ADJ-00032692 - Workplace Relations Commission A Quality Analyst 11 v A Pharmaceutical Company

• Judgment Date: 20 January 2023
• Court: Workplace Relations Commission
• Docket Number: ADJ-00032692
• Date: 20 January 2023
• Respondent: A Pharmaceutical Company

1: Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015following 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.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties.

Full cross examination of Witnesses was allowed and availed of.

Regrettably the preparation of the Adjudication decision was delayed due to a Covid situation.

1:2 Confidentiality

It was agreed by the Parties and the presiding Adjudication Officer that the case would be Anonymised.

This decision follows from the fact that materials and evidence presented in the case contained considerable confidential personal medical reports and direct witness evidence from Medical Practitioners.

Medical Practitioners will not be identified but will be referred to by Reference Letters.

1:3 Relationship to Adjudication case Adj-00038076 and the issue of Time Limits/Cognisable Period - Opening legal issue

Adj 32692 – CA-00043352, the case in hand here, was submitted on the 1st April 2021. The Complainant subsequently submitted Adj 38076 - CA 00049445 on the 31st March 2022.

The issue being addressed by the second Adj concerned time limit/reference period issues possibly arising from Adj 32692.

Respondent Argument

Adj 32692 was lodged on the 1st April 2021 with a “last date of Discrimination” stated to be the 15th March 2021 – giving a Cognisable period of six months back to the 2nd of October 2020. Events prior to the 2nd of October 2020 and post the 1st April 2021 were therefore, argued by the Respondent, excluded.

Complainant Argument

The Complainant argued that the actual period of Discrimination was effectively from the 1st of August 2020 to the 31st of October 2021.

As this issue was briefly touched upon in a preliminary hearing of the 30th of March 2022 the Complainant submitted Adj 38076 on the 31st March 2022 to give a “Last date of Discrimination” of the 31st October 2021.

Adjudication Decision

It was noted by the Adjudication Officer that the Complainant was alleging that the discriminatory events commenced in July 2020 – (within a 12-month window from the date of lodging Adj 32692 in March 2021) but extended to 31st October 2021 covered by Adj 38076.

Pragmatically, taking both cases together the reference period would be effectively from March 2020 to 31st October 2021. This was highly unusual being a period of some 19 months.

At the opening of the Hearing on the 14th June 2022 the Respondent objected strongly to this situation.

After discussion between the Parties and the Adjudication Officer at the Hearing and at the conclusion of Day One it was agreed that both Adj cases would be heard together in view of the absolute continuity of the witness evidence presented covering the entire period from July 2020 to October 2021.

Separate Adj decisions would be required in respect of both referred cases.

1:4 Methodology adopted by Adjudication Officer.

Multi day oral testimonies from numerous witnesses including Medical Experts and supported by very extensive written submissions were presented in this case.

Accordingly, the Adjudication Officer, in preparing his Decision, has found it necessary to summarise evidence and adopt an approach of identifying and directly focusing of the main issues in the case. Detailed reporting of medical evidence was deemed personally sensitive and remained largely confidential.

2: Background:

The case concerned a complaint under the Employment Equality Act,1998 that the Complainant was discriminated against on the Disability Ground on the specific sub grounds of Failure to Secure Reasonable Accommodation, Victimisation, Access to Training and Harassment. The alleged basis of the Discrimination was the failure of Respondent employer to allow, in a reasonable time frame, the Complainant return to work following a period of extended sick leave. The employment commenced on the 13th June 2005 and continues. The rate of pay was stated to be €4,549 per month for a standard week.

3: Summary of Complainant’s Case: Adj 32692 with subsidiary references to Adj 38076

The Complainant presented a series of written submissions and gave extensive Oral testimony to the Hearings. Her principal witness was Dr.A who gave a lengthy Oral testimony. 3:1 Summary of events – The Complainant was on Sick leave from the 15th November 2018. There could be no doubt but that she had a qualifying disability under the EE Act,1998. For ease of reference the Complainant had been in the Laboratory in 2018 and eventually returned to the Documentation Department in 2021. On the 30th July 2020 she contacted the Respondent employer to arrange a Return to Work. This request was supported by a letter from her GP, Dr A. The letter dated the 30th July 2020 was crucial to the case and will be referred to extensively. The Respondent arranged for an Independent Medical review, on their behalf, on the 16th October 2020. The review was conducted by Dr.B. Dr.B’s report was not received until the 16th February 2021. The Report did not deem the Complainant fit to resume work. The Report allowed for a Three-Month Review which was proposed initially for the 18th March 2021. Dr B, as part of the review, requested the Complainant to complete a number of medical questionnaires. The Complainant felt that the questionnaires were inappropriate and discriminatory. She requested clarifications and follow up consultations on the questionnaires. The March Review did not take place and the case was referred to the WRC on the 1st April 2021 becoming ADJ 32692. Extensive correspondence followed during March /September between the Complainant and the Respondent. Eventually a Medical review was arranged with Dr B on the 21st September 2021. He deemed the Complainant fit to resume work on the 1st November 2021 on a phased basis beginning with a two-day week. This was 15 months post her initial request to return on the 30th July 2020. The Complainant felt very strongly that the behaviours of the Respondent had been grossly discriminatory. Her return to work had been deliberately delayed, effectively Denying her Reasonable Accommodation for her disability. She had been subjected to a series of the most outrageous prevarications and delays from the Respondent in retaliation for her Personal Injury action. Dr B had completely misinterpreted Dr A’s letter of June 2020 to arrive at a false fitness conclusion. The delay in producing his report was equally discriminatory and in breach of all Medical Council guidelines. His “incontactability” excuse was effectively a smokescreen as Complainant research showed that he was very much contactable. The Questionnaires proposed in March 2021 were not independent of the Employer Company and were complete unsuitable for the circumstances of the case. In terms of Victimisation the Complainant had commenced an Employers Liability/ Personal Injuries action against the Respondent in 2018. The actions of the Respondent could in large manner be seen to be retaliatory against the Complainant for this PI action. As regards Harassment the Respondent had used an unknown Courier company to deliver letters to the Complainant’s private address. This was not only a major breach of her GDPR rights regarding her private address but was plainly a tactic to harass the Complainant at her home address. With regard to Loss of Training the Respondent by unnecessarily delaying a proper Return to Work had prevented the Complainant from attending/receiving necessary on-going training in a very technical environment. In summary the Respondent had failed to provide Reasonable Accommodation for a Disability in refusing to allow a prompt return to work, had victimised the Complainant by their actions, had...