Case Number: ADJ-00001504. Workplace Relations Commission

• Docket Number: ADJ-00001504
• Date: 08 July 2016
• Court: Workplace Relations Commission

ADJUDICATION OFFICER DECISION

A Meat Factory Worker (Represented by Mr Cathal McGreal BL, Monahan Solicitors)

-V-

A Meat Processor (Represented by Ms Ciara Carty BL, Peninsula)

Adjudication Decision Reference: ADJ-00001504

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-00002116-001	22/01/2016

Date of Adjudication Hearing: 15/04/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

This case refers to a General Operative in an abattoir and meat production facility (the Complainant) who has alleged that following an accident at work, which has led to a disability, that she has not been reasonably accommodated and where the treatment by her employer amounts to discriminatory dismissal.

The dispute concerns a claim by the Complainant that she was discriminated against by the Respondent in relation to her employment on the grounds of disability contrary to Sections 6(2)(g) of the Employment Equality Acts (hereinafter also referred to as ‘The Acts’), owing to the Respondent’s failure to provide her with reasonable accommodation contrary to Section 16(3) of the Acts.

The Complainant commenced employment on 3^rd September 2012 where she is paid €9.50 per hour and where her work varies depending on demand. She is contracted to work a 37 hour week.

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 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.

Complainant’s Submission and Presentation:

The Complainant, a Brazilian national, worked for the Respondent in a meat factory where she was required to work with meat and with knives. The Complainant has poor English.

The Complainant alleged that she suffered an injury in June 2014 at work when she was trimming meat and where a knife being used by a work colleague fell on her cutting her nose and upper lip which required medical treatment including five stitches.

The Complainant returned to work on 7^thJuly 2014. It was recommended by her GP that due to the seriousness of the injury she received that the Complainant be moved from the area of work where the accident happened and that alternative suitable duties be assigned to her.

The Complainant experienced a setback during 2015. She attended counselling from May 2015 where she was required to attend for weekly sessions each Thursday morning. However she advised that she took further sick leave related to her disability from 17^th August 2015, where she was also undergoing treatment.

The Complainant contended at the hearing that she was diagnosed in 2015 as suffering from post-traumatic stress disorder as a result of the accident and as such she had a disability as defined in the Employment Equality Act.

The Complainant submitted a medical letter to the Respondent dated the 7^thOctober 2015 stating that she was unable to work due to psychological difficulties and flashbacks from the accident. She sought to return to work on the 2^nd November 2015.

On the 2^ndNovember 2015 the Complainant provided the Respondent with a letter from her doctor referring to flashbacks arising from her accident at work and an inability to work with knives. Her doctor referred to the fact that this medical condition was confirmed by the Complainant’s psychiatrist.

The Complaint contended that the Respondent was not satisfied with this where it immediately rejected the suggestion that she could work in a meat factory and not work with knives. The Complainant maintained that there was work she could do, for example making boxes, cleaning, or packaging and suggested this to the Respondent but that no reasonable consideration was given to her suggestions. Instead she maintains that she was asked to get further letters from her doctor where she understood that she was in fact being asked to get a letter saying she could work with knives or else she could not return to work.

The Complainant was upset at the way she was being treated and maintained that the Respondent’s refusal to accommodate her contributed to her poor financial situation due to not being able to return to work. She went back to her doctor and obtained a further letter, dated the 6^thNovember 2015, again referring to her disability regarding the psychological effects of her accident at work. It is stated in this letter that she was suffering from post-traumatic stress from the accident and where she suffered flashbacks.

On the 11^th November 2015 the Complainant met with the Respondent again concerning her wish to return to work. She contended that she was told that the cleaning and packaging jobs were all taken.

On the 20^thNovember 2015 the Complainant’s psychiatrist wrote a recommendation that the Complainant should be moved to another department as working with knives exacerbated her anxiety and flashbacks arising from her accident at work.

On the 1^stDecember 2015 the Complainant met with the Respondent and spoke about her difficulties with returning to work and where she was again seeking reasonable accommodation. On 2^ndDecember 2015 the HR/Payroll Administrator wrote a letter to the Complainant where the Complainant concluded from this letter that the Respondent saw the matter very simply as one in which it did not have any alternative work (without providing any details – or seeking to consult with the Complainant on options) and the Complainant would have to be able to work with knives, or not at all.

On the 7^thDecember 2015 the Complainant again spoke with the HR/Payroll Administrator. The Complainant maintained that at this meeting she referred to the Respondent’s letter of the 2^ndDecember 2014 where the Respondent had concluded that she could only return to work if she was fully fit and when she was able to work with knives. When she asked the Respondent to confirm this conclusion the Complainant maintains that the Respondent confirmed she could come back to work when she was fully fit to work with knives. When the Complainant advised that she would do other jobs at the plant she was told that these other jobs including cleaning and packaging would involve working with knives, even if it was only for ‘5 minutes’. The Complainant said she would therefore need to look for another job and she contended that the Respondent instructed her to write a letter to this effect and that her P45 would issue to her. The Complainant wrote a letter to that effect on 7^th December 2015 and gave it to the Respondent.

In another note to the Respondent on the same day the Complainant stated that she was grateful for her 3 years work with the company but that she didn’t know when she would be ‘fine’, meaning her difficulty with working with knives. The Complainant maintains that she did not say or write to the Respondent that she would never be able to work with knives.

The Complainant contended that her notes stated that she couldn’t work with knives and didn’t know when she would be able to, and with reference to her financial circumstances and responsibilities to her family she asked for an alternative role without having to work with knives.

The Complainant advised that the Respondent wrote to her on the 7^th December 2015 and maintains that this letter effectively ignored the Complainant’s situation as it stated “as it stands, based on the two medical reports you are unable to carry out work with knifes (sic) and we have been unable to find alternative work that would not put you in contact with knifes (sic)”. The Complainant further argued that this letter to her, which was received on the 14^thDecember 2015, only left a single day for her to appeal...