ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | Cook | Fast Food Restaurant |
Representatives |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00026409-001 | ||
CA-00026475-001 | ||
CA-00026475-002 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant commenced employment with the respondent in October 2006 and was employed on a full-time basis as a cook / supervisor in a family run chip shop. The complainant went on sick leave in October 2016 and has been out of work since that date. In March 2018 the complainant’s doctor certified the complainant as being fit to return to work by mid-April on a part-time basis. Issues arose in relation to the complainant’s return to work and the complainant resigned from her position in February 2019. |
Summary of Complainant’s Case:
The complainant had an excellent work record for the ten years prior to her illness in 2016. The complainant’s GP certified that the complainant would be fit to return to work from 16 April 2018 for a maximum of 12 hours spread over 3 days. The respondent agreed to this on the basis of the complainant working 10 hours per week on light duties. The respondent then sought a letter of resignation from the complainant who in turn sought advice from her union. The union wrote to the respondent on several occasions between November 2018 and February 2019 in relation to the complainant’s employment status but received no reply. The final letter stated that the complainant would have no option but to resign due to the lack of response. The complainant did not receive her annual leave or public holiday entitlements. |
Summary of Respondent’s Case:
The complainant is a valued employee of the respondent. The complainant commenced sick leave in October 2016 and the respondent’s owner endeavoured to maintain contact with her during her absence. In 2018 the respondent received a certificate from the complainant’s GP stating that she was fit to work for 12 hours per week. The owner believed that this would require the complainant resigning from her full-time position and texted her requesting a letter to this effect. The owner was committed to facilitating the complainant’s return to work on a part-time basis and verbally arranged for the complainant to report for work on a specific day. The complainant failed to turn up for work on that day and attempts by the owner to contact the complainant failed. The complainant’s job is still available to her if / when she decides to return. As the complainant is still an employee of the respondent she will receive her annual leave entitlements in accordance with Section 86(1) of the Workplace Relations Act, 2015 and her Public Holiday entitlements in accordance with Section 21 of the Organisation of Working Time Act, 1997. |
Findings and Conclusions:
The complainant was employed as a supervisor / cook by the respondent since 2006 and it is accepted by both sides that there was a very good working relationship between the parties. The business is that of a take-away restaurant which is family owned and has been in operation since 1972. On 1 October 2016 the complainant went on sick leave and provided medical certificates to the respondent’s owner. The complainant initially communicated her illness to the owner by text in which she stated that she had a sore back and a swelling on the spine. There was occasional contact between the parties over the next number of months, usually by text or phone call. The complainant underwent an MRI scan in November 2016 which determined that she had scoliosis, a condition that affects the spine. The complainant stated that she was diagnosed with high blood pressure and advised against lifting weighty objects. The complainant remained out of work during 2017. The respondent states that there was a break in the submission of medical certificates between 20 August 2017 and 27 October 2017. The complainant said that she had had a conversation with the owner and had advised him that she was going on Disability Benefit and that he had told her that he did not need the certificates. In early 2018 the complainant was feeling better and sought to return to work on a part-time basis. She spoke to the owner in this regard and in March she attended a medical appointment with an orthopaedic specialist. The specialist provided a certificate to the effect that the complainant would be fit to return to work from 16 April for “three days per week only and not over 12 hours per week without lifting heavy objects over 5 kg.” The complainant did not return to work in April but in July the owner wrote a letter addressed “To whom it may concern” in which it was stated that the complainant’s duties at work “will consist of answering phone calls and using the cash register.” The owner said in evidence that this letter was for the complainant’s medical advisors. The complainant in evidence stated that it was her understanding that she would meet with the owner prior to her return to work and be trained on her duties including use of a new cash register. The owner in evidence said that there was no need for him personally to be present at such a meeting as the complainant was an experienced worker and that any member of staff could have trained her. In the event, the complainant called to the premises on a specific Friday to be told that the owner was not present. The complainant waited for over an hour before leaving. The owner accepted that he was subsequently told by staff that the complainant had called to see him. Both parties were unclear as to the exact date of this occurrence but it was probably at the end of August or beginning of September 2018. On 12 September 2018 the complainant received a text from the owner as follows: “Hi. I need letter from you to say that u are finished at work pls.” This was followed on 24 September by another text from the owner: “Is letter ready??” This was followed by a reminder the following day. The complainant stated in evidence that she phoned the owner to tell him that she was confused about these texts but did not get an explanation. The owner testified that he had contacted the complainant and requested her to turn up for work. The complainant said that she was unaware of such a request and the owner could not produce any text messages to this effect. The complainant then decided to approach her union for assistance in the matter. On 6 December 2018 the union wrote to the owner referencing the texts sent on 12 and 24 September and stating that prior to any resignation letter being sent by the complainant it would be necessary for the owner to agree to pay her notice money (6 weeks) and annual leave entitlement of 23 days’ pay. There was no reply to this letter from the owner. On 17 December the union sent a second letter in which it was stated that they were seeking to establish the complainant’s employment status. The letter went on as follows: “As I understand it there was an offer of working 10 hours per week. When (the complainant) sought this, you indicated that you wanted her to resign.” The letter then went on to reiterate that if the owner was seeking the complainant’s resignation then the entitlements as outlined in the previous letter would have to be paid. The letter finished by advising that the issue would be referred to the WRC if no reply was received by 14 December. Again, the owner did not reply to this letter. On 8 February 2019 the union wrote to the owner for the third time. After referring to the previous correspondence the letter continued: “We are seeking you do the following: Honour your agreement for (the complainant) to work 10 hours per week. If this does not happen, you will leave us with no option but to resign, which we consider will be discriminatory constructive dismissal under grounds of disability.” The letter went on to state that if the owner did not reply by 15 February 2019 then the issues would be referred to the WRC for adjudication under equality legislation. These issues would also include claims for annual leave and notice entitlements. No reply was received to this letter and the issues were referred to the WRC on 22 February 2019. At the hearing the owner said in evidence that the reason for the text requesting a letter of resignation was his honestly held belief that because the complainant was going to take up a part-time position it would be necessary for her to give up her full-time job and, in those circumstances, he required her to put this in writing. The owner further stated that he was unaware that the complainant was a member of a union and was confused when he received correspondence from the union as he had always dealt with his staff on a person to person basis. Finally, following on from the last letter from the union the owner had engaged the services of a HR consultant. Complaint No. CA-00026409-001: This is a complaint under the Employment Equality Act, 1998, to the effect that the complainant was discriminated against on the grounds of her disability, that the respondent failed to provide her with reasonable accommodation in respect of that disability and that the complainant ultimately had no option but to resign which resulted in her discriminatory constructive dismissal. This case is characterised by a lack of documentation with the respondent’s owner stating that he ran a small family-owned business in which most communications with staff were direct and conducted either verbally or by text. In respect of the complainant’s disability, there is conflicting evidence as to when the respondent was made aware of the diagnosis of scoliosis with the complainant stating that it was 2017 and the owner stating that it was September 2018. It is not contested, however, that the complainant was suffering from a disability throughout her absence. For the purposes of the legislation therefore it is accepted that the complainant was a person who had a disability. Section 6 of the Act states: (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 particular 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 exist (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 description 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 (in this Act referred to as ‘the disability ground’). It would appear to me from the evidence and from the submissions that there was a good relationship between the parties and that this continued when the complainant went on sick leave in 2016. The absence continued throughout 2017 and the complainant continued to submit certificates from her GP. There was a period of about 9 weeks in Autumn 2017 when certificates were not supplied and which the complainant stated was due to the owner indicating that he did not require them. The submission of certificates resumed on 28 October. In March 2018 there was contact between the parties which resulted in the complainant being certified as being fit to return to work on light duties for a maximum of 12 hours per week. The response from the respondent in July signified agreement to the light duties. I note that the complainant was approved for disability allowance in June 2018. It is from this point that differences between the parties began to arise. While both parties accept that arrangements were made for the complainant to attend at the restaurant prior to returning to work, there is a difference between them as to what exactly was to occur on that day. The complainant stated that her understanding was that she would meet with the owner and undergo training in relation to a new cash register. The owner said that as the complainant was an experienced worker there was no need for him to be present and that any member of staff could have shown the complainant what was required. If that was his view, then it would be expected that he would have briefed a member of staff in this regard. Yet when the complainant called to the premises nothing was said to her by staff on this matter. This was followed shortly afterwards by the texts requesting a letter of resignation. As part of his explanation the owner in his submission explained that he did not want to be accused of forcing a person to give up a full-time position and therefore wanted the complainant to put that in writing. It was also said that he was now aware of how the text might be viewed when taken out of context. His further explanation is lack of experience in employment law. It seems to me that, even accepting the explanation that text was the normal means of communication, this should have been recognised as a matter that could not and should not be done by way of a brief few words in a text. Given that, in the owner’s own words, he was in territory that was unfamiliar to him it would appear to me to be a wise course of action to seek advice as to the best way to deal with this issue. The owner, however, chose not to do so at that time. I am also satisfied that the complainant then attempted to engage in a more formal manner with the respondent and enlisted the help of her union in this regard. Whilst I accept that the owner may have been surprised by this development it must also have been apparent to him that an official response was required either to the union or directly to the complainant. I note that there was evidence that the owner attempted to phone the complainant around this time and that the complainant did not return his calls. The reality is that three letters from the union requesting explanations went unanswered by the owner. The final letter, written three months after the first letter, again sought clarification regarding the complainant’s employment status, made it clear that further failure to respond would leave the complainant with no option but to resign and advised that matters would be referred to the WRC. Again, there was no response from the owner. It is obvious therefore that the complainant gave the respondent ample time to both clarify the situation and to make the necessary arrangements for the complainant’s return to work. Section 6(1) of the Act defines discrimination as follows: 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…. Subsection (2)(g) includes the following ground: That one is a person with a disability, and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”).
Section 85A of the Employment Equality Acts, 1998 – 2008, sets out the burden of proof which applies to claims of discrimination. It requires the complainant, in the first instance, to establish facts upon which she can rely in asserting that she suffered discriminatory treatment on the grounds specified. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that discrimination occurred. At the initial stage the complainant is merely seeking to establish a prima facie case. Where such a prima facie case is established it falls to the respondent to prove the absence of discrimination. In the case before me based on the evidence and submissions I find that the text in relation to a resignation sent by the owner on 12 September 2018, which he accepts himself was ill-judged, was sent to the complainant because she was on sick leave and would not have been sent to another employee who was not ill. I also find that the complainant then attempted, in a more formal manner, to engage with the owner to clarify the situation with regard to her return to work and that over a period of three months the owner refused to engage with her or with her representative. I therefore find that the complainant has established a prima facie case in relation to having suffered discriminatory action because of her disability. Section 16(3)(b) of the Act states: 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 A Worker v A Hotel, ELR73(2008), the Labour Court held that “the duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability.” The respondents only action in the case before me was to signify consent to the complainant engaging in light duties. The owner did not himself attempt to seek medical reports in respect of the complainant. There was no evidence of any other proactive engagement or assessment in this regard whilst there was evidence of a significant lack of engagement in providing clarity and certainty to the complainant in respect of her role when her representative sought this information. Furthermore, there was no evidence that the accommodation sought would impose a disproportionate burden on the respondent. This lack of engagement constituted unreasonable behaviour on the part of the respondent and falls short of the actions required of an employer with regard to their responsibilities in this matter. In the Supreme Court case, Nano Nagle School v Daly (SAP IE 2018/37) McMenamin J stated: “The duty to reasonably accommodate, or to take appropriate measures, where needed, is laid down in Section 16(3), in order for a person with a disability to have “access to employment”, unless the measure would impose a disproportionate burden on the employer.” I find that the respondent has failed to rebut the probative onus placed upon them by Section 85A of the Act. I find that the respondent discriminated against the complainant on the disability ground by (a) seeking a letter of resignation from the complainant and (b) not taking all necessary measures to provide the complainant with reasonable accommodation in order to facilitate her return to employment. With regard to the claim for discriminatory dismissal I have given very careful consideration to the evidence and submissions before me. I note that the respondent has maintained that the complainant is still considered to be an employee of theirs and that a position exists for her in line with the medical advice as regards working a maximum of 12 hours per week on light duties. There is therefore no dismissal by the respondent. The complainant’s case is that she resigned due to the actions of her employer. As noted above three letters were sent to the respondent on the complainant’s behalf by her union. The first letter appeared to indicate that the complainant was willing to tender a letter of resignation provided payment was received in respect of notice and annual leave entitlements. The second letter sought clarification on the complainant’s employment status and again mentioned the payments in relation to the complainant’s resignation. The final letter of 8 February 2019 contains the only mention of the concept of constructive dismissal whereby it is stated that if the respondent does not honour the “agreement” (my italics) for working reduced hours then the complainant would have no option but to resign. The letter further stated that if the respondent did not reply by 15 February the issues would be referred to the WRC for adjudication. As noted, there was no reply and the issues before us were referred to the WRC. There was, however, no letter of resignation submitted to the respondent and no evidence adduced as to when the resignation occurred. The respondent’s evidence was that no resignation had been received from the complainant. The definition of dismissal in the Act is as follows: “dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly. In this case the letter of 8 February gave notice of two possible actions by the complainant, i.e. resignation (constructive dismissal) and / or referral for adjudication to the WRC. In the event the issues were referred to the WRC but there was no termination of the contract of employment by the complainant. In the absence of a dismissal or resignation I find that the complaint of discriminatory dismissal is not well founded.
Complaint No. CA-00026475-001: This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant did not receive her annual leave entitlement due to her illness. There is no dispute between the parties with regard to the fact that the complainant did not receive any payment with regard to annual leave entitlement whilst being absent on sick leave. The respondent accepts that it is bound by the provisions of the legislation in this regard. Complaint No.CA-00026475-002: This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant did not receive payment for public holidays whilst absent through illness. The complaint was submitted to the WRC on 22 February 2019. As per the legislation I can only entitlements that occur in the six months prior to the lodging of the complaint. Section 21(1) of the Act provides for the entitlements due to an employee in respect of public holidays. Subsection (5) of that section states: Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule. The Third Schedule states: Each of the following are the cases mentioned in section 21(5) of absence by the employee concerned from work immediately before a public holiday: (1) n/a (2) such an absence, in excess of 26 consecutive weeks, by reason of an injury sustained by the employee in any accident (not being an accident referred to in paragraph 1) or by reason of any disease from which the employee suffers or suffered. (3) n/a (4) n/a As the complainant has been absent on sick leave since October 2016 I find accordingly that Section 21(1) of the Act does not apply to her. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Complaint No. CA-00026409-001: This is a complaint under the Employment Equality Acts, 1998 – 2015. For the reasons outlined above I find that the respondent discriminated against the complainant on the grounds of her disability by (a) requesting a letter of resignation from her and by (b) not taking all possible measures to provide the complainant with reasonable accommodation to enable her return to work. In considering this matter I have taken into consideration the medical report that the complainant can work a maximum of 12 hours per week on light duties and that this return to work should have taken place in September 2018 had not the respondent sought a resignation letter and declined to engage with requests for clarification. Taking all these circumstances into consideration I order the respondent to pay to the complainant the sum of €7,000.00 as compensation in this regard. In addition, and in accordance with Section 82(1) of the Act, I order that the respondent restore the complainant to the payroll as soon as is practicable having regard to the medical advice in this respect. Complaint No. CA-00026475-001: I find this complaint under the Organisation of Working Time Act, 1997, to be well founded and I order the respondent to ensure that the complainant receives all her annual leave entitlements under Section 20 of that Act (as amended by Section 86(1) of the Workplace Relations Act, 2015). Complaint No. CA-00026475-002: This is a complaint under the Organisation of Working Time Act, 1997. For the reasons stated above I find this complaint not to be well founded and it accordingly fails. |
Dated: 13th December 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
Employment Equality Acts Reasonable Accommodation Discrimination Annual Leave |