Complainant

Respondent

Parties

Eduardo  Cardoso

Master Engineering

Representatives

  Self-Represented

 Fiona Twomey, Solicitor.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994.

CA-00075186-001

05/09/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994.

CA-00075192-001 DUPLICATE

05/09/2025

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

CA-00075186-002

05/09/2025

The Complainant, Mr Eduardo Cardoso, commenced employment with Master Engineering Ltd. on 22 March 2022 as a welder/fabricator, working approximately 39 hours per week at its premises in Little Island, Co. Cork. He earned gross weekly pay of €1,006.

In July 2024, the Complainant sustained a workplace injury involving a leg fracture and ligament damage, which required surgery and a prolonged period of absence. Following his recovery, he was certified fit to return to work by his GP and an occupational health assessment, subject to certain accommodations, including modified breaks.

The Complainant submits that the Respondent failed to permit his return to work for a period exceeding one month after these clearances, without adequate explanation or timeline. He contends that this amounted to a failure to provide reasonable accommodation under section 16 of the Employment Equality Acts 1998–2015 and constituted discrimination on the disability ground. He further claims financial loss and distress arising from the delay.

The Complainant also brings a complaint under section 6(f) of the Terms of Employment (Information) Act 1994 (as amended), alleging that the Respondent failed to provide a reasoned reply within one month to his request for more predictable and secure working conditions following his injury.

The Respondent disputes the claims, asserting that the Complainant had sustained an injury rather than a disability and was not fit to return to work until further specialist medical opinion was obtained. It submits that, given the safety-critical nature of the role, additional orthopaedic assessment was required. The Respondent states that the Complainant returned to work shortly after a consultant’s report in early October 2025 confirmed his fitness, and that any delay was due to ensuring a safe return to work.

The Respondent further contends that no issue of reasonable accommodation arose, as the Complainant resumed his full duties without restriction, and that his terms and conditions, including working hours, remained unchanged and compliant with statutory requirements.

The Complainant gave evidence that he sustained a serious workplace injury in July 2024 involving damage to his knee, including ligament injury and a fracture. He stated that he remained out of work for approximately one year, during which time he underwent physiotherapy and awaited surgical intervention.

He said that, by July 2025, his condition had improved to the extent that his GP certified him fit to return to work. He said that his doctor “allowed [him] to work” and that he notified the Respondent of this and sought to resume his duties.

The Complainant confirmed that he attended an occupational health assessment arranged by the Respondent in August 2025 and understood the outcome to be that he was “clear back to work.” He maintained that, despite this, he was not permitted to return until mid-October 2025. His core complaint was that he had been fit to return earlier and that there was an unjustified delay:

He believed he was fit from July but was only allowed return in October. He further stated that, in his view, there was no material difference between the various medical opinions obtained and that they all supported his return to work.

In relation to disability, the Complainant’s evidence was less clear. Under questioning from myself he accepted that by the time he sought to return to work, he no longer considered himself to have a disability and was capable of working. This led to some confusion in his evidence as to how his claim for reasonable accommodation arose.

During cross-examination, it was put to the Complainant that his role as a welder/fabricator involved physically demanding and potentially hazardous work, including working at height and handling heavy equipment. He accepted that aspects of the role could be demanding.

It was also put to him that, at the time he sought to return, he remained under medical care, was undergoing physiotherapy He was also still awaiting surgery. The Respondent suggested that this raised legitimate safety concerns in the context of the work environment. The Complainant did not accept that this prevented him from returning and maintained that the medical advice supported his fitness for work.

The Respondent further put to him that medical recommendations were qualified and dependent on the operational requirements of the role, and that additional specialist assessment was therefore necessary. The Complainant disagreed, stating in substance that the medical professionals had cleared him and that the employer should have relied on that clearance.

It was put to him that he had suffered an injury rather than a disability and that he expected to recover. The Complainant accepted that he anticipated recovery following surgery.

It was also put to him that, upon his eventual return to work in October 2025, he resumed his full duties without restriction and had not sought any specific workplace accommodations at that point. This was not disputed.

Mr John O’Mahony, the Managing Director of the Respondent, gave sworn evidence on behalf of the Respondent.

The witness outlined that the Complainant was employed as a fabricator in a heavy engineering environment involving physically demanding and safety-critical work, including fabrication tasks, working at height, and collaboration with other employees on large-scale projects such as pressure vessels. He confirmed that the Complainant sustained a workplace injury in July 2024 and was absent for a prolonged period, during which he submitted medical certificates, underwent physiotherapy, and awaited surgery.

The witness stated that when the Complainant indicated he was fit to return to work, the Respondent relied on its contractual entitlement to seek independent medical assessment. The Complainant was referred to occupational health, which indicated that a return to work might be possible subject to certain limitations. However, the witness expressed concern regarding the practical implementation of those recommendations in what he described as a “very active” workplace. He emphasised that the Respondent was required to ensure a safe working environment not only for the Complainant but also for other employees. In that context and having regard to the physically demanding and safety-sensitive nature of the role, he stated that the Respondent did not consider it appropriate to rely solely on the initial report and determined that further specialist medical assessment was necessary.

The witness gave evidence that the Respondent arranged additional medical review, including referral to an orthopaedic consultant, in consultation with its insurers and as expeditiously as possible. He stated that, following receipt of the consultant’s report in early October 2025 confirming the Complainant’s fitness to return to work, the Respondent facilitated his return on or about 15 October 2025, which he described as the earliest point at which the company was satisfied it was safe to do so. He maintained that the Respondent acted at all times in accordance with its duty of care, balancing fairness to the Complainant with workplace safety considerations.

In relation to reasonable accommodation, the witness stated that no such request arose in practice. He indicated that the only reference to adjustments came from the occupational health report, but that these gave rise to operational concerns and prompted the decision to obtain further medical clarification. He further stated that, upon his return, the Complainant resumed his normal duties without restriction, describing him as having returned “100%… doing exactly the same tasks.” He also stated that the Respondent had not been notified of any formal disability, and that any reference to disability arose only in the context of a social welfare form.

In respect of the complaint under the Terms of Employment (Information) Act 1994 (as amended), the witness confirmed that the Complainant’s working conditions upon return remained unchanged, including working approximately 39 hours per week, with no alteration to his terms or pay.

CA-00075186-002 Reasonable Accommodation:

The provision of the Employment Equality Acts 1998-2015 (“the Acts”), in its relevant parts provide the following:

 Section 2 of the Acts defines 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

Reasonable accommodation on the grounds of disability is provided for under 16 (3) of the EEA where it 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 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.

31. The term ‘appropriate measures’ is then defined in section 16(4) as follows:

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;

Reasonable accommodation on the grounds of disability is provided for under 16 (3) of the EEA where it 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 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.

31. The term ‘appropriate measures’ is then defined in section 16(4) as follows:

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 burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85A of the Act states as follows:

(1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.” 

Under section 85A of the Acts , once a complainant establishes primary facts suggesting harassment or discrimination, the burden of proof shifts to the respondent.

The Complainant contends that the Respondent failed to provide reasonable accommodation in accordance with section 16 of the Employment Equality Acts 1998–2015.

In order to succeed in such a claim, the Complainant must first establish, as a matter of primary fact, that he had a disability within the meaning of the Acts at the relevant time and that he required reasonable accommodation in order to participate in employment.

A central difficulty arises for the Complainant in this regard. In his sworn evidence, the Complainant confirmed that, by July 2025, his GP had certified him fit to return to work and that he himself considered he was capable of resuming his duties. He accepted, in substance, that he no longer had a disability at that point. He subsequently returned to his full role in October 2025, performing the same duties, hours (39 per week), and receiving the same pay as prior to his absence.

On the evidence before me, I am satisfied that, at the point in time when the Complainant sought to return to work, he did not have a disability within the meaning of section 2 of the Acts. Rather, he had recovered from an injury to the extent that he was medically certified fit to resume full duties.

The Complainant’s case is, in essence, that he should have been permitted to return to work earlier than October 2025 and that the Respondent’s delay in doing so amounted to a failure to provide reasonable accommodation. I do not accept that proposition.

Section 16 of the Acts imposes an obligation on employers to take appropriate measures, where needed in a particular case, to enable a person who has a disability to have access to, participate in, or advance in employment. The duty arises only where a disability exists and where accommodation is required to enable the employee to work.

In the present case, the Complainant misconceived his position. His attempt to return to work at an earlier point in time, notwithstanding ongoing medical issues and pending surgery, does not constitute a request for reasonable accommodation within the meaning of section 16. Rather, it was a request to be deemed fit for work at an earlier stage.

The evidence establishes that the Respondent, faced with a safety-critical work environment and a serious prior injury, sought further medical clarification before permitting the Complainant to return. This included referral to occupational health and subsequently to a specialist consultant. I am satisfied that this was a reasonable and proportionate response, consistent with the Respondent’s duty of care to the Complainant and to other employees.

Furthermore, when the Complainant did return to work, he did so without restriction and without any accommodation being required or requested. This is inconsistent with the existence of a disability requiring accommodation at that time.

Based on the above, I find that The Complainant has not established that he had a disability at the material time therefore he did not establish primary facts in line section 85A of the Acts to show that the Respondent had aa duty to provide reasonable accommodation under section 16 of the Acts.

CA-00075186-001Terms of Employment Complaint – Section 6(f), Terms of Employment (Information) Act 1994 (as amended.)

The Complainant also brings a complaint under section 6(f) of the Terms of Employment (Information) Act 1994, This section was inserted by reg.10 of the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (S.L No 686 of 2022) and implements Art.12 of Directive 2019/1152/EU. The section states:

6F. Transition to another form of employment

(1) Subject to subsection (2), an employee who has been in the continuous service of an employer for not less than 6 months and who has completed his or her probationary period, if any, may request a form of employment with more predictable and secure working conditions where available and receive a reasoned written reply from his or her employer.

(2) An employee may, once in any 12 month period, request a form of employment in accordance with subsection (1).

(3) An employer shall provide the reasoned written reply referred to in subsection (1) to an employee within one month of the request by the employee.

(4) An employer may provide an oral reply where a subsequent similar request is submitted by the same worker where the situation of the worker remains unchanged.

(5) This section shall not apply to seafarers or sea fishermen.

This provision affords employees the right to request more predictable and secure working conditions and to receive a reasoned reply from the employer within one month of such a request. The Complainant contends that the Respondent failed to provide such a reasoned reply. Having considered the evidence, I am satisfied that this complaint is misconceived.

Firstly, the Complainant was, at all material times, employed on a full-time, permanent basis, working fixed hours of 39 per week with guaranteed pay. There is no evidence that his working pattern lacked predictability or security within the meaning of the legislation. Secondly, the substance of the Complainant’s request was not, in reality, a request for more predictable or secure working conditions. Rather, it related to his attempt to return to work following injury and, as he framed it, to be accommodated in that context. This is a separate matter governed, where applicable, by the Employment Equality Acts and not by section 6(f) of the 1994 Act. (see above)

The Complainant appears to have conflated the concept of reasonable accommodation with the statutory right to request more predictable working conditions under Directive (EU) 2019/1152. These are distinct legal regimes with different purposes.

In this case, the Complainant already enjoyed stable, predictable, and secure working conditions. No genuine request, as envisaged by section 6(f), was made, and the matter at issue related to medical fitness and return to work rather than any lack of contractual predictability. For these reasons, I find that section 6(f) does not assist the Complainant. The complaint under the Terms of Employment (Information) Act 1994 (as amended) is therefore not well founded.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint CA-00075186-002 in accordance with the relevant redress provisions under section 82 of the Act. : For the reasons outlined above I find that the Complainant did not establish primary facts to show that there was a failure to reasonably accommodate him under section 16 of the Acts.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint CA-00075186-001 in accordance with the relevant redress provisions under Schedule 6 of that Act. For the reasons outlined above, I find the complaint was not well founded.

Section 6f of the Terms of Employment (Information) Act 1994. Employment Equality Acts 1998-2015. Disability. Reasonable Accommodation.