Complainant

Respondent

Parties

Damian  Comer

Health Service Executive (HSE)

Representatives

Lorraine Lally BL instructed by Gerardine Costello Gerardine C. Costello & Associates

Karen Coen HSE, Community Healthcare West

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00040017-001

23/09/2020

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

CA-00040017-002

23/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040017-003

23/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040017-004

23/09/2020

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

CA-00040017-005

23/09/2020

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

CA-00040017-006

23/09/2020

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

CA-00040017-007

23/09/2020

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

CA-00040017-008

23/09/2020

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

CA-00040017-009

23/09/2020

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

CA-00040017-010

23/09/2020

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

CA-00040017-011

23/09/2020

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

CA-00040017-013

23/09/2020

The complainant commenced employment on 01/06/08 and his complaints were received by the WRC on 23/09/2020.

This complaint of constructive dismissal was withdrawn.

The complainant submitted that the respondent discriminated against him by their failure to provide reasonable accommodation of the grounds of disability and the most recent date of discrimination was 04/12/2019.  It was submitted that like work was not offered to him and that reasonable accommodation could have been offered but was not and that the complainant was subject to discrimination owing to his disability and that the employer is a large organisation and could have provided reasonable accommodation.  It was submitted that he was discriminated against and victimised owing to personal injuries claims that he had taken.

The complainant’s evidence was that he started work in 2008 and was made permanent in 2013 with no significant issues.  In July 2014 when getting a client up, the complainant said he felt a ‘snap’ and continued working and the next day was ok but then the pain got worse and went to the doctor.  In early August the complainant said he went out on sick leave but did not fill out any occupational health forms as it was an innocuous injury and he provided certs and had MRI.  The complainant said he needed surgery and had this in March 2015 and continues to have long terms issues.

At the end of September 2014 OH sent out recommendations to the complainant including a role with little or no handling involved.  The complainant said he reported the injury to the director of nursing and was not allowed to fill out the form at the time.  The complainant said he did not report the incident on the day and that was why the respondent did not give him an incident form as they said he had reported it too late and the complainant then attended the OH doctor on 06/10/2014 and she recommended light duties.

The complainant’s evidence was that if a job came up, it was to be reviewed and OH did not sanction light duties and there were verbal proposals.  The complainant said that he was talking back and forth up to mid-2015 with the respondent and the only roles he was offered were nursing roles.  OH had recommended light office type duties.  The complainant said that none of the proposed roles were ever run through the proper channels, and it appeared to be a line manager offering roles but did not request HR’s involvement to facilitate the modified roles.  The complainant was told in 2016 that it was not possible to facilitate clerical type roles and the complainant asked for HR’s involvement and there were no reviews by the company doctor.  HR then asked a manger of the respondent to review which happened in 2015 and February 2016 and the OH doctor said that the complainant would be better going back to work and that this doctor had just taken one line out of the consultant’s report and offered the complainant a job which the complainant’s gp advised was not a suitable role.

In February 2016 a functional capacity assessment was conducted and the complainant said he did not know about changes in the contract and the complainant never got a report.  The complainant’s understanding is that he was to be phased back but had issues with strength and dexterity of left shoulder and there are ongoing issues and he is losing power and has reduced fine motor skills.  He said there are neurological deficits, and he has been getting headaches and the neurological impact has not been sorted out.  The complainant said he does not have a definitive diagnosis and he has to have surgery and get reviewed and it started as a rotator cuff tear.  The complainant’s understanding is that the functional capacity assessment should be done over a day with regular work jobs but this did not happen.  The complainant said that the report provided after the functional capacity said that he was faking it and the doctor who conducted the assessment said that the complainant was faking it and that half of the report was missing.  The doctor whom he contacted about the report said that the complainant was fit for work.  The complainant has been told that there is nothing further that can be done surgically and a neurologist has found that there is a deficit which contradicts the other doctor’s analysis and the complainant has seen no benefit with physio.

In his evidence the complainant said his symptoms include loss of dexterity and long-term pain in his shoulder and arm with headaches and sleepless night.  The complainant said that he lived with chronic pain and does not know if he will recover and that he may need surgery in the future but does not know when.  He said the usual OH doctor that he goes to has never disputed his symptoms.

In August 2021 a new director of nursing contacted the complainant regarding roles including a home assessor and the OH doctor was brought into the loop.  The complainant said he is given the run around and was taken off the system as a whole time equivalent and was not made aware that he has been removed.  The complainant said that his hours are gone but his job remains and that it is him that has to do the running around to find out what is happening with having him returning to work. 

The complainant said he did not get any documentation from the respondent and it is only since he referred the case to the WRC that the respondent has engaged with him.  The complainant emailed about a job in August 2018 but received no response and a meeting with the respondent in December 2018 was pushed out to 2019.  The complainant said he has to apply for any jobs with the respondent that he sees advertised and that the only jobs are nursing ones.  He has been advised to write a cover letter, send a cv and when he did this and sent it to OH, OH phoned asking him why he was sending this to them.  He said that Mr A has kept in touch and talked about a possible audit role but this might involve a change in his terms and conditions.  The complainant said the respondent are not following their own procedure with regards to his absence.  He said that Ms B has been moving things along and there was a role in March 2021 but it may have required driving.

The complainant confirmed that he had been offered a post in 2014 but said it was against OH advice and never went through OH and that the expectation was the complainant would find suitable roles and he said that he never received minutes of the meeting.  The complainant advised that he had been advised to be careful about pensions as there are different pensions.

Under cross examination the complainant confirmed he had a meeting on 8/4/2021 with the respondent and that it was expected he would be able to return to work at some stage but no job spec was given to him and nothing put in writing.  He said that he found it difficult to understand why he had been removed as WTE from the system if his job was still there and that Ms B was the only one who contacted him.

Under cross examination the complainant confirmed that he has attended OH at the request of the employer.  He said that up to 2021 the employer made no efforts to facilitate this return to work.  The complainant confirmed a meeting with Ms B but that no job spec was put in front of him, nothing was offered.  He said that while his job remains, he has been removed as a WTE and that this came up under FOI request and that Ms B is the only one who has continued to maintain contact with him.  He said the role offered in 2014 was not acceptable to OH and had never gone through OH.  He confirmed that Mr O Keane contacted him in August 2018 and that 2 posts were offered in January 2019 but these were not definite job offers.  He said that he had suggested the role of assessor might be suitable and it was referred to Ms B and she was getting stone walled and he never received notification about how to apply for jobs. 

He said that he was treated fairly by Mr A and Ms B but had not been treated fairly by local management.  He said there was scope to facilitate him with non-manual handling jobs and that he believed the tone changed after he issued personal injuries claim.  He said his disability is a left shoulder injury and rotator cuff damage.  He said that the respondent did not contact him and that some of this might have been because of covid.  The complainant said that a further health issue has arisen for him that might need surgery and that OH has determined that he remains unfit for work due to a different issue unrelated to the back injury.

In answer to questions from the AO the complainant advised he understood that the term WTE meant he was not rostered and that he regards himself as in no man’s land and that no one has responsibility for him.

The Complainant commenced employment with the HSE in 2008 and as a Staff Nurse in St Brendan’s Community Nursing Unit on 03/06/2013 reporting to the Director of Nursing.  The respondent is a HSE residential service based in Loughrea, Co. Galway. The Community Nursing Unit provides residential service for older people. The complainant alleges that an accident occurred on 20/07/2014. The alleged accident was reported by the complainant on 25/09/2014. The complainant has remained on long term sickness absence since 11/08/2014. The complainant submitted a claim to the High Court for Injuries on 28/02/2017. This claim is currently live and is defended on behalf of HSE by the State Claims Agency.

It was submitted that there has been no dismissal or termination of the employment contract. Since 2014 the complainant has reported as unfit to work and this has been verified and certified by medical advisors. Since that date HSE management have provided measures to support and accommodate a return to work. The complainant has continued to engage with HSE procedures which include Occupational Health (OH) support and guidance. Continual OH advice has been sought and provided in relation to a suitable return to work including 1 x medical report and 12 x OH reviews (which included the results of the Functional Capacity Assessment) have been carried out and reported from 06/10/ 2014 to 20/07/2022.  The report of 20/07/2022 identified that the complainant “remains unfit to work in any form in my opinion for the medium term at least (4-6) months”.

Management have engaged with the complainant in accordance with HSE Managing Attendance policy and OH advice to discuss how the complainant may return either with any reasonable adjustments to the substantive post, or possible redeployment to suitable alternative employment to meet the needs of the complainant. Engagement to discuss alternative roles took place between 2014 and 2021. In addition there was continual communication with the complainant by management in relation to adjustments to working hours and role. None of the proposed accommodations were deemed suitable by the complainant or OH. 

More recently, correspondence was issued by the complainant’s legal advisor on the 22/3/2021 requesting support to return the complainant to work with induction, health & safety training and OH assessment. This was actioned immediately, a meeting was held on 8/04/2022 where the complainant set out an expectation for desk-based work, agreed to OH referral, discussed concerns regarding contractual terms and conditions and advised he was on the inactive list with an absence  in excess of 5 years.  Further correspondence was received from complainant’s legal advisor dated 13/08/2021 which confirms that the employer has engaged and is engaging in a process of reasonable accommodation and sets out queries regarding role and contract.  A response issued by management on 17/04/2021 confirmed the continuation of the complainant’s staff Nurse contract. A subsequent OH report dated 23/09/2021 advised management that the complainant had developed another musculoskeletal condition and medical condition which required further information and possible recommendations.

There has been no dismissal and the complainant has been remunerated in accordance with HSE procedure. Due to previous sickness absence the complainant was notified that Sickness Absence full pay reached the limits on 18/10/2014 and the limits of half pay were reached on 01/01/2015.  The HSE have acted reasonably to support the complainant at all times.

Evidence of Karen Coen

Ms Coen gave evidence that employees are expected to notify line manager on the day of an injury and a form would be sent in and there are strict rules to be followed.  The form would then be filled in by HIQA and OH.  If it was deemed by OH as an injury at that occurred in the workplace, there may be an injury at work payment for a period of time.  She said that advice re suitable employment is taken from OH report and conversations would happen with employees about limitations and maybe temporary measures are put in place but that they cannot just make up a job for a worker.  She said that injuries are normally reported when they happen such as between 24-48 hours after the event or maybe a week after the incident but that she has never seen a complaint of an injury reported after 2 months as in this case.  She said the line manager is always the go to person for the worker’s return to work.  She said that there would be a hand over and normally information is relayed to the next senior manager if a line manager leaves.

Under cross examination Karen Coen said she started with the respondent in May 2016 and has been in her current role since August 2017.  She confirmed she attended a meeting in 2019 and the complainant said he wanted to return to work and wanted reasonable accommodation.  She said that they asked him for his cv as there may be a few hundred jobs available with the respondent and she would try and match his skills with jobs.  If there is a match they send it to OH and ask if the role is suitable and that it is led by the employee’s capability. In response to the question that it is a flawed process with little or no contact with the complainant, Ms Coen said there are no records of the complainant contacting anyone in 2016 and that they were waiting for information. She said that in 2018 the complainant contacted her by email about his situation and he was advised to contact Mr A and there was a conversation in January 2019 and then in 2020 covid happened.  She said that she is not the complainant’s line manager but does assist the line manager and denied that the responsibility to find a job is with the complainant but said that as there may be many vacancies advertised, the complainant may himself find one suitable for him.  She said that the complainant is currently unfit for work but that there is a post that may be suitable for him when he is fit to return to work and that OH would deem him fit to return to work.  Her evidence was that the complainant would contact his line manager and then next manager and then HR.  She denied that it was the responsibility of the complainant to find reasonable accommodation and said that thus far the complainant had not acknowledged receipt of the job spec that had recently been sent.

Evidence of Damien Woods was that the role that may be suitable for the complainant would need to be determined in accordance with OH and that he was happy to be the contact regarding this matter and that he is happy to meet the complainant to discuss the role.  It was his evidence that Ms B reports to him and that he would contact the complainant within 5 working days.  He said the respondent had emailed recently on 11/5/23 regarding a job description for a role.

.

The complaint was received by the WRC on 23/09/2020 and parties were repeatedly advised that events that may have arisen after this period were not for adjudication in this decision.

Section 77(5)(b) of the 1998 Act provides that the time for presenting a claim under the Act may be extended for reasonable cause shown for a period up to but not exceeding 12 months.  The established test for deciding if an extension should be granted is Labour Court Determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll where the test set out: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. Here Costello J. stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

The complainant has been out on certified sick leave since 2014 and while noting that there has been engagement between the parties during this time, nothing was proffered by the complainant with regards to a good reason to extend the time and therefore, the cognisable period for the purpose of the Act is 24/03/2020 to 23/09/2020. 

Section 6(1) of the Act provides :

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

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

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

Section 6(2)(g) provides that

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

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

Section 85A (1) of the Act provides:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

It is for the Complainant to establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent.  The Labour Court in EDA082 McCarthy v Cork City Council established that the complainant is seeking to establish a prima facie case and it is not that discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters it set out that a complainant

“must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that 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”. It added that “the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

It is the complainant’s claim that he was discriminated against, on the grounds of disability by the failure of the respondent to provide reasonable accommodation and victimised when he submitted a personal injuries claim.  The complainant currently remains unfit for work with issues unrelated to the alleged 2014 injury.  It was accepted that the complainant has a disability including that of a shoulder injury and rotator cuff damage.  it is noted that the complainant has had numerous interactions with OH, since his alleged injury and that although the complainant was deemed unfit for work from 2014, further OH reports suggested a return to work taking into consideration the nature of the complainant’s medical disability.  It is notable that prior to the cognisable period numerous OH reports recommended “review any options”(October 2016), look for a suitable role for the complainant “that does not involve overuse of his right arm and shoulder for any period of time” (July 2018), Damien “would benefit from a return to work in an accommodated role” (February 2019) and that in October 2019 the respondent advised that there were “no current vacancies”and “no roles that suited the requests of the employee”. 

The Labour Court held in EDA131 Eleanor O’Higgins v UCD that

It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination

2.If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.

3.It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts.

The Labour Court held in Department of Defence v Barrett (EDA 1017) that

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

The test for Victimisation has been established as:

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

I note that during the cognisable period it appears there was limited or no interaction with OH or the complainant, but it cannot be ignored also, which the complainant agreed with in his evidence, that the cognisable period (24/03/2020 to 23/09/2020), was also the start of a global pandemic which resulted in significant burdens on the health system worldwide and nationwide.  This clearly had a knock-on effect on Occupational Health.  In all the circumstances and taking into consideration all of the above, I find that the complainant has not established a prima facie case of discrimination.   The complainant put the respondent on notice of personal injuries claim but has not established that he was subject to adverse treatment by the respondent as a result of that and has not been discriminated against or victimised during this cognisable period and his complaint must fail.

The complainant submitted that he had not received terms and conditions of employment. In his evidence and during cross examination the complainant confirmed that he had received terms and conditions of employment.

The respondent submitted that the complainant was issued with his terms and conditions of employment in writing and signed the Contract of Indefinite Duration on 26th August 2013.

I note that the complainant confirmed that he had received terms of employment and therefore I find that the complainant’s claim is not well founded and dismiss the complaint.

The complainant submitted that he had not been notified of changes to his terms of employment.  In his evidence the complainant said that his worker classification had changed and he was no longer regarded as a Whole Time Equivalent (WTE).  He said that he found it difficult to understand why he had been removed as a WTE from the system if his job was still there.  The complainant said that his hours are gone but his job remains and that he has to do all the running around to find out what is happening.  The complainant said he did not get any documentation from the respondent and it is only since he referred the case to the WRC that the respondent has engaged. Under cross examination the complainant said that he understood that the term WTE meant he was not rostered and that he regards himself as in no man’s land and that no one has responsibility for him.

The respondent denied that the complainant’s terms of employment had changed.  There has been no alteration to the employment contract of the complainant. The complaint does not identify what the perceived changes are.

I note that the complainant gave evidence that his terms of employment had changed and referred to the change in the classification of WTE and that positions proposed might not invite the same terms of his existing employment. 

Having reviewed the evidence it would appear that the complainant identified a change in his classification but could not identify any actual changes that had been made to his terms of employment and he also confirmed that he understood that this classification meant that he was no longer on the roster.  Having considered the evidence I find that the complainant’s claim is not well founded and dismiss the complaint.

This complaint of dismissal was withdrawn.

The complainant submitted in his complainant form that he had not been provided with minimum notice.  In evidence the complainant submitted that he had not been dismissed and confirmed that he had not given notice.

It was submitted that minimum notice by the HSE, set out in the employee Contract of Indefinite Duration is the appropriate period of notice set down by the Minimum Notice and Terms of Employment Act 1973 – 2001. The respondent submitted there has been no dismissal and therefore minimum notice period required is not applicable.

The complainant confirmed that there had been no dismissal and confirmed that he had not given the respondent notice.  On that basis, I find that the complainant’s claim is unfounded and dismiss the complaint and that the Act was not contravened.

The complainant submitted that he was discriminated against by way of an occupational pension and that the most recent date of discrimination was 4/12/2019.  The complainant submitted that in other cases of a similar nature, nurses with injuries similar to his, had been adequately accommodated including with the provision of a gradual return to work.  The complainant submitted that he had been asked to move to another job which would have resulted in him having go on a different pension scheme.  It was submitted that this offer was later retired and no longer exists.  The complainant gave evidence that he does not get annual statements regarding his pension and when he sought details the information was not accurate.

The respondent submitted that the complainant had presented contradictory evidence.  On the one hand, the complainant claims he was not allowed to join an occupational pension but also that he has been refused access to his own information regarding his pension. The respondent submitted that the respondent’s pension management have confirmed that the complainant is a member of the Superannuation New Entrant Scheme since 2008 and they have advised that they do not keep a record of all requests for information received but are not aware of any request pending.

The complainant’s evidence was that he has not received documentation regarding pensions and that a future job may result in him having to move to a different pension scheme.  The respondent submitted that this has not arisen and therefore, the complaint must fail.

Taking into consideration all the evidence I find that nothing submitted by the complainant supports the view that he has been discriminated against with regards to a pension scheme. He has not established a prima facie case and therefore I find the complaint is unfounded and dismiss his complaint.

This complaint was withdrawn.

The complainant submitted he was discriminated against on the grounds of disability and was victimised due to him holding persons accountable for their actions as medical professionals and the victimisation included the questioning of his character and medical surveys not signed or adequately reported on.  It was submitted that this was a breach of the Prevention of Corruption Amendment Act 2001.  Regarding victimisation the complainant said he issued personal injuries in 2017 and if they made reasonable accommodation he would not be here today and that it is only since his referral to the WRC that there is communication.  It could have been solved and that he was just looking for reasonable accommodation.  The complainant also referred in his evidence to a functional capacity assessment which caused him upset owing to the manner in which the assessor conducted the assessment. 

The respondent refutes any claim of discrimination or victimisation and submits there is an absence of any evidence to substantiate this claim. The HSE continue to follow the advice of Occupational Health and hope to facilitate a return to work into an available vacant post once the complainant is deemed fit for work in some capacity. The respondent submitted that Management have engaged with the complainant in accordance with policy to discuss his return either with any reasonable

adjustments to the substantive post, or possible redeployment to suitable alternative employment to meet the needs of the complainant.

The complainant claims that he has been discriminated against and victimised by the manner in which some of the OH physicians dealt with him and suggestions they may have made regarding the existence or severity of his injury.  The respondent denies any such claims. I note that the complainant confirmed at the hearing that he has not been dismissed.

I note that the complainant had interactions with the respondent’s OH department from 06/10/2014 up to the date of the submission of the complaints on approximately 12 occasions and the report regarding the functioning capacity was issued in June 2016.  It would appear that this assessment caused the most upset to the complainant and I also note that the complainant gave evidence that while some interactions with OH thereafter have been positive he continues to be frustrated that no progress has been made with regards to returning to work. 

In Melbury Developments v Arturs Valpeters it was established by the Labour Court, whilst examining the circumstances in which the probative burden of proof operates; that a complainant "

must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that 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". Furthermore,

"the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The Labour Court held in Department of Defence v Barrett (EDA 1017) that

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

The test for Victimisation has been established as:

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

The complainant put the respondent on notice of personal injuries claim but has not established that he was subject to adverse treatment by the respondent as a result of that.  I, therefore, do not find any evidence of adverse treatment in relation to his protected Act and the complainant has not established a prima facie case of discrimination during the cognisable period and was not discriminated against or victimised.  For completeness the Complainant provided nothing to support that an offence under the Prevention of Corruption Act had been committed and therefore, that complaint is also not well founded.

The complainant submits in his complaint form that he was discriminated against by victimisation as he made a protected disclosure regarding the treatment he received by his employers and the persons the employer engaged to do perform medicals and that there was also a complaint under the Health Act 2004. 

In his direct evidence the complainant said that he had not made any protected disclosure.

The respondent denied the claims and noted that during cross examination as well as direct evidence, the complainant confirmed that such a complaint did not exist.

I note the complainant’s direct evidence was that no protected disclosure was made and therefore I find that the complainant has not established a prima facie case and was not discriminated against and I dismiss the complaint.

The complainant submitted in his complaint form that the respondent failed to pay him for holidays.  In cross examination the complainant confirmed that he has been out on sick leave and therefore, could not take his annual leave.  He also said that he not been dismissed and confirmed his understanding that holidays is paid upon termination of employment and that termination of employment had not arisen.

The respondent denied that the complainant had an entitlement to payment for annual leave as it was submitted that the complainant remained an employee of the respondent.

The complainant confirmed that he was not owed annual leave as no dismissal or resignation existed and he remains on sick leave.

I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint and note that this complaint was received by the WRC on 23/09/2020.  Taking note that the complainant remains on sick leave I find that the complaint is not well founded and I do not uphold the complaint.

This complaint was withdrawn

CA-00040017-002

I find that the complainant has not established a prima facie case of discrimination and has not been discriminated against or victimised during this time and his complaint must fail.

CA-00040017-003

I find that the complainant’s claim is not well founded and dismiss the complaint.

CA-00040017-004

I find that the complainant’s claim is not well founded and dismiss the complaint.

CA-00040017-006

I find that the complainant’s claim is unfounded and dismiss the complaint and that the Act was not contravened.

CA-00040017-007

The complainant has not established a prima facie case and therefore I find the complaint is unfounded and dismiss his complaint.

CA-00040017-009

I find that the complainant has not established a prima facie case of discrimination and has not been discriminated against or victimised during this time and his complaint must fail.

CA-00040017-010

I find that the complainant has not established a prima facie case of discrimination and was not discriminated against, and I dismiss the complaint.

CA-00040017-011

I find that the complaint is not well founded, and I do not uphold the complaint.

Pension, OH, disability, discrimination, terms of employment, personal injuries, victimised