CORRECTION ORDER
ISSUED PURSUANT TO SECTION 88 OF THE EMPLOYMENT EQUALITY ACT 1998
This Order corrects the original Decision ADJ-00034387 issued on 07/02/2024 and should be read in conjunction with that Decision.
This Order is issued to correct an error of the exclusion of one letter in the name of the respondent company. The original decision named the respondent as Feightspeed For Pharmacy Ltd (In Liquidation). The respondent’s name is hereby corrected to Freightspeed For Pharmacy Ltd (In Liquidation).
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034387
Parties:
| Complainant | Respondent |
Parties | John Geoghegan | Freightspeed For Pharmacy Ltd (In Liquidation) |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives | Barry Kenny, Kenny Sullivan Solicitors | No attendance by the Liquidator |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00045186-001 | 14/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00045186-002 | 14/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00045186-003 | 14/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00045186-004 | 14/07/2021 |
Date of Adjudication Hearing: 10/03/2023
Workplace Relations Commission Adjudication Officer: Maria Kelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
By email dated 23 February 2023 Mr Declan Clancy informed the Workplace Relations Commission that he had been appointed Liquidator of the respondent company on 21 September 2021. Mr Clancy stated that he had recently been passed correspondence in relation to this matter and notice of the hearing scheduled for 10 March 2023. In the email Mr Clancy stated that the company had no assets available for distribution to creditors and that there are no funds in the Liquidation. As required under the Companies Act, 2014, he sought consent from the Committee of Inspection in relation to engaging in any such litigation and/or hearing. This consent had been refused. Accordingly, Mr Clancy was not in a position to expend any funds in defending this case and would not be attending the hearing on 10 March 2023.
In reply to queries from the adjudicator Mr Clancy replied by email dated 08 March 2023 stating that the liquidation of the respondent company was a Creditors Voluntary Liquidation and he had been appointed by the Creditors. He also stated that the company has not been dissolved.
I explained to the complainant the procedural changes arising from the decision of the Supreme Court in Zalewski v Adjudication Officer & ors [2021] IESC 24. The complainant gave his evidence on oath.
Background:
The complainant was employed as a driver by the respondent company. He commenced employment on 03 October 2011. His employment was terminated on 16 June 2021. He worked 40 hours per week on average and he was paid €650 gross per week.
The complainant claims he was dismissed because of a disability and that the respondent discriminated against him by reason of his disability in failing to give him reasonable accommodation and dismissing him. He further claims that he was discriminated against in conditions of employment.
The complainant also claims the respondent made unlawful deductions from his wages, failed to pay him his annual leave entitlement and did not pay him for his statutory period of notice.
The complaints were received by the Workplace Relations Commission on 14 July 2021. |
Summary of Complainant’s Case:
The complainant was employed as a driver by the respondent delivering items to pharmacies and hospitals. He commenced employment in October 2011. He had been made redundant from another company that had outsourced such work to the respondent company. The respondent is a logistics and transport company providing services for the distribution of pharmaceutical products. In May 2019 the complainant had to have knee replacement surgery. The complainant was on certified sick leave from 13 May 2019. The complainant was unfit to carry out his duties as a driver following the surgery. The complainant submitted medical certificates to the respondent throughout his period of sick leave. The respondent did not provide a sick pay scheme. The complainant’s employment was terminated by the respondent with effect from 16 June 2021. By letter dated 8 June 2021 the respondent informed the complainant that: “This termination was based wholly on your evident incapability to attend for and perform the duties for which you are employed and the unavailability of alternative duties.” Even though he submitted medical certificates the complainant did not receive any contact from the respondent between May 2019 and September 2020, a period of some sixteen months. The complainant attended a meeting on 04 September 2020 with representatives of the respondent company, Mark White and Linda Reddy. The complainant explained how his rehabilitation was progressing and that he was still unfit for work at that time. He expressed his dissatisfaction with the respondent’s apparent apathy as regards his period of absence. The respondent’s representatives apologised for the lack of contact during his sick leave and acknowledged the fact that he had submitted medical certificates. The respondent’s representatives accepted the situation without question and the meeting concluded with the parties agreeing to keep in contact. The respondent’s representatives did not discuss any matters regarding how the complainant’s medical situation could be accommodated in a return-to-work scenario or any alternative roles. Nor did the respondent arrange for the complainant to attend a company nominated medical practitioner for assessment. The respondent did not contact the complainant again for over seven months. On 19 April 2021 the respondent wrote to the complainant requesting a date for his return to work. The respondent did not attempt to engage with the complainant about his rehabilitation situation or how he might be accommodated on his return. The respondent did not make any arrangements for their own medical assessment of the complainant. By letter dated 04 May 2021 the respondent terminated the complainant’s employment. The stated reason for the termination was the complainant’s incapability to attend for and perform the duties for which he had been employed. The complainant wished to appeal his termination and requested that his solicitor be permitted to attend with him at an appeal hearing. The request for this solicitor to attend the hearing was refused. The Managing Director, John Flynn, held an appeal hearing on 26 May 2021. The complainant attended the hearing without representation. The hearing lasted just a matter of minutes. The complainant suggested that he could return to work if he was accommodated with driving shorter journeys. The complainant also offered to attend a medical practitioner of the respondent’s choosing. Mr Flynn did not engage with the complainant’s suggestions or discuss same. The appeal was unsuccessful. By letter of 28 May 2021 the complainant was informed his appeal had been unsuccessful. The complainant’s employment was to terminate on 16 June 2021, based on his entitlement to statutory notice. By letter dated 08 June 2021 the respondent restated the complainant’s employment would be terminated on 16 June 2021. The complainant submitted his complainants to the Workplace Relations Commission on 14 July 2021. In addition to his complaint of discrimination and discriminatory dismissal the complainant submitted a complaint under the Payment of Wages Act, 1991 in respect of an unlawful deduction of one week’s pay, a complaint under the Organisation of Working Time Act, 1997 in respect of outstanding annual leave and a complainant under the Minimum Notice and Terms of Employment Acts, 1973-2005 in respect of the non-payment of notice pay. Legal Submission It is submitted that the complainant was discriminated against on the disability ground contrary to section 6(2)(g) of the Act. He was subjected to discriminatory treatment in that the respondent failed to provide him with reasonable accommodation for his disability leading to his dismissal for failure to carry out his duties. The complainant suffered a disability following a knee replacement surgery. This caused him to be absent from work for a period. It is submitted that the respondent discriminated against the complainant on the disability ground in failing to provide him with reasonable accommodation for his disability. It is further submitted that the complainant was discriminately dismissed because of his disability. It is submitted that the respondent acted in breach of section 16(3) and (4) of the Employment Equality Act by failing to take appropriate measures to enable the complainant to return to work. The complainant cites the decision of the Supreme Court in Nano Nagle School v Daly and Another [2019] IESC 63 as confirming that the requirement on an employer when dealing with a situation where an employee has a disability is to examine and consider if that employee’s job is capable of adaptation so that by taking ‘appropriate measures’ as per the Acts, the employee can carry out the full functions of the role. This requires that an employer should examine the job thoroughly and ascertain and consider what accommodations might be capable of being made that do not generate a disproportionate burden or cost for the employer. What is required is a transparent, deliberative process. In support of the requirement of thorough enquiries the complainant cites the decisions in A Health and Fitness Club v A Worker EED 037 and Bolger v Showerings (Ireland) Ltd [1990] E.L.R. 184 as examples of what is normally required in order to establish the factual position in relation to the employee’s capacity. It is submitted that no such enquiries, adequate or otherwise, were made in this case. The complainant was dismissed by reason of his disability in circumstances where the respondent had not availed itself of any relevant information or medical evidence. The complainant seeks substantial compensation for the effects of discrimination and discriminatory dismissal. In relation to the quantum of compensation the complainant relies on the decision of the Labour Court in Lee t/a Peking House v Fox EED 036 where the Court stated: “In measuring the appropriate quantum of compensation the Court must have regard to all the effects which flowed from the discrimination which occurred. This includes not only the financial loss suffered by the complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof, including the effect of bringing these proceedings” Complainant’s Evidence Mr Geoghegan described his work as a driver for the respondent. He had many years’ experience as a driver with another company delivering to hospitals and pharmacies until he was made redundant when that company outsourced their deliveries. He commenced working for the respondent in 2011 and he regularly commenced duty at 05.00 delivering boxes of supplies to hospitals and pharmacies. The work was hard physical work as he had to deliver large boxes of supplies from the van to each location. In 2019 Mr Geoghegan had to have surgery for a total knee replacement. The respondent did not provide a paid sick leave scheme so Mr Geoghegan had to claim illness benefit. He had asked to take a week’s holidays at the time of his surgery but this was refused. He was to be paid for the untaken holiday on his return to work. Mr Geoghegan described how the recovery from surgery was long and painful. He submitted medical certificates to the respondent every fortnight. Between May 2019 and September 2020, the respondent did not contact the complainant, even though he was a long serving employee on sick leave. Mr Geoghegan attended a meeting on 04 September 2020 with Mark White and Linda Reddy, representatives of the respondent. Mr Geoghegan had explained to Mr White and Ms Reddy that while he was making progress, he was still unfit to resume his normal work at that time. He continued to submit his medical certificates each fortnight. Neither Mr White nor Ms Reddy discussed how Mr Geoghegan might be accommodated on his return to work. Alternative roles were not discussed at that meeting. The meeting ended with statements to keep in contact. No further contact was received from the respondent until April 2021. Mr White wrote to Mr Geoghegan on 19 April 2021 requesting a date on which he would or was very likely to return to work. Mr Geoghegan was asked to reply within seven days. The letter was sent to an old address and was not received by Mr Geoghegan until 21 May 2021. As he had not received the letter Mr Geoghegan had not replied within seven days. Mr White sent a second letter, dated 04 May 2021, again to Mr Geoghegan’s old address, advising that as he had not provided a date for his return to work his employment with the respondent would be terminated on 16 June 2021. Mr Geoghegan was told he could appeal the decision to terminate his employment on or before 11 May 2021. Mr Geoghegan stated that he received both letters on 21 May 2021. On receiving the letters of 19 April and 04 May 2021 Mr Geoghegan immediately wrote to Mr White asking to appeal the decision to terminate his employment. Mr Geoghegan requested that he be accompanied by his solicitor at the appeal hearing, this request was refused. The appeal hearing was held remotely on 26 May 2021. The appeal was heard by Mr John Flynn. Mr Geoghegan stated that the hearing lasted two to three minutes. Mr Geoghegan explained that his doctor was satisfied that he was making progress in his recovery. Mr Geoghegan suggested that he might return on a staggered basis and do light courier work. Other employees were doing such work delivering emergency drops by car. Mr Flynn did not ask questions or make any offer to accommodate Mr Geoghegan in any way to return to work. Mr Flynn wrote to Mr Geoghegan on 28 May 2021 stating his appeal was unsuccessful because he had failed to provide a return-to-work date before or during the appeal. Mr Geoghegan’s employment was terminated on 16 June 2021. Mr Geoghegan stated that he did not receive any termination payment, was not paid for one week he was due and was not paid for outstanding annual leave from 2019 to 2021. Mr Geoghegan described how upset he was by the treatment he had received from his employer. He had been a good employee with an impeccable record before he had to have surgery. He had no contact from the respondent during the first sixteen months of sick leave even though he submitted medical certs each fortnight. He has been receiving disability payment since 2021. Mr Geoghegan stated that his mental health has suffered because of the way he was treated by his employer with no offer to accommodate him in a return to work. |
Summary of Respondent’s Case:
The liquidator, Mr Clancy, was unable to attend the hearing as the Committee of Inspection had refused consent for him to attend the hearing or engage in the case. |
Findings and Conclusions:
CA-00045186-001 Complaint submitted under section 77 of the Employment Equality Act, 1998. The complainant was employed as a delivery driver by the respondent company. The respondent company was engaged in the transport and distribution of pharmaceutical products. The complainant was an experienced delivery driver and delivered pharmaceutical products to hospitals and pharmacies. The work was physically demanding. The complainant worked for the respondent from 2011 until he required surgery for a knee replacement in 2019. His employment was terminated effective 16 June 2021. The complainant claims that he was discriminated against by the respondent by reason of his disability when it failed to take any appropriate measures to enable him to return to work and participate in his duties. The complainant claims the respondent failed to reasonably accommodate his disability. Further, the complainant claims the respondent unlawfully discriminated against him in dismissing him because of his disability. Legislation Section 2 of the Act defines disability as: “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; Section 6 of the Act, dealing with discrimination and less favourable treatment, provides: 6.— (1) 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, (b) a person who is associated with another person— (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— (a) …(f) … (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 8 of the Act, provides: 8.— (1) In relation to— (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker. Section 16 of the Act provides the following concerning the nature and extent of an employer’s obligations in certain cases: 16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual— (a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or (b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed. (2) … (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: The first issue to be decided is whether the complainant has or had a disability within the meaning of the Act. I accept the complainant’s uncontested evidence that he was an employee with an impeccable record until he developed a significant problem with his knee. The complainant required surgery for a complete knee replacement. The surgery took place in May 2019. The complainant in his evidence described how painful and difficult his post-operative period was. The complainant was certified by his doctors as being unfit to resume work between May 2019 and May 2021, when he was informed that his employment would be terminated. The complainant stated in his evidence that he is receiving disability benefit. I am satisfied that the complainant has a disability within the meaning of the Act. Section 85A of the Act states that where 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. The complainant has established that he has a disability. He has established that he was dismissed from his employment during a period of sick leave because of his disability. I am satisfied that the complainant has reached the threshold of establishing facts from which it may be presumed that he was discriminated against. In those circumstances it is for the respondent to prove the contrary. There was no appearance by or on behalf of the respondent. The complainant in his uncontested evidence stated that other employees of the respondent were doing emergency drops or deliveries to hospitals and pharmacies by car. At his remote appeal hearing the complainant had proposed a staggered return to lighter delivery work, like the work carried out by at least two other employees. I accept the complainant’s evidence that he informed the respondent, at the appeal hearing, that his recovery was progressing and that he could return to lighter delivery work on a staggered basis, similar to the work being done by two other employees.
Section 16 of the Act may provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a genuine belief that the complainant was not fully capable of performing the duties for which he was employed. However, the Labour Court in Humphreys v Westwood Fitness Club EED 037 held that before forming a view on the employee’s competency to perform the duties for which he was employed the employer would “normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity.” Based on the uncontested evidence of the complainant I am satisfied that the respondent did not make adequate enquiries to establish the factual position in relation to the complainant’s capacity. The respondent did not refer the complainant for an independent occupational health assessment and did not make any effort to discuss any appropriate measures that could enable the complainant to return to work. The Supreme Court in Nano Nagle v Daly [2019] IESC 63 found that s.16(3) of the Act places a “mandatory primary duty” on an employer to provide reasonable accommodation unless this would impose a disproportionate burden on the employer. The employer is not required to create a different job to facilitate an employee. The complainant proposed returning, on a staggered basis, to driving duties, delivering emergency drops by car in the same way that two other employees worked. However, this proposal was not assessed in any detail by the employer. In Cunningham v Irish Prison Service [2020] IEHC 282 Barr J stated that “Justice requires that the person suffering from the disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them, which was not unduly burdensome to the employer and did not impair the operational capacity.” In the instant case the employer made no enquires about what appropriate measures might assist the complainant to return to his full duties. At the appeal hearing, which lasted a few minutes, the suggestion put forward by the complainant was not adequately assessed by the employer. I am satisfied that the respondent discriminated against the complainant on the disability ground in failing to provide any appropriate measures to enable the complainant to participate fully in his duties. The respondent in failing to reasonably accommodate the complainant’s disability unlawfully discriminated against him. A consequence of the respondent’s failure to provide the complainant with reasonable accommodation for his disability was that he was not provided with the opportunity to resume his duties. The complainant was then dismissed from his employment by the respondent. The respondent in its letter of termination stated that the termination was “based wholly on your evident incapability to attend for and perform the duties for which you are employed and the unavailability of alternative duties”. This decision was taken without the respondent referring the complainant for an occupational health examination and without assessing what, if any, measures could be taken to enable the complainant to return to his duties. I am satisfied the complainant was discriminatorily dismissed from his employment on the disability ground. I find the respondent acted in breach of s.6, s 8 and s. 16 of the Act and that the complainant is entitled to compensation for the effects of the discriminatory treatment suffered by him and discriminatory dismissal.
Compensation Section 82 of the Act provides the following: 82.— (1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case: (a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision; (b) an order for equal remuneration from the date referred to in paragraph (a); (c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77; (d) an order for equal treatment in whatever respect is relevant to the case; (e) an order that a person or persons specified in the order take a course of action which is so specified; (f) an order for re-instatement or re-engagement, with or without an order for compensation. (2) … (3) … (4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be— (a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of— (i) 104 times the amount of that remuneration, determined on a weekly basis, (ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or (iii) €40,000, or (b) in any other case, €13,000. (5) … (6) (a) The maximum amount of compensation specified in subsection (4) applies notwithstanding that conduct the subject of the investigation by the Director General of the Workplace Relations Commission constituted— (i) discrimination on more than one of the discriminatory grounds, or (ii) both discrimination on one or more than one of such grounds and harassment or sexual harassment The Employment Equality Act 1998 was amended by the Equality Act 2004 to implement in Irish law Council Directive 2000/78/EC. That Council Directive established a general framework for the equal treatment in employment and occupation. The purpose of the Directive was to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation. Chapter 1, Article 3 (c) provides the Directive shall apply to all persons, in relation to employment and working conditions, including dismissals and pay. Article 5 sets out the need for employers to take appropriate measures where needed. Chapter IV, Article 17 deals with Sanctions and inter alia provides “The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive.” Noting the requirement under the Directive for the sanction for infringement of the national provisions adopted pursuant to this Directive to be effective, proportionate and dissuasive I have carefully considered section 82 (4) (a) and (b). The complainant was on sick leave at the time of his dismissal and the employer did not provide a sick pay scheme. He therefore had not received any remuneration since May 2019. It is my view that applying section 82 (4) (b) and limiting the award of compensation to €13,000 because the complainant was on unpaid sick leave at the date of dismissal would be inconsistent with Article 17 of the Directive. Therefore, I find that section 82 (4) (b) should be disapplied in this case. I have decided to award compensation in line with section 82 (4) (a) which provides for compensation up to a maximum of 104 times the amount of the complainant’s remuneration, determined on a weekly basis. The complainant’s remuneration was €650 gross per week. In deciding the award of compensation, I have considered the severe effects on the complainant of his discriminatory treatment and dismissal and the requirement for the sanction to be effective, proportionate and dissuasive. I note that one effect of the discriminatory dismissal is that had the complainant been made redundant at the time the respondent went into liquidation he could have qualified for a redundancy payment for his almost nine years of employment. In all the circumstances of this case I decide it is just and equitable to award the complainant compensation of €67,600 for the effects of the acts of discrimination suffered by him.
CA-00045186-002 Complaint submitted under section 6 of the Payment of Wages Act, 1991. The complainant claims that the respondent unlawfully deducted one weeks’ wages in June 2021 at the time his employment was terminated. The complainant claims that he was due a back week to be paid at the time of termination. I accept the uncontested evidence of the complainant that he was not paid €650 gross as expected on 16 June 2021, the date of termination of employment. Section 5 of the Payment of Wages Act provides as follows: 5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it (6) Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion. Based on the uncontested evidence presented I am satisfied that one weeks’ wages were properly payable to the complainant and that the respondent in failing to make the payment at the date of termination made an unlawful deduction. I find the complainant is entitled to payment of €650 gross. CA-00045186-003 Complaint submitted under section 27 of the Organisation of Working Time Ace, 1997. The complainant claims that he did not receive annual leave or payment for outstanding leave at the date of termination. The complainant was a full-time employee of the respondent. His annual leave allowance was the statutory period provided for in section 19 of the Organisation of Working Time Act, 1997, that is 4 working weeks per leave year. The complainant went on sick leave on 13 May 2019 at which time he had one week of leave outstanding for the statutory leave year 2019/2020. He was on sick leave throughout the statutory leave year 2020/2021 and his employment was terminated on 16 June 2021, eleven weeks into the statutory leave year 2021/2022. I am satisfied on the uncontested evidence presented that the complainant could not avail himself of annual leave between 13 May 2019 and 16 June 2021 due to medically certified sick leave. I am also satisfied that the complainant was not paid for his outstanding holidays at the time of termination of his employment. Section 19 provides the following concerning the entitlement to annual leave: 19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to— (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater. (1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was— (a) at his or her place of work or at his or her employer’s disposal, and (b) carrying on or performing the activities or duties of his or her work. Section 20 of the Act provided the following concerning the time and pay for annual leave: Times and pay for annual leave. 20.— (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject— (a) to the employer taking into account— (i) the need for the employee to reconcile work and any family responsibilities, (ii) the opportunities for rest and recreation available to the employee, (b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and (c) to the leave being granted— (i) within the leave year to which it relates, (ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or (iii) where the employee— (I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and (II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year. Section 23 of the Act provides the following concerning compensation on cesser of employment for loss of annual leave: 23.— (1) (a) Where— (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave. (b) In this subsection— "relevant period" means— (i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year, (ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year— (I) the current leave year, and (II) the leave year immediately preceding the current leave year, (iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) — (I) the current leave year, and (II) the leave year immediately preceding the current leave year, or (iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) — (I) the current leave year, and (II) the 2 leave years immediately preceding the current leave year. The complainant was entitled to paid annual leave for the period he was working in 2019 and for the period of his medically certified sick leave. The complaint was received within the relevant time period. As he was unable to avail himself of annual leave, he is entitled to compensation on cesser of employment, in compliance with section 23 of the Organisation of Working Time Act. I find the complaint is well founded and the complainant is entitled to compensation for one weeks’ leave for the statutory leave year 01 April 2019 to 31 March 2020, four weeks’ leave for the statutory leave year 01 April 2020 to 31 March 2021 and 4 days leave for the statutory leave year 01 April 2021 to 16 June 2021. The complaint is well founded, the respondent should pay to the complainant compensation for the loss of annual leave in the amount of €3,770 gross.
CA-00045186-004 Complaint submitted under section 12 of the Minimum Notice and Terms of Employment Act, 1973. The complainant claims that the did not receive his statutory minimum period of notice on the termination of his employment or payment in lieu thereof. The complainant was employed by the respondent for a period of nine years and eight months. Section 4 of the Act provides the following: Minimum period of notice. 4.— 1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (a) if the employee has been in the continuous service of his employer for less than two years, one week, (b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks, (c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, (d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks, (e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks. As the complainant had continuous service of between five and ten years, he was entitled to a period of notice of four weeks. The complainant was notified of the termination of his employment by letter dated 04 May 2021 with a termination date of 16 June 2021. The respondent had given more than the statutory minimum notice period. However, the complainant did not receive that letter until 21 May 2021 as it had been sent to the incorrect address. I am satisfied that the respondent did give the complainant the notice period required under section 4(2) (c) of the Act. The complainant appealed the decision to terminate his employment. The appeal was rejected and the original termination date, 16 June 2021, was confirmed. The complainant claims that he was not paid in lieu of the notice period. The Second Schedule of the Act provides the following concerning the rights of an employee during the period of notice: SECOND SCHEDULE RIGHTS OF EMPLOYEE DURING PERIOD OF NOTICE. 1. Subject to the provisions of this Schedule, an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment and shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given. During the period of notice the complainant was entitled to be paid in accordance with the terms of his contract and have the same rights to sick pay as if notice of termination of his contract of employment had not been given. The complainant was on certified sick leave during the notice period and the respondent did not provide a sick pay scheme. Under the terms of his employment contract the complainant was not entitled to be paid while on sick leave. I find that the complainant was provided with the period of notice required under the Act while on medically certified sick leave. Under the terms of his contract, he was not entitled to be paid for a period of sick leave. I decide that the Act was not contravened by the respondent.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00045186-001 Complaint submitted under section 77 of the Employment Equality Act, 1998. I have carefully considered the submissions and evidence in this case. I am satisfied that the respondent discriminated against the complainant on the disability ground in failing to provide any appropriate measures to enable the complainant to participate fully in his duties. The respondent failed to provide reasonable accommodation to the complainant. The decision to dismiss the complainant was taken without the respondent referring the complainant for an occupational health examination and without assessing what, if any, measures could be taken to enable the complainant to return to his duties. I am satisfied the complainant was discriminatorily dismissed from his employment on the disability ground. I decide the complainant was discriminated against by the respondent on the ground of disability and was discriminatorily dismissed from his employment. In deciding the award of compensation, I have considered the severe effects on the complainant of his discriminatory treatment and dismissal and the requirement for the sanction to be effective, proportionate and dissuasive. In all the circumstances of this case I decide it is just and equitable to order the respondent to pay to the complainant compensation of €67,600 for the effects of the acts of discrimination suffered by him. CA-00045186-002 Complaint submitted under section 6 of the Payment of Wages Act, 1991. Based on the uncontested evidence presented I am satisfied that one weeks’ wages were properly payable to the complainant and that the respondent in failing to make the payment at the date of termination made an unlawful deduction. I decide the complaint is well founded. I direct the respondent to pay to the complainant €650 gross. CA-00045186-003 Complaint submitted under section 27 of the Organisation of Working Time Ace, 1997. The complainant was entitled to paid annual leave for the period he was working in 2019 and for the period of his medically certified sick leave in 2020 and 2021. As he was unable to avail himself of annual leave, he is entitled to compensation on cesser of employment, in compliance with section 23 of the Organisation of Working Time Act. I decide the complaint is well founded. I find the complainant is entitled to compensation for one weeks’ leave for the statutory leave year 01 April 2019 t0 31 March 2020, four weeks’ leave for the statutory leave year 01 April 2020 to 31 March 2021 and 4 days leave for the statutory leave year 01 April 2021 to 16 June 2021. I direct the respondent to pay to the complainant compensation for the loss of his annual leave in the amount of €3,770 gross. CA-00045186-004 Complaint submitted under section 12 of the Minimum Notice and Terms of Employment Act, 1973. I find that the complainant was provided with the period of notice required under the Act while on medically certified sick leave. Under the terms of his contract, he was not entitled to be paid for a period of sick leave. I decide that the Act was not contravened by the respondent. |
Dated: 07/02/2024
Workplace Relations Commission Adjudication Officer: Maria Kelly
Key Words:
Disability Discrimination Reasonable Accommodation Discriminatory Dismissal Compensation for the effects of acts of discrimination Section 82 (4) Employment Equality Act Pay Compensation for Annual Leave Minimum Notice |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034387
Parties:
| Complainant | Respondent |
Parties | John Geoghegan | Feightspeed For Pharmacy Ltd (In Liquidation) |
Representatives | Barry Kenny, Kenny Sullivan Solicitors | No attendance by the Liquidator |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00045186-001 | 14/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00045186-002 | 14/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00045186-003 | 14/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00045186-004 | 14/07/2021 |
Date of Adjudication Hearing: 10/03/2023
Workplace Relations Commission Adjudication Officer: Maria Kelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
By email dated 23 February 2023 Mr Declan Clancy informed the Workplace Relations Commission that he had been appointed Liquidator of the respondent company on 21 September 2021. Mr Clancy stated that he had recently been passed correspondence in relation to this matter and notice of the hearing scheduled for 10 March 2023. In the email Mr Clancy stated that the company had no assets available for distribution to creditors and that there are no funds in the Liquidation. As required under the Companies Act, 2014, he sought consent from the Committee of Inspection in relation to engaging in any such litigation and/or hearing. This consent had been refused. Accordingly, Mr Clancy was not in a position to expend any funds in defending this case and would not be attending the hearing on 10 March 2023.
In reply to queries from the adjudicator Mr Clancy replied by email dated 08 March 2023 stating that the liquidation of the respondent company was a Creditors Voluntary Liquidation and he had been appointed by the Creditors. He also stated that the company has not been dissolved.
I explained to the complainant the procedural changes arising from the decision of the Supreme Court in Zalewski v Adjudication Officer & ors [2021] IESC 24. The complainant gave his evidence on oath.
Background:
The complainant was employed as a driver by the respondent company. He commenced employment on 03 October 2011. His employment was terminated on 16 June 2021. He worked 40 hours per week on average and he was paid €650 gross per week.
The complainant claims he was dismissed because of a disability and that the respondent discriminated against him by reason of his disability in failing to give him reasonable accommodation and dismissing him. He further claims that he was discriminated against in conditions of employment.
The complainant also claims the respondent made unlawful deductions from his wages, failed to pay him his annual leave entitlement and did not pay him for his statutory period of notice.
The complaints were received by the Workplace Relations Commission on 14 July 2021. |
Summary of Complainant’s Case:
The complainant was employed as a driver by the respondent delivering items to pharmacies and hospitals. He commenced employment in October 2011. He had been made redundant from another company that had outsourced such work to the respondent company. The respondent is a logistics and transport company providing services for the distribution of pharmaceutical products. In May 2019 the complainant had to have knee replacement surgery. The complainant was on certified sick leave from 13 May 2019. The complainant was unfit to carry out his duties as a driver following the surgery. The complainant submitted medical certificates to the respondent throughout his period of sick leave. The respondent did not provide a sick pay scheme. The complainant’s employment was terminated by the respondent with effect from 16 June 2021. By letter dated 8 June 2021 the respondent informed the complainant that: “This termination was based wholly on your evident incapability to attend for and perform the duties for which you are employed and the unavailability of alternative duties.” Even though he submitted medical certificates the complainant did not receive any contact from the respondent between May 2019 and September 2020, a period of some sixteen months. The complainant attended a meeting on 04 September 2020 with representatives of the respondent company, Mark White and Linda Reddy. The complainant explained how his rehabilitation was progressing and that he was still unfit for work at that time. He expressed his dissatisfaction with the respondent’s apparent apathy as regards his period of absence. The respondent’s representatives apologised for the lack of contact during his sick leave and acknowledged the fact that he had submitted medical certificates. The respondent’s representatives accepted the situation without question and the meeting concluded with the parties agreeing to keep in contact. The respondent’s representatives did not discuss any matters regarding how the complainant’s medical situation could be accommodated in a return-to-work scenario or any alternative roles. Nor did the respondent arrange for the complainant to attend a company nominated medical practitioner for assessment. The respondent did not contact the complainant again for over seven months. On 19 April 2021 the respondent wrote to the complainant requesting a date for his return to work. The respondent did not attempt to engage with the complainant about his rehabilitation situation or how he might be accommodated on his return. The respondent did not make any arrangements for their own medical assessment of the complainant. By letter dated 04 May 2021 the respondent terminated the complainant’s employment. The stated reason for the termination was the complainant’s incapability to attend for and perform the duties for which he had been employed. The complainant wished to appeal his termination and requested that his solicitor be permitted to attend with him at an appeal hearing. The request for this solicitor to attend the hearing was refused. The Managing Director, John Flynn, held an appeal hearing on 26 May 2021. The complainant attended the hearing without representation. The hearing lasted just a matter of minutes. The complainant suggested that he could return to work if he was accommodated with driving shorter journeys. The complainant also offered to attend a medical practitioner of the respondent’s choosing. Mr Flynn did not engage with the complainant’s suggestions or discuss same. The appeal was unsuccessful. By letter of 28 May 2021 the complainant was informed his appeal had been unsuccessful. The complainant’s employment was to terminate on 16 June 2021, based on his entitlement to statutory notice. By letter dated 08 June 2021 the respondent restated the complainant’s employment would be terminated on 16 June 2021. The complainant submitted his complainants to the Workplace Relations Commission on 14 July 2021. In addition to his complaint of discrimination and discriminatory dismissal the complainant submitted a complaint under the Payment of Wages Act, 1991 in respect of an unlawful deduction of one week’s pay, a complaint under the Organisation of Working Time Act, 1997 in respect of outstanding annual leave and a complainant under the Minimum Notice and Terms of Employment Acts, 1973-2005 in respect of the non-payment of notice pay. Legal Submission It is submitted that the complainant was discriminated against on the disability ground contrary to section 6(2)(g) of the Act. He was subjected to discriminatory treatment in that the respondent failed to provide him with reasonable accommodation for his disability leading to his dismissal for failure to carry out his duties. The complainant suffered a disability following a knee replacement surgery. This caused him to be absent from work for a period. It is submitted that the respondent discriminated against the complainant on the disability ground in failing to provide him with reasonable accommodation for his disability. It is further submitted that the complainant was discriminately dismissed because of his disability. It is submitted that the respondent acted in breach of section 16(3) and (4) of the Employment Equality Act by failing to take appropriate measures to enable the complainant to return to work. The complainant cites the decision of the Supreme Court in Nano Nagle School v Daly and Another [2019] IESC 63 as confirming that the requirement on an employer when dealing with a situation where an employee has a disability is to examine and consider if that employee’s job is capable of adaptation so that by taking ‘appropriate measures’ as per the Acts, the employee can carry out the full functions of the role. This requires that an employer should examine the job thoroughly and ascertain and consider what accommodations might be capable of being made that do not generate a disproportionate burden or cost for the employer. What is required is a transparent, deliberative process. In support of the requirement of thorough enquiries the complainant cites the decisions in A Health and Fitness Club v A Worker EED 037 and Bolger v Showerings (Ireland) Ltd [1990] E.L.R. 184 as examples of what is normally required in order to establish the factual position in relation to the employee’s capacity. It is submitted that no such enquiries, adequate or otherwise, were made in this case. The complainant was dismissed by reason of his disability in circumstances where the respondent had not availed itself of any relevant information or medical evidence. The complainant seeks substantial compensation for the effects of discrimination and discriminatory dismissal. In relation to the quantum of compensation the complainant relies on the decision of the Labour Court in Lee t/a Peking House v Fox EED 036 where the Court stated: “In measuring the appropriate quantum of compensation the Court must have regard to all the effects which flowed from the discrimination which occurred. This includes not only the financial loss suffered by the complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof, including the effect of bringing these proceedings” Complainant’s Evidence Mr Geoghegan described his work as a driver for the respondent. He had many years’ experience as a driver with another company delivering to hospitals and pharmacies until he was made redundant when that company outsourced their deliveries. He commenced working for the respondent in 2011 and he regularly commenced duty at 05.00 delivering boxes of supplies to hospitals and pharmacies. The work was hard physical work as he had to deliver large boxes of supplies from the van to each location. In 2019 Mr Geoghegan had to have surgery for a total knee replacement. The respondent did not provide a paid sick leave scheme so Mr Geoghegan had to claim illness benefit. He had asked to take a week’s holidays at the time of his surgery but this was refused. He was to be paid for the untaken holiday on his return to work. Mr Geoghegan described how the recovery from surgery was long and painful. He submitted medical certificates to the respondent every fortnight. Between May 2019 and September 2020, the respondent did not contact the complainant, even though he was a long serving employee on sick leave. Mr Geoghegan attended a meeting on 04 September 2020 with Mark White and Linda Reddy, representatives of the respondent. Mr Geoghegan had explained to Mr White and Ms Reddy that while he was making progress, he was still unfit to resume his normal work at that time. He continued to submit his medical certificates each fortnight. Neither Mr White nor Ms Reddy discussed how Mr Geoghegan might be accommodated on his return to work. Alternative roles were not discussed at that meeting. The meeting ended with statements to keep in contact. No further contact was received from the respondent until April 2021. Mr White wrote to Mr Geoghegan on 19 April 2021 requesting a date on which he would or was very likely to return to work. Mr Geoghegan was asked to reply within seven days. The letter was sent to an old address and was not received by Mr Geoghegan until 21 May 2021. As he had not received the letter Mr Geoghegan had not replied within seven days. Mr White sent a second letter, dated 04 May 2021, again to Mr Geoghegan’s old address, advising that as he had not provided a date for his return to work his employment with the respondent would be terminated on 16 June 2021. Mr Geoghegan was told he could appeal the decision to terminate his employment on or before 11 May 2021. Mr Geoghegan stated that he received both letters on 21 May 2021. On receiving the letters of 19 April and 04 May 2021 Mr Geoghegan immediately wrote to Mr White asking to appeal the decision to terminate his employment. Mr Geoghegan requested that he be accompanied by his solicitor at the appeal hearing, this request was refused. The appeal hearing was held remotely on 26 May 2021. The appeal was heard by Mr John Flynn. Mr Geoghegan stated that the hearing lasted two to three minutes. Mr Geoghegan explained that his doctor was satisfied that he was making progress in his recovery. Mr Geoghegan suggested that he might return on a staggered basis and do light courier work. Other employees were doing such work delivering emergency drops by car. Mr Flynn did not ask questions or make any offer to accommodate Mr Geoghegan in any way to return to work. Mr Flynn wrote to Mr Geoghegan on 28 May 2021 stating his appeal was unsuccessful because he had failed to provide a return-to-work date before or during the appeal. Mr Geoghegan’s employment was terminated on 16 June 2021. Mr Geoghegan stated that he did not receive any termination payment, was not paid for one week he was due and was not paid for outstanding annual leave from 2019 to 2021. Mr Geoghegan described how upset he was by the treatment he had received from his employer. He had been a good employee with an impeccable record before he had to have surgery. He had no contact from the respondent during the first sixteen months of sick leave even though he submitted medical certs each fortnight. He has been receiving disability payment since 2021. Mr Geoghegan stated that his mental health has suffered because of the way he was treated by his employer with no offer to accommodate him in a return to work. |
Summary of Respondent’s Case:
The liquidator, Mr Clancy, was unable to attend the hearing as the Committee of Inspection had refused consent for him to attend the hearing or engage in the case. |
Findings and Conclusions:
CA-00045186-001 Complaint submitted under section 77 of the Employment Equality Act, 1998. The complainant was employed as a delivery driver by the respondent company. The respondent company was engaged in the transport and distribution of pharmaceutical products. The complainant was an experienced delivery driver and delivered pharmaceutical products to hospitals and pharmacies. The work was physically demanding. The complainant worked for the respondent from 2011 until he required surgery for a knee replacement in 2019. His employment was terminated effective 16 June 2021. The complainant claims that he was discriminated against by the respondent by reason of his disability when it failed to take any appropriate measures to enable him to return to work and participate in his duties. The complainant claims the respondent failed to reasonably accommodate his disability. Further, the complainant claims the respondent unlawfully discriminated against him in dismissing him because of his disability. Legislation Section 2 of the Act defines disability as: “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; Section 6 of the Act, dealing with discrimination and less favourable treatment, provides: 6.— (1) 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, (b) a person who is associated with another person— (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— (a) …(f) … (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 8 of the Act, provides: 8.— (1) In relation to— (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker. Section 16 of the Act provides the following concerning the nature and extent of an employer’s obligations in certain cases: 16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual— (a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or (b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed. (2) … (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: The first issue to be decided is whether the complainant has or had a disability within the meaning of the Act. I accept the complainant’s uncontested evidence that he was an employee with an impeccable record until he developed a significant problem with his knee. The complainant required surgery for a complete knee replacement. The surgery took place in May 2019. The complainant in his evidence described how painful and difficult his post-operative period was. The complainant was certified by his doctors as being unfit to resume work between May 2019 and May 2021, when he was informed that his employment would be terminated. The complainant stated in his evidence that he is receiving disability benefit. I am satisfied that the complainant has a disability within the meaning of the Act. Section 85A of the Act states that where 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. The complainant has established that he has a disability. He has established that he was dismissed from his employment during a period of sick leave because of his disability. I am satisfied that the complainant has reached the threshold of establishing facts from which it may be presumed that he was discriminated against. In those circumstances it is for the respondent to prove the contrary. There was no appearance by or on behalf of the respondent. The complainant in his uncontested evidence stated that other employees of the respondent were doing emergency drops or deliveries to hospitals and pharmacies by car. At his remote appeal hearing the complainant had proposed a staggered return to lighter delivery work, like the work carried out by at least two other employees. I accept the complainant’s evidence that he informed the respondent, at the appeal hearing, that his recovery was progressing and that he could return to lighter delivery work on a staggered basis, similar to the work being done by two other employees.
Section 16 of the Act may provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a genuine belief that the complainant was not fully capable of performing the duties for which he was employed. However, the Labour Court in Humphreys v Westwood Fitness Club EED 037 held that before forming a view on the employee’s competency to perform the duties for which he was employed the employer would “normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity.” Based on the uncontested evidence of the complainant I am satisfied that the respondent did not make adequate enquiries to establish the factual position in relation to the complainant’s capacity. The respondent did not refer the complainant for an independent occupational health assessment and did not make any effort to discuss any appropriate measures that could enable the complainant to return to work. The Supreme Court in Nano Nagle v Daly [2019] IESC 63 found that s.16(3) of the Act places a “mandatory primary duty” on an employer to provide reasonable accommodation unless this would impose a disproportionate burden on the employer. The employer is not required to create a different job to facilitate an employee. The complainant proposed returning, on a staggered basis, to driving duties, delivering emergency drops by car in the same way that two other employees worked. However, this proposal was not assessed in any detail by the employer. In Cunningham v Irish Prison Service [2020] IEHC 282 Barr J stated that “Justice requires that the person suffering from the disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them, which was not unduly burdensome to the employer and did not impair the operational capacity.” In the instant case the employer made no enquires about what appropriate measures might assist the complainant to return to his full duties. At the appeal hearing, which lasted a few minutes, the suggestion put forward by the complainant was not adequately assessed by the employer. I am satisfied that the respondent discriminated against the complainant on the disability ground in failing to provide any appropriate measures to enable the complainant to participate fully in his duties. The respondent in failing to reasonably accommodate the complainant’s disability unlawfully discriminated against him. A consequence of the respondent’s failure to provide the complainant with reasonable accommodation for his disability was that he was not provided with the opportunity to resume his duties. The complainant was then dismissed from his employment by the respondent. The respondent in its letter of termination stated that the termination was “based wholly on your evident incapability to attend for and perform the duties for which you are employed and the unavailability of alternative duties”. This decision was taken without the respondent referring the complainant for an occupational health examination and without assessing what, if any, measures could be taken to enable the complainant to return to his duties. I am satisfied the complainant was discriminatorily dismissed from his employment on the disability ground. I find the respondent acted in breach of s.6, s 8 and s. 16 of the Act and that the complainant is entitled to compensation for the effects of the discriminatory treatment suffered by him and discriminatory dismissal.
Compensation Section 82 of the Act provides the following: 82.— (1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case: (a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision; (b) an order for equal remuneration from the date referred to in paragraph (a); (c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77; (d) an order for equal treatment in whatever respect is relevant to the case; (e) an order that a person or persons specified in the order take a course of action which is so specified; (f) an order for re-instatement or re-engagement, with or without an order for compensation. (2) … (3) … (4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be— (a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of— (i) 104 times the amount of that remuneration, determined on a weekly basis, (ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or (iii) €40,000, or (b) in any other case, €13,000. (5) … (6) (a) The maximum amount of compensation specified in subsection (4) applies notwithstanding that conduct the subject of the investigation by the Director General of the Workplace Relations Commission constituted— (i) discrimination on more than one of the discriminatory grounds, or (ii) both discrimination on one or more than one of such grounds and harassment or sexual harassment The Employment Equality Act 1998 was amended by the Equality Act 2004 to implement in Irish law Council Directive 2000/78/EC. That Council Directive established a general framework for the equal treatment in employment and occupation. The purpose of the Directive was to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation. Chapter 1, Article 3 (c) provides the Directive shall apply to all persons, in relation to employment and working conditions, including dismissals and pay. Article 5 sets out the need for employers to take appropriate measures where needed. Chapter IV, Article 17 deals with Sanctions and inter alia provides “The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive.” Noting the requirement under the Directive for the sanction for infringement of the national provisions adopted pursuant to this Directive to be effective, proportionate and dissuasive I have carefully considered section 82 (4) (a) and (b). The complainant was on sick leave at the time of his dismissal and the employer did not provide a sick pay scheme. He therefore had not received any remuneration since May 2019. It is my view that applying section 82 (4) (b) and limiting the award of compensation to €13,000 because the complainant was on unpaid sick leave at the date of dismissal would be inconsistent with Article 17 of the Directive. Therefore, I find that section 82 (4) (b) should be disapplied in this case. I have decided to award compensation in line with section 82 (4) (a) which provides for compensation up to a maximum of 104 times the amount of the complainant’s remuneration, determined on a weekly basis. The complainant’s remuneration was €650 gross per week. In deciding the award of compensation, I have considered the severe effects on the complainant of his discriminatory treatment and dismissal and the requirement for the sanction to be effective, proportionate and dissuasive. I note that one effect of the discriminatory dismissal is that had the complainant been made redundant at the time the respondent went into liquidation he could have qualified for a redundancy payment for his almost nine years of employment. In all the circumstances of this case I decide it is just and equitable to award the complainant compensation of €67,600 for the effects of the acts of discrimination suffered by him.
CA-00045186-002 Complaint submitted under section 6 of the Payment of Wages Act, 1991. The complainant claims that the respondent unlawfully deducted one weeks’ wages in June 2021 at the time his employment was terminated. The complainant claims that he was due a back week to be paid at the time of termination. I accept the uncontested evidence of the complainant that he was not paid €650 gross as expected on 16 June 2021, the date of termination of employment. Section 5 of the Payment of Wages Act provides as follows: 5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it (6) Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion. Based on the uncontested evidence presented I am satisfied that one weeks’ wages were properly payable to the complainant and that the respondent in failing to make the payment at the date of termination made an unlawful deduction. I find the complainant is entitled to payment of €650 gross. CA-00045186-003 Complaint submitted under section 27 of the Organisation of Working Time Ace, 1997. The complainant claims that he did not receive annual leave or payment for outstanding leave at the date of termination. The complainant was a full-time employee of the respondent. His annual leave allowance was the statutory period provided for in section 19 of the Organisation of Working Time Act, 1997, that is 4 working weeks per leave year. The complainant went on sick leave on 13 May 2019 at which time he had one week of leave outstanding for the statutory leave year 2019/2020. He was on sick leave throughout the statutory leave year 2020/2021 and his employment was terminated on 16 June 2021, eleven weeks into the statutory leave year 2021/2022. I am satisfied on the uncontested evidence presented that the complainant could not avail himself of annual leave between 13 May 2019 and 16 June 2021 due to medically certified sick leave. I am also satisfied that the complainant was not paid for his outstanding holidays at the time of termination of his employment. Section 19 provides the following concerning the entitlement to annual leave: 19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to— (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater. (1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was— (a) at his or her place of work or at his or her employer’s disposal, and (b) carrying on or performing the activities or duties of his or her work. Section 20 of the Act provided the following concerning the time and pay for annual leave: Times and pay for annual leave. 20.— (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject— (a) to the employer taking into account— (i) the need for the employee to reconcile work and any family responsibilities, (ii) the opportunities for rest and recreation available to the employee, (b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and (c) to the leave being granted— (i) within the leave year to which it relates, (ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or (iii) where the employee— (I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and (II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year. Section 23 of the Act provides the following concerning compensation on cesser of employment for loss of annual leave: 23.— (1) (a) Where— (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave. (b) In this subsection— "relevant period" means— (i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year, (ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year— (I) the current leave year, and (II) the leave year immediately preceding the current leave year, (iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) — (I) the current leave year, and (II) the leave year immediately preceding the current leave year, or (iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) — (I) the current leave year, and (II) the 2 leave years immediately preceding the current leave year. The complainant was entitled to paid annual leave for the period he was working in 2019 and for the period of his medically certified sick leave. The complaint was received within the relevant time period. As he was unable to avail himself of annual leave, he is entitled to compensation on cesser of employment, in compliance with section 23 of the Organisation of Working Time Act. I find the complaint is well founded and the complainant is entitled to compensation for one weeks’ leave for the statutory leave year 01 April 2019 to 31 March 2020, four weeks’ leave for the statutory leave year 01 April 2020 to 31 March 2021 and 4 days leave for the statutory leave year 01 April 2021 to 16 June 2021. The complaint is well founded, the respondent should pay to the complainant compensation for the loss of annual leave in the amount of €3,770 gross.
CA-00045186-004 Complaint submitted under section 12 of the Minimum Notice and Terms of Employment Act, 1973. The complainant claims that the did not receive his statutory minimum period of notice on the termination of his employment or payment in lieu thereof. The complainant was employed by the respondent for a period of nine years and eight months. Section 4 of the Act provides the following: Minimum period of notice. 4.— 1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (a) if the employee has been in the continuous service of his employer for less than two years, one week, (b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks, (c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, (d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks, (e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks. As the complainant had continuous service of between five and ten years, he was entitled to a period of notice of four weeks. The complainant was notified of the termination of his employment by letter dated 04 May 2021 with a termination date of 16 June 2021. The respondent had given more than the statutory minimum notice period. However, the complainant did not receive that letter until 21 May 2021 as it had been sent to the incorrect address. I am satisfied that the respondent did give the complainant the notice period required under section 4(2) (c) of the Act. The complainant appealed the decision to terminate his employment. The appeal was rejected and the original termination date, 16 June 2021, was confirmed. The complainant claims that he was not paid in lieu of the notice period. The Second Schedule of the Act provides the following concerning the rights of an employee during the period of notice: SECOND SCHEDULE RIGHTS OF EMPLOYEE DURING PERIOD OF NOTICE. 1. Subject to the provisions of this Schedule, an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment and shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given. During the period of notice the complainant was entitled to be paid in accordance with the terms of his contract and have the same rights to sick pay as if notice of termination of his contract of employment had not been given. The complainant was on certified sick leave during the notice period and the respondent did not provide a sick pay scheme. Under the terms of his employment contract the complainant was not entitled to be paid while on sick leave. I find that the complainant was provided with the period of notice required under the Act while on medically certified sick leave. Under the terms of his contract, he was not entitled to be paid for a period of sick leave. I decide that the Act was not contravened by the respondent.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00045186-001 Complaint submitted under section 77 of the Employment Equality Act, 1998. I have carefully considered the submissions and evidence in this case. I am satisfied that the respondent discriminated against the complainant on the disability ground in failing to provide any appropriate measures to enable the complainant to participate fully in his duties. The respondent failed to provide reasonable accommodation to the complainant. The decision to dismiss the complainant was taken without the respondent referring the complainant for an occupational health examination and without assessing what, if any, measures could be taken to enable the complainant to return to his duties. I am satisfied the complainant was discriminatorily dismissed from his employment on the disability ground. I decide the complainant was discriminated against by the respondent on the ground of disability and was discriminatorily dismissed from his employment. In deciding the award of compensation, I have considered the severe effects on the complainant of his discriminatory treatment and dismissal and the requirement for the sanction to be effective, proportionate and dissuasive. In all the circumstances of this case I decide it is just and equitable to order the respondent to pay to the complainant compensation of €67,600 for the effects of the acts of discrimination suffered by him. CA-00045186-002 Complaint submitted under section 6 of the Payment of Wages Act, 1991. Based on the uncontested evidence presented I am satisfied that one weeks’ wages were properly payable to the complainant and that the respondent in failing to make the payment at the date of termination made an unlawful deduction. I decide the complaint is well founded. I direct the respondent to pay to the complainant €650 gross. CA-00045186-003 Complaint submitted under section 27 of the Organisation of Working Time Ace, 1997. The complainant was entitled to paid annual leave for the period he was working in 2019 and for the period of his medically certified sick leave in 2020 and 2021. As he was unable to avail himself of annual leave, he is entitled to compensation on cesser of employment, in compliance with section 23 of the Organisation of Working Time Act. I decide the complaint is well founded. I find the complainant is entitled to compensation for one weeks’ leave for the statutory leave year 01 April 2019 t0 31 March 2020, four weeks’ leave for the statutory leave year 01 April 2020 to 31 March 2021 and 4 days leave for the statutory leave year 01 April 2021 to 16 June 2021. I direct the respondent to pay to the complainant compensation for the loss of his annual leave in the amount of €3,770 gross. CA-00045186-004 Complaint submitted under section 12 of the Minimum Notice and Terms of Employment Act, 1973. I find that the complainant was provided with the period of notice required under the Act while on medically certified sick leave. Under the terms of his contract, he was not entitled to be paid for a period of sick leave. I decide that the Act was not contravened by the respondent. |
Dated: 07/02/2024
Workplace Relations Commission Adjudication Officer: Maria Kelly
Key Words:
Disability Discrimination Reasonable Accommodation Discriminatory Dismissal Compensation for the effects of acts of discrimination Section 82 (4) Employment Equality Act Pay Compensation for Annual Leave Minimum Notice |