ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006460
A Deli Assistant
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005
Date of Adjudication Hearing: 11/05/2017
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Location of Hearing: The Anner Hotel, Thurles, Co. Tipperary
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2004 and Section 28 of the Safety, Health and Welfare at Work Act 2005, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Summary of Complainant’s Case:
The complainant is originally from Lithuania. She was employed as a Deli Assistant from 23rd September 2003 until 26th October 2016 when she resigned her employment as her position was untenable due to the act and/or omissions of the respondent in breach of the complainant’s contractual rights. The complainant’s principle difficulties related to her treatment at the hands of some of her co-workers and line managers and the respondent’s failure to deal with the bullying she was subjected to. It is further submitted that she was treated less favourably by her managers and co-workers due to her nationality. She has two claims for adjudication:
The complainant contends that she was repeatedly bullied, excluded and isolated by members of staff and management. The bullying included but was not limited to:
Ignoring the complainant
Instructing her to carry out tasks despite not being her manager
Shouting at her
Intimidating behaviour in the Deli area including standing over the complainant, banging trays and throwing knives
Making untrue comments and defaming the complainant
Refusing to talk to her
Leaving the deli in a dirty state in provocation.
It is submitted that in the course of her employment from 2009 onwards the complainant repeatedly made informal complaints to the respondent about her treatment at the hands of some of her colleagues. The respondent failed to take any steps to prevent the bullying from occurring. The response from the respondent and his agents was general to the effect “try not to mind them”. It is contended that in December 2015, March 2016 and April 2016, the complainant brought her difficulties to management and nothing was done. On or about 3rd April 2016, she arrived to work and the area was unclean and untidy. She took photographs of the area and one of the managers shouted at her. She had a panic attack and was admitted to hospital. It is submitted that it was only after the complainant was hospitalised due to stress that the respondent began to consider her grievances.
It is submitted that during the course of her employment, the complainant was discriminated against by the respondent, its servants or agents based on the fact that she is from Lithuania.
It is submitted that this discrimination included, but was not limited to:
(a) Providing a heavier workload than given to Irish workers in the store
(b) Placing blame on the complainant for issues when other Irish workers were at fault
(c) Requiring the complainant to come in early to conduct a deep clean when other Irish workers were not so required
(d) Refusing working hours flexibility when such was provided to a comparable Irish worker
(e) Failing to address the bullying that the complainant was subjected to due to her nationality.
The respondent, its servants or agents repeatedly failed to provide the complainant with a clean and safe environment for working and it is submitted, when she repeatedly raised the unfit working environment, no action was taken to remedy the safety risks. On the 23rd March 2016, she was told by a colleague that she would be sacked if she did not stop taking photographs of the work area. It is contended that this amounts to penalisation under Section 27 of the Safety, Health and Welfare at Work Act 2005. It is further submitted that on 3rd April 2016, amongst other occasions, her line manager shouted at her “you have to stop taking those pictures and stop complaining to me”.
Following the complainant’s absence from work on the 3rd April 2016, she was declared unfit for work due to anxiety, stress and depression. She was diagnosed with a chronic stress reaction.
The respondent wrote to the complainant on 12th April 2016 seeking to organise a meeting to discuss the workplace issues. Through ongoing correspondence the complainant attempted to engage with the respondent’s new found interest in her grievances and submitted a letter of her grievances on 26th September 2016. However, the complainant was so overwhelmed by the prospect of returning to the environment of stress, bullying and inappropriate treatment due to the act and/or omissions of the respondent in breach of the complainant’s contractual rights that the complainant saw her position as untenable and resigned on 26th October 2016.
It is submitted that the complainant was penalised by the respondent in whole or substantially on account of her pattern of raising health and safety concerns with the respondent. The penalisation claimed by the complainant is that she was treated less favourably by her managers, she was told by a colleague that she would be sacked if she continued her conduct and she was shouted at by managers directly on account of her raising safety concerns.
Legal submissions were made in relation to discriminatory dismissal – An Employer v A Worker [EED0410]. Legal submissions were also made in relation to the claim of penalisation under the Safety, Health and Welfare at Work Act 2005.
Summary of Respondent’s Case:
The respondent employs 95 staff, 91 being of Irish origin, 3 being of Polish origin and 1 of Lithuanian origin. The complainant commenced employment in 2003. She received a full induction on all policies and procedures, including the grievance policy, the Code of Practice for addressing bullying and received all necessary training throughout her employment. The complainant went out sick from her employment in April 2016 and raised a grievance in relation to her concerns with how work was being managed and made a number of allegations ultimately against many of her fellow employees and most of the management. Following months of correspondence and some grievance meetings, the complainant submitted a formal 18 page grievance document, outlining many new issues which had not been raised previously. Reference to race was made in passing a number of times in the document, but her concerns were regarding operational and work issues with regard to the salad and deli bar. The complainant previously submitted, in June 2016 a grievance letter in which she outlined a number of issues. In one of the issues, she states “I have faced discrimination due to the fact that compared to other employees, I am treated differently and expected to do more work”. This is the only tangential reference to any form of discrimination and it does not reference any particular ground of equality. Most importantly, she stated that if all of the issues were fixed it “would greatly enhance working conditions and improve the business.” The complainant’s concerns had nothing to do with discrimination but clearly were related to what she felt could be improved in the business. The complainant further failed to confirm any times, dates and issues which could link actions to discrimination.
It is argued that notwithstanding the fact that the complainant has failed in many cases to submit dates, evidence, witnesses or comparators which could demonstrate how the events she described in her statement could constitute discrimination and/or harassment as defined under the Acts, her reference to alleged incidents dating back to 2009 far exceed the six month reference period for consideration of a claim as prescribed in the Acts. In that regard it is submitted that it must first be determined whether or not any of the alleged incidents the complainant has put forward within the six month time frame preceding the date she referred her claim to the Commission (i.e. from 14 June 2016 to 13 December 2016) constitute discrimination or harassment before considering any that fall outside the statutory time limits. As the complainant was on sick leave or had resigned for all of this time, clearly the only potential incidents must be in relation to the respondent’s dealings with the complainant during this time. The evidence shows that at all times the complainant was treated with sensitivity, was supported, was reminded to bring forward her grievances and ultimately with the encouragement of the company provided an 18 page grievance. Nothing in these actions were discriminatory. It is argued that with regard to constructive dismissal there is a high burden of proof on complainants to show that the employer acted in such a way that the complainant was left with no option but to terminate their own employment. It is argued that the complainant in this case has failed to discharge this burden, given the efforts made by the respondent to deal with her issues. Furthermore, it is an imperative on the employee to exhaust all options, specifically the grievance procedure. Not only did the complainant fail to follow the grievance promptly, but she failed to exhaust it and then failed to reconsider her own resignation.
Legal submissions were made in support – Conway v Ulster Bank UD 474/1981, Donegan v Co Limerick VEC UD 828/2011 and Travers v MBNA UD 720/2006.
Within 1 month of tendering her grievance document, the complainant tendered her resignation despite the fact that the respondent was organising an independent investigation and informed her of same within two weeks of receiving the document. The respondent refused to act on the resignation, asking the complainant to reconsider as they were attempting to resolve the issues. The complainant refused to reconsider her resignation or to cooperate with the investigation, despite the fact that at all times over the period, the delays were initiated by the complainant and the respondent at all times was attempting to deal with the complainant’s issues.
Legal submissions were made to support the respondent’s argument that prima facie has not been established (Mitchell v Southern Health Board DEE 011 15.02.01). It is argued that within the timeline under consideration, the complainant has made no argument nor are there any facts in relation to the respondent’s dealings with the complainant that would constitute primary facts from which it may be presumed that the principle of equal treatment has not applied. The respondent seeks the dismissal of both claims. It further seeks that that as provided for in Section 42 of the Workplace Relations Act that the claims be found to be frivolous and vexatious.
In relation to the complaint of penalisation under Section 27 of the Safety, Health and Welfare at Work Act 2005, it is argued that this complaint is out of time as clearly no complaint was made within the 6 months beginning 14 June 2016. Without prejudice to the above, should the Adjudicator find jurisdiction, it is unclear what exactly the complaint is that the complainant is alleged to have made, other than setting out and labelling of cakes. Further, the respondent cannot have penalised the complainant for something of which they were not aware. The complainant did not report any work practice/defect/contravention that would endanger the safety, health or welfare at work of the employee or that of any other person. Without prejudice to this, if it is found that the complainant has in fact raised a complaint which falls within the remit of the legislation, it is the Company’s position that she was not penalised in any way for raising such a complaint. The Company, far from ‘penalising’ the complainant, instead took all of her issues seriously and attempted to investigate same. The Labour Court in Patrick Kelly t/a Western Insulation v Girdzius HSD081 drew a clear causal link between the suffering of a detriment and retaliation for having made the complaint.
Findings and Conclusions:
CA-00008770-002 Employment Equality Acts 1998 - 2004
This complaint involves a claim by the complainant that she was (1) discriminated against by her employer (the respondent) on grounds of race in terms of Section 6 (2) of the Employment Equality Acts 1998 – 2008 and Section 8 in terms of working conditions, and Section 74 (2) in terms of discriminatory constructive dismissal. Having received written and oral submissions for the parties and considered the evidence I have completed my investigation as provided for in Section 79 of the Acts.
Preliminary issues raised
Application to dismiss on grounds of frivolous and vexatious claims.
The respondent’s representative sought to have the complaints/claims dismissed as frivolous and vexatious on the basis that no evidence has been adduced which would infer that the complainant’s terms and conditions were less favourable than those of her comparable colleagues, and that she has failed to prove that there was any unfavourable treatment as the interactions and work issues complained of were part of the ongoing day to day workings of the business and unrelated to her race. The general meaning of a frivolous and vexatious claim or complaint is - a frivolous claim or complaint is one that has no serious purpose or value. The implication is that the claim has not been brought in good faith because it is obvious that it has no reasonable prospect of success. A vexatious claim or complaint is one that is specifically being pursued to simply harass, annoy or cause financial cost to the recipient. In this instant case, the complainant has worked in the employment for over 13 years, and according to her evidence has experienced difficulties in the workplace for approximately 7 years, particularly in the final 3 years, and ultimately resigned her position due to these difficulties. That she subsequently sought to pursue her complaints against the respondent under the legislation, I find to be neither frivolous or vexatious, and I decline the request by the respondent’s representative to dismiss the complainant’s complaints.
The complaint was received by the WRC on 13th December 2016. The six month time limit under Section 77 (4) (5) (a) of the Acts provides that a claim for redress in respect of discrimination or victimisation may not be referred
“after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence”.
Section 77 (4) (5) (b) provides that for reasonable cause, the period not exceeding 12 months may be substituted.
The respondent sought to have any and all incidents prior to 14th June 2016 excluded from the investigation. The complainant sought an extension of time due to the illness of the complainant and her inability to process her complaints within the six month period following her resignation. I have considered the arguments and I find as follows: The complainant was out sick, having attended A&E following the incident with her supervisor at work. She engaged on occasions with the respondent on her grievances. From the evidence, it seems that having received counselling, she was in a position to pursue her complaints through the formal legislative forum. In the circumstances I find reasonable cause to extend the time period for her complaint to 14th December 2015.
The complainant contends that (a) she was discriminated on grounds of race in relation to working conditions and (b) she contends that she was subject to discriminatory (constructive) dismissal due to the fact that the adverse treatment she received in the workplace was so unreasonable that she had to resign her employment.
In order to succeed, the complainant must have experienced adverse treatment in relation to others, and the adverse treatment must have been based on the ground cited, in this case race. In the first instance, a prima facie case must be made out as provided for in the Acts.
Burden of Proof
Section 85 (A) of the consolidated Acts sets out the burden of proof as follows:
“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.
In Southern Health Board v Mitchell  E.L.R. 201, the Labour Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out.
“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.
In Elephant Haulage Ltd v Garbecevs EDA 1025, the Labour Court found that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that
“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.
I note from the evidence particularly in correspondence dated 14th and 23rd June 2016 between the parties, that the complainant had many grievances and these related to work organisation and cleanliness and stress caused by co-workers not fulfilling their duties. From the complainant’s evidence, it would appear that there was a bad working atmosphere between her and her co-workers. She expected more support from management. However, while I accept the complainant’s evidence that she was under a burden of a heavy workload and having to clean up after other colleagues, a prima facie case of discrimination on grounds of race must be made out in the first instance and I have considered the evidence to establish if such a case was made:
I have relied upon the oral and written evidence and have considered in detail the comprehensive 18 page document which the complainant wrote at the end of her employment, encapsulating her main grievances and complaints.
The complainant set out in her 18 page grievance document dated 26th September 2016, the grievances she had under a number of headings:
Social exclusion and isolation –
Examples of how some of her fellow workers would not talk to her. I note no dates were cited. I accept the complainant’s evidence that she felt excluded and/or isolated in the workplace where relationships between her and her co-workers were deteriorating particularly in the last number of months of her employment. However, I do not find evidence that the complainant was excluded on grounds of her nationality.
Damage of reputation by gossip and rumours –
Examples of how she was treated by her fellow workers, in relation to insisting she leaves the work area clean and allegations of bullying. The bullying allegations, first raised in 2009 against one of the managers were not followed up. The respondent/owner Mr ML denied receiving the 2009 complaint. There were other complaints of bullying relating to dates in and around 15th and 17th December 2015. The complainant did not raise these complaints formally with the respondent at the time, and she did not avail of the respondent’s offer to have an external investigation into her grievances prior to her resignation. I have found no evidence of bullying or alleged bullying on grounds of race.
the complainant alleges that her supervisor stared at her and if she saw the complainant talking to her Polish colleague she would give them cleaning jobs. The complainant alleges that the owner once had her called over the intercom because she had left her post to buy a bottle of water. The complainant alleges that one of her colleagues was constantly banging trays, throwing knives on the table and throwing ham. No dates were cited. I find that the complainant was obviously unhappy at the way she was treated by co-workers and management, however I do not find that she was adversely treated because of her nationality.
Aggressive or obscene language-
The complainant alleges that one of her colleagues shouted at her for taking late cake orders, and that the owner should have made it clear that orders will be taken by anyone and to control her behaviour. The complainant also had some complaints about the (current) HR Manager against whom she stated she made a complaint about in 2009, and nothing was done. The respondent denied ever receiving this letter. The complainant did not link these allegations to adverse treatment on grounds of race.
Repeated requests with impossible tasks or targets –
The complainant outlines a number of grievances about colleagues leaving her on her own and shouting at her to complete tasks. She outlined that on one occasion the owner had a meeting with them and his simplistic solution was just be friends again. The complainant outlined one instance (no date provided) when a supervisor showed a staff member how to sweep the floor and that he did not shout and still the other staff member was upset, and after her father visited the owner and supervisor nothing further was said to other workers, just the complainant and her Polish colleague.
From Sunday 13th December 2015, the complainant had her own notes and records with dates about incidents at work. She stated that the issues became more frequent since she started complaining about cakes not being put out on the cake counter. The complainant took photographs and sent them to her colleague Ms A with comments that the counter is empty, no cakes put out and labels not printed. Ms A was upset and the two were called to the manager’s office on 17th December 2015 and after that meeting, Ms A said she was not going to work any more Saturdays. The complainant felt it was wrong that Ms A should be allowed to choose not to work Saturdays just because she was confronted by her. The complainant felt that she and her fellow Polish employee worked well together as a team and were very well organised and the jobs were done stress free. The owner indicated that he would sort it all out, but instead the complainant was faced with an instruction to make sure the cakes were out first thing. She felt devastated and at that point lost trust in the management of the shop. She contends that the bakery manager then started to bully her and that he and Ms A both bullied her. The complainant also contends that for about three months after this, supervisor Mr W kept staring at her and refused to acknowledge her presence except when he needed something. There was no link to race grounds in this set of allegations.
In March 2016, the complainant felt she was treated differently on account of her nationality as the staff talked of taking St Patrick’s day off and one of them said “because I’m Irish”. I note the comments here, however I find that it was more likely a case of ‘banter’ in the workplace. I note the fact that the complainant herself offered to work that day as she was bringing her son into the parade. I do not find the particular instance here is linked to adverse treatment or discrimination on grounds of race. On Wednesday 23rd March 2016, colleague Ms A told the complainant to stop taking photographs or she would probably be sacked. Other incidences were outlined, such as being called to the phone unnecessarily, and being left alone and no one washing dishes except herself. No link here was made between treatment and race grounds.
On Sunday 3rd April 2016, the complainant said she came to work upset at how she had been treated the previous week, but determined to be ok because she was working with her Polish colleague. When she saw that the work area was not clean she took photographs and called the duty manager Mr H over the intercom. He did not respond but when she saw him coming from the storeroom she told him about the uncleanliness of the deli area and the fact that she took photographs. She contends that he shouted at her “you have to stop taking those pictures and stop complaining to me!”. Following an altercation, the complainant was taken to A&E suffering from a panic attack. Duty Manager Mr W called to her house a few times but she could not speak to him. The complainant stated that she did not know about bullying and no one in her workplace ever talked to her about dealing with it. She knew some elements and had talked to her manager on several occasions but nothing was done about it. I note the evidence of the complainant that for some time she had felt bullied and harassed and this had caused her stress and having to receive medical attention. The working relationships in her workplace, particularly between her and her co-workers were such that the complainant felt excluded and badly treated. However, having carefully considered the evidence, I am not satisfied that the treatment of the complainant was linked to her nationality and I conclude that the complainant has not established a prima facie that she was subject to discriminatory treatment on grounds of race and her complaint fails.
(b) Discriminatory Constructive Dismissal
The complainant was absent from work from 3rd April 2016 until 26th October 2016 when she resigned from her employment in circumstances where she believed her position was made untenable by the unreasonable conduct of the respondent employer.
Section 2 (1) of the Employment Equality Acts defines dismissal as including:
“the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly”.
In An Employer v A Worker (Mr O) [EED 0410] the Labour Court addressed the issue of constructive dismissal under Employment Equality legislation. It noted that the above definition was practically the same as the definition contained in the Unfair Dismissals legislation and held that the tests for constructive dismissal the “contract” and “reasonableness” tests were applicable under the Employment Equality Acts. The “contract” test refers to where the employee argues “entitlement” to terminate the contract. The”reasonableness” test applies where the employee asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.
The Court outlined the contract test as described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp  IRLR 332a:
“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”.
The Court further states that there must be a breach of an essential term which goes to the root of the contract and that it is a stringent test which is often difficult to invoke successfully.
The “contract” test may be relied upon as either an alternative or in combination with the “reasonableness” test. The employer may not commit a breach of contract of such a nature as to be considered repudiatory but is so unreasonable as to justify the employee resigning there and then.
The “reasonableness” test asks whether the employer conducts him or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer.
In this instant case, I find that the respondent arranged grievance meetings, specifically sought details of times, dates and nature of specific allegations. When the complainant put her full set of grievances in a document dated 26th September 2016, the respondent appointed an External Investigator to examine her issues. The complainant resigned before the Investigation commenced.
With some exceptions, case law developed on this point requires the employee, before taking the unilateral step of terminating her employment, to give the employer the opportunity to address her grievance. Having considered the evidence in this instant case, I find that the complainant’s resignation was premature and unreasonable in light of the fact that the respondent had appointed an External Investigator.
In light of the foregoing, I find that the complainant has failed to establish a prima facie case of discriminatory constructive dismissal and her complaint fails.
CA-0000870-003 Safety, Health and Welfare at Work Act 2005
Section 28 (4) of the Act provides that a complaint may be entertained within a further six months to the six month period beginning on the date of the contravention to which the complaint relates if it is considered reasonable to do so.
The complaint was received on 13th December 2016. The complainant sought an extension of time due to the illness of the complainant and her inability to process her complaints within the six month period following her resignation. I have considered the arguments and I find as follows: The complainant was out sick, having attended A&E following the incident with her supervisor at work. She engaged on occasions with the respondent on her grievances. From the evidence, it seems that having received counselling, she was in a position to pursue her complaints through the formal legislative forum. In the circumstances I find reasonable cause to extend the time period for her complaint to 14th December 2015.
Section 27 (1) of the Act provides:
“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”.
Section 27 (2) provides:
“(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.
Section 27 (3) provides:
“An employer shall not penalise or threaten penalisation against an employee for –
(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.
In addressing the claims and counter claims here from both parties, I have considered the following:
Did the complainant make a complaint regarding matters of safety and health in her workplace to her employer or any persons acting on behalf of the employer and did she suffer a detriment for making the complaint?
I have discounted the evidence in regard to Ms A co-worker of the complainant who told the complainant that she would be sacked if she continued taking photographs, for the reason that I do not consider that she was acting on behalf of the employer.
I find that on a number of occasions within the period, the complainant did bring her dissatisfaction with the issues that impacted on safety and health. She took photographs of boxes which could constitute a trip hazard, unhygienic conditions in a workplace involving food preparation and brought such bad practices to the attention of management. I find that this effectively formed a complaint to management. The taking of photographs appeared to cause frustration among management but instead of addressing the problems raised, the complainant was reprimanded and told to stop taking photographs and stop complaining.
I find the imposition of reprimands as provided for in Section 27 (2) amounted to penalisation and it occurred because she made her complaints. As provided for in Section 28 (3), I declare the complainant’s complaint to be well founded and I require the respondent to pay to the complainant compensation of the sum of €2,500 which I consider is just and equitable having regard to all the circumstances.
The complainant’s complaints under complaint reference CA-00008770-002 Employment Equality Acts 1998-2004 are not well founded.
The complainant’s complaint under complaint reference CA-0000870-003 Safety, Health and Welfare at Work Act 2005 is well founded and the respondent is required to pay to the complainant the sum of €2,500 compensation.
Workplace Relations Commission Adjudication Officer: Gaye Cunningham