Marek Adamiuk v Tesco Ireland Limited ADJ-00034163

The Employee's Position

The complainant commenced employment with the respondent on 1 February 2008 as a Warehouse Operative. He states that he was injured in work on the night of 13 May 2021 while lifting a crate of wine. He states that in trying to save the stock, he hurt his back. He asserts that his contract provides for sick leave payment during absence due to illness but the respondent failed to honour said payment. The complainant states that the respondent is in breach of the Payment of Wages Act by not paying him his entitlement to sick leave payment which is set out in his contract of employment and in the employee handbook. The complainant further submits that the respondent discriminated against him on grounds of disability. The complainant states that the respondent assumed the complainant’s contribution to the accident and suspended him from the company’s sick pay scheme. The complainant states that the failure of the respondent to pay him deprived him of the opportunity to obtain adequate medical care including physiotherapy causing delay in his recovery.

The Employer's Response

The respondent states that the complainant commenced employment with the company on 1st February 2008 as a Warehouse Operative. The complainant was employed on a 37.5 hr per week. The respondent submits that as a warehouse operative, compliance with health and safety regulations is of paramount importance and the complainant has received continuous updated manual handling training refresher modules. The respondent states that, on 12th May 2021, the complainant alleged that he had been involved in a work-related accident. The complainant claimed that a case of wine slipped out of his hand and injured his back, after his efforts to catch the case of wine before it hit the ground. The centre’s first aider attended to the complainant before the complainant went home.  On 19th May 2021, the shift manager reviewed CCTV footage of the alleged workplace accident and had concerns relating to the incident and instructed for a full investigation to be carried out. In turn, the complainant was contacted via telephone call to confirm that his sick pay benefit would be suspended for his absence pending a full investigation into the circumstances surrounding the workplace accident incident. A full investigation was carried out into the incident and, on 1st June 2021, the HR manager sent the complainant a letter confirming the investigation into his alleged accident at work had been completed and it had been found that his actions leading up to the incident contributed to his own injury, and based on these findings, the complainant would be suspended from the company sick pay scheme. The HR manager noted that this line of action would be reviewed in twelve months’ time. The respondent states that, on 15th June 2021, the complainant returned to work and a welcome back meeting was held by the respondent. During the meeting, the complainant cited his reason for absence as being due to back pain and he declared that he was fit to return to work.

On 21st July 2021, the respondent received a WRC letter regarding a complaint made by the Complainant under section 77 of the Employment Equality Acts. On 29th July 2021, on receiving the WRC letter, the HR manager arranged to meet with the complainant. At the meeting, the nature of the WRC complaint was discussed, which related to the complainant’s alleged disability. The HR manager advised the complainant that the respondent was not aware of the complainant’s disability, as he had not notified her of this and also provided a fully fit to work certificate on 19th June 2021. The respondent contends that the complainant could not provide clarification relating to this query and could not confirm what his disability was and advised of his need to seek legal advice from his solicitor. On 3rd September 2021, the respondent received a second WRC letter regarding a complaint filed by the complainant under the Payment of Wages Act 1991. On receipt of the second WRC letter, a follow up meeting was arranged with the complainant on 9th September 2021. The purpose of this meeting was to put forward a proposal to the complainant regarding his second WRC complaint. At this meeting, the HR manager advised that she had reviewed the case and proposed to pay the complainant sick pay for the period of his absence 12th May 2021 until 15th June 2021 (value of €1,780.64.) She further proposed to reinstate the complainant back into the company sick pay scheme (pending an investigation into his absence) once his WRC complaints had been withdrawn. The complainant advised of his need to consult with his solicitor.

The respondent states that it is important to set out at this juncture that this is not an admission of liability and the respondent is fully satisfied that it is in compliance with the Payment of Wages Act and that no unlawful deduction was made; this was merely a gesture of goodwill in an attempt to resolve the matter for the complainant. The respondent states that following this meeting, the complainant requested that the HR manager meet with his solicitor. The HR manager explained to the complainant that she would only deal with him directly as he is the respondent’s employee. On 5th November 2021, the HR manager met with the complainant on an informal basis. The respondent submits that the complainant advised that he would accept the respondent’s offer to backdate his sick pay and reinstatement into respondent’s sick pay scheme but would only withdraw his WRC complaints if the respondent paid him Є2,000 in compensation. The HR manager advised that she could not authorise this request and the complainant advised of his intention to pursue his WRC claims.

The respondent asserts that the complainant has yet to set out what his alleged disability is or to provide evidence of same. When questioned on this, he stated he thought it was a mistake in the claim form and, rather than seek advice from his doctor, he sought advice from his solicitor. The respondent states that contrary to his allegation that he has a disability, he submitted a medical certificate confirming he was fit to attend work. The respondent asserts that should the complainant now try to claim that the alleged disability he is referring to under the Acts is “back injury”, the respondent will highlight that they have never received any information in relation to this alleged condition. The medical certificates submitted by the complainant for his period of absence from 12th May 2021 until 15th June 2021 did not indicate that is/was suffering from a disability or that he requires any adjustments to facilitate him at work.

The respondent contends that at the complainant’s return to work meeting on 15th June 2021, he confirmed his fitness to return to work and did not give any indication that any reasonable accommodation was required to facilitate his return to work. The respondent contends that the complainant has not proven that he suffers from a disability for the purpose of the Act and on that basis, his complaint fails.

Outcome/Decision of WRC

Having carefully examined the evidence heard in relation to this claim, the adjudicator noted that the respondent operates a sick pay scheme which is a benefit to colleagues that runs from 1st January to 31st December and entitles eligible employees to a maximum of 8 weeks sick pay at management discretion. The respondent’s sick policy states “For colleagues who have completed their probationary period, sick pay will be paid up to a maximum of 8 weeks in any sick leave year. This is conditional on the provision of medical certificates and compliance with procedures for notification.” Having examined the totality of the evidence adduced on the matter, the adjudicator was satisfied that the complainant was entitled to benefit from the scheme and receive payment in respect of his sick leave absence. Accordingly, it was found the claim under the Payment of Wages Act is well-founded and the respondent was directed to pay the complainant the sum of €1,780.64.

Claim under Employment Equality Acts

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. Therefore, I must first consider whether the existence of a prima facie case has been established by the complainant Disability is defined in Section 2 of the Acts: ‘‘disability’’ means— (a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.

Based on the evidence heard, I find that the complainant has not established that he has a disability within the meaning of the definition as outlined above. In this regard, there was no medical evidence to substantiate this assertion. I also note that the complainant submitted a medical certificate to the respondent confirming that he was fit to attend work. Accordingly, this complaint fails.

Takeaway points from this decision

1. Complainant must establish they have a disability within the meaning of Section 2 of the Employment Equality Act in order to demonstrate a prima facie case of discriminatory treatment.
2. Employers must adhere to their sick policies in relation to sick pay schemes once the employee meets the criteria and the claim is wellfounded. Management cannot use their discretion regardless if it states so in the policy.

https://www.workplacerelations.ie/en/cases/2022/november/adj-00034163.html