ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00017622
Health & Safety Manager
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Complaint seeking adjudication by the Workplace Relations Commission under Section 26 of the Chemicals Act, 2008
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 09/01/2019
Workplace Relations Commission Adjudication Officer: Joe Donnelly
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute to me by the Director General, I inquired into the complaint(s)/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute.
The complainant was employed as an Environmental Health and Safety Manager by the respondent commencing on 18 April 2018. The position was full-time with a salary of €5,221.00 per month. The complainant was new to the respondent company which operated a manufacturing facility employing approx. 300 workers. The complainant was advised to familiarise himself with the site, personnel and working environment. On 16 May 2018 the respondent informed the complainant that his employment was being terminated with immediate effect.
Summary of Complainant’s Case:
The complainant advised the respondent of his disability (Asperger’s Syndrome) at interview and underwent a medical examination arranged by respondent.
The complainant’s contract states that both parties have to give 6 months’ notice of termination.
The complainant had regular informal meetings with the HR Manager while getting to know the workplace during which he received guidance from her.
The complainant believed that he was doing well but was not given a fair chance to carry out his role.
On 16 May 2018 the complainant was called without notice to a meeting with senior management at which he was informed that his employment was not working out and that it was being terminated with immediate effect.
Summary of Respondent’s Case:
The respondent is an equal opportunities employer with a proven record of employing people with disabilities.
In the 19 days of the complainant’s employment the impact of his behaviour became unsustainable.
The complainant failed to heed daily advice and cautions from the HR Manager and did not listen to or take advice.
The complainant disrupted relations with employees and contractors with possible cost implications for the respondent.
The complainant did not meet the expectations of his role and the only option for the respondent was to terminate his employment.
Findings and Conclusions:
The complainant applied for the position of Environmental Safety and Health Manager which was publicly advertised by the respondent and was appointed to that position with effect from 18 April 2019. Prior to taking up the position the complainant underwent a pre-employment medical examination by a doctor nominated by the respondent. The doctor sent his report to the respondent in which it was noted that “he has Mild Spectrum Autism and Dyslexia (used to be known as Aspergers) and I feel this is sufficiently mild as to assist him in the role that you are planning for him.” The doctor further stated “I am happy that (the complainant) is fit to perform all duties expected of him…”.
The complainant in evidence at the hearing said that there was a discussion with the HR Manager in relation to his disability and his understanding was that it was agreed that if either party felt it was necessary then assistance / accommodation could be arranged but that the complainant did not in fact specifically request any accommodation. The HR Manager in evidence stated that there was no discussion in relation to accommodation for the complainant’s disability and that management had accepted the report of the doctor regarding the complainant’s ability to perform his duties.
It is accepted by both parties that in the introductory interview upon taking up his position the complainant was advised that he should spend time familiarising himself with people and with the site and that he should not initially intervene in working matters. The site itself is a manufacturing unit employing 310 employees and is part of a multi-national group of companies. The complainant at the hearing said that it was a different culture to what he was used to.
The respondent said that within days the complainant had started to cause problems by intervening in matters and that management had begun to get complaints in this regard. The HR Manager said that she spoke with the complainant on a number of occasions over the following days repeatedly advising him not to intervene until he was familiar with existing safety practices and culture within the company. The complainant for his part said that he was receiving verbal advice from the HR Manager but not instructions and nothing in writing. He gave evidence that during this time he saw incidents and practices that he felt were in breach of the Regulations under the Safety, Health and Welfare at Work Acts and that he spoke to people and made suggestions arising from these concerns. The HR Manager then arranged for the retired Safety and Health Manager to come and work with the complainant on site for two days to mentor the complainant and to assist in the familiarisation process. The respondent had a safety regime in place which encouraged staff to take responsibility for safety and the standards in the Irish operation were amongst the highest in the international Group. The complainant could not be given autonomy until management were satisfied that he had the required knowledge of the operation. From the respondent’s point of view, however, the complainant’s behaviour did not change. Evidence was given in relation to a particular contractor who advised the respondent that he would pull out of a contract because of interference from the complainant. The complainant stated that he felt that he had a duty to intervene if he felt that something was not being done correctly and additionally that the legislation allowed for large fines and imprisonment for persons breaching the regulations.
On 16 May 2018 the complainant received a phone call around lunch-time instructing him to report immediately to the HR Manager’s office. The HR Manager was accompanied by the Head of Operations and the ER/IR Officer. The complainant said that he was not advised of the nature of the meeting or of the right to be represented. The HR Manager informed the complainant that his engagement with the respondent was not working out and specified the issues of not listening or taking advice. When the complainant stated that he thought that he was getting on well the Manager advised him that she had cautioned him every day in this regard. In addition, she had told him to spend the first few weeks observing and getting to know the employees and the safety culture and not to intervene. His actions, however, had caused problems with staff and contractors. The complainant raised the issue of what consideration had been given as regards his disability. The Manager’s response was that the medical report had confirmed his ability to undertake the role and that there had been no bias in relation to his disability. The Manager also stated that the complainant’s disability had no relevance to the events that had occurred but he had not met the expectations of the role of Safety Manager and for that reason his employment was being terminated with immediate effect while being paid up to the end of the month. The complainant left the workplace shortly afterwards.
The complainant submitted complaints to the WRC under the Employment Equality Act, 1998, regarding discrimination during employment and under the Chemicals Act, 2008. The dispute in relation to a claim of unfair dismissal was submitted under the Industrial Relations Act, 1969.
Complaint No. CA-00022776-001:
This is a dispute relating to the dismissal referred under Section 13 of the Industrial Relations Act, 1969. In particular, the complainant states that he was dismissed in breach of his contractual terms and without due process being followed. As noted above the complainant was appointed to fill a senior management position “subject to six months’ probation or for an extended period subject tomutual agreement”. A further clause (2.1.2) stated that the appointment could be terminated by either party by giving not less than 6 months’ notice in writing. Clause 13 dealt with Termination in detail. This clause firstly notes that employment can be terminated as per 2.1.2. The next paragraph says that termination can take place subject to due process. The clause then deals with situations whereby employment can be terminated “by summary notice in writing without compensation”.
The respondent in their written submission and verbally at the hearing emphasised that the complainant was only in their employment for a total of 19 working days but that in that short time had caused major problems within the workplace with complaints being received from employees in addition to experienced contractors threatening to withdraw from projects. It was accepted that the usual disciplinary procedures would normally be utilised during probation but that they were not applied in this case as it was not thought practical to do so. The concerns raised had been conveyed verbally to the complainant but there was nothing in writing in this regard. It was also accepted that the Code of Practice on Grievance and Disciplinary Procedures was not utilised due to the short time span of the employment. The HR Manager in evidence said that the respondent had never before had this problem. The decision to dismiss was taken by the management team with the agreement of the Managing Director on the day before the meeting with the complainant. There was no mention of a right of appeal and indeed the complainant had to seek confirmation of his dismissal in writing for Social Welfare purposes.
It has long been held that employees on probation are entitled to natural justice and fundamentally fair procedures. The Labour Court in Irish Postmasters Union v A Worker (2011) stated:
“In all the circumstances of this case, the Court finds that the Employer’s decision not to adhere to either its own disciplinary procedures or be bound by the provisions of the Code of Practice on Grievance and Disciplinary Procedures (S.I. No. 146 of 2000) because he was on probation was misconceived. Consequently, the Court finds that the dismissal of the Appellant was unfair.”
I accept that the complainant was initially instructed not to intervene but to familiarise himself with the respondent’s procedures and customs for his first few weeks of employment and that he disregarded this instruction. I further accept that this instruction was repeated to him on a number of occasions. At no time however, even when it was evident that the verbal communications were not effective, was it considered judicious to convey to the complainant in writing that the continued breach of instruction would put his employment at risk. Management took a decision to dismiss the complainant and on the following day summoned him without notice to a meeting to inform him of this decision. The complainant, as noted, was not informed of the purpose of the meeting nor advised of his right of representation. Because of the fundamental flaws in the procedures outlined above I find that the dismissal of the complainant was an unfair dismissal.
Complaint No. CA-00022776-002:
This is a complaint under the Chemicals Act, 2008. Section 26(1) of the Act states:
An employer shall not penalise an employee for having formed an opinion of the kind referred to in section 25 and communicated it, whether in writing or otherwise, to a national authority if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the national authority concerned.
The complainant in evidence said that he had inspected the area on the site where chemicals were stored and noted some issues but that he had not made a specific complaint in this regard. He had a general concern regarding not being allowed to deal with matters in relation to health and safety.
It appears to me that the complainant believed that the instruction that he had received regarding non-intervention in circumstances where he felt there were issues regarding health and safety was hindering him in his duties and that this had led him into making this complaint. It is clear that the complainant had not made a complaint or observation of the type referred to in Section 26(1) of the Act and therefore this complaint is not well founded.
Complaint No. CA-00022776-003:
This is a complaint under the Employment Equality Act, 1998. In particular the complainant alleges that he was discriminated against by reason of his disability and that the respondent had failed to give him reasonable accommodation for his disability.
The complaint informed the respondent at interview that he had Asperger Syndrome. The respondent referred him to a doctor for a pre-employment medical examination and the subsequent report confirmed that the complainant had Mild Spectrum Autism and Dyslexia. It was accepted that the complainant has a disability.
Section 6(1) of the Act states:
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 –
(ii) existed but no longer exist
(iii) may exist in the future
(iv) is imputed to the person concerned
Subsection (2)(g) states:
that one is a person with a disability and the other is not or is a person with a different disability (in this Act referred to as “the disability ground”).
The initial burden of proof in a claim of discrimination contrary to the Act rests on the complainant. Section 85A(1) of the Act provides as follows in relation to the burden of proof on a complainant who alleges discriminatory treatment contrary to the Act:
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.
The Labour Court, in its determination in Southern Health Board v Mitchell (2001) ELR201, considered the extent of the evidential burden imposed on the complainant by Section 85A and held:
“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 of being of sufficient significance to raise the presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”
In Melbury Developments Ltd. v Valpeters (2010) ELR64, the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”
Having received the doctor’s report, the respondent appointed the complainant to the managerial position. That report, I note, had assessed the complainant’s condition as mild and passed him as fit to perform the role assigned to him Indeed it went so far as to state that, rather than being a hindrance, the condition might assist the complainant in the performance of his role. In short, there were no alarm bells sounded as to the disability in any way impairing the complainant in the performance of his duties. The complainant has not provided examples of how, because of his disability, he was treated less favourably during the course of his employment than an employee without a disability. The insistence by the respondent that the complainant refrain from any intervention until he had acquired experience of the procedures and personnel within the plant was not based on discrimination but on management’s need to be satisfied as to his knowledge of the operational procedures of the workplace.
The complainant has also contended that the respondent did not afford him reasonable accommodation with regard to performing his duties.
Section 16(3) of the Act states:
(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this section referred to as “appropriate measures”) being provided by the person’s employer.
(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability –
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measure would impose a disproportionate burden on the employer.
There is a difference of recollection between the parties as regards what, if any, discussion took place in this regard. The complainant said that it was discussed and that if either party felt that accommodation was needed it could then be arranged. The HR Manager stated that there was no conversation on those lines but that there had been mention of the provision of administrative support for the complainant. It is accepted by both parties however that there was no request made by the complainant for any type of accommodation to assist him in the performance of his role. I note that the respondent did arrange for the retired Environmental Safety and Health Manager to return and mentor the complainant for two days of his employment. It is apparent that, based on the medical report, the respondent did not feel that there was a need to provide reasonable accommodation to the complainant. For his part the complainant did not request any such accommodation. In these circumstances I do not accept that there was a failure on the part of the respondent to provide reasonable accommodation to the complainant during the period of his employment.
I find, therefore, that the claimant has failed to establish facts that give rise to an inference of discrimination and accordingly has failed to make out a complaint of discrimination.
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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Complaint No. CA-00022776-001:
This is a dispute referred under the Industrial Relations Act, 1969. For the reasons outlined above I find that the complainant was unfairly dismissed by the respondent. I note that while the complainant was dismissed on 16 May 2018 the respondent paid him up to the end of that month. The complainant gave evidence that he had subsequently worked in a temporary capacity for a short period of time and had secured full-time employment at the end of September 2018. I note also that the complainant had moved residence to take up the offer of employment and that the respondent had paid a month’s rental in this regard. The actions of the complainant in failing to adhere to instructions obviously contributed to his dismissal. Having considered all the circumstances I recommend that the respondent pay the complainant the sum of €10,000 as compensation in this regard.
Complaint No. CA-00022776-002:
This is a complaint under the Chemicals Act, 2008. For the reasons outlined above I find this complaint to be not well founded and it accordingly fails.
Complaint No. CA-00022776-003:
This is a complaint under the Equality Employment Acts, 1998 -2015. For the reasons outlined above I find that the complainant has failed to establish facts that give rise to an inference of discrimination either on the grounds of disability or on the failure to provide reasonable accommodation in that regard. I therefore determine that the respondent did not discriminate against the complainant in terms of the Act.
Workplace Relations Commission Adjudication Officer: Joe Donnelly