Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003399

10/11/2024

The Worker was employed as a HGV driver by the Employer from 7 June 2014.  He alleged that the Employer did not fully engage with him in relation to suitable employment post a period of absence following surgery.  The Employer is a semi state employer who denied the allegations. 

The Worker submitted that on 28 March 2024, he underwent an angiogram in hospital and remained on certified sick leave up to his cardiology review in August 2024 where he was subsequently diagnosed with a vessel blockage and angina.  He submitted that he commenced on medication and was advised to discontinue driving as a HGV driver and to seek alternative light duties with the Employer.

He submitted that he advised his HR Department and followed policy when he was referred to Occupational Health where HR wanted him to see the company doctor, even though his Consultant Cardiologist, had advised him to cease HGV driving due to ongoing chest pains.  He advised that he did return to work for two weeks in June on light duties, but he was of the opinion that these were in fact not light duties; as he was lifting heavy equipment in the absence of pallet truck training, as promised by a member of the HR team.  He stated that the Department to which he was assigned, was unaware of his return to work arrangements and that no return to work interview was performed.  He stated that he developed chest pains due to the exertion and had to return to certified sick leave. 

The Worker stated that since 23 August 2024, when he advised members of the Occupational Health Department, and the HR Department, of his Cardiologist advice, he was left waiting for acceptable alternative duties to be provided to him by the Employer.  He stated that he had informed HR that he was unable to work late or night shifts as he cares for his elderly mother, who has Lewy body dementia and who, “due to wandering”, needs full supervision.  He stated that he had exhausted all of his sick leave and that he was now out of pay and only receiving disability benefit, even though he had been seeking a resolution to the situation since 23 August 2024.  He advised that he had emailed both HR and Occupational Health on numerous occasions but that weeks had passed without emails being answered.  The Worker further advised that he had no pallet truck training, had not been able to avail of annual leave or public holiday leave at the time of submitting his complaint in November 2024 for the entirety of that year.  

At hearing the Worker outlined that this had been “a year of hell”.  He stated that he had been treated very badly by the Employer during his sickness and that he was now in debt as a consequence of his illness and the Employer’s failure to address his return to work.  He confirmed as outlined in his complaint form, that he required a transfer from his substantive employment to light duties as advised by the Cardiologist, but that he also had to take into account, his requirements to care for his elderly mother who has Lewy body dementia.  He confirmed the work he was engaged in prior to his cardiology issues, the impact of a stressful job on his health and on his mental health.  He confirmed that he had a heart problem and had undergone surgery and that as a result the Cardiologist had confirmed that he could no longer drive a HGV.  He stated that he advised his line manager immediately after the angiogram and his line manager advised that he would make contact with HR.  He confirmed that HR did not work in the same location as him but were based some distance away.  He stated that he made HR aware that he could not work nights, and this was recorded on file.  He stated that there was a total lack of engagement on behalf of the Employer by both the HR Department and the Occupational Health team and he expressed the view that he was not looked after in any way.  He stated that he was left to linger out there, accumulating debt, despite him making numerous contacts with HR and Occupational Health. 

The Worker advised that the company did offer him a couple of positions, but that on each occasion, despite him having advised that he could not work late nights because of his care obligations, all options offered to him involved working late night shifts.  He further stated that when he first met Occupational Health, the role was covered by a locum, who advised him that he should change his medication, despite his medication having been directed by his Consultant Cardiologist.  He confirmed that the Occupational Health Physician agreed that he should be on light duties, and he stated that at that time HR decided that perhaps it would be more appropriate to change him to clerical duties. 

The Worker stated that he sent in all medical certs on time and that he sought at all times to engage with HR.  He also confirmed that he contacted the Head of HR and had made a number of phone calls to him and that despite many conversations in that regard, there was no proposal of an appropriate alternative position. 

The Worker stated that he contacted his union on 24 May who followed up with the HR Manager and that on foot of that contact he was then offered a temporary position in location B.  The Worker stated that this was a temporary position and that it involved loading and offloading trucks.  He stated that in his view this did not constitute light duties and in addition he did not have a cert for operating an electric truck.  He advised that he was told he would get appropriate training on the truck.  He stated that he turned up at that depot at 2pm on the day, that there was no back to work interview, but that he did speak to his manager who was unaware that he was being assigned to that depot and he indicated to the Worker that there were “no light duties over here”. 

The Worker stated that he phoned the Head of HR who had told him to come here and that the Head of HR said that he was to unload the trucks.  He stated that one of the managers in that depot suggested he be placed in another office, however in that area, there were weights that would have been over 5kg and so he couldn’t lift them on his own, and he had nobody to work with him or to show him how such a load should be lifted.  He stated that at that stage he was anxious about income and so in order to get paid, he did what he could but that after approximately two weeks he started to get chest pains again and he had to go out sick again.  He stated that although he was eventually fit to return to work, he was off pay, and he remained off pay at the time of the first hearing. 

Hearing of 17 April 2025:

The Worker confirmed that he had resigned his position on 7 April 2025, that he was dissatisfied with the two positions that were on offer to him.  He stated that one was practically a temporary position and that the other would not suit his mother’s care plan as he would have to work one Saturday in every five.  He stated that the positions were subject to a probationary period which was six months generally, but that these jobs in particular were subject to a probationary period of three months. 

He stated that the Employer had taken no account of the issues he had in relation to managing his mother’s care plan and that the Employer was aware of the issue in 2021 when he had to come off nights because of those issues.

The Worker further stated that there was no proper link between HR, Occupational Health and the line management and that information given to one party was not passed to the other and he stated that, if necessary, he would take this matter further to the Labour Court, or indeed to relevant Minister. 

The Employer submitted that the Worker was employed since July 2014, originally as an operative but that the Worker is currently employed as a HGV driver since April 2021. 

The Employer set out the following sequence of events:

·         The Worker had been absent from work from 28 March 2024 for “medical reasons” and a letter from his GP on 3 April noted that he had been “advised by Cardiology that he is not permitted to drive in a HGV capacity until further notice”

·         Since his initial absence, the Worker attempted to return to work on 4 June 2024 on light duties (not involving HGV driving) but the Worker found the duties unsuitable given his medical condition and he went back out on sick leave from 13 June 2024

·         In line with the company sick pay scheme, the Worker was in receipt of a reduced pay rate due to the length of his sickness absence

·         The following is an outline of the Worker’s absence and notable actions/dates as set out below

o   28 March 2024; the Worker sickness absence began

o   3 April 2024; GP letter advising that the Worker had requested no HGV work

o   9 April 2024; Occupational Health and Support (OHS) referral made requesting an assessment for fitness for duty

o   16 April 2024; OHS memo received requesting light duties for the Worker for the next four weeks if the company was in a position to do so.  The HR team telephoned the Worker to offer a non driving duty with a set shift and lighter tasks in line with OHS request.  This position was initially declined by the Worker but later accepted following union advice

o   4 June 2024; the Worker returned to work on light duties at a location near his original place of work.  The duty was designed by the union rep and local HR to accommodate the Worker’s medical requirements

o   13 June 2024; whilst working in that location, the Worker stated that he had developed chest pains and left work.  He then recommenced sickness absence

o   1 July 2024; the Worker advised HR that he was again fit to return to work on light duties, local HR advised he required an OHS referral to confirm fitness given his previous attempt at light duties

o   2 July 2024; OHS referral made by local HR

o   4 July 2024; the Worker advised he was “referring the case” as he was unhappy with the process.  Local HR requested a meeting with the Worker to discuss but no response was received

o   27 August 2024; OHS referral made by local HR

o   29 August 2024; the Worker emailed HR advising that his treating doctor had “deemed me unfit to drive HGV vehicles forever”

o   29 August 2024; OHS memo received stating the Worker position remains unchanged and that they would be referring his case to the Chief Medical Officer (CMO)

o   26 September 2024; memo received from Deputy CMO advising that the Worker was not fit for HGV currently and requesting a return to work on light duties in a seated role with no lifting greater than 5kg

o   21 October 2024; a temporary role was designed in line with the advice received from the Deputy CMO.  The Worker was offered a role by local HR via email.  The role was in a central Dublin location and consisted of rotating light tasks across a variety of areas and a meeting was arranged with a member of HR to discuss the position

o   21 October 2024; HR requested clarification from the CMO on what constitutes light duties and the permanency of the recommended redeployment

o   22 October 2024; the Worker declined the HR meeting and refused the duty as it did not suit his family circumstances

o   24 October 2024; a telephone conversation between the Worker and the Chief Medical Officer took place to discuss his ongoing absence following a request from HR, and complaints made directly by the Worker regarding the recommendations made in the Deputy CMO’s report

o   21 November 2024; HR received a clarification memo from the CMO recommending that the Worker be given a clerical position.  HR emailed the Worker to advise that they were sourcing a clerical position and a meeting was requested for 27 November 2024 to discuss options

o   21 November 2024; HR emailed the Worker to advise of clerical vacancies being advertised internally.  HR highlighted three in particular which might be of interest to the Worker, which he should consider applying for. One of those positions was based in Maynooth which was closer to his home that the central Dublin location.  The Worker advised that he would not apply for any of them

o   27 November 2024; a meeting was held between the Worker and a representative of local HR to discuss options.  The HR member committed to sourcing a clerical position

o   4 December 2024; local HR offered the Worker a clerical position in another location, 2.5kg distance from his original place of work and a location that was serviced by both Luas and Dublin Bus.  The Worker was advised that the work involved data inputting and other general clerical administration duties and that he would have his own office within that centre and a desk and chair. 

o   5 December 2024; the Worker accepted the position outlined but four days later changed his mind and declined the clerical position, stating that it was a 4am start and that it was unfeasible due to a family member

o   11 December 2024; local HR reached out to the Worker who confirmed that he could not take up the position due to personal circumstances

o   21 January 2025; local HR offered the Worker another clerical position in the same location with an 8am start time.  The Worker rejected this offer as the time and location did not suit his personal circumstances.  The Employer noted that this location was 2.5km from his original place of work and was serviced by both Luas and Dublin Bus

The Employer submitted that notwithstanding the fact that the Worker was unable to perform in his substantive role due to the medical reasons, in order to retain the Worker in paid employment, the Employer had offered the Worker alternative “lighter” roles.  The Employer further submitted that the Worker had rejected those roles for personal reasons.

The Employer submitted that it had engaged extensively with the Worker and had done so in a reasonable fashion in order to accommodate him.  The Employer further submitted that it had sought further engagement with the Worker to seek to address his situation in a reasonable manner, and that he had refused to engage and/or, address matters through the normal grievance procedure.  In such circumstances, the Employer respectfully requested that the Adjudicator recommend to the Worker that he engage with central HR through the grievance procedures. 

Adjournment of hearing:

The hearing on 4 March was adjourned as the parties wished to take an opportunity to identify if there were any further positions available to meet the requirements set out by the Chief Medical Officer and that in so doing, they would be cognisant of the Worker’s earnings and the challenges facing the Worker in relation to his mother’s disability.  The Employer also indicated that it would consider paying the Worker some of his accrued annual leave in order to alleviate his difficult financial circumstances.  The parties confirmed that they would meet within three weeks of the date of the hearing to consider options and a further hearing in the matter was to be reconvened. 

Witness evidence – Ms C:

At hearing Ms C stated that she had every sympathy with the Worker’s position, that she had been made aware that the Worker would need light duties in the short term originally, that it was pending investigation with his GP and that it was in that context that the original option had been sought.  She stated that subsequently the CMO advised that he needed seated clerical duties, and he was offered three positions, but that he refused all three of those duties, and had indicated that he was looking for something in a suitable location, with suitable duties, because of his personal circumstances.  Ms C stated that in order to resolve this matter, there needed to be reasonableness on all sides.  She confirmed that the Worker was on temporary rehabilitation remuneration rate at the time of the hearing, and she also confirmed that the Employer had a generous sick pay scheme.  She further confirmed that the sick pay had no impact on the Worker’s pension, other than that he was not paying into the pension at that time. 

Hearing 17 April 2025:

At hearing on 17 April 2025, Ms C, on behalf of the Employer, confirmed that in the intervening period two potential posts had been identified.  She confirmed that it had been difficult to source suitable positions in view of a change to the business model in one area of the business.  She confirmed that there was one position in the Customer Contact Centre and that the hours of work relating to that post were from 8:30am to 6pm and that the only Saturday liability was one Saturday in five.  She confirmed that that post had been occupied by a temporary staff member whose contract could be terminated if the Worker took up the position. 

Ms C also identified a second post that was becoming vacant due to a retirement.  She stated that the hours in this post appeared to be suitable but that there was a union agreement that the post had to be filled through an application process, however, she had proposed to the Worker that he could take up the post on a trial basis pending a competition for the post.   She confirmed that the Worker declined the offer of these posts and instead submitted his resignation.

I have considered carefully the submissions of both parties together with all relevant documentation provided and information given at both hearings.  There is no doubt that the Worker has found himself in particularly difficult circumstances due to his own ill health and due to the circumstances of being the main care provider for his elderly parent.  There is also no doubt that the Worker has been medically certified as unfit to carry out certain tasks. 

I am also clear that the Employer has made significant efforts to seek an alternative role for the Worker in order to maintain him in paid employment.  Prior to the first hearing, the Employer had offered the Worker four different positions that it believed met the criteria set down by the Chief Medical Officer.  I noted that the first position offered to the Worker, while originally declined, was later accepted and that the Worker did attempt to take on the role.  I noted however that the Worker developed chest pains while working in this role and eventually went back out on sick leave.  I noted that in taking up this role there was not a clear definition of what constituted light duties, and it appeared that the Employer was seeking to primarily accommodate the Worker with not carrying out HGV driving.  I noted further that the Worker was certified as being fit for light duties, though light duties was not well defined at that time.  I noted the second position offered by the Employer, which consisted of rotating light tasks across a variety of areas, and that this post was also declined by the Worker as it did not suit his family circumstances.  I noted that in November 2024, the Chief Medical Officer clarified that the Worker should be given a clerical position and on foot of that, the Employer brought to attention three positions that were advertised at the time, which the Worker could have applied for, and I noted that the Worker declined to apply for any of those positions. 

I noted that the local HR Department then met with the Worker and agreed to seek further options and that on foot of that meeting, they offered the Worker a position at a location 2.5km away from his original place of work, carrying out general clerical administrative duties.  I noted that this position was also declined by the Worker on the basis that it had a 4am start and that it wasn’t feasible for him to take up the post due to his family circumstances.  I noted that on foot of that, the local HR offered the Worker a further position in the same location, with clerical duties and an 8am start, but again the Worker declined this position on the basis that the time and the location of the post did not suit.

I noted that the Worker had made an offer of an additional two positions to the Worker between the hearings held in March and April 2025, but again for various reasons, those positions were not acceptable to the Worker.

While this complaint is taken under the Industrial Relations Act, the central issue here is the accommodation of a person with disability.  It is settled law that an employer is obliged in law, to make reasonable accommodation for a person with a disability.  Taking into account that the Employer made four offers of alternative employment to the Worker, brought to attention three other positions available for competition and then offered a further two positions to the Worker, it seems to me that the Employer not only meets the threshold of having sought to make reasonable accommodation, but has gone above and beyond what is required by the Act.  I consider that the Employer has made reasonable offers of alternative employment to the Worker, and it is incumbent on the Worker to meet the Employer half way in this regard.  It seems to me that the Worker believed he should be in a position to dictate his terms when moving to an alternative role and it is my view that he is misguided in this view. 

Reasonable accommodation