ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028340
Parties:
| Complainant | Respondent |
Parties | Mary Finn | Department of Education & Skills |
Representatives | Appeared In Person | Ms Emma Cassidy, BL instructed by the Chief State Solicitor's Office |
Complaint:
Act | Complaint 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-00036368-001 | 26/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00036368-002 | 26/05/2020 |
Date of Adjudication Hearing: 05/11/2021
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 28 of the Safety, Health & Welfare at Work Act, 2005 and Section 18 of the Parental Leave Act, 1998 following 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:
This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings. On 26 May 2020, the Complainant, a Lay Litigant submitted two complaints to the WRC. Firstly, that she had been penalised for making a complaint under the Safety Health and Welfare at Work Act, 2005 and secondly, that she had been refused Parental Leave in contravention with the Parental Leave Act, 1998. At that time, the Complainant introduced herself as a Lay Litigant and reserved her position on whether she would call on legal representation later. She presented at hearing as a Lay Litigant. The Complainant works 34.45 hrs per week, clarified that she had transferred from the Respondent Dept to a new Government Department in September 2019. The Complainant filed a written submission to accompany her complaint on …. The Respondent denied all claims and filed a written submission on …… The Respondent was represented by Emma Cassidy , BL instructed by Chief States Solicitors Office . |
Summary of Complainant’s Case:
The Complainant has worked as a Clerical Officer with two successive Government Depts since 2007. In September 2019, she transferred on Mobility from the Respondent Dept to Revenue. I have summarised the Complainants narrative placed on her claim form. In this, she explained that she sustained an Occupational Injury in 2014. This resulted in a Personal Injuries case unfolding which settled with Legal Representation in late 2018. During this time, the complainant submitted that she had experienced an overpayment which was not incorporated in the Personal Injuries award, and she had been legally advised to bring this matter to the attention of the WRC. At that time, the Complainant stated that she had followed up with her Senior Manager as to whether she could re-classify her sick leave under Occupational Injury. There was a delay in confirmation of this re-classification on 27 August 2019. The Complainant stated that she then sought that the leave be reclassified under the Critical Illness Protocol. This was vetoed on 27 November 2019. The Complainant contended that she had been victimised as a result. She maintained that she had been denied access to a Course, Irish Language training, and denied Force Majeure. She experienced a reduction in pay and annual leave. She later clarified that she had not made an application for force majeure within the cognisable period. Preliminary Issue: The Complainant responded to the Respondent Preliminary Argument. She confirmed that she decided to refer the case to the WRC when the Critical Illness Protocol application was deemed unsuccessful. She was unhappy by how she was treated, and the protracted periods of time associated with awaiting responses to her questions. She had raised the matter with Ms Ab in January2019 and was very disappointed with the delay which ensued. She submitted that she experienced a May 2020 recoupment. She confirmed that she had not appealed the Critical Illness Protocol and had not taken advice prior to lodging her complaint. In seeking to extend the statutory time limit for her claims, she attributed the delay in raising her case to a delay surrounding the retrieval of GDPR documents. Substantive Case: Complainant Evidence by Affirmation: CA-00036368-001 and CA-00036368-002 The Complainant outlined that she had experienced a “shooting pain “arising from the activity of typing during 2013. She was confirmed as having repetitive strain injury by occupational health. She actioned personal injuries claim in line with the Safety Health and Welfare at Work Act, 2005. The Complainant submitted that her sick leave had generated an overpayment 2015/2018 and by November 2019, this matter remained unresolved. The Complainant contended that she had been completely ignored and that her application for CIP was not considered. She had experienced ½ pay and in the aftermath of her legal settlement, she was apprehensive and unsure whether she would have liability for the overpayment into the future. Counsel for the Respondent did not cross examine the witness. She detailed an outline of what the evidence of the witnesses would be. In response to clarifications from the Adjudicator, the complainant confirmed that she had not activated the grievance procedure regarding the November 2019 claim for CIP. She confirmed that she had not appealed the CIP application “as the outcome would not have differed after the way she was treated “ In conclusion, the Complainant clarified that she was actively seeking the CIP and requested an order to direct its application. She could not comprehend the CIP refusal as she had experienced trauma. |
Summary of Respondent’s Case:
The Respondent is a Government Dept and has denied all claims advanced by the Complainant. Preliminary Issue: Counsel outlined that the Complainant ceased employment at the Respondent Government Dept on 30 August 2019. By the time the WRC complaint was lodged on May 26, 2020, the Complainant had not worked for the Respondent in almost 10 months. Counsel emphasised that the WRC jurisdiction in the claim commenced on November 26, 2019, but no workplace dispute arose within that time frame. The claims should be dismissed as statute barred. The most recent application for force majeure leave attributed to the complainant was 2 February 2018. The determination on the language course rested on September 2017. Counsel clarified that the Complainant had availed of both refund of fees scheme and Irish language training in 2017and 2018, during the next cycle. Counsel argued that the claims were improperly framed and there were simply no grounds for extending the statutory time limits in accordance with section 41(8) Workplace Relations Act, 2015. O’ Donnell v Dun Laoghaire Corporation [1991] ILRM 301, Cementation Skanska ltd v Carroll DWT 0338. Counsel also expressed a dissatisfaction with the lack of particularisation in the claims, which amounted, they described as t Industrial Relations matters. Substantive case: CA-00036368-001 and CA-00036368-002 The Complainant has been a Clerical Officer since October 2007. She worked at the Respondent Pension Unit until moving to Revenue, through Mobility on 23 August 2019. The circumstances of the case originated in the occurrence of the Complainants sick leave 2014 to 2017 which totalled 294.11 days. The Complainant availed of the terms of various circulars governing the payment of sick leave with her then employer without incident. On 4 September 2018, she was advised that an over payment of sick leave had occurred and would be reconciled via a payment plan. In November 2018, the Complainant concluded a settlement of a Personal Injury case with the Respondent at the Circuit Court without incorporation of this overpayment. On January 7, 2019, the Complainant approached Ms Ab seeking to “have a chat “regarding the overpayment of sick pay. Following an intensive engagement on the topic, this recoupment never materialised as all three periods of sick leave were categorised as an Occupational Injury in July 2019. Three additional annual leave days were also availed of by the Complainant. The Respondent raised issues on the complainant’s selective communication of this topic with them at that time. On 19 August 2019, the Complainant raised a further query in relation to the value of sick pay and requested that the third period of sick leave could be covered by the Critical Illness Protocol (CIP), a separate and distinct category of sick pay access to which is determined by the Chief Medical Officer, (CMO) of the Department. The Complainant concluded her employment with the Respondent on 30 August 2019 and commenced in Revenue on 2 September 2019. On 7 October 2019, the application for CIP was vetoed as not “meeting the medical criteria for CIP” The Respondent informed the complainant of the appeal mechanism, but this course of action was not followed. Instead, the complainant indicated in late November 2019, that she intended to raise “the matter of her treatment “before the WRC. The issues of force majeure leave dated back to an application for 4 days in February 2018, for which the Complainant received 2 days as she had also taken another day in the previous 12months. The issues of course fees and access to Irish language were wrongly interpreted by the Complainant who was supported in her fees scheme in the aftermath of one refusal. She was also accepted for Irish language training on the next available opportunity when the fisty intake was full. Counsel for the Respondent rejected the claim for a contravention in the Parental Leave Act, 1998. She submitted that the complainant was seeking to recoup on the double in respect of the same set of facts. The Complainant had not made a claim for force majeure since February 2018, which was granted according to Section 13 of the Act at that time, albeit not the 4 days applied for. Counsel advanced legal arguments in the claim for penalisation in accordance with Section 27 of the Safety Health and Welfare at Work Act, 2005. The Complainant had not made a complaint under the Act. Relying on Oglaigh Naisunta na hEireann v Mc Cormack HSD/115, at the Labour Court, the complainant was obliged to demonstrate a chain of causation between the impugned detriment and the protected act or omission, Toni, and Guy Blackrock Ltd v Paul O Neill [2010] ELR 21 and Supermacs Ireland ltd v Sarah Ryan (HSD /213) Counsel argued that the complainant was unable through her own evidence in satisfying this test on the “causal connection “. This was notwithstanding the earlier preliminary arguments made. Evidence of Ms Ab Ms Ab worked at a Senior level with the Respondent. She had an awareness of the Circuit Court proceedings referenced by the Complainant. She recalled that the topic of the request for re-categorisation of sick leave came to her attention in January 2019 and she undertook to address this with Mr C. She recalled Mr C feedback dated 25 July 2019 which provided for a discretionary reclassification of the period of illness as “Occupational Sick Leave “. This was sanctioned as such. Ms Ab sought clarification from the State Claims Agency on the parameters of the Complainants Circuit Court Settlement Agreement. She was aware of the refusal of the CMO to grant CIP in October 2019 and accepted this outcome. During cross examination, Ms Ab did not concur with the complainant’s interpretation of a protracted waiting period for her claim January to July 2019. She reminded her that she had received an outcome in February 2019. The Complainant confirmed that she had not made a complaint under the Safety Health and Welfare at Work Act, 2005. Evidence of Mr C Executive Officer, Human Resources Mr C confirmed that he did not have knowledge of the Circuit Court proceedings referred to by the Complainant. He was involved in the circumstances of the reclassification of the complainant’s sick leave and had a long-standing working relationship with the Complainant. He recalled that on 14 February 2019, he had requested that the attempt to recoup the over payment via a repayment plan was placed on hold. Another Government Dept intervened, and the complainant was no longer “pay affected “ The three periods of sick leave were covered, and three public holidays were claimed by the complainant. The Complainant subsequently made a retrospective application for CIP, which was denied. The pro-offered appeal was not taken up by the Complainant. During cross examination, Mr C accepted that the Complainant had commenced on half pay during 2020. He also confirmed that the Complainant had requested the 3 public holidays first in time. He re-affirmed that the Complainant had not been subjected to a recoupment process. Mr C confirmed that the application process for CIP was not time limited. Evidence of Mr D, Staff Training Officer Mr D outlined the training facility which is governed by an external agency. He confirmed that the Complainants application for access to training in 2016 was processed. As she was the only applicant at her level, she was placed on the next available course in 2017/2018. This was explained to the Complainant at the time and no appeal was raised. The Complainant referred to GDPR documents which referred to her training and an appeal was not mentioned. In conclusion, Counsel for the Respondent summarised that the case was manifestly out on time based on the Complainants own evidence at hearing. She submitted that it was not within the gift of the WRC to grant CIP, which the Complainant herself had not appealed. She stated that the Complainant was seeking to address a “what might happen in the future “scenario and had not experienced a detriment. |
Findings and Conclusions:
I have given careful consideration to both parties written submissions and oral evidence. In arriving at my decision in the case, I have reflected on all I heard at hearing. The Complainant accepted and confirmed that she had not made an application for Force Majeure within the cognisable periods of Section 41(6) or 41(8) of the Workplace Relations Act 2015. My initial observation in the case was that the Complainant was a vulnerable witness in her own case. It was clear to me that she saw the montage of the tiers shared in the case as a continuum of events which culminated in her penalisation under the Safety Health and Welfare at Work Act, 2005. I saw this honest belief present through the case. It was real for her. However, the Respondent took a completely different viewpoint to this montage and in the alternative presented a number of standalone unrelated events which they argued could not at their height be taken as penalisation. They respectfully submitted that the complainants claim was futile and misconceived in law. Given the strength of the opposing views in this case, I have endeavoured to probe each party’s position. I was immediately struck by the record of concluded legal proceedings between the parties in November 2018, some two months after the genesis of the facts of this case, the notification of the overpayment in September 2018. All parties accepted that the topic of overpayment of sick leave had not been reconciled in the settlement. However, for me, it was very much a legacy of that time. The Complainant understood that she could bring the “overpayment issue “through to a separate pathway at the WRC. However, she did not know that that pathway is time limited. It is a hallmark of this case that the Complainant did not take advice prior to lodging her claim with WRC on 26 May 2020. Preliminary Issue: I explained to the parties at hearing that I would hear both parties preliminary and substantive arguments. In the event that I found for the Complainant at the Preliminary stage, I would press on to record my decision under the Substantive case. In the event that I found for the Respondent at Preliminary, I was not compelled to furnish a written decision on the substantive case. Both parts of the case were heard and recorded above. CA-00036368001 Penalisation My jurisdiction is outlined in Section 41(6) of the Workplace Relations Act, 2015 6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. The Complainant has advanced her claim that she was penalised as a result of taking her legal challenge against her employer in respect of her repetitive strain injury 2017/2018. This penalisation manifested for the complainant when she was faced with an over payment, refusal of force majeure leave, training, fees and eventually through the refusal to grant her a retrospective application for Critical Illness Protocol on 27 November 2019. The Complaint to WRC was lodged at 15.43 hrs on 26 May 2020. I do not accept the Respondent argument that the complainant’s employment had ceased with the Respondent. A careful review of the transfer on mobility documentation gave me confidence that this was a lateral transfer rather than cessation of employment. Revenue is also a constituent of a Government Department. I cannot accept the rightful inclusion of the claim made for penalisation in respect of force majeure leave, fees support or access to Irish Language training. These are not properly constructed as a continuum and are manifestly outside the statutory provisions of Section 41(6) of the Workplace Relations Act, 2015. My attention was drawn to the complainant’s acknowledged acceptance of the outcome of her application for CIP dated 27 November 2019. “I received your letter this morning re CIP….” The letter goes on to indicate an intention to bring the matter before the WRC. I would have preferred if the Complainant had exercised a local appeal of this verdict at that time. I appreciate that the application process reads at least as unwieldy with a number of Offices involved in decision making from August to November 2019. I found that the opportunity to apply for this scheme was not diluted by time and I found this to be benevolent from the Respondent. If I am to apply the statutory limits to the claims before me, I find that I cannot grant the complainant an extension of time for her to benefit from the reasonable cause element of Section 41(8). She did not provide a cogent explanation or excuse for the lengthy delay in submitting her claim. Cementation Skanska applied. I am, however prepared to consider the outcome of Critical Illness Protocol application as being just in time on 27 November 2019 for the purposes of Section 41(6) of the Act. CA-00036368002 Parental Leave Act, 1998 I find that this claim cannot survive the Preliminary Argument. It is by the Complainants own admission out of time on the February 2018 occurrence. I find the claim to be not well founded. Substantive Case: The Complainant has attributed the refusal to grant her CIP as Penalisation in contravention of Section 27 of the Safety Health and Welfare at Work Act, 2005. The Respondent has strongly opposed this claim and has submitted that the Respondent has worked sensitively and effectively to safeguard the complainants’ interests since she first raised the topic of the overpayment formally in January 2019. They acted to prevent the overpayment progressing and successfully recategorized the sick leave as Occupational Injury. For the Respondent the claim for Critical Illness Protocol came from “left field “and was a retrospective claim for a period of sick recorded in 2017, which overlapped with the commencement of the parallel proceedings at the Circuit Court in 2015, which concluded by mutual Agreement in November 2018, without addressing the pre -determined overpayment. Section 27 of the Act addresses Protection against dismissal and penalisation. 27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. (2) Without prejudice to the generality of subsection (1), penalisation includes— ( a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, ( 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) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a). (5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts. (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. The Labour Court considered the claim for penalisation in the case of dismissal of a Hairdresser in Toni and Guy Blackrock v Paul O’Neill [2010] 21 ELR 1. They developed the test to be applied in determining whether the Complainant had made out a necessary causal link between detriment and the protected act. In her in-depth article Penalisation Pursuant to Section 27 Safety Health and Welfare at Work Act, 2005 IELJ 2014, 11(1) Sarah OMahony BL, emphasised that the Court held that it is necessary for a claimant to establish that the detriment complained of was imposed “because of, or in retaliation for “the employee having taken a protected act. This can be summarised as the “but for test “ I have reviewed the application process associated with the application for CIP in August 2019. The sick leave at the heart of the claim predated the legal settlement in November 2019. This was a retrospective claim by the Complainant encompassing July/August 2017 and one that was processed swiftly by Mr C in August 2019. The Complainant had raised the matter of CIP for the first time when her sick leave overpayment issue had been resolved in her favour in July 2019. She did not appeal the outcome in November 2019. The Complainant was clear in her evidence that she had not actioned a complaint regarding the Safety Health and Welfare at Work Act, 2005, outside of the Primary claim resolved in by mutual agreement in November 2019. Instead, she has insisted that the denial to grant her CIP in 2019 is punishment for instigating a legal action against her employer. I have not found this a reasonable interpretation of the employer’s motivation in this instance. Instead, I found that the Respondent acted on the Complainants desire to be granted CIP without fear or favour. Mr C, with no knowledge of the legacy case, was very thorough in his administration of the application. The CMO was the Deciding Officer, who in turn provided cogent reasoning for refusal and addressed the caveat that Management had a further discretion. The final result was communicated to the complainant complete with an unutilised appeal. In order for any act or omission complained of to be found to be penalisation for the purposes of S27, it has to first be found to constitute a detriment and secondly a chain of causation. I have not established this link. Instead, I have found that the Complainant was not sufficiently attentive to the classification of her own sick leave during 2017. This was managed by the Respondent in 2019 as a separate and distinct matter to the personal injury claim. The Complainant was spared an onerous repayment plan by the respondent agreement to reclassify the leave as occupational. I did note that there was a lot of multi state agency collaboration, DPER, the Respondent and the Pay Roll Management System in this case and I can appreciate that this may have overwhelmed the Complainant at intervals. However, this did not constitute a detriment and the grievance procedure remained open to the complainant. I appreciate that the complainant is concerned at her vulnerability to risk of further sick leave down the line and I fully respect that this is a real concern. However, I must agree with the Respondent when they advanced the argument that the Complainant has not suffered a detriment in the facts of the refusal to grant CIP for sick leave already reclassified as occupational injury leave in July 2019. The Complainant has been enabled by the Respondent in her transfer to Revenue and was not subject to the governance of the respondent during the cognisable period of this claim. I have found that the Complainant was treated with respect by the respondent. I was particularly struck by the evidence of Mr C in that regard. He did not delay in responding to the complainants’ applications when requested by Ms Ab and placed a very important hold on a repayment plan. This was hugely beneficent to the Complainant. Finally, it seems to me that the circumstances of this case remained live for the complainant in the aftermath of her concluded personal injuries case. I find that the Respondent took measured steps to do all in their power to assist her but were unable to influence the outcome of the CIP in her favour. She was deemed medically ineligible for this. I did not identify this as a detriment arising from a protected act. I find that the Complainant has not been penalised in accordance with Section 27. The claim is not well founded. |
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. CA-00036368001 Penalisation Section 28 of the Safety Health and Welfare at Work Act, 2005, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act. I have found that the claim is not well founded. CA-0003638002 Parental Leave Section 18 of the Parental Leave Act, 1998 requires that I make a decision in relation to the complaint in accordance with Section 13 of that Act. I have found the claim to be statute barred and thus not well founded. |
Dated: 14-02-22
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Application for Critical Illness Protocol, Force Majeure, Penalisation |