ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006532
Parties:
| Complainant | Respondent |
Anonymised Parties | An Accounts Administrator | An Engineering Company |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00008765-002 | 13/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00008765-003 | 13/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00010072-001 | 06/03/2017 |
Date of Adjudication Hearing: 27/10/2017
Workplace Relations Commission Adjudication Officer: James Kelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, 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. The final correspondence received in relation to this case post-hearing was dated 2 January 2018.
Background:
The complainant claims that she started working with the respondent in 1992 in the accounts/administration department and was happy there until 2012. She said that from that point onwards work became increasingly stressful due to an unreasonable increased workload. She said that she developed a severe mixed depressive anxiety disorder and in December 2015 commenced a period of sick leave and did not return to work until February 2016. She said despite constant reassurance from the respondent that her working conditions would improve she had to continue in the same role and was subjected to bullying from another employee. She said that in order to preserve her health she had no option but to resign her employment by letter dated 23 September 2016 and her employment was terminated on 6 October 2016.
The complainant claims that she was discriminated against on the disability ground and the respondent failed to provide her with reasonable accommodation when she returned to work after a period out on sick leave. She further claims that she was subjected to harassment and/or victimisation and penalisation to the extent that she had no option but to resign from her employment. The respondent refutes the claims made by the complainant. It claims that she never made them aware that she had a disability, and she never looked for reasonable accommodation. The respondent said the complainant never raised a formal grievance about harassment, victimisation or penalisation while she was working there. The respondent said there was no indication that the complainant’s resignation was on foot of her having any difficulty with her work environment. It said that in general relations were cordial and when the respondent received notice from the Workplace Relations Commission of her complaint it was genuinely shocked. It said that the complainant was treated well and fairly during her time employed with it. |
Summary of Complainant’s Case:
The following is a short summary of the complainant’s case. The complainant claims that in and around 2012 the respondent had acquired other additional businesses and her workload began to increase to the extent that expectations became unreasonable and her workload was causing her much stress. She said that in August 2013 she visited her GP, she was placed on anti-depressants and was advised to take some time off. She claims that the Financial Controller at the time knew of her situation but did nothing to help alleviate the pressure. She said that in June 2015 the respondent acquired another large business in Northern Ireland which resulted in a huge increase in the work in her department leading to a sizable backlog, which she brought to the attention of the Financial Controller on a near daily basis and informed him that she could not possibly handle the workload. She claims that she was stuck in the middle between the customers and the company and had to face a barrage of irate customer phone calls on a daily basis who were not being paid by the company due to financial difficulties at the time. She claims that the Financial Controller was well aware of her work and medical situation at the time. She said that there was an ease off in her workload during 2015, but that conditions worsened again in the latter part of 2015. She claims that this pressure placed a heavy burden on her, where her mood and anxiety levels heightened, culminating in “a significant suicide attempt” in December 2016. Following this she was certified unfit to work and was prescribed medication and attended counselling between two to three months. The complainant claims that she returned to work in February 2016 where she met with Mr. A, from HR, where it was agreed that she would be returned to work gradually to light duties at first, she said she was told that her duties would change from Payroll to Human Resources and she was very happy with that prospect. However, she claims that she returned to the same department and her working life returned to the stressful environment as before. The complainant claims that this was further exacerbated by Ms. B, a work colleague, who was very aggressive toward her and frequently shouted and bullied her. She claims that she reported this to HR, however, there was no investigation in to Ms. B’s behaviour or any action taken against her. The complainant said that she had applied to take Friday’s off and was refused whereas Ms. B was given Friday’s off and that Ms. B was always accommodated although she was last one in and still on probation at the time. The complainant claims that after working there for 24 years she was very upset at how things had worked out, her work environment had not improved and she felt she had no option but to resign from her employment in September 2016 to preserve her health. The complainant maintains that she was discriminated against on the disability ground, in particular, the respondent’s failure to provide her with reasonable accommodation when she returned to work after her period on sick leave. She claims that she was subjected to harassment and/or victimisation to the extent that she had to resign and she claims that this constitutes discriminatory dismissal under the Employment Equality Acts. In support of her case she claims that a disability for the purpose of the Employment Equality Acts includes depression, anxiety and work related stress and cited A Complainant V A Local Authority DEC-E2014-060, Ms B v A Newsagents and Deli DEC-E2013-149 and Stobart (Ireland) Ltd v Beaschal EDA 1411. She further claims that the respondent failed to provide her with reasonable accommodation as it is obliged to do under Section 16(3)(b) of the Acts and this involves “taking appropriate measures, which is defined by Section 16(4)(b) as including “… patterns of working time, [and] distribution of tasks …” The complainant claimed that she had no option but to end her employment and the appropriate tests in relation to the concept of constructive dismissal are set out in A Worker (Mr O) v An Employer [2005] ELR 132. The complainant also contends that the employer is vicariously liable for the actions of all its employees in particular for the actions of Ms B on her return to work. In relation to Section 27(3)(c) of the Safety, Health and Welfare at Work Act 2005 the complainant claims that an employer may not penalise an employee for making a complaint or representation to her employer on any matter of safety, health or welfare at work. It claims that the treatment of the complainant following her return to work, having put the respondent on notice of the impact her working conditions were having on her health amounts to penalisation as defined under Section 27(1) of the Act. In relation to the complaint under Section 3 of the Terms of Employment (Information) Act 1994 the complainant maintains that she did not receive terms and conditions of her employment in writing and is seeking just and equitable compensation pursuant to Section 7(2)(d) of the Act. She claims that there was a break in her service where she had left the respondent for a short period of time circa. three months and returned to work with the respondent in June 2006. She claims that she did not get new terms and conditions of her employment in writing on her return as she was entitled to. |
Summary of Respondent’s Case:
The following is a short summary of the respondent’s case. The respondent said that it came into existence in 2007 following the purchase of a traditional engineering company, which had been established in 1973. In 2015 the company undertook a major expansion and there was considerable turbulence which lead to it going into receivership in January 2017 where 110 jobs were lost. The respondent said that the complainant commenced her employment in 1992 as an accounts administrator and worked 36 hours per week. It said that she had an excellent attendance record aside from her absence from 10 December 2015 to 29 January 2016, where outside of this period she only had missed 8 days’ service in 24 years of employment. The respondent claims that the complainant was always employed with it since 1992 and before the Terms of Employment (Information) Act 1994 came into force. It claims that the legislation provides that employees who have commenced employment prior to the legislation may request a statement from their employer and that it must be provided within 2 months. However, it said that it did not get any request from the complainant seeking a written statement of terms. On hearing the complainant’s evidence where she said that she had left the company for a short period in 2006 and when she returned she should have received a contract then, the respondent said that it did not purchase the previous traditional engineering company until 2007 and had no records of a break in her service since 1992 and was unaware of this until the day of the hearing. The respondent claims that the complainant was absent for 7 weeks at the end of 2015 and the start of 2016 and she submitted medical certificates stating anxiety/depression. The respondent said that it was not directly informed of what had happened, they found out by a 3rd party and knew it was sensitive but it was a private matter and did not want to interfere. The respondent said that it was never directly told of what happened. The respondent states that notwithstanding its financial difficulty it paid her in full during this time and reassured her to return to work when she was ready. The respondent claims that the complainant met with the Chief Financial Officer on 21 December 2016 and there was no mention of work-related issues in relation to her absence at this meeting or in any other communication between the parties. The respondent claims that Mr A, Human Resources, met with the complainant on 22 January 2016 to finalise preparation for a phased return to work and she made no reference to work load issues or work related stress. The respondent claims that the complainant did not provide any medical information to it other than medical certificates. She never disclosed that she had a disability or gave any information in relation to the treatment she was undergoing and never asked for any support or accommodations to assist her in her work. Mr A said that a plan was put in place to facilitate her return to work on a reduced hours basis at first, and that she could report directly to him and if she needed any other support to ask him. The respondent said that in January 2016 an additional member, Ms. B, was added to the team to assist with the increased activity resulting from receivership and cashflow issues the company was experiencing. Ms. B was an experienced credit controller and also assisted with elements of payroll. The respondent claims that this addition to the team reduced the workload on the team and allowed the complainant return to work in a part time phased basis and she continued to work there up until the complainant’s resignation from the respondent. In its legal submissions, the respondent cited Southern Health Board v Mitchell [2001] ELR 201, Flexo Computer Company v Kevin Coulter Determination No. 13/03, Melbury Developments Ltd v Valpeters EDA 09/17 and Anna O’Neill v Eventelephant DEC E2015-111 in relation to the burden of proof and it was of the view that the complainant failed to establish prima facie evidence of discrimination. In particular, it was the respondent’s position that as it was not aware of the complainant’s disability until after her resignation and therefore suggests that it cannot be charged with treating her differently because of her unknown disability. It said that on the complainant’s return to work the complainant was deemed medically fit and no additional supports were sought to facilitate that. The complainant returned to work on a phased basis to her prior role on the same terms and conditions. The only difference was that her team had an additional staff member to help reduce the workload on everybody in the department. The respondent acknowledges that the complainant did request a reduction in hours in March 2016 and that was refused. The respondent said that the request was refused because of business needs at the time as it was extremely busy and it totally refutes that it was made because of her disability. The respondent claimed that there was no further mention of reduced hours until July 2016 when the complainant queried the change in work hours of Ms. B. It said that at no stage did the complainant ever raise an allegation about unfair treatment or a formal grievance in relation to its decision to refuse her reduced hours in March 2016. In relation to the claim of constructive dismissal the respondent said that it had all the appropriate policies and procedures in place to allow an employee to lodge a complaint or a grievance. The complainant never raised any complaint or grievance with the respondent during her time working there. The only issue she did raise was one single incident with Ms. B on 27 June 2016, where the complainant held a meeting with the HR Manager about an incident where she alleges that Ms. B used bad language during an interaction at work. The respondent said that the complainant did not want to pursue the issue any further, other than the matter should be noted on the other employee’s file. The respondent said that it was presented with an isolated incident and this was closed off by the complainant herself. The respondent said that the complainant issued written notice on 23 September 2016 and proceeded to work her 2 weeks’ notice. The resignation letter was positive and made no reference to work-related difficulties. The complainant returned after leaving to have a ‘leaving’ work lunch with some of her work-colleagues on 14 October 2016 and again there was no signs of the complainant holding any animosity towards the respondent. In its legal submission, it refers to inter alia the decision in Fitzsimmons v Mount Carmel Hospital UD855/2007, Harrold V St Michael’s House [2008] ELR1 and Conway v. Ulster Bank Ltd. UD 474/1981 in relation to the principle of reasonableness and the conduct expected from both parties in particular in relation to the obligation to utilise and exhaust internal grievance procedures, which it claims the complainant did not engage in or exhaust. The respondent said that there is no basis for a claim of Penalisation under Section 28 of the Safety, Health and Welfare at Work Act, 2005. The respondent refers to the decision in Patrick Kelly t/a Western Insulation and Algirdas Girdzius HUD081 with regard to the narrow protections of the Act. It said that there is no evidence presented of a contravention of Section 27 of the Act because there was no contravention of the Act. It said that the complainant has not demonstrated that she was penalised or threatened with penalisation within the meaning of the Act. |
Findings and Conclusions:
Preliminary matter - Issue of Jurisdiction The respondent submitted that the complainant has also lodged a claim with the Personal Injuries claim and that the basis of that claim is on the same facts as the case before the Workplace Relations Commission. The respondent contends that the Personal Injuries claim should be addressed prior to the instant complaints being addressed by the Adjudication Officer given that the complainant is seeking reliefs by way of compensation for alleged complaints based on the same facts in both sets of proceedings. In considering this issue, I wish to note that the Workplace Relations Commission is the quasi-judicial body within the State that has been established to inquire into complaints at first instance under employment rights and equality legislation. I am satisfied that the complaints before me for adjudication under the Employment Equality Acts and the Safety, Health & Welfare at Work Act 2005 and the Personal Injuries claim are different claims with different time limits and different rules as to both liability and quantum. The Personal Injuries Board or indeed the High Court does not have any jurisdiction to adjudicate upon the statutory claims that have been referred to the Workplace Relations Commission. In this regard, I have taken cognisance of the Court of Appeal case in Culkin –v- Sligo County Council [2017] IECA 104 where Hogan J. dealt with a related matter and in effect held that a person is not precluded from proceeding with a claim of discrimination before the Equality Tribunal (the predecessor body to the Workplace Relations Commission) in circumstances where there is also a Personal Injuries claim pending. In the circumstances, I am satisfied that I am not precluded from proceeding with my inquiry into the instant complaints under the Employment Equality Acts and the Safety, Health & Welfare at Work Act, 2015.
CA-00008765-002 – Discrimination Equality – Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 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 her. If she 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent. In the case of Melbury Developments v Arturs Valpetters [EDA0917] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties. Disability – Direct Discrimination Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ...”. Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other either is not or is a person with a different disability". The complainant claims that she was diagnosed with depression related to work stress in August 2013 and was advised to take some time off. Copies of medical certs were submitted from that time. The respondent has said that its records show that the complainant was only absent on two occasions. The complainant points to the medical certificates from that time and in December 2015 and January 2016. This, she claims, is her disability. This fact was not contested by the respondent, nor the fact that the complainant has a disability within the meaning of Section 2 of the Employment Equality Acts. I also accept that a diagnosis of depression qualifies as a disability within the meaning of Section 2 of the Employment Equality Acts. I note the respondent claims that it was not aware that she had a disability within the meaning of Section 2 of the Employment Equality Acts. However, I am satisfied that the respondent had the medical certificates highlighting the complainant’s position and would have, at least from December 2015, been aware of the complainant’s medical situation. Accordingly, the issues for decision in this case are (1) whether she was discriminated against by the respondent in relation to her conditions of employment on the grounds of her disability and (2) whether as a person with a disability within the meaning of Section 2 of the Acts, the respondent has failed to provide her with reasonable accommodation contrary to Section 16(3) of the Acts. In relation to direct discrimination, the complainant has presented a case that she was treated less favourably because of her disability. However, I note that she had not identified a comparator or reference a hypothetical comparator who she claims was treated more favourably than she was. I refer to the leading authorities in this regard namely Ntoko v. Citibank [2004] ELR 116; Corporation v. Gibney’s EE5/1986 and Minaguchi v. Wineport Lakeshore Restaurants DEC-E2002-020 in relation to the principal that the complainant must discharge the burden of proof showing that the difference in treatment is due to discrimination on one of the discriminatory grounds and once that is established the burden shifts to the respondent. Having carefully considered the written and oral evidence in relation to this aspect of the complaint I am satisfied that I have not been presented with any evidence, to support a claim of direct discrimination on the grounds of the complainant’s disability. Therefore, I am satisfied that there is no evidence of the complainant being treated less favourably by the respondent on the grounds of her disability. Accordingly, I find that the complainant has failed to establish a prima facie case of direct discriminatory treatment on the grounds of disability. Reasonable Accommodation The complainant claims that there is clear evidence to amount to a prima facie case of discrimination on the grounds of disability and that the respondent failed to tackle her work conditions and failed to provide her with reasonable accommodation on her return to work after a period of sick leave in February 2016. I note the respondent said that it was not aware of her disability and there was no request for accommodation to be put in place to facilitate her return to work. I note the decision in Cork City Council v. McCarthy EDA21/2008 and Melbury Developments -v- Valpeters [2010] ELR 64which establishes that the complainant must not just establish the primary facts upon which he or she relies but must satisfy that these are of sufficient significance to raise an inference of discrimination. I am mindful that the concept of reasonable accommodation provided for in the Employment Equality legislation is to recognise the inherent characteristic of disability that can result in people with disabilities having difficulties in accessing or performing jobs in a conventional manner. This unfortunately creates barriers for people with disabilities and the purpose of the legislation is to place an obligation on employers to provide reasonable accommodation to open up and allow people with disabilities access and have equal opportunities to carry out those jobs. It is fact the complainant retuned to work in February 2016 after a meeting with Mr. A from HR. I do not accept that this meeting did not include mention and discussion about the complainant’s capacity to return to work to her full duties after a period out on sick leave. It is clear it was agreed that she would return to work on a phased basis building up her time to full time hours. I also note Mr. A’s evidence and his letter dated 22 January 2016 to the complainant where he states that “Please feel free to discuss any issues you have with me during this time” and “if you have any question please let me know”. Accordingly, I am satisfied the respondent did provide the complainant with a phased return to work and an offer for support and assistance. I cannot see where it can be said that the respondent failed in its obligation at this juncture. I have not been presented with any compelling evidence to suggest that a suite of measures were either required or sought by the complainant to facilitate her return to work. I note a short email from the complainant to her superior on 7 March, 2016 requesting a reduction in her hours – a reduction of 4 hours – where she said “you might let me know if this is agreeable”. I note the respondent’s position that it was very busy at the time and refused the reduction of hours and nothing more was made of it at the time by the complainant until July 2016 when arrangements were made for a reduction of hours for Ms. B as part of, what the respondent has said, a contractual agreement it had with Ms. B. Notwithstanding, I am not satisfied that the request for time off in March 2016 was linked in any way to a request for reasonable accommodation by the complainant and if it was intended to be that it was not made clear and not appropriately followed up by the complainant. There is one short email which is lacking the gravity that I would suggest one would demonstrate in such circumstances. Having studied the evidence, I do not see any absences in that time or request for meetings with management of HR and I note the complainant’s evidence that she did not work overtime. I have to imagine that if the circumstance was so desperate that the situation would manifest in ways where conclusions could be drawn but that does not appear to be the case. As noted above in Cork City Council -v- McCarthy and Melbury Developments -v- Valpeters the primary facts upon which the complainant relies on must satisfy that these are of sufficient significance to raise an inference of discrimination. Having regard to the foregoing, I am satisfied for the reasons set out above, that the respondent has not failed to provide reasonable accommodation within the meaning of Section 16(3) of the Acts to the complainant as a person with a disability. Discriminatory Constructive Dismissal The next element of the complainant’s complaint which I must decide relates to the claim that she was subjected to a discriminatory constructive dismissal by the respondent on the grounds of the level of discrimination, harassment and/or victimisation she suffered. Section 2 of the Employment Equality Acts provides for, ““dismissal” includes 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;” Section 77 of the Act provides for redress in case of discrimination. I will deal with this under the following sub heading for completeness. · Discrimination I have noted above that I have not found that the complainant has established a prima facie case in relation to direct discrimination or the respondent’s failure to provide the complainant with reasonable accommodation. · Harassment Section 14A(7)(i) of the Act defines “harassment” as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
The complainant claims that she felt she was harassed and bullied by Ms. B on her return to work. I note the respondent said that one complaint was raised by the complainant about the language used by Ms. B and she chose not to proceed with a formal complaint after giving it some thought. I have noted that the respondent said that both the complainant and Ms. B had strong personalities and clashed in the workplace but no more than that. I note that no formal complaint was lodged, other than the one time. On balance, I prefer the evidence from the respondent in this case. I am satisfied that no substantial evidence was presented in evidence at the hearing of instances of bullying or harassment that were required informal or formal action. I also note that no other instances were raised by the complainant with the respondent and that would have to be a necessary starting point for it to be able to take action. Having regard to the foregoing and the totality of the evidence adduced, I find that the complainant has failed to establish a prima facie case in relation to her claim of harassment. Accordingly, I find in the respondent’s favour. · Victimisation I note that the complainant’s legal team make reference to the possible victimisation that the complainant suffered at the hands of the respondent was one of the reasons for her having to leave her employment. Victimisation is defined by Section 74(2) of the Act as follows: - For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith— (a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment), (b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment, (c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or (d) given notice of an intention to do anything within paragraphs (a) to (c). For the sake of completeness, I have to consider this element of the complaint. However, it is clear to me that no evidence has been submitted to me for consideration under this aspect of the claim. Accordingly, I find that the respondent has not victimised the complainant in terms of section 74(2) of the Acts in terms of alleged adverse treatment.
Conclusion Section 2(1) of the Acts defines dismissal as including: "the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances 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 .... ". In An Employer -v- A Worker (Mr. O No. 2)] EED410 the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the definition was practically the same as the definition of "dismissal" contained in the Unfair Dismissals Acts and held that the tests for constructive dismissal developed under that legislation i.e. the "contract" test and the "reasonableness" test were applicable tests under the Employment Equality legislation. In the present case, I am satisfied that the "reasonableness" test is the more appropriate. It requires the complainant to establish that the behaviour of the respondent was so unreasonable that she could not fairly be expected to put up with it any longer and she was therefore entitled to resign from her employment. In considering this issue, I note that on the complainant’s return to work was facilitated on a phased basis until the complainant was able to return to full hours. The complainant cites the following reasons for her discriminatory constructive dismissal on the grounds of her disability; that she had a huge excessive workload and the respondent failed to address that, that she was bullied by Ms. A and the respondent failed to investigate and discipline her for her unreasonable behaviour, and that she was refused to have Fridays off. In the circumstances, I find that the respondent fully engaged with the complainant during the period following her return to work until her retirement. The relationship between the parties appears cordial up to and after the complainant’s retirement. The respondent expressed shock and bewilderment that this case was taken against it by the complainant and I note that the respondent made attempts to approach the complainant to understand the complainant’s position and to find a solution. I am satisfied with the manner in which the respondent conducted itself in relation to the complainant’s issues, namely by hiring Ms. B to help with the workload in January 2016, sensitively dealing with the complainant on her return to work after a personal tragedy, meeting with and discussing the options open to the complainant in relation to her clash with Ms. B. I note that no formal grievance proceedings were ever raised. I note that the complainant tendered her resignation in a positively crafted letter and then worked out within one day of her notice. I note she returned to have lunch with work colleagues. In the circumstances, I am not convinced that the last few months suggest that the complainant’s position was no longer tenable and that she was justified in terminating her contract of employment. Having regard to the foregoing and the totality of the evidence adduced, I find that there is no evidence that the complainant’s employment came to an end in circumstances amounting to a dismissal within the meaning of Section 2(1) of the Acts, and that there is a linkage between the complainant’s dismissal and the fact of her disability. Accordingly, I find in favour of the respondent in relation to this element of the complaint. I have found that the complainant has not established a prima facie case for discrimination, or that the respondent failed to provide her with reasonable accommodation. I have found that the respondent is not responsible for harassment or victimisation in the context of the period from her return to work from February 2016 up until her resignation in October 2016. CA-00008765-003 Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 The Law In accordance with Section 27 of the Safety, Health and Welfare at Work Act 2005, 1. “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— (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 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. (4) […] (5) […] (6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time. (7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them. Conclusion I note the findings and conclusions in a recommendation of the Labour Court in Determination No. HSD 102 St John's National School v Ms. Jacinta Akdumanwhen it sought to reflect on the jurisdiction of the Court in relation to Section 27 where is said, “This Section is intended to protect employees who exercise any of the rights referred to at Subsection (3) from retaliatory conduct by their employer. In applying the provision, the Court must be careful to recognise the distinction between a detriment which may be suffered by an employee as a result of an employer’s failure to fulfil a duty under the Act and a detriment amounting to “penalisation”. Therefore, the Court must be careful not to claim jurisdiction which it does not have by classifying as penalisation conduct, by act or omission, which is properly classified as a failure to fulfil a general duty imposed by the Act. Accordingly, the Court must now consider if the subject-matter of the within complaints, taken at their height, should properly be classified as penalisation as opposed to a contravention of the general health and safety imperatives of the Act. Subsection (1) of this Section defines penalisation in broad terms and can include a failure to act which results in a detriment to an employee in terms of his or her conditions of employment. Crucially, however, what is rendered unlawful by Section 27(3) is acts or omissions of the type referred to at Subsection (2) directed at an employee for having committed an act protected by that Subsection. Hence the decisive consideration is that of causation. It is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by Subsection (3) and but for the protected act the employee would not have suffered the detriment complained of (see Determination No HSD095, Toni & Guy Blackrock Ltd and Paul O’Neill).” The decision in Toni & Guy Blackrock Ltd and Paul O’Neill as referenced above is often quoted by the Labour Court as an authority under the Safety, Health and Welfare at Work Act 2005 it clearly sets the tests that should be applied to the circumstances on each case. It states that, “It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment 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 suggests 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.” I am satisfied that the scope of what can be considered a protected act is quite broad. I note that there are a number of cases in the Labour Court that have addressed this point, see HSD161 - County Offaly Citizens Information Service LTD v. A Worker and HSD 118 - Board of Management of St. David’s CBS Secondary School Artane v. Siobhan McVeigh, where a complaint was made on the basis of or relating to Bullying, Harassment and Sexual Harassment Policies, which qualifies as a protected act for a claim for penalisation to be considered under the Safety, Health and Welfare at Work Act 2005. In the case before me for consideration, I am satisfied that the complainant has claimed that she has made a protected act by putting her employer on notice of the impact her working conditions were having on her health, and it claims that while constituting discrimination, harassment and/or victimisation contrary to the Employment Equality Acts it also amounts to penalisation contrary to the Safety, Health and Welfare at Work Act 2005. I have not found it to be the case that the complainant has put her employer on notice of the impact of her job on her personal health on her return to work in February 2016. There was discussion on her return to work plans. The complainant returned to the same department doing similar duties to what she had previously done pre-December 2015. I am not satisfied from the evidence adduced that she put her employers on notice of the impact her working conditions were having on her health and therefore, I am not satisfied that she has made a protected act as required for by the legislation. Also, I must note that I have not found any instance of penalisation in the context of this case. Accordingly, I find that the complainant has not established a prima facie case of penalisation contrary to Section 28 of the Safety, Health and Welfare at Work Act 2005. CA-00010072-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 The Law Section 3 (1) of this Act states that, “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”. Conclusion The complainant has provided evidence that she had worked with a different employer other than the respondent for a few months (20 March to 1 June) in 2006. I note her evidence that she was persuaded to re-join the respondent soon afterwards. I note the respondent was of the opinion that when it took over the previous traditional engineering company in 2007 that the complainant was employed there without a break in service since 1992. I have been presented with evidence from the respondent that the complainant was still engaged from end of April (25th) onwards. They have produced clock-in records and one payslip during that time. The complainant said that she had helped out the respondent for a period of time after she took up employment with the other employer. I am satisfied that I have to rely on the complainant’s direct evidence that there was a break in service although very small. I have not been presented with evidence that the complainant had ever sought a statement in writing prior to the lodging of this complaint. I am satisfied that this omission was not substantial. However, notwithstanding Section (3)(1) provides for such a statement and it is the employers obligation to comply with the legislation. I find that the complainant was not issued with a statement in writing containing the terms of her employment. Accordingly, as per Section 3 of this Act I find that the respondent is in contravention of the Act. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00008765-002 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 Having investigated the above complaint, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts. I find that, (i) the complainant has failed to establish a prima facie case of direct discrimination on grounds of disability in terms of Section 6(2) and contrary to Section 8 of those Acts. (ii) that the respondent did not discriminate against the complainant on grounds of disability in terms of Section 6(2) and contrary to Section 8 of those Acts in respect of a failure to provide her with reasonable accommodation for her disability within the meaning of Section 16 of the Acts. (iii) the respondent has not victimised the complainant in terms of Section 74(2) of the Acts. (iv) the complainant has failed to establish a prima facie case of Harassment contrary to Section 14A of the Employment Equality Acts. (v) that there is no evidence that the complainant’s employment came to an end in circumstances amounting to a dismissal within the meaning of Section 2(1) of the Acts, and that there is a linkage between the complainant’s dismissal and the fact of her disability. Accordingly, I find in favour of the respondent in relation to this element of the complaint. CA-00008765-003 Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 Having investigated the above complaint, I hereby make the following decision in accordance with Section 28 of the Safety, Health and Welfare at Work Act 2005, The complainant has not established a prima facie case of penalisation contrary to Section 28 of the Safety, Health and Welfare at Work Act 2005. CA-00010072-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 I order the respondent to pay to the complainant compensation in the amount of €650 (Six Hundred and Fifty Euro) being the equivalent of less than one weeks’ pay in respect of the contravention. |
Dated: 1st May, 2018
Workplace Relations Commission Adjudication Officer: James Kelly
Key Words:
Safety, Health & Welfare at Work Act - Employment Equality Act - Terms of Employment (Information) Act - failed to establish a prima facie case. |