Complainant

Respondent

Parties

Maureen  Gibson

Sunbeam House Services Clg

Representatives

Una Clifford BL instructed by Ormonde Solicitors

Peter D Gilfedder, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00066010-001

16/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00066010-002

16/09/2024

The Complainant joined the Respondent on 1 August 2022 as a Care Assistant on a permanent part-time basis.

She claims that she was penalised under the Safety, Health & Welfare at Work Act 2005, following a complaint she made under the Respondent’s Dignity at Work Policy against her colleague, X, on 28 May 2024.

The Complainant stated that from her first attempt to engage in conversation with her workplace colleague, X, during a night shift on 3 February 2023, she felt fearful and concerned by his general attitude towards her, especially given it was just the two of them on duty that night, resulting in the Complainant feeling scared and concerned for her personal safety and experiencing a physical reaction the following day. She stated that there have been numerous additional incidents since then, such as X openly isolating her from workplace discussions and ignoring her attempts to provide work-related updates on patients.

This targeted and repeated behaviour of acting dismissively towards her, both in front of colleagues and when alone, led to the Complainant feeling demoralised, ostracised and excluded in her place of work. She stated that on 24 September 2023, she calmly approached X in private to explain how his behaviour was impacting her mental health. She stated that X went berserk, became verbally aggressive, shouted loudly at her and left her fearing she was about to be physically assaulted. The Complainant left feeling intimidated.

The Complainant also alleged that on another occasion, X defaced a photograph of her which had been posted on the staff board, by using a pin to remove the image of her face. This intimidating and threatening act has left her feeling afraid for her safety. The Complainant states that this campaign of hostile workplace bullying has negatively affected her mental health, her home and family life, and her social life. It has also resulted in her having to call in sick on numerous occasions.

On the 22 and 27 November 2023, the Respondent’s Human Resources Department arranged a Dignity at Work training course. The Complainant states that Ms. D from the Respondent’s Human Resources Department spoke to X after this training course and told him to act professionally and speak to the Complainant at work and include her in discussions regarding the clients and the workplace. She stated that X ignored this instruction and neither HR nor management ever followed this up.

The Complainant stated that this disciplinary instruction given to X on 27 November 2023 predates the Complainant’s official complaint of 28 May 2024 by six months. This suggests that the Respondent was aware of ongoing issues between X and the Complainant well before her official complaint, further highlighting their failure to intervene adequately. She also stated that a memo of a staff meeting held on 3 August 2023 supports her assertion that such issues were known to the Respondent long before her official complaint was made.

On 28 May 2024, the Complainant wrote to the Respondent’s HR department, by way of email, informing them that she wished to lodge a formal complaint against X for workplace bullying. In that email, the Complainant informed HR that said bullying had been ongoing since 03 February 2023, some fifteen months.

On 16 August 2024, X wrote to the Respondent and made a counter complaint to the complaint made against him by the Complainant.

Following the Complainant’s complaint of 28 May 2024, a Dignity at Work Preliminary Meeting was convened almost four months later on 10 September 2024 by the HR Business Partner for the Respondent, to formally obtain the Complainant’s statement of events. This meeting was twice rescheduled from 20 and 28 August 2024. This was despite that the Respondent’s Grievance Procedure providing that “a meeting will be arranged to discuss the matter not later than seven working days following receipt of the complaint”. 

On 25 September 2024, the HR Business Partner met with X to conduct a Dignity at Work Preliminary Meeting. On 10 October 2024, a Senior HR Business Partner for the Respondent, wrote to the Complainant by email informing her that, in the opinion of the Senior HR Manager, a formal investigation into her complaint was warranted and that same had been directed to commence. Terms of Reference (“TOR”) were included. The TOR for the Investigation states at point 4, “The investigator will complete the investigation within 8 weeks of starting or as close as possible subject to ensuring the investigation is conducted properly and with due regards to the rights of all involved. Every effort will be made to carry out the Investigation without undue delay.”

On 15 October 2024, the HR Business Partner, emailed the Complainant informing her that, although an internal investigator had been appointed to investigate her complaints, an external consultancy had instead been appointed to conduct the investigation on the Respondent’s behalf, and that X had also subsequently raised a Dignity at Work counter-complaint against the Complainant. 

On 25 October 2023, X wrote a letter raising a complaint against the Complainant. In summary, X alleged that on 24 September 2023, the Complainant verbally abused him, accused him of poor professionalism and had done so in an “aggressive, intimidating matter (sic) with a raised tone of voice”, regarding X updating a time and attendance book where the Complainant was late for her shifts. X described an allegation made by the Complainant that on 15 October 2023, he hung up a phone call on her when he recognised her. He described that on 24 October 2023, the Complainant alleged that he was “victimising her" and that his “ignorance knows no bounds” to which he replied, “you have a manager” and to “go through the complaints policy”. He described an incident brought to his attention by a member of staff that the Complainant had made a serious allegation that he and another member of staff had placed a resident down in his bed so that they could watch a match on TV. X denied all allegations made against him and welcomed an investigation into the matters.

On 25 October 2023, X spoke with his manager, the Clinical Services Manager, about his complaint. On 26 October 2023, the Clinical Services Manager, spoke to the Complainant regarding the allegations which she denied. On 31 October 2023, the HR Business Partner spoke to X over the phone and outlined the options available to him which ranged from mediation to formal investigation.

On 22 November 2023 and 27 November 2023, the Complainant, X and all staff in the House completed in-person Dignity at Work training organised by Ms D of the HR Department. On 7 December 2023, Ms D emailed X regarding the status of his complaint and if he wished to pursue it further. He chose not to.

On 28 May 2024, the Complainant emailed her complaint under the Dignity at Work policy to the HR team outlining allegations of incidents of bullying by X. On 7 June 2024, the HR Business Partner acknowledged receipt of the complaint and provided the Complainant with the Dignity at Work policy and procedure. She also asked to meet with the Complainant on the 12 June 2024.

On 12 June 2024, the HR Business Partner met with the Complainant to discuss her complaint, the Dignity at Work Policy and Procedure and followed up with an email. She provided her with details of the Employee Assistance Programme (EAP) and details of the Dignity at Work Support Contact Persons. She outlined the option of mediation. She stated that as the Complainant provided her with a written complaint, that she would share this with X as per the Dignity at Work procedure. She also noted that the Complainant stated that this was affecting her health and discussed at the meeting about organising an occupational health assessment. The HR Business Partner stated that she would schedule this for her. From 14 June 2024, the Complainant informed the HR Business Partner that she wished to engage in mediation. X was informed of the complaint and asked if he wished to engage in mediation. On 31 July 2024, X formally declined mediation due to the severity of the allegations and understood that a formal process could take place.

From 2 July 2024 to 5 July 2024, the Complainant was on sick leave. On 30 July 2024, the Complainant and the HR Business Partner spoke with each other regarding her dignity at work complaint. On 31 July 2024, the HR Business Partner emailed the Complainant to note that Mr X declined mediation and therefore mediation would not be pursued. The Complainant asked for the process to proceed to a formal investigation. the HR Business Partner acknowledged this and provided her with details of the EAP and details of their Dignity at Work Support Contact Persons.

Between 5 August 2024 and 6 August 2024, the Complainant emailed the HR Business Partner to state that she wanted to proceed with a formal investigation and asked if her bullying complaint statement was passed on to X. The HR Business Partner stated that she would pass on her complaint to X.

On 15 August 2024, the HR Business Partner emailed the Complainant to invite her to attend a preliminary screening meeting scheduled on 20 August 2024. It was noted that the purpose of the preliminary screening was: “to decide if the alleged behaviour, which is the subject of the complaint, falls within the definition of bullying, harassment or sexual harassment as outlined in the Dignity at Work Policy. The rationale for this provision is that some complaints of bullying, harassment or sexual harassment referred under the Policy do not fall within the definition of bullying, harassment or sexual harassment”.

On 16 August 2024, X emailed his response statement regarding the Complainant’s May 2024 complaint to the HR Business Partner. On 23 August 2024, the HR Business Partner emailed the Complainant to note that she did not attend the preliminary screening meeting scheduled for the 20 August 2024 and reorganised the meeting for the 28 August 2024. The Complainant did not attend the meeting on the 28th of August.

On 29 August 2024, the Complainant emailed the HR Business Partner noting that she was off sick and “only back in work today”. She stated that she did not have access to emails during sick leave and requested for the preliminary screening to be rearranged. She also stated that she would be on annual leave from the 1 September 2024 to 9 September 2024. The Respondent stated that as per its absence records for the Complainant, she was off sick for one day and had been on shift when the HR Business Partner contacted her to attend the meeting on 28 August 2024.

On 30 August 2024, following on from a phone call with the Complainant, the HR Business Partner emailed the Complainant to confirm that the meeting would be scheduled for 10 September 2024. On 10 September 2024, the Complainant attended a preliminary screening meeting with, the HR Business Partner. On 12 September 2024, , the HR Business Partner emailed X to highlight that as mediation was not agreed to, that the matter would progress to a formal investigation and noted that a preliminary screening meeting would take place on 25 September 2024.

On 13 September 2024, the HR Business Partner emailed the preliminary screening report to the Complainant and confirmed that “the alleged behaviour you have described falls into the definition of bullying” and noted that this is a “preliminary finding”. She stated that the matter would now proceed to a formal investigation, in relation to which another HR Business Partner would contact the Complainant in due course.

On 16 September 2024, the Complainant lodged her complaints to the WRC.

In the first instance I accept that the Complainant made a protected act when she made a complaint under the Respondent’s Dignity at Work Policy against her colleague X on 28 May 2024.

I must then establish if the Complainant was subjected to penalisation, as set out in the legislation below, and if the penalisation occurred because ofher making the protected act.

In relation to penalisation, I note that Section 27 of the SHWWA states as follow:

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.

In relation to the connection between the penalisation and the protected act, I note that the Labour Court in O’Neill v Toni and Guy 2010 ELR 21 held that:

“…the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act…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 detriment.” 

Having regard to the above, I note that the Complainant stated that she suffered penalisation following her complaint of workplace bullying in the following ways:

1.       Retaliatory Counter-Complaint by X:

The Complainant stated that X lodged a counter-complaint against her nearly three months after she made her complaint under the Dignity at Work Policy, and only after he became aware of her complaint of 28 May 2024 against him.

In assessing if this constituted penalisation by the Respondent under the Act, as set out above, I noted that X emailed his complaint to the HR Business Partner on 16 August 2024, further to which she conducted a preliminary screening with him on 25 September 2024. The HR Business Partner communicated the outcome of the screening to him on 10 October 2024 and the Complainant was notified of X’s complaint on 15 October 2024, after the instant complaint was submitted to the WRC.

In the absence of any evidence to suggest that the Complainant had been aware of X’s complaint prior to 15 October 2024, I find that the Complainant cannot have suffered any penalisation in respect of this aspect of her complaint prior to 16 September 2024, when the matter was referred to the WRC.

2.       The failure of the employer to adhere to its own investigation timelines.

The Complainant stated that the Respondent’s grievance procedure mandates that a meeting should be arranged within seven working days of receiving a complaint. Instead, it took 105 days for the Respondent to arrange a formal meeting. It was asserted that the prolonged delay in investigating the Complainant’s complaint exacerbated her workplace distress and left her exposed to continued maltreatment.

I note firstly that the Complainant chose to refer her complaint under the Respondent’s Dignity at Work and not under the Grievance Policy. Unlike the Grievance Policy, which provides that a meeting should be arranged within seven working days of receiving a complaint, there is no such requirement in the Respondent’s Dignity at Work Policy.

In assessing if the alleged delay in investigating her complaint under the Dignity at Work Policy could constitute penalisation, I note that the Complainant first requested mediation under the informal process of the Respondent’s Dignity at Work Procedure and that this request was rejected by X on 31 July 2024. Having been informed of this rejection, the Complainant asked for the process to proceed to a formal investigation on 5 August 2024. In accordance with the Respondent’s Dignity at Work Procedure, a preliminary screening to: “decide if the alleged behaviour, which is the subject of the complaint, falls within the definition of bullying, harassment or sexual harassment as outlined in the Dignity at Work Policy” was scheduled by the HR Business Partner for 20 August 2024. The Complainant failed to attend either on that day or when it was rescheduled on 28 August 2024. As she was on annual leave from the 1 to 9 September 2024, the preliminary screening meeting did not take place on the 10 September 2024. The Complainant was provided with the outcome on 13 September 2024 and was notified that the matter would proceed to a formal investigation.

Considering all of the foregoing, I find that the time periods involved in the initial investigation of her complaints was reasonable and do not constitute penalisation.

Even if it could be asserted that the Respondent’s failure to investigate her complaint in a timely fashion could be be said to constitute penalisation, which for the avoidance of doubt I have found it did not, the Respondent’s delay in investigating the complaint could not in any circumstances be considered a penalty that arose solely because the Complainant raised a health and safety concern. I make this finding because Complainant has not established that the delay – which, taken at its height, lasted from 28 May 2024 to 16 September 2024—constituted a punitive response to her complaint. While the delay may be viewed as unsatisfactory, there is no evidence of a causal link indicating that it was retaliatory in nature.

3.       Failure to enforce HR Directives against Mr. X.

The Complainant stated that following the Dignity at Work training on 22 and 27 November 2023, a member of the HR Department instructed X to act professionally and communicate amicably with the Complainant. It was further asserted that X ignored this instruction, and that HR failed to take further action. Specifically, the Complainant stated that the Respondent’s failure to enforce its own HR policies has enabled ongoing penalisation by allowing continued exclusion, ostracization, and intimidation.

In the first instance, I find that no direct evidence was presented by the Complainant to suggest that any instruction was given by a member of the Respondent’s HR Department to X regarding his conduct vis a vis the Complainant on either 22 and 27 November 2023. Accordingly, I find that there can have been no penalisation.

Even if such a conversation was found to have taken place, I note that the alleged failure to enforce the HR Directives against Mr. X was ongoing and commenced before the Complainant made her complaint on 28 May 2024. Accordingly, there can been no suggestion of a causal link between the alleged penalisation and the complaint.

4.       Subjecting the Complainant to an Unreasonable and Prolonged Investigation Process:

The Complainant highlighted that on 15 October 2024, the Respondent changed the investigator to an external Consultancy, which caused additional delays and complications. It was further asserted that although the Terms of Reference indicated the investigation should conclude within 8 weeks, it had still not concluded at the date of the WRC hearing.

Given that this complaint was referred to the WRC on 16 September 2024 however, prior to the engagement of the external consultancy who are currently conducting the investigation, I cannot consider any matters after this date.

5.       Changing Shift Patterns

The Complainant stated in her direct evidence that she was subjected to penalisation in the form of proposals to change her work shift patterns to reduce the amount of time that she worked with X. Even if I found that these discussions constituted penalisation, which I do not because the Complainant agreed with the Respondent’s proposals, I noted that these discussions were had with the Complainant before she made her complaint on 28 May 2024. Accordingly, there can been no suggestion of a causal link between the alleged penalisation and the complaint.

CA-00066010-001: This complaint was withdrawn.

CA-00066010-002: I find that this complaint is not well founded for the reasons set out above.