a number of medical reports relied upon during the hearing. The most recent report in terms of the time frame applicable in this case is from the Respondent’s Occupational Health Physician Dr Madden dated 27 August 2020. In the report, Dr Madden confirms that the Complainant’s “health issues remain unchanged since her last medical review in 2018.”  The report continues “this lady remains regrettably unfit to work as a Manufacturing Team Member on a five cycle shift” and “I can confirm, similar to my medical review in 2018, she remains unfit for the role of Manufacturing Team Member, on a five cycle shift, on days and nights, due to an underlying health issue that has been present for several years”.

The medical report referred to is a previous report by Dr Madden that issued following an assessment of the Complainant on 13 June 2018. In that report it was advised that the Complainant had a further medical condition (namely Neurocardiogenic Syncope) which had not been previously diagnosed. The report notes as follows:

·       the Complainant was not fit to return to her MTM role on a five cycle indefinitely;

·       the Complainant was not fit to work evenings or nights;

·       the Complainant was fit to work an eight hour shift, starting between 8am/9am;

·       the Complainant was more suited to a seated role. She should spend in the region of 70% or more in as seated activity at work. She could stand and walk but ideally for short periods only that ideally should be spread throughout her shift,

·       The Complainant should lift less than 5 kg at work;

·       The Complainant was not fit to work as a lone worker;

·       The Complainant could work any days of the week or weekend.

The report of 2018 was fully considered in the Adjudication Officer’s decision of 31 October 2019 where it was decided that the Respondent did not discriminate against the Complainant and did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability in accordance with the provisions of section 16(3) of the Acts. The Complainant cannot resurrect her previous complaints or revisit any previous WRC decisions. It was open to the Complainant to pursue her appeal of the Adjudication Officer’s decision to the Labour Court, an opportunity which she apparently did not avail of.

While I accept that the report of 27 August 2020 (the most recent report in terms of the time frame applicable in the within claim) clarifies that the risk of fainting could be avoided if the Complainant does not stand continuously for more than 30 minutes and provided that she had access to a seat to allow resting, in my view the report does not alter in any material way the report of 2018.

I find that the Respondent embarked upon a process of consultation and engaged with the Complainant and medical experts from in or around June 2016. The Respondent obtained a number of independent assessments of the Complainant’s capability including the degree of impairment arising as a result of her conditions and the appropriate measures required to allow her to return to work. Following engagement between the parties, the Respondent came to a conclusion that it has not been possible to accommodate the Complainant in a suitable alternative role which would satisfy the requirements outlined in Dr Madden’s report of 2018. It was found by the Adjudication Officer of the WRC that, in light of the report, that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability.

It appears that the most recent report of 27 August 2020 did not recognise any material change to the Complainant’s circumstances that would require the Respondent to embark upon a fresh process of consultation. The Complainant appeared to share this view, as it was argued at the adjudication hearing that it was the subsequent report by Dr Madden dated 14 May 2021 that recognised several changes in the Complainant’s circumstances that would warrant further engagement by the Respondent. This report, however, falls beyond the scope of this inquiry.  It is clear from the statutory provisions that govern the referral of a complaint under section 77 of the Employment Equality Acts that the time limit runs for a period of six months (or twelve months on extension) from the date of the acts which are alleged to constitute discrimination or victimisation. This provision has been interpreted by the Labour Court to mean that “any incidents which occurred after the complaint had been presented could not have been comprehended by the claim and therefore cannot be relied upon for the purpose of obtaining redress” (EDA1830 HSE v Patricia Cullen Killoran).

Pursuant to section 77 of the Employment Equality Acts, my jurisdiction in relation to the herein complaints does not, therefore, extend beyond the date on which the complaint referral form was received by the WRC. Accordingly, I have confined my investigation to events which occurred prior to the receipt date of the complaint referral form as I am precluded from considering any evidence in relation to matters that occurred after the referral of the complaint.

Having regard to the foregoing, I am satisfied that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability in accordance with the provisions of section 16(3) of the Acts in the cognisable period.

I decide that the Complainant has not established a prima facie case of discrimination on the ground of disability and that that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability in accordance with the provisions of section 16(3) of the Acts in the cognisable period.

The relevant law

6. Unfair dismissal

(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

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

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.

In reaching my decision I have taken into consideration all written and verbal submissions of the parties and I have had full regard to the evidence adduced in the course of the proceedings.

The Complainant contends that her dismissal on the grounds of incapacity was not unfair and seeks re-engagement or re-instatement or compensation. The Respondent rejects the claim.

It is well established that it is not the function of the Adjudication Officer to establish whether the employee was, in fact, incapable of carrying out the duties for which she was employed. If an employee is dismissed for one of those reasons provided for in subsection (4) it is sufficient that the employer honestly believes on reasonable grounds that the employee was incompetent or incapable. The requirements that should be applied in this regard were stated by Lardner J. in the case of Bolger v Showerings (Ireland) Ltd [1990] E.L.R. 184where it was held that:

“In this case it was the ill-health of the plaintiff which the company claimed rendered him incapable of performing his duties as a forklift driver. For the employer to show that the dismissal was fair, he must show that:

(1) It was the ill-health which was the reason for his dismissal;

(2) That this was substantial reason;

(3) That the employee received fair notice that the question of his dismissal for incapacity was being considered; and

(4) That the employee was afforded an opportunity of being heard.”

There was no dispute that the Complainant fell ill and was absent from 4 November 2014 until 29 August 2015, save for five days in January 2015. After she exhausted her sick leave entitlements, the Complainant was certified as fully fit to return to work (days and nights) and returned to work in August 2015.

On 14 June 2017, the Complainant attended Dr  Lee who deemed the Complainant “not suitable for night work”. The Complainant remained on full pay (including shift premia) but was only working the day shifts. On 16 August 2017, the Respondent informed the Complainant that that this was unsustainable from the Respondent’s perspective. The Complainant went on sick leave again in August 2017 and did not return to work since.

Following a meeting on 26 March 2018, the Respondent again informed the Complainant that;- 

“…it seems at this stage you are no longer capable of performing your role. Unfortunately we cannot hold your position open indefinitely and need to agree on a return to work date as soon as possible.”

The Complainant attended Dr Madden on 13 June 2018, on 27 August 2020 and 14 May 2021.

By letter of 24 June 2021, the Complainant was informed that it would not be possible her to return to her role as an MTM. Following queries raised by the Complainant, the Complainant’s occupational health assessments, and the health and safety implications of same was carried out in September 2021 by Mr Rickard, Environmental Health and Safety Manager.  Mr Rickard’s report concluded that, in light of Dr Madden’s reports, it was not safe for the Complainant to continue to work as an operator in the production area.

The Respondent reached a conclusion that it would not be possible for the Complainant to return to her MTM role without deviating substantially from Dr Madden’s recommendations.  The Respondent also concluded that it was unable to identify any suitable alternative roles, for which the Complainant was qualified, on an eight-hour shift with a starting time ideally between 8am and 9am as per Dr Madden’s most recent report of 14 May 2021.

By letter dated 30 September 2021, the Respondent wrote to the Complainant outlining that the Complainant was not fit for work by reason of her ongoing incapability and that there is no reasonable prospect of the situation changing.  The Respondent invited the Complainant to provide her comments before any final decision would be made by the Respondent.  The Complainant was informed that a possible outcome of the review was that her employment would be terminated on capability grounds.

By email dated 13 January 2022, the Respondent informed the Complainant that a decision had been made regarding her continued employment with the Respondent and invited her to a  meeting. As no response was received, the Respondent issued a letter to the Complainant, dated 17 January 2022, notifying her that the Respondent had decided to terminate her employment by reason of incapability.

I note that the Complainant was afforded an opportunity to appeal the decision to terminate her employment. She did so and, by letter dated 21 March 2022, the Complainant was informed that her appeal was not upheld.

Having regard to the evidence adduced, I am satisfied that the Complainant’s absence was managed proactively by the Respondent and that the Respondent engaged with her on a regular basis to keep informed in relation to her medical condition and to establish if/when she would be in a position to return to work. I note that over a period of six years, the Complainant was assessed on nine occasions by independent occupational health professionals,  including four assessments carried out since commencement of her latest period of absence in August 2017. 

Furthermore, I am satisfied that the Respondent made genuine attempts during the Complainant’s absence to facilitate her return to work. It is clear that, in light of the medical recommendations, the Complainant was unable to conduct her role and the Respondent was unable to identify a different role that would be suitable for her. I note that at the time when the decision to terminate her employment was made, the Complainant was absent from work for over four years.

I note that significant emphasis was placed on Dr Madden’s report of 14 May 2021, and in particular his statement that the Complainant “has not fainted for over 10 years”, “has learned to manage her condition to the best of her ability”, “could stand for up to 30 minutes at a time”, etc. It is not for the Adjudication Officer to decide whether the work environment was or was not safe for the Complainant having regard to the medical report. I find that Mr Rickard who is qualified in that area was required to review the matter and he concluded that it was not safe for the Complainant to return to her role as an MTM.

Having regard to the foregoing, I find that it was not unreasonable for the Respondent, in the circumstances, to consider the possibility of having to terminate the Complainant’s employment on the grounds of her incapacity to carry out the duties in respect of which she was employed. I am satisfied that the Complainant was made aware and put on notice that the question of her dismissal for incapacity was being actively considered by the Respondent. I find that the Complainant was given an opportunity to make any submissions she deemed relevant on any aspect of her case in light of the knowledge of the decision she was facing.

In the circumstances, I am satisfied that the Respondent had acted in an appropriate fashion in terms of the manner in which it had managed the Complainant’s sick absence and that it had fully satisfied the requirements in the Bolger v Showerings (Ireland) Ltd case.

Having considered the oral and written submissions made together with the evidence adduced, I am satisfied that the Complainant’s ill-health was the substantial ground for the dismissal.

I decide that the Complainant was not unfairly dismissed. I declare this complaint to be not well founded.

Disability – discrimination – reasonable accommodation- dismissal