Complainant

Respondent

Parties

Arunas  Kutulskas

Gem Plastics Ltd

Representatives

Dara McLoughlin / Annemarie Donohoe North Connacht & Ulster Citizens Information Service

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00063560-001

20/05/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses for the respondent (The Managing Director, Operations Manager and HR Co-ordinator) undertook to give their evidence under affirmation.  Cross examination was facilitated.

The hearing took place with the assistance of an interpreter provided by the WRC.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The complainant submitted that he suffered from a disability, repetitive strain injury, which he notified to the respondent in May 2022. He indicated that this was caused by repeated hammering in the workplace.  He submitted that the respondents failed to take action after he returned to work to provide reasonable accommodations for his disability.

He stated that he was off for two months from May 2022 on sick leave. He completed a fitness to return to work form in July 2022. He submitted that he repeatedly looked to be accommodated in work but at the same time he took a personal injuries case.

He stated that he was referred for an occupational health assessment and was placed on leave for nearly a year. He was not certain whether any assessment was made of his condition.  He was subsequently let go.

Complainant evidence:

The complainant stated that there were other roles that he could have undertaken, for example as a relief forklift driver moving smaller pallets.  The complaint stated that he could have been accommodated with additional breaks. He was asked if he had been in discussions for trial out any roles but stated that he only had a brief discussion regarding one role and he was not sure that he was capable of carrying out that role. He stated that he received a letter regarding his capability and the assessment. He was asked whether there were any arrangements made for his return, but he stated “No, not exactly”, as apparently there was no position available for him. In response to a question regarding updated information and his assessment, he stated that in conversation there was more discussion about the roles that he was not capable of then about roles than those that he was capable of doing.

He was asked about the two departments where it was suggested that could work, but he stated that he asked, “how's that going to work and why should I work there?”.

When his representative asked him why he originally moved away from working with the forklift he stated that the workload was heavy and that he was moved to another department with lighter duties.

Under cross examination it was put to him that he was moved off working on forklifts due to varicose veins. He replied that he had raised an issue in 2013, but he had since been operated on and that was no longer a problem. He was also asked about lighter duties, in that he had indicated that lifting pallets was hurting him and therefore he asked to be moved. He stated that he had spoken to the supervisor regarding that. He stated that he no longer had a licence for forklifts and was not able to perform any of those duties anyhow.

Under redirection, the complainant was asked if repetitive duties were removed could he do the job and he indicated that yes, he could do the job, just without repetitive duties.

The respondent submitted that the complainant was placed on fully paid leave while his situation was being reviewed. However, it was noted that the basis of the job, and of any job with the respondent, is repetitive.  The complainant had occupied a position where only 7% of the tasks for the position were repetitive. The was the job that he was undertaking when the Occupational Health report was done.

The responded submitted that the Operations Manager and the Health & Safety Representative looked at all roles available in the factory. They concluded that every area of work was as repetitive, either equally as repetitive or more so, than where the complainant worked, given that the factory operates on a cycle producing 50,000 barrels a day.  They considered forklift work, but the complainant had already worked there and was not able to continue in that role on medical grounds.

The responded submitted that unfortunately after 12 months of consideration, the reviewers came to the conclusion that there were no suitable alternatives for the complainant, and he was let go. It was confirmed that they did not compile the report on the issue and confirmed that this conclusion was arrived at on a verbal basis. It was submitted that the complainant had already undertaken every role that the respondent could offer over the course of his 18 years with them.  All the tasks were as repetitive as the complainant’s role and both the Operations Manager, and the Health & Safety Representative concluded that it was not possible to carve out non repetitive tasks from the various roles across the factory to accommodate the complainant.

Witness evidence:

The first witness for the respondent was the Operations Manager.  He stated that the factory produced 50,000 plastic barrels per day.  He stated that 7% of the complainants’ duties involved repetition. He stated that it took 140 seconds to produce a plastic drum, 5 seconds for the top and 5 seconds for the bottom, 10 seconds in total, amounting to 7% of the role. The reminder of the time was involved in hammering off the excess plastic, which was perforated to make the task easier. He noted that leak testing and the inspection process were repetitive by their nature too.

The witness confirmed that the complainant worked in all areas of various times across his career. He noted that each time he had injuries in each area that he worked in, for example varicose veins and shoulder pain. The witness noted that the other roles in the factory were not less repetitive but were probably more so. He confirmed that they involved lighter products but not necessarily lighter duties, and were of necessity more repetitive, including higher volumes.  This necessitated repeated tasks more frequently. In his experience none of the other roles were suitable for the complaint. He confirmed that he had worked across all roles in the past.  He stated that he had engaged in each of the areas recently while trying to look at each to see whether they were suitable for the complainant or not.

The witness stated that the complainant was out of work for 12 months, on a fully paid basis. He stated that they had considered all options but concluded that they couldn't take him back if a 7% repetition rate was causing him a problem and various levels of lifting and manual effort were not open to him. He stated that there was simply nothing available that would accommodate the complainant.

Under cross examination he was asked about the cycle time process. He was asked did he do any of the processes himself. He confirmed that originally, he had done so but given his role recently the only time he was undertaking the various tasks was in trying to assess whether they were suitable for the complainant. He noted that other parts of the process had repetitive actions built into each role. He was asked what happened if the plastic skirting did not come off easily.  He said that this was not a regular issue.

The witness was asked why took him 12 months to make decision.  He stated that they used an external health and safety consultant to help with the assessment who came to the factory every three months. He stated that the HR manager was changing around this time too and noted that it contributed to the delay.  He noted that although it was a little bit slow, everyone was trying to come to a reasonable conclusion.  He confirmed that there was no written report compiled.

The witness was asked whether he checked with the complainant as to what he was able to do but he confirmed he did not.  He stated that this was because the occupational medical report mentions any repetitive duties. The complainant had done various jobs before, and they had proved to be a problem so they could not rule out them becoming problem again. He noted that for example forklift duties have become much more repetitive since the complainant was previously engaged on them.

The witness was asked why he did not get updated occupational health report regarding the complainant’s capability, but he noted that the report itself says that no follow up is planned so another report was not necessary. He stated that the production line that the complainant had been working on is not particularly fast and that other lines were faster and more repetitive.

The second witness for the respondent was the Managing Director.  She stated that the company had been acquired at the end of 2021, and she had a lot of trips over and back to the parent company in Germany.  She noted that the parent company had indicated that the matter should be dealt with on a local basis.  She noted that the complainant was offered an appeal but indicated that nothing new could be found at that time to overturn the original decision on appeal.

Under cross examination she was asked whether the German parent company had any input into the issue of reasonable accommodation but indicated that they were advised by the parent company to follow local advice tailored to the Irish market.

As regards the Occupational Health report, she stated that it indicated that the complainant needs to refrain from doing the same job all day.  The issue of assigning him to multiple jobs during the day was considered but discounted as each role had repetitive elements too.  She was asked what evidence was kept regarding their deliberations, but she simply remarked “we know our plant”.  She was asked whether she considered trialling anything for the complainant but indicated that “because of the very nature of the business, it was a repetitive process involving making 50, 000 barrels a day.

The complainant submitted that he was discriminated against when he was let go from his employment due to having a disability and that he was not provided with reasonable accommodation to enable him to continue in employment with the respondent.

The Act defines the meaning of disability as follows:

“disability” means—

(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,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

The complainant submitted that he suffers from repetitive strain injury and has submitted medical certificates in support of this contention.  The respondent accepted that the complainant suffered rom a disability as outlined in the Act.

Section 16(1) of the Act states as follows:

16.—(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

The employer engaged an occupational health professional to provide a report on the complainant’s fitness to work, and the report concluded that “Going forward, I would recommend that he refrains from doing any repetitive work and that he is rotated throughout the day to do multiple differing tasks. He needs to refrain from doing the same job all day every day”.

The employer submitted that it considered the complainant’s return to work over a year-long time frame.  During this period, the complainant was in receipt of full pay.  The respondent submitted that experienced staff, together with its Health & Safety Representative considered what alternative roles could be provided to the complainant to accommodate him.

Section 16(3) and (4) of the Act state as follows:

3) (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 subsection 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 measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

(4) In subsection (3)—

"appropriate measures", in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

The respondent factory is engaged in the production of 50,000 plastic barrels a day and the respondent submitted that by its very nature, the work of the factory is repetitive.  The respondent considered the complainants role prior to going off sick on a certificate and, having regard to the nature of the role, concluded that his role was only taken up by 7% repetitive tasks.  Therefore, in order to provide the complainant with reasonable accommodation it needed to provide him with a role that included less than 7% repetition.  This conclusion was not challenged by the complainant.

Added to the foregoing, the respondent submitted that over his 18 years of working in the factory, the complainant had undertaken every possible role and had moved from each role due to health or medical problems.  This fact was not challenged by the complainant.

The main thrust of the complainant’s claim is that he was not provided with a written note of the deliberations of the respondent when coming to a conclusion that they did not have a position to offer him.  While this is somewhat concerning it is not enough to establish that the respondent did not consider other alternatives for the complainant.

The evidence presented by the parties outlines a long, drawn-out process, involving an external Health & Safety consultant, and practical consideration by the Operations Manager, amongst others, in the consideration of alternatives for the complainant.  This included the Operations Manager personally undertaking various tasks to ascertain how much repetition was involved in each proposed role for the complainant.  This evidence was not challenged by the complainant. 

The Operations Manager listed all the available options and outlined why they were not suitable as alternatives for the complainant, either citing that the complainant had previously been medically unable to carry out a task or where the level of repetition was too high to be considered as a reasonable alternative role for the complainant.  Certain options were outlined to the complainant as not being suitable and he was offered alternatives which he indicated that he would not be able to carry out.

After having taken a year to consider all the options, the Operations Manager and the Managing Director concluded that there was no role available as a reasonable alternative for the complainant and the company let him go.

It is unfortunate that the procedure was not documented, or that a report of their deliberations was not produced but being mindful of the evidence and expertise of the witnesses which was not challenged by the complainant. Bearing in mind that the Occupational Health Report concluded that the complainant required non repetitive duties, not lighter duties, I find that the respondent considered the various options for reasonable accommodation as required by Section 16 of the Act.  They concluded that in their expert opinion there were no roles that they could provide, or jobs that they could divide, which would provide with complainant with a suitable alternative, bearing in mind the limitations of the occupational medical report and of the complainant’s complex medical history when it came to finding suitable roles for him.  In the circumstances, I find that the respondent has not discriminated against the complainant in accordance with the provisions of the legislation.

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that the respondent did not discriminate against the complainant.

Employment Equality – Disability – Reasonable Accommodation – no written report – no reasonable option found – complainant let go – no discrimination