Case Number: ADJ-00004075. Workplace Relations Commission

• Docket Number: ADJ-00004075
• Date: 01 November 2017
• Court: Workplace Relations Commission
• Parties: A Forklift Driver V A Building Materials Supplier

ADJUDICATION OFFICER DECISION Adjudication Reference: ADJ-00004075 Parties:

	Complainant	Respondent
Parties	A Forklift Driver	A Building Materials Supplier

Complaints:

Act	Complaint Reference Nos.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00005794-001	12/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00005794-002	12/07/2016

Date of Adjudication Hearing: 05/10/2017

Workplace Relations Commission Adjudication Officer: Enda Murphy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 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 was employed by the Respondent as a Forklift Driver from 7th April, 2015 until April, 2016 when his employment was terminated. The Complainant claims that he was subjected to penalisation by the Respondent contrary to Section 27 of the Safety, Health & Welfare at Work Act, 2015. The Complainant also claims that he was discriminatorily dismissed from his position on the grounds of his disability and that the Respondent failed to provide him with reasonable accommodation contrary to Section 16 of the Employment Equality Acts.

Summary of Complainant’s Case:

The Complainant was employed by the Respondent as a Forklift Driver from 7th April, 2015 until 14th April, 2016. The Complainant was provided with a fixed term contract subsequent to the commencement of his employment which was due to expire on 9th October, 2015. The Complainant submits that his employment with the Respondent continued without interruption after 9th October, 2015 following the expiry of his initial fixed term contract. The Complainant was subsequently moved to work in the Respondent’s block plant and his duties included the cleaning of a large cement mixer which was capable of holding 3/4 tonnes of cement. The Complainant sustained an injury to his arm at work on 4th November, 2015 whilst cleaning the cement mixer with a lump hammer. The Complainant claims that he had previously notified the Respondent that there was a malfunction in relation to the equipment which was used for cleaning the cement mixer. However, despite several requests to address this matter the Respondent failed to take the required corrective action to fix the equipment. The Complainant claims that he was forced to climb into the cement mixer on the date he sustained the injury and use a kango hammer to try and clean the mixer because the cleaning equipment had not been repaired. The Complainant notified the Respondent of the incident in or about 17th or 18th November, 2015. Thereafter, the Complainant was required to seek medical attention and take absences from work on grounds of sick leave to do so. The Complainant submits that he lost the power in his arm as a result of the injury and experienced extreme difficulty in trying to carry out his duties following the accident. The Complainant was sent to the Company Doctor for examination and went absent from work on sick leave as a result of the injury sustained from the time that he reported the incident until 4th January, 2016. The Complainant accepts that he was allowed to carry out forklift duties by the Respondent after returning to work following this period of sick absence. The Complainant subsequently brought a claim for damages for personal injuries against the Respondent arising out of the said workplace accident. The Complainant submits that he was informed by the Manager of the Block Plant, Mr. A, prior to sustaining this injury that the Respondent intended to keep him on after his initial contract had expired. The Complainant was summoned to the Respondent’s office on 7th April, 2016 and was informed by his Manager, that his contract was not being renewed and that his employment was being terminated. The Complainant was informed that the contract was not being renewed for a number of performance related issues including lateness, uncertified days off, poor productivity and failure to wear a high viz jacket on several occasions. The Complainant submits that these alleged performance related issues were not brought to his attention by the Respondent at the material time. The Complainant contends that the reason his contact was not renewed was directly attributable to the accident that had occurred and the injury he sustained arising from this incident. The Complainant disputes that the termination of his employment arose simply as a result of the expiry of his fixed term contract. The Complainant submits that he was never employed pursuant to a fixed term contract and that, even if he was originally, he was employed pursuant to a Contract of Indefinite Duration (CID) from 9th October, 2015. The Complainant submits that the Respondent failed to comply with its obligations under Section 8 of the Protection of Employees (Fixed Term Work) Act 2003 in that he was never provided with a clear and specific indication of the objective condition that would determine his contract of employment, as is required by the legislation. It was submitted that the Complainant was provided with no paperwork on or before 9th October, 2015 and his contract was simply continued. The Complainant submits that even if the earlier fixed-term contract came to an end on 9th October, 2015, it was immediately followed by a period of employment up to the date of dismissal which was not governed by any fixed-term or specified-purpose contract. Thus, it is submitted that the Complainant was employed from this point onwards (at the latest) on a CID. Without prejudice, it is further submitted that a CID came into being as a result of the Respondent’s failure to provide the Complainant with written objective justifications as to why he was not being offered a CID when the said contract was being renewed. The Complainant relied upon the following cases, namely: HSE North Eastern Area -v- Khan[1], North Dublin Muslim School -v- Naughton[2], Board of Management of St. Joseph’s School for Deaf Boys -v- Grehan[3], Dublin City Council -v- O’Donoghue[4] and Dublin Institute of Technology -v- Nealon[5] in support of his position on this matter. CA-00005794-001 - Complaint under the Safety, Health and Welfare at Work Act 2005 The Complainant submits that the Respondent penalised him contrary to Section 27 of the Safety, Health and Welfare at Work Act 2005 by dismissing him in circumstances where it was aware that he had injured himself at work and that he was unable to carry out that work to the same level on account of those injuries. The Complainant submits that he was...