Case Number: ADJ-00020984. Workplace Relations Commission

• Docket Number: ADJ-00020984
• Hearing Date: 04 October 2019
• Date: 19 May 2020
• Court: Workplace Relations Commission

Procedure:

The Complainant lodged the above complaint with the Workplace Relations Commission (hereinafter “the WRC”) on the 11 April 2019 seeking adjudication by the WRC under Section 13 of the Industrial Relations Act 1969 and second complaint was lodged on 16th April 2019 seeking adjudication pursuant to Section 77 of the Employment Equality Act 1998 – 2011 (as amended).

The procedure for these claims before the WRC can be summarised as follows:

In accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission who in turn refers such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to Investigate a matter raised.

The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.

Having confirmed that the Complainant herein is a Worker within the meaning of the Acts and Having conducted the Investigation as described in Section 13, I, as the so appointed Adjudication Officer, am bound to make a recommendation which will set forth my opinion on the merits of the within dispute.

Under Section 36(1) of the Industrial Relations Act 1990, any party may object to an investigation by an Adjudication Officer of the dispute raised in the complaint form. The Respondent employer must indicate any such objection in writing within 21 days of the notification of the dispute raised in the workplace relations complaint form. In the event that the Employer does not indicate an unwillingness to have this matter dealt with by way of Adjudicator investigation, the Employer will be regarded as having given consent.

If an objection is not received within the required timeframe and in the required format but at a later date it will not be considered valid for the purpose of this Act, and a hearing in relation to the dispute will be assigned.

In accordance with Section 77 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint to me by the Director General I proceeded accordingly to hear the claim.

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 named the specific location of her employer as the Respondent to these proceedings on the Complaint Referral Form that was submitted to the WRC. At the outset of the hearing, it was confirmed that the correct name of the legal entity that employed the Complainant was XXX. The Respondent’s representative sought leave to amend the name of the Respondent to that of the correct legal entity. The Complainant consented to this application and in the circumstances, I have acceded to the Respondent’s application for leave to amend the name of the Respondent to these proceedings.

The complaint alleges that the candidate has been discriminated due to her disability regarding

securing a job by not providing her reasonable accommodation. The Respondent claim they were

unaware of the fact she had a disability therefore did not discriminate her.

The Complainant asked not to be named in this decision as her skills are very niche and she felt this case would potentially impact her further employment opportunities. I have decided to exercise my discretion to anonymise the parties accordingly.

Summary of Complainant’s Case:

In 2013 the Complainant completed a four-year degree in her chosen area of Nursing. Thereafter the Complainant worked in a private hospital for approximately 1 year and 4 months, following which the Complainant worked at a specialist Hospital where she was sponsored to complete a Higher Diploma in her chosen field. From January 2017 until her employment by the Respondent the Complainant worked at a specialist Hospital. In February 2018the Complainant applied for a position with the Respondent, which she had seen advertised on their website. On 26 March 2018 the Complainant was offered an interview by email, to take place on 5 April 2018. Following the interview the Complainant received an email from the HR Department of the Respondent, dated 17 April 2018, which stated: …I am pleased to inform you that you have been placed number 2 on a panel which has been formed following your interview. I am pleased to inform you that I am now in a position to commence clearances for the post of permanent with the Respondent. A clearances pack will be sent to you in the coming week… Please note the following: Any offer is subject to receipt of all satisfactory clearances – Garda Vetting, Occupational Health… Only on completion and receipt of Garda Vetting and all other mandatory clearances can a permanent staff nurse contract be issued… It is Nurse Administration who makes the assignment/agrees contract hours. You can discuss these with the assigned Directorate Nurse Manager / line manager when agreeing your start date. Standard hours for Staff Nurse posts are 39 hours, reduced hours are dependent on service needs and at the discretion of Nursing Admin – you will appreciate that the nursing service runs 24/7 and staff nurses are required to work whole time rosters; part-time hours cannot be guaranteed and depend on existing Healthcare Provider staff and service needs. On the 19 April 2018, the Complainant also received correspondence from the Recruitment Department enclosing documentation which was to be completed. Included in the documentation was an Occupational Health Questionnaire. The Complainant duly completed all the relevant documentation and returned same by registered post 23 April 2018. In the Occupational Health Questionnaire the Complainant indicated that she would be unable to undertake night-shift duties. On 28 June 2018 the Complainant attended Occupational Health where she completed a questionnaire, prior to meeting with same and underwent a medical examination. In the course of this meeting the Complainant, again, explained that she would “be unable to undertake night duty owing to a medical condition”. As at 9 July 2018 the Respondent was in receipt of the Complainant’s Medical Assessment and Fitness Certificate. The Fitness Certificate clearly states, “the above employee is unfit for night work due to a medical condition”. On 18 July 2018 the Complainant received confirmation from the Occupational Health Department that the Medical Assessment and Fitness Certificate had been forwarded to the “recruitment department”. In July 2018 the Complainant received a phone call from the Assistant Director of Nursing. The Complainant was told where to go on her first day and was informed that her first week was orientation and would be Monday to Friday On 2 August 2018 the HR Department wrote to the Complainant by letter stating: Commencement Date Your employment with the Healthcare Provider will commence on 10.09.2018… On foot of the offer letter dated 3 August 2018 the Complainant formally handed in her notice to her current employer and then began preparations to move for her new position; which involved several trips, for relocations purposes and relocating her personal possessions and belongings. On 5 September 2018 the HR Department emailed the Complainant stating: …I refer to my letter dated 2 August 2018 offering you the above position. It has come to my attention that the Occupational Health report states you are unfit for night work due to a medical condition. ...