ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019664
Jason Murray BL instructed by
Eimear Torpey Solicitor
Joan H Devine & Company Solicitors
Michael O'Sullivan ARRA HRD
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 11/07/2019
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The fact of dismissal was in dispute.
The Complainant was a production operative in the Respondents food preparation business.
Her case is that she was a victim of a most egregious discrimination at the hands of the Respondents agents. Because of the discriminatory treatment suffered by the Complainant she lost her job and continued to suffer emotionally and psychologically.
In summary the Respondent’s case is that the Complainant voluntarily presented a typed resignation letter to the Respondent and indicated that she was leaving her employment. She sought and was granted her P45 and all relevant documentation regarding her employment and the termination of same. The Respondent submitted that at no time did her supervisor or anybody in management with the Respondent seek to have the Complainant either removed from the role she was performing or terminate her employment. The decision to resign was entirely hers and was done by way of presentation of a written letter of resignation.
Summary of Complainant’s Case:
The Complainant holds a level six qualification in business and tourism. She commenced employment with the Respondent on the 19th of June 2018. Her role within the Respondent company was labour intensive and involved working in conditions with low temperatures. The Complainant suffered from hypothyroidism (underactive thyroid).
The complainant submitted that this is a disability for the purposes of the Employment Equality Acts.
On the 11th of September 2018 the Complainant arrived at work with the intention of completing her shift as normal.
As approximately 9.30am she approached the HR manager and presented her with a doctor’s certificate. The certificate stated
“[The Complainant] is well known to this practice. She presents with hypothyroidism. She is fairly well controlled, but she however has episodes of palpitations which is one of the side effects of her disease. When this happens, she becomes tired and weak and it can influence her work capacity. It is imperative that [the Complainant] be placed in a stress-free work situation where she shouldn’t lift or do any physical activities.”
The Complainant’s case is that she presented this certificate to the HR manager on the factory floor. The HR manager immediately stated to her that there was no other position for the Complainant and she would have to find another position. The HR manager was categorical about this. The Complainant submitted that the HR manager stated, “if you can’t do this job you will have to find another job in another place”.
Her evidence was that she only gave her the medical report from her GP to the HR Manager.
The Complainant was instructed to go upstairs to the canteen and the HR manager would follow her with everything she needed. She was waiting in the canteen for an hour. Her evidence was that her supervisor said, “don’t worry, it will be ok.”
The Complainant was approached by the HR manager again and asked to follow her downstairs.
The Complainant’s case is that she was in a state of shock and upset not knowing exactly what was happening. She gave evidence that the HR manager asked the Complainant to sign a piece of paper and stated that she would give the Complainant an envelope with everything she needed. This interaction took place in a hallway. The HR manager then said thank you and goodbye to the Complainant.
The Complainant’s case is that only after she returned to the canteen she opened the envelope that the HR manager had provided to her and read the document that she had been asked to sign. This document turned out to be a letter of resignation. The Complainant showed it to a colleague who witnessed the Complainant in a state of upset and distress. The Complainant’s case is that she was “duped” into signing it. Later the HR manager approached her and said she did not need to be showing her correspondence to other people.
The Complainant’s evidence was that she never intended to leave her position within the Respondent company and went to the HR manager in good faith. She refutes the contention in the most strenuous manner that she prepared the letter of resignation and submitted it to the HR manager herself.
Her evidence was that she was given the letter which she signed, and the HR manager put that letter into the envelope and gave her the envelope.
About a month later she began suffering from depression. She was shocked that this could happen.
She disputed the Respondent’s submission that she handed two letters to the HR manager, the medical certificate and her letter of resignation. Her evidence was that she was trying to smile through the tears. She was trying not to cry. She said she could remember everything like it happened yesterday. She couldn’t remember was she asked to sign one copy of her resignation or two copies. She said she was confused and disappointed. Her evidence was that the HR manager gave her a pen, told her to sign it, she signed it and the letter was put in an envelope. She couldn’t remember whether she gave her keys back to the HR manager.
Summary of Respondent’s Case:
The Respondent’s case is that the Complainant resigned her job on the 11th of September 2018.
She completed her induction training on the 10th of June 2018. She completed a new employee form and filled out details regarding her medical conditions. Her hypothyroidism was not disclosed.
The Respondent’s case is that there were no difficulties with the Complainant in her employment.
On the 31st of July 2018 she had a conversation with her supervisor. She informed her she would be unavailable to work from the 24th of August 2018 for approximately two months as she had to undergo an operation on her foot. She further spoke to the HR manager on the 1st of August 2018 and stated that she could be out for longer than two months. The Respondent had no difficulty with this. It was agreed with her that she would need a fitness to return to work certificate and she would be reemployed by the company on her return subject to work being available.
The HR manager gave evidence that it was certain that she would be reengaged subject to being medically fit to return to work.
The operation which was to take place on the 24th of August 2018 was postponed for six weeks. This presented no difficulty to the Respondent. The Complainant was asked to continue working which she did up to the 10th of September 2018.
The Respondent’s case is that the Complainant came into work and presented the medical certificate and letter of resignation to the HR manager. These were handed to the HR manager as they met in the cloakroom area. A brief conversation took place during which the Complainant indicated she was not able to continue with work due to her medical condition. The Complainant stated she was doing fine but she didn’t know if she could do the job.
The HR manager advised her that there was an office-based supply chain job on the notice board for two weeks. The Complainant explained how she was going for bunion surgery on her foot and she would be out for several months. The HR manager’s evidence is that she said wait and see how you get on with your surgery and they would talk then.
The Complainant did not apply for this role.
The HR manager’s evidence is that the Complainant gave her the medical certificate first and the letter of resignation then. The Complainant asked her for copies of the documents and the HR manger went to copy them in the administration office. The HR manager provided the copies to her, took her key and fob and thought Complainant was exiting the building. The HR manager’s evidence was that this was an amicable conversation.
She later saw the Complainant in the canteen showing her correspondence to other staff members. She did address the Complainant and asked her not to show these letters that she was resigning and that she should just move on.
Her evidence was that the Complainant was not upset or crying but she was saying her goodbyes.
Her evidence was that the conversation in the locker room took a max of four to five minutes. The Complainant commenced the conversation.
I was advised that on the previous Friday the 7th of September 2018 the Complainant was feeling weak and faint in the workplace.
It was agreed that the Complainant did ask for an office-based job in August 2018. At that stage the Complainant was advised that any jobs available in the factory would be posted on the notice board which was located near the ladies locker room and toilets. The HR Manager confirmed that an administration role was not available six weeks before hand.
Her line manager gave evidence that he could only comment on her appearance and her tone when he spoke with her. He said she wasn’t in tears, she was smiling and talking in a normal tone in the canteen area.
The Respondent disputed that the Complainant was advised by her supervisor that she could not be considered for another position in the company. The Respondent accepted her resignation.
Findings and Conclusions:
I accept that hypothyroidism (underactive thyroid) is a disability under the Employment Equality Acts.
I have considered the evidence presented to me both orally and in writing.
I note the Complainant’s evidence that the work was hard, and the hours were long. She was lifting heavy bags and “she felt bad”. She said that if she knew it was such hard work she wouldn’t have taken up the job. Her evidence was that she found the job was too hard for her. She wanted to find other positions in the same factory.
She said that at the end of July 2018 or the beginning of August 2018 she asked the HR manager if there was office work available. The HR manager advised her that there was no other work available at that time. No evidence was presented to me to indicate that when the Complainant made this request she advised the Respondent of her disability or they were aware of her disability. The Complainant did not reach the required standard of proof in relation to this request.
I was presented with an email from the Respondent’s customer service and planning manager as to the incident which took place on the 7th of September 2018. It stated that the Complainant was feeling weak and faint and thought she was having a heart attack. She declined to go to the doctor as she said she knew what was wrong and rest would make it better. She said she her condition seven to eight years.
On the Complainants evidence regarding the events of the 11th September 2018, she established a prima facie presumption of discrimination and failing to provide reasonable accommodation to her. It then fell to the Respondent to rebut that presumption.
Having heard the evidence from the Respondent, I prefer the evidence of the Respondent. I believe that the Complainant was unhappy in her work and had a frightening experience in the workplace on the 7th of September 2018. I accept the Complainant’s evidence that the work was physically hard and her background was more administration. She had expected to be on sick leave due to a planned foot operation. This operation was cancelled.
I do not accept that the Complainant was asked by the HR manager to sign a letter of resignation. The Complainant presented as a very capable, warm, intelligent person. Even though English was not her first language she was very proficient in English. She explained her educational background to me. She had received a very good reference from her Irish based course tutor.
I don’t accept that when handed a pen by the HR Manager in a hallway, she signed a document without reading it. It could not be explained to me how the Respondent ended up with a signed copy of the letter of resignation also.
Overall, the HR manager and the supervisor’s evidence was very credible. They rebutted the presumption of discrimination and failure to provide reasonable accommodation.
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.
The respondent did not discriminate against the complainant.
Workplace Relations Commission