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Employee Awarded €10,000 As Compensation For Employer’s Failure To Offer Him Hours Of Work When Certified Fit To Carry Out Restricted Amount Of Work

Facts: This is an appeal of the decision of the Adjudication Officer by Adam Herzyk (the Complainant) against his Employer, Assured Personnel Limited (the Respondent). The Adjudication Officer found against the Complainant in respect of his claim for discriminatory constructive dismissal on the ground of disability.

The Complainant worked with the Respondent from 31st March 2016 to 7th December 2017, when he resigned. The Complainant was a Casual Worker and worked as a driver/valeter. The Complainant was assigned work on a “first in first asked” basis. The Complainant left work on 9th May as he had pain in his back and submitted  medical certificates from 29th May 2017 up to and including 30th September 2017. He was certified fit to work from 1st October 2017 but it should be light work and  on a part-time basis.  However the Complainant was not given any hours of work. On 1st December 2017 the Complainant was certified as fit to undertake fulltime work and he submitted the medical certificate to the Respondent by email on 4th December 2017. He sent a text the same morning looking for work. On the morning of 7th December 2017 the Complainant text the Respondent resigning as he was not receiving any work.

The Complainant submitted that he was not offered any job from 1st October to 7th December 2017 when he resigned. The Complainant lodged his claim for discriminatory constructive dismissal and discriminatory treatment on the ground of disability with WRC on 18th March 2018. The Respondent submitted that the Complainant did not raise any grievance with the Respondent and resigned by text message on 7th December 2017.

Issue: The issue before the Labour Court was to determine whether the Complainant was discriminated against on the basis of his disability and whether his resignation amounted to a constructive dismissed.

Determination: There was no dispute between the parties in relation to not assigning the Complainant any work after he submitted a medical certificate. While the Respondent claimed that the work was issued on first in first asked basis, upon reviewing the documents provided, the Labour Court found that employees with less service than the Complainant was  offered  work during the relevant period from 1st October 2017.  The Court found that the Complainant was discriminated against on the grounds of his disability when the Respondent failed to offer hours under the first in first asked system from the 1st October 2017. The Respondent also failed to prove that it had considered in a real manner the possibility of reasonable accommodation. The Labour Court noted that the Respondent failed to mention any efforts of reasonable accommodation in response to the numerous text messages from the Complainant indicating his availability. The Labour Court therefore held that the Complainant was discriminated against on the grounds of his disability when he was not offered hours under the first in first asked system from 1st October 2017. He was awarded €10,000 compensation in respect of the effect of the discrimination on the Complainant in having no earnings from 1st October until 7th December 2017 when he resigned. It was also to be dissuasive for the Respondent not to repeat such actions.   

The Labour Court did not find that the Complainant was constructively dismissed. It held that it was not reasonable of the Complainant to terminate his employment because of the Respondent’s conduct. The Labour Court noted that the Complainant would have been aware that when he submitted the certificate on Monday, the work would have already been allocated for that week and found no reasonable basis for his resignation only two days after he submitted his final medical certificate.

Takeaway for the Employers: This decision emphasises the importance of an Employer to keep records of all discussions and considerations in respect of reasonable accommodation and how to facilitate an employee return to work from sick leave. The Labour Court was very critical of the Employer in not communicating these considerations with the employee who was waiting to return to work. The Employer was also on the back foot as the person who could give evidence on this no longer worked there. Therefore, records including written communications are vital to be able to prove that such considerations occurred.

Link  – https://www.workplacerelations.ie/en/cases/2020/september/eda2015.html

Authors – Anne O’Connell & Chaitra Girish Mallya

30th October 2020

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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