ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00036503

Parties:

Complaint:

Date of Adjudication Hearing:  10/06/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015and/or Section 79 of the Employment Equality Act 1998, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complaint is that the Respondent discriminated against the Complainant on the ground of disability, that he was discriminatorily dismissed and that reasonable accommodation was not afforded him on grounds of disability.

Summary of Complainant’s Case:

The Complainant’s solicitor made numerous submissions and submitted a large volume of correspondence during the course of period of the hearings and post hearings.  The Complainant gave sworn evidence, he was examined on the evidence by his solicitor, and cross examined by the Respondent’s representative.

Evidence of Complainant

He stated that he started employment on 14 October 2020.  He received online training as this was during the time of Covid.  He considered the training to be inadequate.   He said he just met with a lady from HR, who told him to sign the training and he did so because he wanted to work.  He said that the work entailed carrying heavy trays of meat sometimes over 25kgs and in sub zero temperatures.  He stated that he injured his back at work and asked to be reassigned to lighter duties but this was ignored by management.  He said he was not shown how to lift heavy trays or boxes and he described the work as being more suitable for two persons not one.  In December 2020 he believed he had passed his probation and that he had a permanent job.  Then he was told it was being extended to February 2021.  He sustained an injury in January 2021 when he fell down from a chair.  There was a manager there present but he doesn’t know his name.   He stated that he informed a Manager or Floor Supervisor many times that he had injured his back.                                   

In examination by his solicitor, he stated that he witnessed burgers being dropped on the floor of the plant and replaced on the production line.

He stated that on 5 January 2021 he met with Mr P who is the Safety Manager.  After he told Mr P that he had spilled coffee on his t-shirt, Mr P told him to go home and change his clothes.

On examination of his evidence, he stated that he did not say to Mr P that he had a fall at home.

The Complainant demonstrated the type of work he did – turning, lifting, moving upwards and downwards.  He stated that he could have performed lighter duties but the Respondent did not accommodate him.  He could have been reassigned to jobs, cleaning, helping Operatives.

He was told by Ms N from HR that he was being dismissed. 

In cross examination, he stated that originally he got a job cleaning.  The Respondent’s representative put it to him that the training he received in September for the Contract Cleaning Company working for the Respondent was essentially the same training for the work in the factory.

The Complainant stated that he did not receive proper training and he questioned the validity of the individuals who signed off his training records.  He agreed he did receive some chemical training.             

He stated he did not understand some training such as SOP on some activities such as ‘palletising’.

Summary of Respondent’s Case:

The Respondent refutes the claim that the Complainant was discriminatorily dismissed.  He was employed for some three months when he went on sick leave.  He received a probation review on 22 December 2020 which outlined a number of lates and absences.  He met with the Health & Safety Manager Mr P on 5 January 2021.  He advised Mr P that he had slipped on stairs at home and hurt his back.  Mr P advised him to go home and seek medical advice.  Following this meeting Mr P emailed an update to colleagues including HR.  On 5 January 2021, the Complainant’s GP sent a letter to the Company advising that the Complainant had ‘radicular lumbar back pain’ and requesting light duties.   Unfortunately due to the nature of the job, there are no light duties available.  The Complainant met with Mr P again on 7 January 2021.  Mr P advised him to go home as he did not have a medical fitness to return to work certificate.  Following this, Mr P emailed colleagues with a number of concerns stating:

“He walked into the CF production office this morning in his plain clothes, no overalls hairnets etc.

Did not attempt to wash his hands at the hygiene area

He presented himself to Security on 5 / 6 occasions wearing no face mask

He has been asked to move his car on several occasions from the managers’ parking area”.

During January 2021, the Complainant submitted another medical certificate.  On 20 January 2021 Ms N from HR told him his probation was being paused. 

In March and April, at his request the Company wrote to the Department of Social Protection regarding the Complainant’s employment status.  In July 2021 a number of meetings were arranged with the Complainant which he failed to attend citing illness.  On 12 July 2021 he was advised that due to his absence and no medical report on a likely return to work date, he failed his probation and his contract was being terminated.  He was told that should he be fit in the future, he could reapply for a job with Dawn Meats.    

CA-00047300-001           Employment Equality Act 1998

Prima facie case

It has long been an established practice of the Equality Tribunal and the Labour Court to require a Complainant to present, facts from the first instance from which it can be inferred that he has been treated less favourably than another person is, has or would have been treated based on the discriminatory ground cited.  Case law was cited in regard to the evidential burden.  Mary Margetts v Graham Anthony & Company Limited and Southern Health Board v Mitchell were cited, the jurisprudence in the latter hasbeen relied upon a number of times byThe Labour Court.

It is argued that the Complainant has failed to establish a prima facie case. 

Reasonable accommodation

Section 16 (3) of the Act states:

"(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."

The question to be asked is, what would pose a disproportionate burden on the employer. In the Supreme Court decision of Nano Nagle School v Daly [2019] IESC 63, the Court wrote, at paragraph 106:

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

The Complainant had an accident at home when he slipped down some stairs. This occurred in early January 2021, a few days after concerns regarding his attendance had been brought to his attention. This accident at home was brought to the attention of Mr P, the Health and Safety Manager on the morning of 5 January 2021, who sent him home as he was not fit for work. While the Complainant's doctor had requested him to be facilitated with light duties, such a request was not possible on site. All the work available would involve an amount of manual handing and would be contrary to his doctor's request. The Complainant commenced a period of sick leave.

When Mr Aljaber eventually attended a welfare meeting on 12 July 2021, he had been absent for over six months, having only worked six weeks. With no indication of any return to work, and with no other role on site that would facilitate lighter duties, Mr Aljaber's contract was terminated. However, he was also informed that once he was fit, he could reapply to Dawn Meats for work.

Conclusion

The Complainant has alleged he was discriminated against on the grounds of disability, failure to provide reasonable accommodation and discriminatory dismissal. The Company is at a loss to understand how Mr Aljaber feels he was discriminated against.

The Complainant was unfit for work. The Company had no indication as to when, or if, he would be fit to return. There were no positions available as general operative that would facilitate lighter duties. The result was that his contract was terminated. However, Mr Aljaber was informed that, if he became fit to work, he should reapply to the Company.

Evidence of HR Officer

HR Officer Ms N gave sworn evidence summarised as follows:

At the beginning of the Complainant’s employment, as it was during the Pandemic, induction and training had to be carried out on line.  There are 11 modules in the programme and at the end of each module, the employee is asked to answer questions of understanding in order to proceed.  If the employee fails to complete the module they have to return and complete.  She confirmed that contractors receive the same training.  In relation to the Complainant’s probationary period, it was paused on 20 January 2021 due to the Complainant’s absence on sick leave.  He had commenced in October 2020 so the probationary review was due in January 2021.  She provided the Complainant with letters for the Department of Social Protection confirming the Complainant’s employment status and sick leave arrangements.  One issued in March 2021 and the second in April 2021.     After two and a half months actually working and six and a half months absence on sick leave, it was decided to terminate his employment.  She confirmed that the first she knew of the Complainant’s alleged fall at work incurring a back injury was when the complaint form from WRC was received.  She stated that there are no alternative duties in the factory.  The Company policy is that if an employee has difficulty bending, lifting or sweeping, then they cannot be put at risk.

Evidence of Health & Safety Manager

The Health & Safety Manager Mr P gave sworn evidence summarised as follows:

He stated that the evidence of the Complainant that employees were required to carry heavy trays weighing up to 25kgs in sub zero temperatures is not true.  He confirmed that he met with the Complainant on 5 January 2021 and that he (the Complainant) informed him that he hurt his back at home due to slipping down stairs.  Mr P sent him home and informed him to seek medical advice.  He also informed him that he would need to provide a Fit to Work Cert of his return.  Mr P sent an email to colleagues, including HR confirming this and stating that they should ensure he does not recommence work without meeting him or HR first.  Mr P said he had a clear recollection of what the Complainant said to him on the morning; that he fell at home, that there was no one there to help him.  There was no mention of spilling coffee or any previous back injury.

In examination of his evidence, the Manager stated that he could not accept the Complainant’s evidence that he informed any member of management that he had injured his back or fell in the course of his work.  The Company would take a very serious view of any Manager or Supervisor failing to report an incident or accident at work.  There are procedures and if, for example any employee raised any issue of safety it would be raised at Plant Managers meetings and he would follow up.  He confirmed that the Complainant came into work on 7 January without a fit to work medical certificate.  The Complainant had a letter from his doctor stating that he was being referred for an MRI and if he could be accommodated with light duties.  He told the Complainant that he could not start work as there are no light duties.  He informed him that he could not return to work until after his MRI and with a Fit to work cert.  Mr P confirmed this in an email to colleagues including HR and pointed out a number of problems encountered with the Complainant including no overalls, hairnet or washing of hands at the hygiene area.  He referred to a CCTV photo which showed two employees coming on duty – one had the appropriate PPE clothing the other (the Complainant) did not.  He confirmed it was his view that the Complainant could not follow direction and he confirmed that there are no light duties in the plant.                                                                                 

In relation to the allegations from the Complainant that burgers were dropped and replaced on the line, Mr P stated that this is not true.  There is a strict procedure for any issues such as accidental dropping of burgers on the floor.  There is a system – red trays for such events and immediate removal from site.  He confirmed that there are regular hygiene audits and the Department of Agriculture has personnel on site every week.  There is no validity to the allegations nor could there be due to the strict controls.

In cross examination, the witness stated that he accepted that the Complainant had provided medical evidence in the form of a certificate that he suffered from lumbar back pain.  He confirmed that the Complainant had stated to him that he was on the floor of his home for some time due to a fall.  He confirmed there are no light duties in any of the production plants for the type of work for which the Complainant was engaged.     Even labelling duties would involve standing all day. He stated that the Complainant’s evidence that he was just presented with training documents and told to sign them was not true.  He stated that some of the training such as manual handling took place in the Boardroom.  He stated that the decision to terminate the Complainant’s employment was not based on his back problems but as he could not take direction in relation to a number of matters, such as overalls, face mask and hand washing.  He confirmed that the Complainant had stated that it might be two or three years before he would be fit to return to work.     

Findings and Conclusions:

Conduct of the investigation

The investigation of this complaint proved difficult due to numerous submissions, correspondence from the Complainant’s solicitor, threats of judicial review and interruptions during evidence in the three hearings.    

During the course of the hearings and in correspondence, the Complainant’s solicitor made allegations against the Respondent particularly regarding handling of burgers and falsification of training records.  Each allegation was refuted by the Respondent and I accept the evidence given by the Health & Safety Manager in respect of the former and the submission from the Respondent on the latter. In correspondence from the Complainant’s solicitor, a number of times he requested that witnesses be compelled (subpoenaed) such as the Chief Executive of the Respondent Company and a member of the Chief Executive office of the Health & Safety Authority.  These requests were denied for stated reasons.  The primary reason given by me was that the complaint investigated was under the Employment Equality Act 1998, and not the Safety, Health & Welfare at Work Act 2005 or the Protected Disclosures Act 2014.   In correspondence with the solicitor I noted the following:

“I am investigating the complaint under the Employment Equality Act 1998 on the ground of disability, discriminatory dismissal and failure to provide reasonable accommodation.  There are no complaints before me under the Protected Disclosures Act 2014 or the Safety Health and Welfare at Work Act 2005. I have engaged with you during the hearings and in correspondence at length at this stage and I have made my position clear on the requests from you to compel witnesses from the Health & Safety Authority and from Dawn Meats.  I have heard evidence from the Complainant, the Safety Manager and the HR Officer.  I consider that these witnesses have directly addressed the issues raised in relation to the pertinent matters under investigation and I do not consider any further witnesses to be necessary for me to have fulfilled my obligation to investigate the Complainant’s complaints of discrimination on the ground of disability.  As you will be aware from case law, I have a duty to inquire and investigate and admit only relevant evidence. 

The Supreme Court in County Louth Vocational Education Committee and The Equality Tribunal and Pearse Brannigan [2016] IESC 40 made this very clear, specifically where it is stated:

It is both a trite and historical principle of law that a creature of statute must live by that statute.  Its jurisdiction is found solely within the provisions of the enabling Act.  It has no inherent capacity, unlike say, that of a constitutional court.  It is therefore bound by what has been conferred on it.  It has no further competence, and it cannot create, add to or enlarge the jurisdiction so vested in it.

It also stated:

Therefore, when considering the substantive issue, it must be remembered that the Tribunal inquires into referred incidents of discrimination: it looks at prohibited conduct of which it is notified.  It has no function in a situation such as this to embark on a wide-ranging inquiry into discrimination generally or to generally investigate such discrimination; it does not conduct investigations propriomotu into discrimination which has not been the subject of a statutory referral to the Tribunal. Rather, it determines what lawfully has been referred to it with a view to providing redress to that applicant for any discrimination as found.  The Tribunal cannot freelance its inquiries.

(emphasis added).

The judgement noted that the Workplace Relations Commission has superseded the Equality Tribunal. 

Justice McMenamin in his judgement in the case stated:

“It is well established that the purpose of a deciding body or tribunal such as the respondent Tribunal is to provide speedy and effective redress in cases of alleged discrimination”.

As this case is now over two years in the system, I consider it necessary to take into account Justice McMenamin’s remarks.

I am setting aside the allegations about training records and hygiene practices as they are not relevant to my investigation and can be dealt with in a separate forum should the parties wish.

Having heard evidence from the relevant parties it was my intention to issue the decision in a short period following the last hearing in November 2023.  However, copious correspondence from the Complainant’s solicitor and responses from the Respondent’s representative entailed further consideration of the matters raised.  I again emphasise that I noted at the hearings and in correspondence with the parties that a case against the Respondent under the Protected Disclosures Act 2014 and the Safety, Health & Welfare at Work Act 2005 was not before me. Having examined all the evidence and submissions, I to issue this decision under the Employment Equality Act 1998.   The findings, conclusions and decision are arrived at having considered the relevant evidence submitted.

The complaint is that the Complainant suffers a disability i.e. Back condition and that he was dismissed because of his disability and that the Respondent made no effort to provide him with reasonable accommodation.

The applicable law

Definition of Discrimination

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..

(2) As between any two persons, the discriminatory grounds (and the descriptions of these grounds for the purposes of this Act are:

(g) “that one is a person with a disability and the other either is not or is a person with a different disability” (i.e., “the disability ground”).

Definition of Disability

Section 2 of the Acts defines a disability as:

“(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.”

The Complainant in this case submitted 7 medical certificates in relation to his absence from work.  The certificates covered the period from 06/01/21 to 03/08/2021.  The certificate on 20/01/2021 and 20/03/2021 stated “Lumbar spine disc prolapse”.   The other 5 state “medical illness”.                    

I find that the Complainant meets the definition of disability in the Act.

Complaint of discriminatory dismissal

The Complainant was in the employment for less than three months when he went on long term sick leave.  He submitted medical certificates every month or so until July 2021.  At that point he was called to a meeting and summarily dismissed for having ‘failed his probation due to T&A’ (time and attendance).  I note no due process was followed, as in S.I. 146/2000 where the employee ought to be given the right to reply, right to representation and right to appeal the decision to dismiss.                  

Even in the circumstances where the Complainant had very short service, there was some onus on the Respondent to afford the Complainant due process.   I note the Respondent had at this point 7 medical certificates and did not refer the Complainant to Occupational Health.   I note the evidence that the Complainant advised the Respondent that he was awaiting surgery and that this could take up to two years.  I note the Respondent offered the Complainant the opportunity to apply again for a job with the Company if and when he recovered.  This latter point leads me to conclude that the dismissal of the Complainant was linked to his disability.  For these reasons, I find the complaint to be well founded.

Reasonable Accommodation

The next element of the Complainant’s complaint that I must consider relates to the claim that the Respondent failed to provide him with reasonable accommodation in accordance with its obligations under Section 16 of the Acts.

Section 16(3) of the Acts sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. Therefore, for reasonable accommodation to arise, it is necessary for an employee not only to have a disability within the meaning of the Acts but also that appropriate measures are necessary in order for that employee to be fully competent and capable of undertaking their duties.

The Supreme Court in the case of Nano Nagle School -v- Daly [2019] IESC 63 has provided clarification regarding the nature of the obligation on employers to consult with employees when considering the provision of reasonable accommodation within the meaning of Section 16 of the Acts.    In this judgement MacMenamin J. held that: 

“Finally, it should be noted that the Court of Appeal found that there was no justification for the rule outlined in the Circuit Court decision of Humphries v. Westwood [2004] 15 ELR 296. In Humphries, Dunne J., then a judge of the Circuit Court, held that, in order to form a bona fide belief that a claimant was not fully capable of performing the duties for which she was employed, a respondent employer would normally be required to make adequate enquiries to establish fully the factual position in relation to the claimant's capacity. The nature of the enquiries would depend on the circumstances, but would, at minimum, involve looking at medical evidence to determine the level of impairment arising from the disability, and its duration. If it was apparent that the employee was not fully capable, the respondent was required, under s.16(3), to consider what, if any, special treatment or facilities might be available, by which the employee could become fully capable, and account was to be taken of the cost of such facilities or treatment. But Dunne J. went on to hold that such an enquiry could only be regarded as adequate if the employee concerned was allowed a full opportunity to participate at each level, and, on the facts of that case, to present relevant medical evidence, and submissions.

I note the Respondent’s submission that the Supreme Court in Nano Nagle held inter alia that:

“..these conclusions are not to be understood as requiring a situation where the duty of an employer is understood as having to provide an entirely different job…. It is a matter of degree, capable of being determined objectively."

In this instant case, I find that there was no enquiry into whether the Complainant could be reasonably accommodated with the opportunity to carry on his employment with the Respondent in some capacity.  The evidence of the Respondent was simply “there are no light duties”.  I note no effort was made to enquire regarding the medical situation, no referral to Occupational Health and no engagement with the Complainant to examine alternatives. 

I find the complaint to be well founded.

I conclude that the Respondent discriminated against the Complainant on the grounds of disability and failed to fulfil the requirements in relation to the matter of reasonable accommodation.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint 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.

I have decided that the complaint is well founded and I require the respondent to pay to the Complainant the sum of €15,000 compensation.

Dated:   5th July 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: