HSD221

SUBJECT:1. Appeal of Adjudication Officer Decision No(s) ADJ-00021272 CA-000279270-001.

BACKGROUND:

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 11 May 2020. A Labour Court hearing took place on 4 November 2021.

DETERMINATION :

This is an appeal by Noonan Cleaning services (the Respondent) against decision ADJ-00021272 of an Adjudication Officer in a complaint by Michael O’ Donovan (the Complainant). The complaint was made pursuant to the Safety Health and Welfare at Work Act 2005 (the Act). The Adjudication Officer held that the complaint of penalisation was well founded and awarded compensation of €16,000.

Background

The Complainant commenced employment with the Respondent in the cleaning division of a large Shopping centre in July 2017. His hourly rate was €11.18, and he worked 48 hours a week. The Complainant made a complaint to the Respondent about the behaviour of his supervisor. Arising from that complaint the Respondent moved him to a position where his hourly rate and hours were cut. The Complainant submits that he was penalised for making the complaint. The Respondent disputes that the Complainant was penalised for making a complaint under the Act.

Summary of the Complainant’s submission and evidence.

The Complainant’s representative Mr Condon submitted that the Complainant was penalised by the Respondent for making a complaint where he stated that he was subjected to persistent and ongoing bullying in the workplace. The Complainant informed the Respondent that his supervisor spoke to him in an inappropriate manner and was constantly undermining him. It was also his submission that the supervisor encouraged other staff to talk in their native language on the tea-breaks in order to exclude the Complainant from the conversation.

The Complainant in his evidence to the Court stated that initially when he started work, he got on well with his supervisor. However, after a short while the supervisor started cursing, swearing and shouting at him. It was the Complainant’s evidence that the supervisor would engage with the other members of staff during the morning break in their native tongue in order to exclude him. The impact of this treatment on the Complainant made him very stressed, and he could not sleep properly.

The Complainant informed the Court that because he had literacy issues, he asked his niece to send an email on his behalf to Ms O’ Connor who was employed by the Management company of the Shopping centre raising the issues he was having. The Complainant submitted that he understood that she was the person he should report this issue to. Ms O’ Connor passed the email on to Ms Scanlon who works for the Respondent, and she arranged to meet with him at his place of work.

It was the Complainant’s evidence that after that meeting things were fine for a while but then the bullying started up again. He again asked his niece to send an email on his behalf to Ms Scanlon stating that the behaviour had started again. The Complainant stated that Ms Scanlon on receiving that email informed him that she would have to separate himself and his supervisor. It was his evidence that Ms O’ Connor told him that he would be moved to the food court, but his wages and hours would be less that what he was currently on and that this was non-negotiable. The Complainant’s stated that he was very upset to hear his wages would be reduced as he was the sole bread winner in his house. He was so stressed about the consequences of having to move that he contacted his GP who certified him unfit for work due to work-related stress.

When he returned to work on the 26^th November 2018 his supervisor told him he would be moving to the food court the following week. It was the Complainant’s evidence that when he advised his supervisor that he did not want to move to the food court and that he had not agreed to move, his supervisor started shouting at him.

The Complainant advised his supervisor that he was very upset and was unable to continue working and that he was going home to contact his GP. His GP certified him unfit for work until the 10^th December 2018. The Complainants representative wrote to the Respondent on the 4^th December 2018 advising that the Complainant wanted to make a complaint in line with the Respondents procedures. On the 5^th December 2018 the Complainant submitted a written complaint.

On the 13^th December 2018 Ms Sarah Scanlon on behalf of the Respondent wrote to the Complainants representatives acknowledging receipt of his medical certificate and noting “your client’s intention to return to his prior role, and once he is fit to do so we will seek to reinstate him there and take reasonable steps to ensure he is comfortable in same.”

On the 10^th January 2019 the Complainant had a meeting with Ms Scanlon HR for the Respondent regarding his return to work. At that meeting contrary to what was stated in the letter of 13^th December 2018 Ms Scanlon advised the Complainant that he could not return to his previous role pending the investigation into his complaint.

Ms Scanlon asked the Complainant if he would transfer to the food court. It is the Complainant’s evidence that he again declined to transfer to the food court. The Complainant was later offered a role in CUH which also was on reduced hours and reduced pay. Due to financial the pressure arising from being out of work the Complainant agreed to try this post, but it did not work out for him.

By letter of the 23^rd January 2018 the Complainant received a letter advising that the investigator did not uphold his allegations of bullying although the investigator did accept that there had been occasions when the interactions between the supervisor and the Complainant had been less that professional.

By letter of 13^th February the Respondent informed the Complainant that his grievance had not been upheld and that he would not be returning to his previous role. The Respondent indicated that this was at the request of the client and that the Complainant, would be moved to an alternative site with no loss of terms and conditions or title.

The letter went on to state that the Complainant would be placed on paid suspension until a suitable vacancy became available. However, the proposal to put him on paid leave was subsequently withdrawn on the basis that he had turned down two alternative roles even though the roles offered, were on less favourable terms and conditions.

By letter of the 26^th February 2019 the Complainant was offered three posts the letter stated that he should indicate which post he was interested in before the 1^st March 2019. The Complainant’s representative responded by email on the 28^{th of} February 2019 indicating his preference. No response was received from the Respondent. On the 13^th March 2019 the Complainant rang Ms Scanlon who advised him that the post he had expressed an interest in was gone to someone else and was gone before he had responded.

The Complainant’s representative received a formal response dated 19^th March 2019 which stated that “It would be our position that had Mr O Donovan not sought leave to take advice on the matter (and hence delaying the response) the role may still have been available. The letter went on to mention a site ban allegedly arising from a complaint from a client on the 28^th November 2018.

However, this had not been mentioned when in early January 2019 Ms Scanlon had offered the Complainant a position in the food court on the site that she was now alleging he was banned from since November 2018. On the 1^st April 2019 the Complainant accepted a role on a different site even though the hours and pay rate were less. While his hours have recently increased his is still earning less than he was before he made the bullying complaint.

Mr Hegarty representative for the Respondent put it to the Complainant that it was part of the supervisor’s role to tell him when he could take his breaks. The Complainant responded that the issue was his supervisor telling him he could not have his breaks and that on a couple of occasions he was refused breaks. Mr Hegarty put it to the Complainant that things had settled down after he spoke to Ms Scanlon and the Complainant answered in the affirmative.

Mr Hegarty asked the Complainant who had told him that a move to the food court would involve less pay, less hours and was non-negotiable. The Complainant stated that the manager of the shopping centre Ms O’Connor had told him and that he was not sure if at that stage he raised that with Ms Scanlon.

In response to a question from Mr Hegarty, the Complainant stated that when Ms Scanlon offered him the position in the food court in January 2019, he turned down the position because it was less hours and a lower hourly rate. The Complainant accepted in response to a question that his contract did contain a mobility clause. It was his evidence that the loss of income from the lower rate of pay and lesser hours would cause him financial hardship.

Mr Condon on behalf of the Complainant submitted that he was relying on section 27 (2) ( c ) and 27 (3) ( c ) of the Act. Mr Condon submitted that Ms Scanlon in her evidence confirmed that if the Complainant had not made a complaint of bullying that he would not have been transferred to a different post on a lower rate of pay and lesser hours. This supports the Complainant’s contention that he was penalised for making a complaint.

In the leading case of Paul O’ Neill and Toni and Guy Blackrock Limited HSD095 the Court set out that that the commission of the protected Act must be the operative cause.

This case was followed by numerous cases including Oglaigh Naisuinta na Heireann and Michael Mc Cormack HSD 115. Mr Condon submitted that the caselaw is clear that what has to be shown is that but for the protected act having occurred the detriment would not have been imposed. In the case to hand the protected act was the complaint raised by the Complainant in October 2018 and November 2018 about the manner in which is supervisor was treating him and the detriment he suffered was that he was transferred into a different post where he worked less hours and his hourly rate of pay was lower.

It is the Complainant’s submission that he would not have suffered this loss had he not made the complaint. The Complainant submits that the issue of a site ban raised by the Complainant cannot have been a factor as the Respondent’s own policy for dealing with a request for a site ban was not followed and the Respondent had offered the Complainant a position in the food court in January 2019 which was after the alleged site ban was requested.

Summary of the Respondent’s submission and evidence.

The Respondent received an email which the Complainant had sent to the client in and around the 3^{rd of} October 2018 where he set out that he was feeling disrespected and bullied.

The Complainant was informed by the Respondent, that the issue could be dealt with formally or informally. The Complainant opted to have the issue dealt with informally by the Area manager. By email of the 12^th November 2018 the Complainant wrote to the Area manager further complaining about his treatment from his supervisor.

Ms Sarah Scanlon Life Science Lead (Area Manager) for the Respondent in her evidence to the Court stated that at the first meeting she had with the Complainant he set out issues he was having with his supervisor.

Ms Scanlon stated that the Complainant was upset when she explained that his supervisor could check his work and determine when he took his break, she also explained that she could not force staff to use a common language when they were on their breaks. It was her evidence that she then spoke to the supervisor who had a different take on the various incidents.

The supervisor stated that the Complainant was taking to long to finish tasks. Ms Scanlon stated that following her meetings with the Complainant and the supervisor the client told her that there was still tension between the Complainant and his supervisor. When she received the Complainant’s second email, she felt it was better to separate them, she chose to move the Complainant as she had other vacancies on that site for his grade but did not have other vacancies on that site for the supervisor.

Ms Scanlon stated that the email from the client was passed onto her, and it stated that the Complainant was talking to people who owned units in the centre about the issues he was having and was making them uncomfortable. The Complainant was out sick at that time and the client indicated they did not want him back on site. Ms Scanlon stated that she advised the client if they wanted to implement a site ban, they would have to put it in writing, but they never did.

In respect of the return-to-work meeting in January 2019 it was Ms Scanlon’s evidence that she had offered the Complainant nine and a half hours work, over three days, working in the food court and that at the meeting there was no mention of drop in wages or lesser hours. Ms Scanlon confirmed she received the solicitor’s letter of the 28^th February 2019 but when she contacted the company the position was gone.

In response to a question from Mr Condon under cross examination Ms Scanlon accepted that the Complainant had alleged that he was being bullied and she accepted that he was raising an issue about his welfare at work.

Ms Scanlon stated that she did not accept that the Complainant would have had a reduction in pay and hours if he had moved to the food court. It was her evidence that he would have stayed on the same rate of pay and hours. In response to a question from Mr Condon Ms Scanlon confirmed that she never replied to the correspondence she received from his representatives raising the issue of his hours and rate of pay or clarified the issue about loss of pay and earnings when it was raised by the Complainant.

It was put to Ms Scanlon that the Complainant would not have had to move to the food court if he had not submitted the email of 3^rd October and 12^th November 2018. Ms Scanlon confirmed that was correct and confirmed that was her evidence to the Court.

Ms Scanlon confirmed that it was her decision to move him and that the mediation suggested by his solicitor although provided for in their policy did not happen as the Complainant was out sick. Ms Scanlon confirmed that the Respondent’s procedure for a site ban was not followed, and the request was not put in writing. Ms Scanlon could not explain why the site ban had been referenced in letter of 13^th December 2018 from the Respondent and the following January 2019, she had offered him a transfer to the food court which was in the same location.

Ms Scanlon could not explain why she did not contact the Complainant when she received the letter from his representatives confirming he would accept one of the three posts the Respondent had offered even though she knew the post was gone.

Ms Scanlon thought the delay in responding may have been because she may have been absent on sick leave and that nobody would cover her work when she was absent. It was her evidence that she told the Complainant when he rang her on the 13^th March 2019. In respect of the line in the letter of 19^th March Ms Scanlon said she did not accept that it suggested that he was penalised for seeking legal advice. It was Ms Scanlon’s evidence that although they had told him he had until the 1^st of March to respond the Respondent was entitled to give the role away before that date.

In response to a question from the Court Ms Scanlon stated that she never asked the Complainant why he did not want to move to the food court. Ms Scanlon also confirmed that she did not dispute that he was being isolated on his break. In terms of her decision to separate the Complainant and his supervisor Ms Scanlon confirmed that she never sat down with the two of them to try and resolve their differences.

Mr Hegarty submitted that the Complainant had not been penalised and that the test set out in Toni and Guy and in Oglaigh Nausuinta had not been reached.

The Respondent accepts that the Complainant made a complaint but does not accept that he suffered a detriment. The Respondent submitted that it is clear that he never actually suffered a detriment as he never attended for work in the food court as he was absent on sick leave. Mr Hegarty submitted that there must be a chain of causation and there was not in this case. When the Complainant returned from sick leave, he had to be moved because of the site ban. The Complainant had accepted a position on a different site and had since been transferred to a new employer under a transfer of engagements.

The Law

The Act at Section 27 in relevant part provides as follows:

Protection against dismissal and penalisation.

27.(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

Subsection 3 of Section 27 prescribes the circumstances in which penalisation is rendered unlawful under the Act. It provides: -

(3) An employer shall not penalise or threaten penalisation against an employee for

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions

(c) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

Discussion and conclusions

The Court’s jurisdiction in the within matter is confined to determining whether, within the meaning of Section 27 of the Act, actions of the Respondent amounted to prohibited penalisation. The Court has approached the within matter on the basis of first determining whether a protected act within the meaning of the Act at Section 27(3) was committed.

The Court notes that the Respondent accepts that the Complainant made a complaint that falls within the scope of the Act. The Court therefore determines that there was a protected Act. It is disputed between the parties as to whether the decision to transfer the Complainant would have resulted in a loss of earnings and therefore constitute a penalisation.

The Court does not find the evidence of Ms Scanlon credible when she states that the move to the food court would not have resulted in a loss of earnings either through a lower rate of pay and or lessor hours. The Court also struggles to believe that in all her engagements with the Complainant, Ms Scanlon never thought to ask him why he did not want to move to the food court.

The Court finds the Complainant’s evidence that he did raise the loss of earnings arising from a lower rate of pay and fewer hours as an issue and that he was led to believe there would be a loss to be more credible. This belief is supported by the failure of the Respondent to reply to the queries on this matter raised by the Respondent’s legal representatives. Therefore, the Court finds that on the balance of probabilities the move to the food court would have entailed a loss of earnings.

The Court also finds that the post the Complainant accepted in April 2019 did result in a lower rate of pay and lesser hours albeit his hours were subsequently increased. In respect of the alleged site ban no credible explanation was put forward as to why if there was a site ban, Ms Scanlon offered the Complainant a position on the site after the site ban was alleged to have been in place. Ms Scanlon in her evidence to the Court stated that the Complainant did make a complaint about his welfare at work.

She also confirmed that if he had not submitted the complaint that he would not have been transferred. The Court having considered the submissions and the evidence before it finds that but for the Complainant making the complaint of the 3rd October 2018 and 12 November 2018 he would not have been transferred.

The Court having found on the balance of probabilities that the transfer was to a post with lesser terms which would mean a loss of earnings for the Complainant finds that the Complainant was penalised, and the detriment suffered was the lower hourly rate of pay and lesser hours the Court determines that the actions of the respondent constitute penalisation within the meaning of section 27 (1) of the Act.

The Court determines that the appropriate redress is compensation and awards the Complainant the sum of €30,000 in compensation for the Respondent’s breaches of the Act. The appeal fails. The decision of the Adjudication Officer is varied. The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
19 January 2022	Deputy Chairman