ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002095
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00002817-001 | 23/02/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00002817-002 | 23/02/2016 |
Date of Adjudication Hearing: 14/07/2016
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 28 of the Safety, Health & Welfare at Work Act, 2005 and section 13 of the Industrial Relations Act, 1969 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).
Attendance at Hearing:
By | Complainant | Respondent |
Complainant’s Submission and Presentation:
The Complainant is employed by the Respondent Employer as a seasonal Guide/ Information Officer at XX House. The Complainant made complaints of bullying which was covered by the Respondent’s Anti- Harassment, Sexual Harassment and Bullying Policy and consequently the Safety, Health and Welfare at Work Act 2005. The Complainant’s Solicitor wrote to the Respondent Employer on the 20th August 2015, whilst the Complainant was on a period of sick leave, and indicated that the Complainant and one of the employees complained about should have their working interactions curtailed. The Respondent Employer responded in writing by way of a letter received on 7th September 2015 and instructed that the Complainant was to be relocated to another Dublin location with effect from Monday 14th September 2015. On the 16th September 2015 the Complainant’s Solicitor wrote to the Respondent Employer objecting to the removal of the Complainant from his normal place of work at XX House as a direct result of having made the aforementioned complaint(s). The letter also stated unequivocally that the Complainant wished to remain at his usual place of work and that the actions of the Respondent Employer were considered to be contrary to the protections against penalisation afforded under the Safety, Health and Welfare at Work Act 2005. The Respondent Employer responded in writing by way of a letter dated 29th September 2015. The said letter reiterated the intention to move the Complainant from his normal place of work at XX House. The Complainant remained on sick leave. In the aforementioned circumstances the Respondent Employer has failed to adhere to the Code of Practice for Employers and Employees on the Prevention and Resolution of Workplace Bullying, which came into effect on 1st May 2007, and/ or has contravened the protections against penalisation afforded under the Safety, Health and Welfare at Work Act 2005. The Complainant reserves the right to adduce further and better particulars and/ or legal submissions in respect of the aforementioned complaints. |
Details of this complaint are outlined in the complaint above |
Summary of Respondent’s Submission and Presentation:
Respondent’s Opening /Introduction
The Respondent opened with a detailed summary of a Bullying and Harassment Investigation that the Complainant had been a party to. This Investigation, (here after called the First Investigation,) had found that the Complainant, who was one of a number of joint Complainants, had suffered bullying on a number of counts.
In this First Investigation the Complainant had become aware of a statement made by a fellow staff member to this First Investigation to which he, the Complainant, took grave took grave offence. A second Process, (The Second Investigation) under Company Procedures had been instigated by the Complainant to have the issues surrounding the contested statement examined. This process was underway at the date of the oral hearing.
Respondent’s statement in regard to Specific Complaint Reference: CA-00002817-001
Main Points:
With particular reference to a security attendant against whom the Complainant made a complaint in relation to an allegation by the security attendant concerning the Complainant, the Complainant found his workplace in Location House to be a ‘hugely stressful environment’
The Respondent was not in a position to deal with the Complainant’ complaint until the PWE Process, (First Investigation) under which the security attendant’s allegation was made, was concluded. The Complainant’ Solicitor set a condition of suspension of the security attendant to facilitate the Complainant’ return to work
As provided for in the Complainant’ contract and in order to facilitate his return from sick leave to work within a stress-free environment, the Respondent informed the Complainant that he could temporarily return to work in an alternative location, Dublin XX, until the complaint against the security attendant was dealt with. This was refused by the Complainant as it was taken to be penalisation for making a complaint. The Complainant remained on sick leave until the conclusion of his seasonal contract in late 2015.
The Complainant agreed to a new seasonal Guide contract in early 2016 to resume work in Location XX House.
The PWE Process concluded on 24 February 2016 when the Personnel Officer informed the Complainant, via Mr Tunney, of his final decisions following the conclusion of the investigation and review process. The Complainant was informed that consideration of the application of the Joint Industrial Council Code of Practice on Disciplinary Procedures was then underway in respect of the Respondent in the PWE case. Application of the Code commenced on 1st April 2016.
In conjunction with progressing a number of matters arising from the conclusion of the PWE case, The Complainant was notified by the Respondent on 23 June 2016 of the commencement of the application of the Joint Industrial Council Code of Practice on Disciplinary Procedures in respect of his complaint against the security attendant.
Other than the upheld complaint issues (in 2012) dealt with and concluded under the PWE case and the separate single allegation by the security attendant, dated in October 2013, currently being dealt with under the Disciplinary Code, there have been no recorded incidents or complaints by the Complainant against the security attendant or against the Respondent in the PWE case.
Background Information
On 12th May 2015, The Complainant’ Solicitor, Mr Tunney’s letter to the Respondent stated, ‘our client now finds himself in a hugely stressful environment where the individual who has made a false allegation remains on site, with access to CCTV coverage and our client not only now feels victimised and penalised for making the complaint but also has the added anxiety that (name removed) continues to watch him through CCTV and there is nothing to prevent him making other false and misleading statements’. ‘It is clear that our client cannot be expected to continue to work in an environment of uncertainty and anxiety which is having a detrimental effect on his health.’
On 20th August 2015, The Complainant’ Solicitor, Mr Tunney’s letter to the Respondent stated, while the length of the PWE process caused the Complainant ‘significant stress’, he was ‘happy that same has now been resolved’. ‘The Complainant feels he is now ready to return to work (from sick leave) and confirms that he would be happy to resume his role in Location XX House on the understanding that (security attendant – name removed) would be suspended pending the determination of investigation as to his conduct or at the very least that he would not have access to cameras whilst the Complainant is on site.’
As the Complainant’ complaint against the security attendant could not be dealt with by the Respondent until the PWE process was completed, it was not in a position to adhere to Mr Tunney’s request to suspend the security attendant in August/September 2015. As Mr Tunney’s request was a condition for the Complainant’ return to work, the Respondent, in consideration of its duty of care for the Complainant and to facilitate his return to work to a location that, as provided for in his contract, he could be assigned to, informed Mr Tunney on 4th September 2015 that the Respondent was happy for the Complainant to return to temporarily work in Dublin Location XX pending the conclusion of matters in relation to his complaint against the security attendant.
Following a response by Kevin Tunney Solicitors on 16 September 2015, focused on the latter point, the Respondent responded on 29 September 2015 confirming that it was not ‘attempting to penalise the location House Complainant in any way as a direct result of his complaints but rather to facilitate him in his return to work’.
On 20th January 2016, the Respondent offered the Complainant a resumption of seasonal employment in Location XX House for 2016. The Complainant accepted and is currently working in that location.
Decision:
Section 41(4) of the Workplace Relations Act 2015 and or Section 28 of the Safety, Health & Welfare at Work Act, 2005 and or Section 13 of the Industrial Relations Act, 1969 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Issues for Decision:
Did Penalisation as set out in Section 27 of the Safety, Health & Welfare at Work Act, 2005 take place?
Under the Industrial Relations Act did the Respondent fail to apply its own procedures correctly to the Complainant?
Legislation involved and requirements of legislation:
The Safety, Health & Welfare at Work Act, 2005 and the Industrial Relations Act 1969.
Need for Prima facie evidence to ground a Penalisation complaint and fair procedures at all times
Decision:
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00002817-001 |
A number of significant Labour Court cases have looked at Penalisation in recent times – principally O’Neill v Toni and Guy (Blackrock) Ltd HSD095, Electrical Rewind Service (Limerick) Ltd and James Earls HSD 121 and Oglaigh Naisiunta na hEireann Teo and Michael McCormack HSD 115
Taking guidance from these I proceeded to the decision set out below.
Key Facts grounding the Complaint
The Key fact of the Complaint was an alleged direction to the Complaint by the Respondent to relocate his place of work from House XX to Other Dublin Location XX. It was alleged that this was an Act of Penalisation by the Respondent against the Complainant arising from his complaints against the witness in Investigation No 1. Section 27 2(c) refers.
The relevant Law
This matter is before me is a complaint of penalisation within the meaning ascribed to that term by s. 27 of the Act of 20005. The relevant statutory provision is as follows: -
· 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,(b) demotion or loss of opportunity for promotion,(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,(d)imposition of any discipline, reprimand or other penalty (including a financial penalty), and(e) coercion or intimidation.
·
(3) An employer shall not penalise or threaten penalisation against an employee for—o (a) acting in compliance with the relevant statutory provisions,
(b) performing any duty or exercising any right under the relevant statutory provisions,
(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,
(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,
(e) being a safety representative or an employee designated undersection 11or appointed undersection 18to 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.
·
o (4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).
(5)[not relevant]
(6) [not relevant]
(7) [not relevant]
In Oglaigh Naisiunta na hEireann Teo and Michael McCormack HSD 115 the Labour Court pointed out that the Court had earlier stated in O’Neill v Toni & Guy BlackRock 21 ELR 1, that there are two tests inherent in the statutory definition of penalisation. I quote the relevant extract
“Firstly the Claimant must have suffered a detriment of a type referred to at subsections (1) and (2) of Section 27. Secondly, the detriment complained of must have been imposed for having committed a protected act or omission of a type referred to at subsection (3) of the section, in the sense that ‘but for' the protected act or omission having been committed the detriment would not have been imposed. This imports a requirement to show a chain of causation between the impugned detriment and the protected act or omission.”
In O’Neill v Toni & Guy BlackRock 21 ELR 1 referred to above the Court had also stated and again I quote
“ It is clear from the language of this section (Section 27) that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed“for”having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for “the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent”.
Furthermore
“In the instant case what is at issue is the motive or reason for the Claimant’s dismissal. That is to be found in the thought process of the decision makers at the time the decision to dismiss the Complainant was taken. That is something which is peculiarly within the knowledge of the Respondent. It would be palpably unfair to expect the Claimant to adduce direct evidence to show that the Respondent was influenced by his earlier complaints in deciding to dismiss him. Conversely, it is perfectly reasonable to require the Respondent to establish that the reasons for the dismissal were unrelated to his complaints under the Act. Having regard to these considerations, it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case; it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard that the complaints relied upon did not influence the Claimant’s dismissal.”
The Case in Hand
In considering the case in hand, the sentiment expressed in O’Neill v Toni & Guy BlackRock 21 ELR is particularly pertinent.
“This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent”.
In essence why was the suggestion/direction made to the Complainant to temporarily change locations? Was it a culpable Act of penalisation as defined by Section 27?
The First Investigation was being conducted to a very high standard by an Independ Outside Contractor – of necessity it had taken some time and the parties had become somewhat frustrated. Complainant’ letter of the 12th May 2015.
The letter also refers to the anxiety that the Complainant was experiencing due to the difficulties over the continuing presence of the Contested Witness at House XX.
Reference was made to a meeting with a senior Officer of the Respondent on the 9th March which the Complainant found unsatisfactory. At this meeting the Complainant alleged that the senior Officer had been quite unsympathetic to his, the Complainant’s situation.
Matters continued until a further meeting between the Complainant and Respondent Managers on the 29th May 2015 where the issues were again discussed.
This appeared to have been a crucial meeting and was extensively discussed in Oral evidence.
The Complainant went on sick leave shortly after this meeting and remained on sick absence until the start of the 2016 Season. The Respondent arranged for a review of the Complainant by the Chief Medical Officer in late August of 2015. The Report, given in confidential evidence, effectively stated that the Complainant’s situation was more of a Managerial issue than a medical issue.
From the oral evidence and correspondence later issued by the Respondent and especially the letters of the 4th September and the 29th September 2015 it was clear that the motivations of the Respondent were a genuine concern for the Complainant and a desire to get him back to work in a location that he might perceive to be a stress free situation .i.e. Where the Contested Witness did not work – practically this had to mean an other physical location. Investigation No 2 was still on hold at this time. (It was delayed due to the ongoing lack of completion of Investigation No1).
The Respondent letter of the 29th September 2015 stated
“The Respondent is not attempting to penalise the Complainant in nay way as a direct result of his complaints but rather to facilitate him is his return to work in the Division to which he has been assigned by the Respondent.”
The oral evidence of the Respondent Managers, which I found genuine and forthright, corroborated the sentiments of this statement.
The letter from the Complainant’s Solicitor of the 20th of August 2015 effectively seeking the suspension of the Contested Witness or “at the very least” a major restriction of his duties had placed the Respondent in a very difficult situation. To have acceded to this request prior to any investigation and to have sought agreement if such was to be forthcoming from the Contested Witness would have given rise to significant natural justice issue with the Contested Witness. Legally the Respondent was in a most difficult situation between the two parties.
In considering the evidence further the offer and if the Complainant is to be accepted , the direction, to move locations temporarily to facilitate his return to work in what he perceived to be a stress free was not supported by sufficient prima facie evidence to make it an act that falls under Section 27. The reference to a “change in location, Section 27 (2) c” in the Act refers to an act of active, almost malign penalisation, not in my view, the situation actually happening on the ground in this case.
In all the evidence and returning to the quote above from O’Neill v Toni & Guy BlackRock 21 ELR examining in so far as possible the “motivations “ of the Respondent it was not ,in my clear view an act motivated by any desire to penalise. The First Investigation had been ongoing for almost three years without any suggestions of Penalisation. The other three staff members involved had, at the time of the hearing, not raised complaints of Penalisation – notwithstanding that one had also lodged a complaint against the Contested Witness.
The evidence from Ms Xx, the House manager, particularly in relation to the meeting of the 29th May 2015 clearly indicated a desire on her behalf to help the Complainant rather than penalise. The suggested temporary relocation was a distance of approximately 5 miles and to a location that the Complainant was familiar with, could not be described as a major hardship. It is accepted that parking /traffic at the alternative location is more of an issue.
The report from the Chief Medical Officer, mentioned above, refers to “interpersonal work difficulties”. The actions of the Respondent, in this light, appear to me to be a genuine effort to facilitate the Complainant’s return to work not any issues of Penalisation as defined by Section 27.
The Respondent effectively let matters rest following the CMO report and did not seek to pursue the Complainant over his absence. An employer bent on Penalisation would I feel have taken a more vigorous course of action.
The Complaint, following a period of sick leave, then returned to his original location at his start of the 2016 season even though the Contested Witness is still in situ there.
From oral evidence it appears that nothing materially has changed at House XX, to in some way alter things to the Complainant’s request, since May 2015 when the Complainant went on sick leave.
In conclusion therefore, having considered all the evidence, I find that the claim for Penalisation as set out in Section 27 of the Act and being guided by the referred to Labour Court precedents fails. I dismiss the claim.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00002817-002 |
I could not find evidence to support the claim by the Complainant that procedures were not observed in reference to his case. The Respondent has most elaborate Procedures, Codes of Practice and the relevant Managers are very well versed in same. The detailed and elaborate conduct of the First Investigation being a case in point.
This claim is dismissed.
Dated: 8th December 2016