Case Number: ADJ-00026846. Workplace Relations Commission

• Docket Number: ADJ-00026846
• Date: 09 July 2021
• Court: Workplace Relations Commission
• Respondent: A Forklift Supplier

ADJUDICATION OFFICER DECISION Adjudication Reference: ADJ-00026846 Parties:

	Complainant	Respondent
Parties	An Office Manager	A Forklift Supplier

Representatives Shane MacSweeney. MacSweeney & Company Solicitors Rory Treanor BL Peninsula

Complaint:

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-00034473-001	24/12/2019

Date of Adjudication Hearing: April 1st, 2021

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant alleged she was directly discriminated by a variety of actions by the Respondent as a result of her disability from two aneurisms and epilepsy. The Respondent denied that it was aware of the Complainants disabilities and alleged that its actions, that the Complainant complains of, were justified and were not discriminatory. The Parties in Equality cases are named unless there are reasonable grounds put forward by the parties not to do so. The Complainant requested the Parties not to be anonymised in the Decision and the Respondent did not object or comment on this request, so the Parties are named in this Decision. The Parties made further submissions of evidence post the Hearing to supply further details not available at the Hearing and address issues arising from the Hearing.

Summary of Complainant’s Case:

The Complainant lodged complaints with the Workplace Relations Commission pursuant to Section 77 of the Employment Equality Acts 1998 – 2015 (“the Acts”) on December 24th, 2019. The material complaints under the Acts are that the Complainant was: discriminated against by her employer on the ground of disability; and discriminated against by her employer on the ground of disability in failing to provide her with reasonable accommodation for her disability. The Respondent is a private limited company was incorporated in 2016 but was previously in business since 2004 and is involved in the sale, hire, supply and servicing of a range of forklift and power lift machines and further provides driver training on their operation. It operates from a large purpose-built warehouse and has circa 11 employees on site, including three directors, who are active in the business. The three directors are the founders, a married couple, together with their son. The Complainant is married with 4 grown-up children and her husband is retired and in receipt of a modest non-contributory pension. The Complainant was first employed by the Respondent in February 2013 and (technically at least) remains employed there. Whilst she did not receive a written Contract of Employment at the time she was first employed, she signed a “Statement of Particulars of Employment” on 5th March 2016. Notably, the Respondent claims that a Staff Handbook bearing the date “2017” was introduced on some unstated date – and this has been relied upon (inappropriately, the Complainant maintained) in an effort to discipline her, in circumstances where it was never properly incorporated into her terms and conditions of employment. The Complainant worked as Office Manager, a role which she enjoyed, primarily dealing with accounts/administration, prior to developing a serious and potentially fatal medical condition. She worked 5 days per week and a total of 32 hours per week in respect of which she received a net salary of €400/ week. Her job was very important to her, being the primary breadwinner in her household. Her duties involved book-keeping, accounts, invoicing, correspondence, telephony, filing, correspondence, general administration and the like. Prior to her becoming unwell, she had her own office, which was situated in the work-shop, directly off the main shop floor. She reported primarily to Ms A who is her sister-in-law, albeit she took instruction from all 3 directors. She was never once the subject of criticism or reprimand, prior to the onset of the events described herein. Unfortunately, the Complainant developed an aneurysm in April 2018. She had first developed symptoms in mid-April, but matters became critical on 28th April 2018, when she was first admitted to UHG. She was thereafter transferred by ambulance and admitted to ICU in Beaumont Hospital on 29th April 2018, where she spent three weeks and thereafter was, transferred to UHG for treatment, where she was confined as an in-patient for a further 3 weeks (approximately). She remains under the care of her Consultant Neurologist and her GP. She was treated sympathetically during the first period of illness and received sick-pay from the Respondent. She returned to work on 17th June 2018. Notwithstanding this, her role (albeit described as "Office Administrator") was advertised in July 2018 and ultimately filled, ostensibly on a permanent basis in October 2018. The Complainant clearly recalls that the duties for the "new" role were identical to the duties attaching to her own role. The Complainant was unable to provide a copy of this advertisement at the Hearing but provided a copy post the Hearing and circumstances where it was placed by IFAC, the Respondent’s accountants. Her replacement (Ms B) started work in the “new” Office Administrator role in October 2018, albeit she ostensibly (now at least) carries the title of “Financial Controller”. The Complainant unfortunately learned that she had a second aneurysm on 16th October 2018, which she was advised would require surgery. The Complainant spoke with Ms A and asked to continue to work part-time with the Respondent pending the surgery (which was scheduled for January 2019), but was strongly discouraged by Ms. A who stated that this would present various unenumerated issues for the Respondent, including “insurance” and “health and safety” risks. Whilst she had received sick pay during her earlier 6-week absence (from 7th May 2018 up to her return to work on 17th June 2018), she was advised in November 2018 that sick pay would not be paid for any further period of absence by letter dated 23rd November 2018. The Complainant underwent surgery at Beaumont Hospital in Dublin on 17th January 2019, under the care of a Consultant Neurosurgeon, which thankfully was successful. Following the surgery, she requested a return to work, initially on a part-time basis, but was repeatedly and actively discouraged and/or prevented from doing so. She provided a certificate of her Neurosurgeon to the...