Excellence Ltd (Represented by Peninsula Business Services) v Adam Herzyk (Represented by Mr Diarmuid Murphy BL Instructed by Rostra Solicitors)

 
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Labour Court (Ireland)

FULL RECOMMENDATION

ADE/16/19

DETERMINATION NO.EDA1815

DEC-E2016-020

PARTIES:
Excellence Limited (Represented by Peninsula Business Services)
and
Adam Herzyk (Represented by Mr Diarmuid Murphy BL Instructed by Rostra Solicitors)
SUBJECT:
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1. Appeal of Adjudication Officer Decision No: DEC-E2016-020.

BACKGROUND:
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2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 27 October 2017. The following is the determination of the Court:

DETERMINATION:
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Background to the Appeal

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This is Mr Herzyk's (‘the Complainant’) appeal from a decision of an Equality Officer/Adjudication Officer (DEC-E2016-020) dated 5 February 2016. The notice of appeal was received by the Court on 11 February 2016.

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The Complainant's case is that his former employer, Excellent Limited, (‘the Respondent’), discriminated against him on the disability ground by its failure to make appropriate reasonable accommodation for his disability and that it dismissed him in a discriminatory manner contrary to the provisions of the Employment Equality Act 1998 (‘the Act’). The Equality Officer/Adjudication Officer found that neither of the complaints was well-founded and that the Respondent had made reasonable accommodation for the Complainant in so far as this was within its means having regard to the Complainant's reticence to disclose his medical records.

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The Court heard the appeal in Dublin on 27 October 2017. The Court heard evidence from the Complainant and from Mr Paul Ivory and Mr Neil Curley, both directors of the Respondent company.

History of Employment Relationship
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The Complainant was employed by the Respondent as a warehouse operative from April 2006 until his employment terminated on 20 February 2014. His work involved picking orders from racks in the warehouse and placing them on pallets. This often required him to lift items weighing up to 20kg. He suffered from the effects of a back injury which he says occurred in or around April 2011 and submitted that he was unable — as a consequence of that injury — to do heavy manual work and was advised to avoid lifting heavy items. He submitted medical certificates to this effect in 2011 and 2013. He was absent from work on certified leave from 7 December 2012 until the termination of his employment.

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The Complainant submits that the Respondent did not engage with him in relation to the possibility of making reasonable accommodation for his disability. In his view the Respondent did not enquire about his skills and/or his educational attainments nor did it propose an alternative role for him within the business. He himself, he submitted, had proposed that he would be able to work in the Respondent's hardware department as he had experience of working in that department previously and believed the work there to be lighter in nature than that in the warehouse. He did so, for example, by email dated 10 November 2013 and addressed to Mr Ivory in which he wrote:

“During my last appointment with my GP I was informed that I am able to go back to work from the 15 th of November 2013, but I am not able to fulfil all of my previous responsibilities. It means heavy lifting is not allowed, light duties only.

I would like to suggest, that the most suitable position for me would be the one at the hardware department, where I have worked before and I could do most of the jobs needed.

I you have any other options, positions, jobs I will be more than glad to take them.

I am open to new experiences and learning.”

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The Complainant submitted a medical certificate signed by Dr Kryk dated 8 November 2013 stating that the Complainant would be fit for work – light duties only – from 15 November 2013. The Respondent reacted by sending the Complainant a pro-forma letter requesting him to give the Respondent permission to contact his GP “for him to produce a Report to ascertain full and all pertinent details regarding [his] fitness for...

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