Complainant

Respondent

Anonymised Parties

General Operative

Medical Devices Manufacturer

Representatives

Self-Represented

Ms. Judy McNamara, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00051629-001

11/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00051629-002

11/07/2022

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

CA-00051629-003

11/07/2022

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

CA-00051629-004

11/07/2022

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

CA-00051629-005

11/07/2022

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

CA-00051629-006

11/07/2022

The Complainant commenced employment with the Respondent on 1st November 2005. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly wage of €675. The Complainant’s employment was terminated on 27th April 2022.

On 11th July 2022, the Complainant referred the present set of complaints to the Commission. Herein, she alleged that the Respondent failed to make a reasonable accommodation for her disability, and that the Employer dismissed her as a form of victimisation for previously issuing proceedings in this forum. By response, the Respondent denied the allegations raised by the Complainant and submitted that they went to significant lengths to accommodate the Complainant’s disability. They further denied that the Complainant was dismissed as a form of victimisation or penalisation, but stated that she was fairly dismissed on the grounds of medical incapability.

Following a series of adjournments, a hearing in relation to this matter was convened for, and finalised on, 21st May 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing. In circumstances whereby the Complainant’s medical history will be discussed in the body of the decision, I have exercised my discretionary powers regarding the anonymisation of the decision in its published form.

Both parties issued significant submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of her complaint, while the Operations Manager of the Respondent gave evidence in defence. All evidence was given under oath or affirmation, and was opened to cross examination by the opposing side.

Various preliminary issues as to jurisdiction were raised under the impleaded legislation. Given the nature of the same, they will be considered following a summary of the relevant evidence.

In evidence, the Complainant stated that she was engaged as a “general operative” with the Respondent. She stated that she was a long-term employee and that for the majority of her employment, she enjoyed her role.

In April 2020, the Complainant commenced a period of certified sick leave. In evidence, the Complainant stated it was her view that, at this time, the Respondent had discriminated against her on the grounds of disability and race. On foot of the same, the Complainant issued proceedings to the present forum under the Employment Equality Act and the Terms of Employment (Information) Act. On the date of the referral of the present set of complaints, a hearing in relation to the same had been convened and finalised with the parties awaiting a written determination in relation to the same. By the date of the present hearing, a decision in favour of the Respondent (under the Equality Acts) had issued. This decision had been unsuccessfully appealed to the Labour Court and was not subject to any further appeal on the date of hearing.

The Complainant submitted that since the date of the referral of the above-mentioned complaints, and the reporting of the alleged bullying and harassment that preceded same, she had been subjected to ongoing victimisation at the hands of the Respondent. In this regard, the Complainant stated that she had an ongoing chronic condition exacerbated by her working conditions. The Complainant attended for an occupational health assessment in February 2021 whereby she set out her difficulties and the issues she was experiencing at work. By subsequent medical report, the Complainant was advised not to lift in excess of 9.1KG on occasion or 4.5KG frequently in the course of her normal duties. While the Respondent met with the Complainant and attempted to redistribute her tasks so as to comply with these guidelines, the Complainant submitted that this did not occur and that her injury was aggravated by her duties within the workplace. As a consequence of the same, the Complainant was unable to work at all from April 2021.

In July of 2021, following receipt of a further report from the occupational health specialist, the Complainant re-commenced work on a part-time basis. Prior to this return to work, the Complainant undertook a review of all tasks assigned to her role with the assistance of the health and safety manager. On the Complainant’s return to work, she emailed the Respondent’s HR department to ensure that all tasks would be rotated in accordance with internal policy. By response, the HR department stated that the Complainant could not remain in work, and that she would be required to be signed off by a GP prior to her return. Following this interaction, the Complainant issued a complaint to management in respect to the conduct of HR. Following a purported investigation into these matters, the Respondent did not uphold the Complainant’s concerns, but instead suggested that mediation be offered between the parties. As matters transpired, such medication was not arranged.

In February 2022, the Respondent advised that the Complainant was to return to full duties albeit subject to the restrictions on carrying certain weights as outlined in the doctor’s report. The day prior to the Complainant returning to full duties, she unfortunately suffered an adverse reaction to a cleaning product used by the Respondent. Again, while the Complainant was deemed fit to work by her GP, the Respondent refused to allow her to return to work until such a time as a more comprehensive report was obtained. On foot of the same, the Complainant issued a further complaint to the vice president of the organisation regarding the Respondent’s refusal to pay her wages during this period of enforced absence. Again, this complaint was not fully investigated by the Respondent.

On 9th March 2022, a further occupational health report was issued to the parties. Herein, the Complainant’s shoulder issue, which to this point was deemed to be temporary, was classed as a long-term issue and it was suggested that the Complainant be advised of her options regarding medical retirement. By submission, the Complainant took issue with this outcome, stating that the consulting physician came to this conclusion without sight of the relevant documentation. On foot of the same, the Complainant had a meeting with management whereby her duties and capabilities were again examined. Regarding this review, the Complainant stated that she would frequently be called upon to lift boxes in excess of 10 kilograms to shoulder height, a task that is in contravention of both the recommendations of the occupational health specialist and manual handling guidance from the HSA.

On 1st April, the Complaint attended a further appointment with the Health and Safety Manager and a HR Specialist that had not been involved in the process to date. While the stated purpose of this review was to explore possible options to retain the Complainant in employment, she stated that the onus was placed solely on her to provide such examples. By submission, the Complainant suggested that she could fulfil the roles of QA or trainer, or indeed be trained into those roles by the Respondent, however these suggestions were not taken seriously by the Respondent. In addition to the same, the Complainant stated that she encountered significant language difficulties during this meeting and had to take numerous breaks to understand what the parties were saying. While a further follow-up meeting was scheduled for 8th April 2022, apparently to ensure that the Complainant understood what had been discussed at the previous meeting. Despite the same, and the Complainant’s clear language difficulties, no translator was provided for this meeting. On 27th April 2022 the Complainant received confirmation that her role had been terminated on the grounds of ill-health. This meeting was particularly short, with the Complainant simply being handed correspondence outlining the Respondent’s position.

Following the same, the Complainant appealed in accordance with the Respondent’s internal policy in this regard. While the Respondent appointed an independent person to chair the appeal process, the Complainant submitted that the person appointed did not conduct a full review of the process. In particular, the Complainant submitted that the chair of the appeal did not properly examine the position adopted the Respondent, particularly in relation to the other persons on the shift that were accommodated in the role.

By submission, the Complainant stated that the Respondent had fundamentally failed to accommodate her disability in her employment. She stated that while the Respondent sought to implement some of the recommendations outlined in the occupational health specialist report, these were not adhered to and resulted in her injury becoming exacerbated. In addition to the foregoing, the Complainant disagreed with the position adopted by the Respondent that she could not complete the majority of the tasks assigned to her in the role. In this regard, she submitted that a properly conduced risk assessment would result in various mechanical accommodations to prevent excessive lifting. The Complainant stated that the decision to dismiss was based upon an inaccurate and incomplete medical report, issued in the absence of all relevant medical data. She further submitted that the Respondent did not properly examine alternative to her dismissal stated that certain roles existed for which she was not considered. Having regard to the accumulation of foregoing points, the Complainant submitted that her dismissal was in fact a retaliation for referring a previous complaint under the Employment Equality Act and raised various issues in respect of the management of the organisation. The Complainant further submitted that the Respondent had failed to provide a translator for the relevant meetings in contravention of the Act. Finally, the Complainant submitted that the Respondent had made an illegal deduction from her wages in refusing to allow her to attend for work when she was certified to do so by her GP.

By response, the Respondent denied the allegations raised by the Complainant on a factual and legal basis.

Following the referral of the complaint to the Commission in 2020, the hearing of the matter was unavoidably delayed due to the imposition to the restrictions arising from the Covid-19 pandemic. Whilst the parties were awaiting hearing, the Respondent continually commissioned numerous medico-legal reports outlining the nature and extent of the Complainant’s medical issues and suggesting various accommodations that might allow her to complete her role. In this regard, a report received on 18th February 2021 stating that the Complainant was fit for “work of light physical demand” and that she could not lift in excess of 9.1KG on occasion or 4.5KG frequently for the following two months, along with an avoidance of lifting certain objects beyond shoulder height. While the Complainant’s role did involve an extensive amount of such activities, the Respondent arranged for other staff members to compete these tasks on a temporary basis pending further medical reports. Thereafter, on 1st May 2021 a second report was received regarding these issues. This report indicated that the Complainant was suffering from a degenerative condition and deemed unfit for work of any description for a period of two months. By report date 26th July 2021, the Occupational Health Specialist deemed the Complainant to be fit for work, albeit subject to the same restrictions outlined in her earlier report. This prognosis was repeated in a further report of 7th October 2021.

On 15th February 2022, the Complainant called the Respondent’s HR function advising that she was having trouble breathing. On that date, the Complainant left the premises by ambulance. The following day, the Complainant advised the Respondent that she had experienced a reaction to the alcohol spray commonly used by the Respondent, and that her neck and face were burning as a consequence to the same. While the Complainant appeared eager to return to work, the Respondent had concerns regarding the points raised by the Complainant, and sought a further report in relation to the same. On 7th March 2022, the Complainant was attended a further assessment regarding the Complainant’s ongoing restrictions regarding her working arrangements and the alleged reaction to the cleaning agent.  While this report stated that the Complainant was clear to return to use the products containing alcohol, she would have to wear protective clothing while doing so. In addition to the same, this report indicated, for the first time, that the restrictions imposed on the Complainant would be long-term and that “if modified duties cannot be provided on an ongoing basis (the Complainant) will have no option but to take extended sick leave”. Under the heading entitled “follow up” the report suggested that “(The Complainant) struggles to provide reliable service due to her health issues. Please advise her of the options to retire on health grounds should this become necessary”. The report ended with no further suggestion as to a further review.

On receipt of this report, two members of the Respondent’s management team met with the Complainant to discuss findings of the same. During this meeting an in-depth analysis of the Complainant’s duties was conducted, with an emphasis on the feasibility of implementing the restrictions on a permanent basis. On 1st April 2022, a further review meeting occurred with two more senior members of management of the Respondent organisation. During this meeting, it was outlined that the accommodations implemented on foot of the medical report were designed to be temporary in nature and could not continue on a permanent basis. On foot of the position adopted by the Occupational Health Specialist, namely that the restrictions were now deemed to be permanent, the Complainant was informed that the matter of dismissal on health grounds was being considered. By response, the Complainant stated that in her view many of the accommodations suggested by the specialist were not put in place, and that this served to exacerbate her ill-health. By correspondence dated 15th April 2022, the Complainant was offered work in the day shift. It was the position of the Respondent that such a switch would allow the Complainant access to other roles that might allow for accommodation of her injuries. The Complainant refused this offer by correspondence dated 15th April 2022, stating that she could not consider such day shifts due to her domestic situation.

By further correspondence, the Respondent informed the Complainant that her role had been terminated on the grounds of medical incapacity. In this regard, the Respondent stated that the Complainant could no longer fulfil the role of general operator and that following the examination of further alternatives, the Respondent came to the unfortunate conclusion that they had no option but to terminate the contract of employment. The Complainant elected to appeal this in accordance with the Respondent internal procedures. As all members of senior management had been involved, to some extent, in the review of the Complainant’s role, the matter was referred to an independent third party for the appeal process. By subsequent correspondence, the independent third party advised that the decision to dismiss the Complainant had been taken on foot of numerous medico-legal reports. In addition to the foregoing, the independent third party advised that he was satisfied that the Respondent had conducted a thorough review of the Complainant’s duties and came to the reasonable conclusion that the temporary accommodations could not be put in place on a permanent basis.

In evidence, an Operations Manager of the Respondent outlined the accommodations that were put into place for the Complainant. In this regard, he stated that the role of general operative is an unavoidably physical position. He stated that the restrictions, and in particular the restriction against lifting anything in excess of 4.5 kilos on a frequent basis, had the result that the Complainant could not complete the majority of the tasks assigned to her. In answer to a question posed by the Adjudicator, the Operations Manager accepted that accommodation had been reached for the Complainant for a period of time. Nonetheless, the witness stated that such accommodations were only ever intended to be implemented on a temporary basis pending further medical reports regarding the issue raised by the Complainant. In this regard, he stated that while other staff members were expected to complete many of these duties on the Complainant’s behalf for a temporary period, the Respondent could not permanently retain an employee that could not complete the majority of her role. In addition to the foregoing, the witness stated that alternatives were examined, however the Complainant’s unwellness to move to a day shift hampered any such potential moves. In addition to the foregoing, the witness stated that any other general operative roles within the organisation would involve frequent lifting.

CA-00051629-006 Complaint under the Employment Equality Act

In this complaint, the Complainant has alleged that the Respondent failed to provide reasonable accommodation during her employment. In this regard, she submitted that the while the Respondent implemented certain accommodations for a number of years prior to the referral of the complaint, they withdrew such accommodations and dismissed her once they received a report to the effect that her condition was to be permanent. By response, the Respondent submitted that the Complainant’s injuries were accommodated on a temporary basis. When it became apparent that her condition was to be permanent, her role was evaluated to determine what ongoing accommodations could be implemented. Following such a review, the Respondent submitted that it was determined that the Complainant could not carry out the majority of her role and that, unfortunately, she was to be dismissed on the grounds of ill-health.

Section 2 of the Employment Equality Acts define “disability” in the following terms,

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”

By submission, the Respondent stated that while they were in receipt of numerous medical reports outlining the difficulties the Complainant apparently experienced in completing her role, they stated that they did not have sight of a report confirming that the Complainant suffered from a disability as defined above. In examining the medical reports opened by both parties, it is apparent that the Complainant was diagnosed with “tendonitis”. This diagnosis caused the Complainant ongoing pain and difficulty in completing many tasks associated with her employment. In such circumstances I find that the Complainant did suffer from a disability as defined above, and I assume jurisdiction to consider the substantive complaint.

Regarding an employer’s duty to provide reasonable accommodation, Section 16(3)(b) of the Employment Equality Act provides that,

“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.”

Section 16(3)(b) provides that,

“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.”

In the case of Nano Nagle School -v- Daly [2019] IESC 63, the Supreme Court discussed an employer’s duty to provide such reasonable accommodation. Here the Court held as follows,

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

In the matter of Cunningham v Irish Prison Service [2020] IEHC 282, Barr J held 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”

Regarding the instant case, it is apparent that the Respondent did seek to provide accommodation for the Complainant from the date of the initial report, in February 2021, to the date of the Complainant’s dismissal in April 2022. In this regard, the Respondent was in a position to organise its activities so as to allow any tasks that might involve lifting over 4.5KG to be completed by other members of staff. The position of the Respondent was that this accommodation was only ever designed to be temporary in nature, pending the sight of long-term prognosis regarding the Complainant condition. They stated that on receipt of the report that indicated that the issue was to be long-term, with no further reviews suggested, they engaged in a further review of the Complainant’s working conditions. At the hearing, the Operations Manager of the Respondent provided evidence that said review determined that the Complainant could not complete approximately two thirds of the normal duties associated with the role. He further stated that the nature of the Complainant’s injury was such that the Respondent could not ensure the Complainant’s safety in completing the normal tasks associated with the role.

While the foregoing may be the case, the fact remains that for over a year prior, the Respondent was in a position to arrange its activities so that the Complainant could attend work. While the Complainant’s condition did not effectively change, other than being classified as a permanent in nature, it was the withdrawal of these accommodations that resulted in the dismissal of the Complainant. In this regard, the evidence of the Respondent was that following the assessment of the Complainant’s duties on receipt of the final occupational health report, it was determined that the Complainant could perform three out of ten operations relevant to her duties. While the Respondent had arranged for other members of staff to take over these duties on a temporary basis, this was only ever designed as an interim arrangement. In this regard, the evidence of the Operations Manager outlined it was impractical and unfair to expect other members of the Complainant’s shift to perform these duties on an ongoing basis. The Operations Manager further stated that the nature of the Respondent’s activities is that the packages to be handled are of variable size, and the Complainant could not be facilitated with a role that would involve the smaller packages only.

In this regard, it is apparent that the Complaint’s role is that of general operative working as part of a team within a medical device manufacturer. Unfortunately, during this employment, the Complainant developed a condition that severely restricted her ability to lift boxes in excess of 4.5KG. Following a review by the Respondent, the outcome of which the Complainant did not dispute, it was determined that the Complainant could perform three out of ten duties relevant to the role. While the Respondent sought to accommodate the Complainant for as long as possible in respect to these reduced abilities, it would be unduly burdensome to implement these accommodations on permanent basis. It is further apparent from the evidence of the Operations Manager that the nature of the Respondent’s business is that they could not organise themselves so as to ensure that the Complainant would not be routinely required to list boxes in excess the weight indicated by the occupational health specialist.

Regarding the Complainant’s allegation in respect to alternative employment, it is noted that the Complainant was not qualified to complete the roles suggested. It is further noted that the Complainant indicated a preference to remain on the night shift for any alternative roles. While this is the Complainant’s right, the natural consequence of the same is that numerous alternative roles simply would be unavailable or impractical.

Having regard to the accumulation of the foregoing points, I find that the Respondent did make accommodation for the Complainant for as long as was reasonable. In such circumstances, I find that the Complainant was not discriminated against, and the complaint is duly not well-founded.  

CA-00051629-005 Complaint under the Employment Equality Act

Regarding this particular complaint, the Complainant has alleged that the Respondent discriminated against her on the grounds of race by failing to provide an interpreter for several formal meetings arranged between the parties. While the Complainant referred to a failure to provide such interpretation during a disciplinary meeting in her complaint form, during the hearing it became apparent that the complaint related to the Respondent’s failure to provide an interpreter during the meetings at which the Complainant’s ongoing employment was being discussed.

In this regard, Section 6 of the Employment Equality Act prohibits discrimination on any grounds listed.

Subsection (1)(a) of that Section provides that,

“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…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2)(h) provides that race, colour, nationality or ethnic or national origins are included in the grounds on which discrimination is prohibited.

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

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

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In this regard, it is well established that non-English speaking employees are entitled to have certain important employment meetings and documentation translated into their native language and that a failure to do so may constitute discrimination within the framework cited above

In the matter of Campbell Catering v Rasaq [2004] 15 ELR 310, the Labour Court held that,

“It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilitates and guidance in making a defense. In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.”

In the matter of Clare Civil Engineering Limited -v- Igor Ostojic EDA101, the Court considered an allegation of discrimination arising from a failure to translate certain health and safety documentation. Following a consideration of the Judgment in Rasaq (quoted above), the Court held that,

“The situation in relation to health and safety instructions is somewhat different. While health and safety instruction is obviously important, the Court is satisfied that such instruction was generally imparted to all workers for their well-being on site and that the Complainants would have reasonable experience from previous work practice whether in Ireland or elsewhere. No complaints were made to the Respondent at any time about the manner of the instruction or a failure to fully understand its nature or content. Therefore, the Court concludes that no discriminatory case has been made out under this complaint.”

Regarding the instant complaint, the Complainant has submitted that English is not her first language and that she has difficulty in understanding certain phrases and terms, particularly in stressful situations. In this respect she submitted that she suffered discrimination by the Respondent’s failure to provide a translator at the meeting whereby her continuing employment was being discussed, and termination of the same was a potential outcome. By response, the Respondent submitted that the Complainant had worked for the Respondent for a significant period of time, and never expressed any difficulties with language. They further submitted that the Complainant did not request a translator at any stage of her employment, and that when one was requested for the appeal hearing, the same was provided without difficulty.

Having reviewed the relevant documentation, including the minutes of the various meetings held between the parties, it is not all apparent that the Complainant experienced any difficulties in understand what was being put to her and providing answers to the same. In this regard, it can be seen that the Complainant provided extensive, articulate answers to the questions posed during the meetings in question. As part of the review of the process, six separate medico legal reports were opened by the parties. In each of these reports, it is apparent that the Complainant was interviewed in relation to reasonably complex medical issue without the aid of an interpreter or without experiencing any apparent language difficulties. While this may be the case, it is not inconceivable that during a formal, and undoubtedly stressful, meeting such as that where the Complainant’s ongoing employed was being discussed, the Complainant may be more comfortable speaking with the aid of a translator. However, having reviewed the relevant minutes, it is apparent that the Complainant was not refused such assistance and that the same was provided when requested on appeal. While the Complainant referred to sections of the meeting whereby she had difficulty understanding certain points, it is apparent that these discussion related to technical aspects of the Respondent’s production. While the Complainant did evidence some difficulty in understanding certain terms, it is noted that a break was provided to allow the Complainant to achieve an understanding and to continue with the process. It is further noted that the Complainant evidence no difficulty in preparing a comprehensive and articulate appeal to the findings of the Respondent arising from this process.

Having regard to the accumulation of the foregoing points, I find that the Complainant has not established the primary facts from which an allegation of discrimination may be inferred. In such circumstances I find that the complaint is not well-founded, and the Complainant’s application fails. 

CA-00051629-004 Complaint under the Employment Equality Act

Regarding this particular complaint, the Complainant submitted that her dismissal occurred as a consequence to her referring prior complaints under the Employment Equality Act to the Commission. In this regard, she submitted that her dismissal, ostensibly on the grounds of ill-health, was in fact an act of victimisation for issuing prior complaints against the Respondent. By response, the Respondent stated that the dismissal of the Complainant occurred following an extensive, comprehensive procedure and was based upon independent medical advice and a thorough assessment of the Complainant’s duties and ongoing capabilities. In this respect, they submitted that the dismissal of the Complainant had nothing to do with her referring a complaint to the present forum some years prior.

In this regard “victimisation” for the purposes of the present Act is defined, in Section 74(2) “as adverse treatment of an employee by his or her employer” in retaliation to a complaint of discriminatory treatment.

In the matter of Holden Plant Rentals -v- Sinead Vereker EDA221, the Labour Court held as follows,

“The definition of victimisation contained in that section contains essentially three ingredients. It requires that:

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

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

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

Regarding the factual matrix presented by the parties, it is common case that she did take an action of the type referred to in Section 74. In addition to the foregoing it is clear that she was subjected to adverse treatment, i.e. her dismissal, by the Respondent. In effect, the present dispute centres on the causal link between the protected act in question, and the Complainant’s subsequent dismissal.

In this regard, it is apparent that the referral of the complaint under the Employment Equality Act, being the protected act, occurred on 30th September 2020, with the Respondent being informed of the same shortly thereafter. As part of the factual background to the complaint, numerous occupational health reports were opened, with the first such report being dated 22nd February 2021, some five months following the referral of the earlier complaint. Thereafter, the Respondent commissioned a further five reports seeking various updates as to the Complainant’s state of health and her ability to perform the tasks necessary to her role. Whilst the same was ongoing, the Respondent organised itself so that the Complainant would not have to routinely carry objects over 4.5KG in the course of her duties. Only on receipt of the final medical report, which outlined no prospect of an improvement in the Complainant’s condition and expressly suggested that the Complainant be medically retired, did the Respondent commence the process that led to the Complainant’s dismissal. In addition to the same, it is noted that the prior to the Complainant’s dismissal, the Respondent engaged in a comprehensive assessment of the Complainant’s role and held numerous meetings with the Complainant herself regarding the issue.

In consideration of the accumulation of the foregoing points, it is apparent that the primary causative factor in the dismissal of the Complainant was the medical report indicating that the Complainant’s injury was in effect a permanent condition. This is an entirely separate and distinct matter from the complaint raised by the Complainant against the Respondent. In this regard it is noted that evidence of the person that dismissed the Complainant was that her dismissal was based purely on the medical evidence commissioned and the review of the Complainant’s duties and that the same had absolutely nothing to do with the fact of the Complainant bringing a complaint against the Respondent some years previous. In such circumstances, I find that no causal link between the protected act and the detriment suffered by the Complainant and, as a consequence of the same, I find that she has not been victimised by the Respondent in the manner alleged.

CA-00051629-003 Complaint under the Employment Equality Act

In circumstances hereby this complaint is apparently a duplicate of that raised by the Complainant above, and no evidence of victimisation other than dismissal was adduced, I find that this complaint is not well-founded.

CA-00051629-002 Complaint under the Safety, Health and Welfare at Work Act

In addition to the complaints above, the Complainant further alleged that her dismissal arose as a consequence of her raising a complaint under the Safety, Health and Welfare at Work Act.

In this regad, Section 27(1) of the Act defines “penalisation” as,

“…any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.”

Section 27(3) of the Act provides that,

“An employer shall not penalise or threaten penalisation against an employee for—

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work”

In the matter of Toni and Guy Blackrock v Paul O’Neill [2010] 21 E.L.R., the Labour Court set out the following test to determine penalisation under the terms of the Act.

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

In relation to this specific complaint, again the Complainant must prove the communication of a health and safety concern, a detriment suffered and a causal link between the two. From the evidence adduced by the parties, it is evident that the Complainant raised numerous issues that would constitute complaints regarding her health and safety. It is further clear that the Complainant suffered a detriment thereafter, in that she was dismissed from her employment.

However, as noted in the decision above, the Complainant must demonstrate a causal link between the protected act, being in this instance a complaint in relation to health and safety, and the dismissal. Having regard to the finding above in respect to the complaint of penalisation, it is noted that the dismissal of the Complainant occurred following a consideration of the relevant medical reports and assessment of her duties. While the Complainant clearly disagrees with the conclusions, both of the Respondent and those contained within the final medical report, it is apparent that her dismissal was based on a consideration of these matters and not as a form of penalisation for some earlier act on her behalf. Having regard to the foregoing, I find that the Complainant is not well-founded.

CA-00051629-001 Complaint under the Payment of Wages Act  

Regarding the complaint, the Complainant alleged that she suffered an illegal deduction from her wages by the Respondent refusing to allow her to attend for work on for three days in February despite being certified as well enough to return to employment. By response, the Respondent stated that while the Complainant was certified as fit to work by her general practitioner, in the circumstances they required further medical certification to allow her to return to work.

Having regard to the correspondence opened by the parties during the hearing, it is apparent that the Complainant suffered an adverse reaction to the chemical cleaning spray used by the Respondent in February 2022. Thereafter, the Complainant commenced a period of sick leave. At this point, it is apparent that the Complainant had exhausted her contractual sick leave entitlement and that no obligation arose in respect of this period. Thereafter, the Complainant produced a certificate from her GP advising that she was well enough to return to work from 21st February 2022. On receipt of this certification, the Respondent did not allow the Complainant to return to work as they had ongoing concerns regarding the Complainant’s health and safety and they wished to commission a further report in this regard. Following further correspondence on this issue, it is apparent that the Respondent undertook to pay the Complainant’s wages from this point despite the position regarding the exhaustion of her contractual sick pay entitlement.

Section 1 of the Payment of Wages Act 1991, defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including…any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise”.

In the matter of Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA], McGrath J stated that when considering complaints under the present Act,

“Central to the Court’s analysis must be the concepts of wages properly payable and the circumstances in which there is a deficiency in respect of those such payments”.

Having regard to the factual matrix outlined above, it is apparent that the Complainant was not paid for the days on which she was absent due to illness. At the relevant time, it is apparent that the Complainant had exhausted her contractual entitlement to sick pay and as such no wages were properly payable during this time. Having regard to the foregoing I find that this complaint is not well founded.

CA-00051629-006 Complaint under the Employment Equality Act

I find that the Complainant was not discriminated against within the meaning of the Act.

CA-00051629-005 Complaint under the Employment Equality Act

I find that the Complainant was not discriminated against within the meaning of the Act.

CA-00051629-004 Complaint under the Employment Equality Act

I find that the Complainant was not victimised within the meaning of the Act.

CA-00051629-003 Complaint under the Employment Equality Act

I find that the Complainant was not victimised within the meaning of the Act.

CA-00051629-002 Complaint under the Safety, Health and Welfare at Work Act

I find that the complaint is not well-founded.

CA-00051629-001 Complaint under the Payment of Wages Act  

I find that the complaint is not well-founded.

Discrimination, Reasonable Accommodation, Victimisation, Translator