ADJ-00032317 - Workplace Relations Commission Ann Walsh v Donegal Education & Training Board (The Abbey Vocational School)

• Jurisdiction: Ireland
• Judgment Date: 06 October 2023
• Court: Workplace Relations Commission
• Date: 06 October 2023
• Docket Number: ADJ-00032317
• Respondent: Donegal Education & Training Board(The Abbey Vocational School)

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 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 worked as a cleaner for an Education Training Board (ETB) school, the Abbey Vocational School, in Donegal Town, until as a result of a repetitive strain injury she went on sick leave. Her sick leave lasted for until the Respondent’s Occupational Health doctor declared her to be fit to return to work but only on restricted lighter duties. The issue in this complaint was whether the lighter duties recommended by the Occupational Health doctor could be accommodated by the Respondent or whether the recommended restrictions were fundamentally incompatible with the requirements of the job as a cleaner. The Respondent decided that the requirements of her work, which was a physical job, and the way that cleaning was managed in the school meant that it was not possible for her to do only restricted duties. The Complainant’s complaints are (1) failure to provide her with a contract in writing and failing to provide her with terms and conditions that she had verbally agreed to; (2) unfair dismissal and (3) failure to make reasonable accommodation for a disability.

Summary of Complainant’s Case:

The Complainant gave evidence under affirmation as follows: She worked for the Respondent as a canteen assistant from 2001 – 2015. In 2015 she started working for the Respondent as a cleaner (alongside her work as a canteen assistant) but she did not receive a new contract to reflect her new duties. In 2016 she approached the school principal with a grievance about a heavy workload, an unfair in distribution of cleaning duties and heavy lifting. She complained that the job that had been offered verbally was to take over the cleaning duties of her predecessor, not the onerous work that she was now expected to do. Despite her grievance, nothing of significance was done to remedy this and in November 2018, due to a repetitive strain injury she went on certified sick leave. The Complainant’s sick leave lasted for two years until September 2020 when arising out of a medical assessment by Respondent’s Occupational Health doctor on 13 August 2020 the Respondent was advised as follows: “Ms. Walsh remains unfit for her usual role but could be considered for an alternative semi-sedentary role with restricted manual handling duties (less than 5kg) and restriction of tasks which require frequent stooping/bending, if this can be reasonably and practically accommodated. In the view of the nature of Ms. Walsh’s condition it is probable that restricted duties will be required in the long term.” A copy of this was sent to the Complainant by the head of HR, Ms. Eileen Doherty who, on 4 September, advised the Complainant that the report had been forwarded to the school principal who would be asked to consider feasible options. On 10 September 2023 the Complainant received a letter from Ms. Doherty, (HR) advising her as follows: “…I have been in contact with Miss Geraldine Diver principal of Abbey Vocational School Donegal Town in relation to the Medmark letter dated the 13th of August to ascertain what options if any are available. Having consulted with the principal on the 7th of September 2020, and having considered the matter fully, I regret to advise that it is not reasonable or practical to accommodate an alternative semi-sedentary (role) with restricted manual handling duties including restriction of tasks which require frequent stooping/bending attached to your role as cleaner in the Abbey Vocational School. I advise that the options remaining to you are as follows, 1. Submit an application for a period of unpaid sick leave. This period of unpaid sick leave is for a maximum period of 18 months up to the 28th of February 2022. Information in this regard was forwarded to you in our letter dated the 18th of August. Following that period of unpaid sick leave, your situation may have improved to facilitate a return to your work as a cleaner in the AVS. 2. You may be entitled to retirement on the grounds of ill-health. Please speak to Miss Margaret Mageean in relation to further information in this regard. The decision to accept or reject an application for retirement on the grounds of ill-health rest solely with Medmark Occupational Health. I regret the situation cannot be more favourable in the circumstances. Should you have any queries in relation to the above please contact Paula Crumlish HR SSO in the first instance. Regards..” Arising from this the Complainant submits as follows: Terms and Conditions of Employment Information Act 1994 as amended (two complaints) CA-00042903-001: The Complainant did not receive a contract in 2015 when she changed from being a canteen assistant/cleaner to being a school cleaner. She remained on the 2010 contract that she had for the previous role which was not a correct statement of the work that she did from 2015 on. CA-00042903-002: The contract was not the same as the terms that she had been offered to her verbally and by email. The job that she was offered was the role that had been done by her predecessor, which was much less of a workload than what she was required to do. Her contract did not state that she was required to used industrial heavy vacuum cleaners or move industrial size rubbish bins. Unfair Dismissals Act 1977 as amended CA-00042903-003: The Complainant contends that the Respondent’s letter to her dated 10 September 2023 was a dismissal. Her employment was effectively terminated because she was being told that the Medmark recommendation (of allowing her return to work on restricted duties) would not be adopted by the Respondent and her only options were to continue on sick leave (without being paid) or elect to take early retirement. There was nothing in the letter that allowed her to believe that she could return to work. Alternatively she submitted, that in the event that the Adjudicator decides that this was not a letter of dismissal, a decision was made on 5 and 6 September 2020 around her capacity to work and as part of that assessment she was not afforded any opportunity to engage with the Respondent between their receipt of the Medmark report and a decision being taken as to what restricted duties she might be capable of carrying out. They decided that she was incapable of returning to work without consulting her. The School Principal and the Assistant School Principal decided that she was incapable of returning to work. Natural justice requires that she should have been advised that this decision was being considered at that time and her input should have been considered. Failure to do so renders this decision, to be unfair. Employment Equality Act [EEA] 1998 as amended CA-00042903-004: The Complainant submits that the Supreme Court decision of Daly v. Nano Nagle [2019]IEHC 63 expanded the obligations on Employers to employees who have a disability and who are seeking reasonable accommodation in respect of their work. First, she submits that following the receipt of the Medmark report and the recommendations contained therein the failure to engage with her as to what reasonable accommodation she would accept or even what her views were on her capacity to work failed at the first hurdle to make reasonable accommodation for her disability. Had they discussed it with her, they might have realised that she was willing to do other restricted work that was capable of being accommodated instead of conducting a risk assessment which entirely excluded her. How could accommodation be described as reasonable if she was not given a chance to engage with the assessment of her capacity to work? Second she submits that due to the particular and unusual circumstances of that time (due to the Covid pandemic) additional funding had been...