ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016412
Parties:
| Complainant | Respondent |
Anonymised Parties | Executive Officer | Government Department |
Representatives | Robert O’Reilly, B.L., instructed by Peter Boyle & Co. Solicitors | HR Manager |
Complaint(s):
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-00021341-001 | 22/08/2018 |
Date of Adjudication Hearing: 08/10/2019
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant is an Executive Officer in the Public Service who first commenced employment in 2003. There was a break in his service from 2007 until 2013 when he re-commenced employment. The complaint is in relation to the complainant’s assertion that approved annual leave was cancelled at short notice as a result of the complainant requesting assistance from his union in relation to his workload and the resultant stress arising from same. An additional factor was that the complainant was also deemed to be underperforming although his performance until then had been rated satisfactory. |
Summary of Complainant’s Case:
The complainant’s duties changed in May 2017 and he was required to undertake work that involved new processes and procedures. The complainant did not receive adequate training in this regard and this caused the complainant stress. The complainant sought assistance from his union and a union representative contacted the complainant’s line manager in relation to the issue. On the following day the complainant’s previously agreed leave due on the following week was cancelled. |
Summary of Respondent’s Case:
There is no evidence of annual leave being applied for by the complainant on the system used by the Department. The complainant verbally mentioned his intention to take leave at a staff meeting and was advised by a manager that it could not be authorised there. The complainant’s manager authorised the taking of the remainder of the leave once he became aware of the request. The complainant did not suffer any detriment. |
Findings and Conclusions:
The complainant had since 2013 been assigned to work in a particular section of the Department and had gained experience in dealing with the issues and legal matters involved with those duties. A complete re-organisation of the section had taken place in 2015 as a result of new legislation dealing with the broad area covered by the section. The area of work that the complainant had responsibility for was being gradually phased out as a result of the re-organisation and by May 2017 it had reduced to the stage where the complainant was re-assigned to a new role with different procedures and responsibilities. This change in role involved becoming familiar with a significantly expanded range of legal matters compared to those that the complainant had been used to dealing with. There was also a necessity to utilise a computerised system which was central to working in this area. The complainant was assigned to dealing with incoming emails from customers of the section. According to the complainant there was very little formal training given to him in connection with this change of duties. The complainant stated that he would ask colleagues for advice and that he also received some on-the-job training from a manager. Some managers he found to be approachable and some were not approachable and were critical of mistakes made by the complainant. The complainant also stated that he had undergone annual reviews and that he had always been graded satisfactory in these reviews. This included the performance review for 2017. In evidence the complainant said that his workload increased in Spring 2018 due, amongst other reasons, to staff being re-assigned from dealing with emails. The complainant felt that this put him under increased pressure and that in turn caused him stress. The complainant spoke to his local union representative in this regard and on 28 March 2018 the representative sent an email to the complainant’s supervisor seeking a meeting to discuss the complainant’s concerns and, in particular, the issues of work load and annual leave. Mention was made in the email of the complainant’s planned annual leave scheduled for the following week. Later that day his supervisor informed him that he could not recall arrangements being made for the complainant to take leave. The complainant stated that there had been an earlier meeting of staff of senior grade at which the issue of outstanding annual leave was discussed. The complainant, who had outstanding leave, had mentioned at that meeting that he would take off the first week in April provided it did not interfere with his 2018/2019 annual leave entitlement. His understanding was that this was agreed on the basis that it was a local arrangement and that nothing need be put in writing. The complainant’s own manager was on holidays and so on 29 March he spoke to the other senior manager who had been at the staff meeting. According to the complainant that manager told him that he could not recall any mention by the complainant with regard to annual leave. The manager further stated that the complainant had gone to the union and that consequently everything would have to be done officially. The manager advised the complainant to report for work the following Tuesday (after the Easter weekend) and discuss the matter with his own manager. The complainant met with his line manager on the Tuesday and according to the complainant the manager accepted that approval had been given for the annual leave and that the complainant could go home and take his annual leave that week. That manager in evidence stated that there had been an informal staff meeting to discuss outstanding annual leave and how best to manage it at local level without staff losing their entitlements in this regard. This would entail an application going on the flexi system rather than on the annual leave system. The manager said that the complainant indicated to him that he was interested in taking the first week in April and the manager had said that he thought that should be all right. The manager said that this was on the understanding that the complainant would officially apply for this leave. The manager further stated that he did not believe that anyone else at the meeting was aware of this conversation. When the manager returned to work on the Tuesday after Easter he met with the complainant. The manager told the complainant that he recalled that conversation and, having regard to the circumstances, agreed to the complainant taking his annual leave that week. The complainant’s supervisor stated that he had informed the complainant on 28 March that no formal application had been made for annual leave and that there was a process to go through in this regard. He said that the complainant volunteered to come in the following Tuesday to clarify the situation. The other senior manager stated that he had been approached on Thursday, 29 March, by the complainant who requested that he authorise the leave for the following week. The manager was aware that the complainant had raised the issue with the union (having been copied with the email) and therefore felt that he could not get involved. The manager also stated that he could not have granted the leave regardless of union involvement as he was not the complainant’s line manager. He had explained his position to the complainant in an exchange of emails later that day. Section 27 of Safety, Health and Welfare at Work Act, 2005, states: (1) In this section ‘penalisation’ includesany 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 Dismissal Acts 1977 – 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 work, reduction in wages or changes 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) n/a (e) n/a (f) n/a The taking of annual leave has been accepted as a matter relating to safety, health and welfare at work. The specific issue raised in the complaint is that annual leave already agreed was cancelled as a direct result of the complainant involving his union in the issue of his concerns relating to his workload and resultant stress. The respondent argued that no detriment was suffered by the complainant and furthermore that there was no causal link between the representation by the union and the administration of the complainant’s annual leave. What constitutes a detriment has been considered by the courts. The Labour Court in HSD1311; An Garda Siochana v Delahunt looked at a number of UK cases including De Souza (1986) ICR514 at 522, in which May LJ said “the court or tribunal must find that by reason of the acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work.” The Labour Court then went on to state: “Hence, it seems clear from the language of Section 27(1) of the Act that the act or omission on which a claim of penalisation is founded must amount to a detriment in the Claimant’s terms and conditions of employment and something that merely has the potential to lead to such a result is not enough.” Having reviewed the evidence and submissions before me it would appear that the email from the union representative did cause concern as it referenced the fact that the complainant would be taking 5 days’ leave the following week which had been “agreed locally”. Evidence of this is that later that day the complainant’s direct supervisor spoke to him about there being no record of an application for leave. There was a verbal and written exchange the following day between the complainant and the senior manager when the complainant sought confirmation that his annual leave had been approved. In both of these exchanges the senior manager made reference to matters having to be processed through official channels as a result of the complainant referring the issue to the union. The email also included the explanation that the decision on the complainant’s annual leave was a matter for the complainant’s line manager. The disadvantage suffered by the complainant as a result of these matters is that he had to attend work for a time on the Tuesday in order to speak with his direct line manager following which he went on leave. I do not believe that this constitutes a detriment within the meaning of the relevant section of the Act. I accept that the complainant understood that the taking of leave would not be done through the normal annual leave channels but I also find it unusual for the complainant to believe, given his service in the Public Service, that annual leave could be granted as a result of an informal verbal discussion without any written request being involved. It was also unfortunate from the complainant’s perspective that his line manager with whom he had the discussion was himself on annual leave that week. However, as noted above, the issue raised by the communication from the union arose from management’s concern that imminent annual leave had not been applied for and approved rather than that the union were seeking a meeting to discuss health and safety matters pertaining to the complainant. I therefore do not accept that there is a causal link between the representation regarding a safety and health matter affecting the complainant and the management’s actions regarding the complainant’s annual leave. In the absence of a causal link between these events and given that the act or omission on which the claim is based does not amount to a detriment in the complainant’s terms and conditions of employment then it follows that this claim must fail. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint No. CA-00021341-001: This is a complaint under the Safety, Health and Welfare at Work Act, 2005. For the reasons outlined above I find this complaint not to be well founded. |
Dated: 18/11/19
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Key Words:
Penalisation Safety, Health and Welfare at Work Act, 2005 |