Case Number: ADJ-00001120. Workplace Relations Commission

• Docket Number: ADJ-00001120
• Date: 20 July 2016
• Court: Workplace Relations Commission
• Parties: Senior Physiotherapist v Health Service Employer

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001120

Complaint(s)/Dispute(s) for Resolution:

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-00001505-001	16/12/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946	CA-00001505-002	16/12/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00001505-003	16/12/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00002787-001	22/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00002787-002	22/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00002787-003	22/02/2016

Date of Adjudication Hearing: 30/03/2016

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, 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.

Complainant’s Submission and Presentation:

There has been an ongoing difficulty with discrimination against me since I suffered a life threatening series of injuries in a RTA in 2005. The matter came to a head in June 2014 when my employer purported to assign me to a clerical low grade job instead of my permanent post as a senior physiotherapist. The stress of this mistreatment rendered me ill and I have been out sick since June 2014.I tried to reach agreement with the employer and was due to file an equality claim when I thought I had resolved the matter in March 2015. With the help of my Solicitor I reached agreement with my employer in March 2015 that I would be reassessed by their Occupational Health Specialist and that I could return to work from sick leave depending on assessment of (the respondent’s) own Occupational Health Specialis.t Despite the positive assessment given on 29 October 2015 passing me fit I was refused return to work and am still on unpaid sick leave. I have a small degree of disability due to a very serious RTA some years ago, and require some degree of reasonable accommodation in returning to work as a physiotherapist. The respondent either for reasons of refusal to consider any accommodation, or on grounds of race as I was born in India have discriminated against me. I will upload the correspondence since March 2015 in support of my claim. As I felt the respondent had acted in good faith I feel it is reasonable to extend time to consider the circumstances and occurrences of the last 12 months.

This is to deal with the earlier mistreatment and discrimination including improvisation I received due to my disability, which commenced in 2006, and continues to date, but primarily since early 2014,when the respondent tried to force me to volunteer to take a low level clerical post instead of my permanent senior physiotherapist course, and to claim any loss of earnings since June 2014 not awarded under the Employment Equality Act claim.

I have been victimised by not being given pay for a reasonable period after the agreement reached in March 2015, where it was agreed the respondent would promptly have me reassessed by the Occupational Health Physician and returned to work . I seek an extension of time for my claim as I believed the respondent’s assurances given in March 2015 that they would deal fairly with me and and did not lodge a claim under the Employment Equality Act as a result. As a result of their delay and ultimate refusal to abide by the agreement which should have been fulfilled no later than 1st June 2015 I now claim loss of wages since that date at €2240.00 per fortnight and continuing.

My employer has not brought me back to work despite the recommendation of their own Occupational Health Expert, in a report dated 29th January 2016 see previous claim CA000015059(1-3) TOGETHER with which this claim should be heard

I have been victimised for seeking to return to my Physiotherapy Job, I seek payment of my wages while off sick as an alternative to my Payment of Wages Act claim see previous claim CA000015059(1-3) TOGETHER with which this claim should be heard

My pay has been stopped while I am out sick due to the employers failure to make reasonable accommodation see previous claim CA000015059(1-3) TOGETHER with which this claim should be heard

Background

The Claimant is a naturalised Irish citizen who was born in India. He commenced work as a senior physiotherapist with the respondent in April 2005. In October 2005 he was involved in a car accident and suffered severe physical injury including traumatic brain injury and was hospitalised for 76 days. Due to his need for rehabilitation and also due to the reluctance of local management to allow him return to work, he was absent from work for one year and ten months.

He had reached a good level of functioning by August 2006. He sought to return then but was referred to the respondent’s Occupational Health Doctor who herself referred him to the National Rehabilitation Hospital. A report on his condition was sought by his line manager, Ms A C and this was sent by Dr McE, Consultant in Rehabilitation Medicine advising a phased return to work. The local manager did not act on this report and a disturbing handwritten post-it note on the file questions whether the report was in fact somehow created by the claimant himself.

By typed report in March 2007 the Consultant confirmed her prior recommendation that the complainant should be gradually reintegrated into case load within an acute hospital setting, and that a further review be carried out in six months time. Despite this, the complainant was not returned to work until after the line manager had sought two further reports, one from the respondent’s Occupational Health Doctor and a second from a Consultant Clinical Psychologist, neither of whom would be at the same level of expertise as Dr McE. Both concluded that he could return on a phased basis.

During the period from March 2007 until his actual return to work the complainant experienced difficulties in obtaining renewal of his visa and feels that no effort was made to assist him by local management in this regard. During this period local management sought to extend his probation. He returned to work on a phased basis in August 2007. After a period of leave he commenced working on full...