FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1); SAFETY; HEALTH AND WELFARE AT WORK ACT; 2005 PARTIES : ELECTRICITY SUPPLY BOARD (REPRESENTED BY CATHY MAGUIRE B.L. INSTRUCTED BY ESB SHARED SERVICES LEGAL DEPARTMENT) - AND - A WORKER (REPRESENTED BY NIALL NELIGAN B.L. INSTRUCTED BY P.C. MOORE & COMPANY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner’s Decision r-089240-hs-10/JC.
BACKGROUND:
2. The Employer appealed a Rights Commissioner's decision to the Labour Court on the 5th October 2010, in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act, 2005. A Labour Court hearing took place on the 11th January, 2011. The following is the Determination of the Court:
DETERMINATION:
The Worker (represented by Mr. Niall Neligan, B.L., instructed by P.C. Moore & Co., Solicitors) contends that she was subjected to penalisation contrary to Section 27 of the Safety Health and Welfare at Work Act 2005 (the Act) by her employer, the ESB.
The Worker complained that she suffered penalisation when she was dismissed by the ESB in circumstances where she had made a complaint to her employer of bullying, harassment and humiliation against her immediate line Manager.
The complaint was investigated by a Rights Commissioner who held that the ESB had penalised the Worker contrary to Section 27 of the 2005 Act and awarded her compensation in the sum of €8,000.
The Worker appealed against the quantum of the award while the ESB appealed against the Rights Commissioner’s decision that her dismissal was in breach of Section 27 of the Act.
The Rights Commissioner did not uphold the Complainant’s complaints that the circumstances leading up to her dismissal and the aftermath of her dismissal amounted to penalisation contrary to Section 27 of the 2005 Act. These decisions were not appealed and therefore only the complaint alleging dismissal amounting to penalisation of the Complainant is before the Court.
For ease of reference in this Determination the parties are referred to as they were at first instance. Hence, the Worker is referred to as “the Complainant” and the ESB is referred to as “the Respondent”.
Background
The Complainant commenced employment with the Respondent on 5th January 2009 as an Energy Trading Risk Analyst on a permanent contract which included a 12-month probation period. The Respondent terminated her employment on 17th November 2009 while she was on probation. Her letter of termination stated that the reasons for her dismissal were related to her standard of performance which did not meet the required standards for retention in the organisation coupled with her inability to improve despite the support given to her. The Complainant held that the reason for her dismissal was directly related to a complaint of bullying that she had made against her line Manager and consequently her dismissal was in retaliation for making that complaint.
While most of the facts of this case are agreed between the parties, details of the timing of the notification of the complaint of bullying are in dispute.
The Complainant contended that when Mr. M., Group Treasurer, invited her for coffee as an introductory welcome meeting, she made a complaint to him concerning the behaviour of her line Manager, Mr. R. This meeting, she maintained, occurred on 6th March 2009 and according to her the complaint made was one of “bullying”. Whereas, Mr. M. stated that the introductory meeting did not take place until sometime around mid-March, most likely 19th March 2009, and that the Complainant raised some concerns about her line Manager, specifically about his management style, which she classified as “micro-management” of her work.
It is not in dispute that immediately after the meeting, Mr. M. spoke to Mr. R. about the Complainant’s concerns. The events following that discussion are a matter of dispute. The Respondent (Mr. R.) stated that a one-on-one meeting took place on the same day between himself and the Complainant to discuss the concerns she raised over his management style. The Respondent (Mr. R.) told the Court that while he, Mr. R., had concerns about the Complainant’s performance at that point, he decided to deal only with her complaints at that stage. However, the Complainant stated that the meeting did not take place as the Complainant refused to engage in such a meeting without the presence of Mr. M.
On the 2nd April 2009 there was a meeting between the Complainant and Mr. M. to address her concerns about Mr. R. and the Complainant contended that she made a complaint of bullying and harassment at that meeting. Mr. M. denied that the word “bullying” was ever mentioned but said that it was clear that the working relationship between the Complainant and Mr. R. had not improved.
On the 29th April 2009, at a performance assessment meeting between the Complainant and Mr. R., the standard “Probation Report” used to assess and give feedback on the performance and development needs of new employees was completed. The assessment ranking was as follows:
- Standard of Work: “Needs Improvement”
Output: “Needs Improvement”
Knowledge: “Good Performance”,
Commitment: “Unacceptable”
Social Skills: “Unacceptable”
Judgment: “Needs Improvement”
Amplifying Remarks:
“Work product, particularly credit memos, has required improvement. In particular sections of memos have been copied from other sources without editing or attribution, leading to inaccuracies. This has been noted to [the Worker] on two occasions. Although [the Worker] appears to have some analytical experience, in some cases there is the appearance of rushing through work at the expense of quality. It has already been pointed out to [the Worker] that her style tends to communicate lack of engagement in the job even to the point of being short with colleagues. She does not demonstrate acceptable communication skills in areas such as explaining concerns about the work environment or answering queries about work product.”
“What are the employee strengths?”
“Rapid learning of ESB systems.
Good quantitative skills.
Willingness to work independently.”
“Outline areas where development is required”
“As necessary slow down to be thorough and pay attention to detail to improve quality of results. Ability to communicate and discuss results of reports, analyses etc. Demonstrate engagement in Group Risk issues and teamwork.”
A further meeting was then held on 1st May 2009 at which the Complainant submitted that she made an informal complaint of bullying against Mr. R. Present at that meeting were the Complainant; Ms. Ni M. (the Complainant’s trade union representative); Mr. M. (Group Treasurer) and Mr. O’D. (Human Resource Manager). The Respondent (Mr. M.) stated that as it was a very short meeting it had to be adjourned until 6th May 2009. The Respondent (Mr. M.) said that it was only at the latter meeting that the Complainant first mentioned the word “bullying” at which point the Respondent recommended mediation. Mediation took place on the 22nd May 2009.
Following the meeting on 6th May 2009 the Respondent decided to defer the Complainant’s probation assessment subject to ongoing review.
On 27th May 2009, through her trade union representative, the Complainant indicated that she wished to progress her probationary assessment.
On 28th May 2009 the Complainant received a caution/warning regarding her refusal to carry out work instructions given by her line Manager on Monday 25th May and on Wednesday 27th May 2009 when she made a public complaint about the instructions. It stated that her demeanour and attitude was “uncooperative and disrespectful of his position as Manager”. Also on that day, Mr. O’D, HR Manager, acknowledging her request to progress her probation assessment, made arrangements for a meeting with her line Manager, Mr. R., and in the meantime suggested that she should review those aspects of her performance which had been identified by her line Manager as requiring an improvement.
On 29th May 2009 the Complainant informed the Respondent that she now wished to process her complaint of bullying and harassment in a formal way under the Respondent’s procedures. A letter outlining the details of her formal complaint was forwarded to the Respondent on 8th June 2009.
Following a further probation meeting on 19th June 2009 the Respondent raised certain matters concerning her lack of performance. Present at that meeting on 19th June 2009 were: the Complainant, Mr. M. (Group Treasurer), Ms. K. (independent HR representative who attended as an observer) and Ms. B. (the Complainant’s trade union representative). It was agreed that the Complainant would draw up an Action Plan aimed at closing the performance gaps that had been identified at the meeting on 29th April 2009.
The Complainant submitted her plans on 23rd June 2009. At a meeting the following day it was pointed out to the Complainant that her Action Plan did not fully address the points raised from the probation assessment as they did not adequately deal with what was needed to enhance her performance under Judgment and Commitment/Social Skills. The Respondent decided to provide her with work projects to allow her to think broadly and flexibly, receive feedback in a non-defensive manner and work positively with her work colleagues. Details of this agreed course of action were outlined in an email to the Complainant dated 25th June 2009.
On 10th July 2009, the Complainant met with investigators in relation to her formal complaint of bullying and harassment.
On 14th July 2009 at a further probationary review a meeting with the Complainant, Mr. M., Mr. R. and Ms Ni M., the work projects were assigned to her.
Also on 14th July 2009 she received a second caution/warning concerning the unauthorised recording by her of her first probation assessment meeting held on 29th April 2009 with her line Manager.
Further follow-up meetings were scheduled for 23rd and 30th July 2009. These meetings did not take place as the Complainant then became ill and took certified sick leave from 16th July 2009.
The team investigating her complaints of bullying and harassment issued its report on the 16th September 2009 and concluded that the evidence did not support her claims of bullying.
The Complainant appealed against the decision and two meetings were held on 13th and 28th October 2009 with the Appeals Manager. His decision, upholding the original decision of the investigating team, was issued on 16th November 2009.
A probationary assessment meeting took place on 13th November 2009, between Mr. O’D., Mr. M., Mr. R. and Ms. K., to review the Complainant’s performance to date. The objective of the meeting was to decide on the next course of action. A memorandum sent by Mr. O’D. beforehand stated that the following options would be considered:
- Retain the Complainant in regular employment.
- Extend her probationary period.
- Terminate her employment.
By memorandum dated 17th November 2009 from Mr. O’D. and Mr. M. approval was sought from the Group Finance Director to terminate the Complainant’s employment contract as she had not met the standards required for retention in the organisation and she had not shown an ability to improve sufficiently to allow her meet the standards over time “despite considerable ESB support”.
By registered letter dated 17th November 2009, the Respondent notified her that she was being dismissed from her employment (the Complainant was on sick leave at this time).
The Complainant’s Case
Mr. Niall Neligan, B.L., instructed by P.C. Moore & Co., Solicitors, on behalf of the Complainant, contended that her dismissal was as a direct consequence of the complaints of bullying which she made and amounted to an act of penalisation. He held that the Respondent had gone through the motions concerning her complaint of bullying and harassment but that the speed with which her employment was terminated following the decision of the appeal hearing was indicative that she was victimised for initiating the complaint.
Mr. Neligan submitted to the Court that the burden of proof shifts to the Respondent that the complaints relied on did not influence the penalisation and ultimate dismissal of the Complainant. He submitted that the events of 6th March 2009 served as a catalyst for the penalisation of the Complainant in the months that followed. He said that Mr. M. had done nothing to deal with her complaint thus allowing the circumstances of the bullying to persist up to and including the negative performance assessment on 30th April 2009.
The Complainant rejected the Respondent’s assertion that the first time she had mentioned bullying to any of her managers was at a meeting on the 6th May 2009 following a negative performance review on the 29th April 2009. She maintained that she made an informal complaint on the 6th March 2009.
The Complainant maintained that the performance review report was an inaccurate account of her performance and was used to intimidate her further. She said that the criticism of her performance was disproportionate, unfair and unjustified. She specifically drew attention to two issues, namely, that Mr. R. was being vexatious in his negative assessment of her “Judgement” skills as she was now reporting to Mr. M. instead of to him regarding days off and pension queries and therefore she maintained that she was being penalised for approaching Mr. M. on the 6th March 2009.
Furthermore, the Complainant maintained that Mr. R. implicitly informed her that she was not fit for the job and then set about requesting her to come up with an action plan to meet the requirements of the job. This is at variance with the standard appraisal mechanism, normally management sets the action plan and then agrees it with the employee and not the other way around.
The Complainant submitted on 27th May 2009 when Mr. R. became aggressive with her, she reminded him that she had previously complained about such behaviour and that they were involved in an informal process and that she would make a formal complaint if he persisted. She contended that Mr. R. used her comment as a pretext to discipline her and she was formally cautioned on 29th May 2009 in circumstances which she maintained amounted to penalisation within the meaning of the Act.
Following this caution, she told the Court that she began to suffer from stress as she felt the Respondent was using the disciplinary procedure to undermine her position. She made a formal complaint of bullying against Mr. R. on 8th June 2009.
On 19th June 2009 she was further negatively assessed in circumstances which she submitted were unfair.
On 10th July 2009 she met with the investigators in relation to her formal complaint. On 14th July 2009 she received a second caution relating to an alleged recording of her meeting with Mr. R. on 29th April 2009 which she submitted was further evidence of penalisation. On the same day she had a further probation assessment
Two days later due to stress she went on sick leave and remained on sick leave until the termination of her contract on the 17th November 2009.
The Complainant submitted that the investigation process into her complaint of bullying was biased and inherently flawed and that, despite making a detailed complaint, the report made no finding of bullying under twenty-one headings. In response to the report, she appealed and once again made a detailed submission correcting some of the inaccuracies contained within the report. Appeal hearings were heard on the 13th and 28th October 2009. The decision from the appeal body was handed down on the 16th November 2009; the Complainant’s employment was terminated on 17th November 2009.
The Complainant submitted that the decision to terminate her employment was made in July 2009 but was put on hold owing to the complaint of bullying she made in June 2009. In that regard, she submitted that the Respondent went through the motions regarding the investigation in order to give the grievance procedure a veneer of procedural fairness. It was further submitted that the Respondent did not comply with its own disciplinary procedure, in so far as the Complainant received two warnings in circumstances which were highly questionable, and as soon as her grievance relating to bullying was exhausted internally she was dismissed.
The Respondent’s Case
Ms. Cathy Maguire, B.L., instructed by Ms. Anne O’Connell, Solicitor, of the ESB Shared Services Legal Department, denied that the Complainant was penalised. She told the Court that the Respondent had fully investigated the complaint of bullying in accordance with its internal procedures and ultimately rejected that complaint both at first instance and upon appeal.
The Respondent had initially postponed its probationary assessment of the Complainant pending the determination of the Complainant’s complaints. However, at the Complainant’s request, the Respondent resumed the probationary assessment. The Respondent took measures to ensure the integrity of the probationary assessment. In particular, the Respondent took the following measures:
- Following the complaint of bullying made by the Complainant, Mr. R. took a back seat in the performance assessment process and instead Mr. M, Group Treasurer, chaired and led the probationary assessment meetings.
- One of the Complainant’s trade union representatives attended the probationary assessment meetings to represent her interests at any one time.
- Ms. K. from Corporate Human Resources attended the probationary assessment meetings (with the exception of the meeting on 14 July 2009) and took minutes of the meetings.
- The Complainant’s probationary performance was ultimately assessed by Mr M., Mr. O’D. and Mr. R.
The Respondent submitted that on completion of her probationary assessment, the Complainant was dismissed as her performance did not meet the standards required for retention in its employment and she had not shown an ability to improve sufficiently to allow her to meet these standards over time despite considerable support from the Respondent.
Ms. Maguire told the Court that the Complainant commenced employment with the Respondent in its Group Treasury Department at Corporate Centre, on the 5th January 2009. She was recruited to work in a small specialist team known as Group Trading Risk as an Energy Trading Risk Analyst. The team consisted of three people: Mr. R. Group, Trading Risk Manager, Mr. X., Energy Trading Risk Analyst, and the Complainant. Mr. X. and the Complainant reported to Mr R. who in turn reported to Mr. M., Group Treasurer.
The Group Trading Risk Department is responsible for performance of trading risk analyses, risk reporting, counterparty risk assessment and management of risk limits and authorities. The work is specialised and many of the outputs go to the most senior levels in the Company. The nature of the reporting required frequent and ad hoc report changes sometimes at short notice. The quality of work must be to a consistently high standard thereby requiring a significant level of work before final reports are issued to senior management.
The Respondent submitted to the Court that the Complainant was brought through an induction programme by Mr. O’D., HR Manager, when she was made aware of the Respondent’s Respect and Dignity Policy and the supports available to her as part of this policy and in general. Therefore, she knew her rights and what to do in order to bring a complaint of bullying, including her right to join the union, and for the union to bring a complaint on her behalf.
The Respondent submitted to the Court that as early as February 2009 Mr. R. pointed out to the Complainant that her work required considerable improvement. He instructed her not to copy sections of memos from other sources without editing or attribution. Nevertheless this behaviour continued at least into March 2009. On other occasions he requested her to change reports or to make corrections to errors she made.
The Respondent submitted that when Mr. M. met the Complainant for coffee around mid-March 2009 he was aware that Mr. R. had concerns about her performance but he did not feel that it was appropriate to raise these concerns at that stage when she was
telling him of her concerns about Mr. R’s management style.
The Respondent submitted that when Mr. R. subsequently spoke with the Complainant, while he was frustrated with her due to her level of work performance to date as she appeared to be unengaged in her work, however, he apologised if he was annoying her, they would have to make allowances for each other’s personalities and style, and stressed the need to keep the lines of communication open to each other in order to maintain an effective working relationship.
The Respondent submitted that the Complainant was non-committal in her response and indicated no willingness to improve the working relationship.
The Respondent submitted that on 29th April 2009 Mr. R. assessed her work performance in terms of her commitment and social skills as unacceptable, her standard of work, output and judgement as needing improvement and her knowledge as good performance. When it became known that she had recorded that meeting, unbeknownst to Mr. R., it decided to issue her with a caution.
The Respondent submitted that as the Complainant was not happy with this assessment, Mr R. gave her time to reflect on the assessment and to devise an action plan to address developmental issues that could be agreed with him. Later that day the Complainant’s trade union representative, Ms. Ni M., brought her complaint regarding Mr. R. to the immediate attention of Mr. O’D., HR Manager, and Mr. M, Group Treasurer. However, it was not until 6th May 2009 that the Complainant alleged that Mr. R had bullied her.
From that time, the Respondent dealt with the Complainant’s complaints under its policy entitled ‘Respect and Dignity for the Individual’ and made a decision to defer her probation assessment subject to ongoing review.
On 21st May 2009, the Respondent offered the Complainant and Mr. R. mediation. They each met with the mediator separately shortly thereafter for a briefing on the mediation process.
Around this time the Complainant notified the Respondent that she wished to discuss her probationary assessment as soon as possible.
The Respondent told the Court that on 29th May 2009 the Complainant was issued with a caution for two offences carried out on 25th May 2009:
- Her refusal to carry out a clear and reasonable work instruction which she told Mr. R. to do himself, and
- her public threat to escalate the bullying allegations made against him.
The cautionary letter stated that any repeat would be treated as most serious and may result in termination of her probationary employment.
Also on 29th May 2009 the Complainant indicated that she wanted to proceed with her bullying complaint under the formal procedures and that a written complaint would follow, which she did on 8th June 2009, when she lodged a formal written complaint of bullying. An investigation into her complaints was commenced by Mr. S.
The Respondent submitted that on 12th June 2009, in the course of the investigation, Mr. S. had to write to the Complainant to inform her that she was in breach of confidentiality as she had approached at least one witness cited in her formal bullying complaint and had shown that person a portion of her formal written document. This was not denied by the Complainant.
The Respondent submitted that at the probationary review meeting on 19th June 2009, when the Complainant was accompanied by her trade union representative, Mr. M. made it clear that he wished to move forward with the probation process, decide on an Action Plan to address the identified performance issues and concentrate on the future in a positive way. The Complainant made it clear that she wished to discuss and question in detail Mr. R.’s assessment of her in the previous probation report and the basis for his assessment. She read from a script outlining her complaints. The Respondent told the Court that her failure to move from this issue of the probation report meant that the meeting resulted in little or no progress in relation to the issues which were of main concern, namely, the ongoing poor standard of work and the work relationship in the office. Even since the initial performance assessment the Complainant’s work remained considerably below standard.
Eventually it was agreed between Mr. M. and the Complainant that she would propose a set of actions to demonstrate her competency in the performance gaps identified and allow her to present different potential solutions thereby demonstrating judgment, commitment and social skills. The Complainant’s union representative undertook to help her in doing this.
On 24th June 2009 a further probationary review meeting took place to discuss her action plans. Mr. M. told her that the plans did not address the points raised in the probation assessment and she was still not taking on board the work that was needed to address the performance gaps identified. The Complainant accepted that she wanted to progress in the areas identified and to improve the working relationships. Therefore, it was agreed that Mr. M. and Mr. R. would now assign projects to her to assist her to demonstrate her judgment, commitment and social skills and it was agreed to have regular follow-up meetings.
The second caution was issued to the Complainant on 14th July 2009 for surreptitiously recording the probationary review meeting with Mr. R. on 29th April 2009 and she was cautioned that any recurrence would be treated as a most serious matter. The Complainant accepted that she had recorded the conversation without Mr. R’s knowledge and undertook not to do so in the future. Later that same day a further probationary review meeting took place to discuss and assign the projects. Because the goal was to help demonstrate her skills it was specified that feedback would be given throughout the projects to assess her progress and help shape solutions.
The Respondent submitted that the projects assigned were ones that had previously been assigned to the Complainant but she had not completed them successfully due to her unwillingness or inability to think flexibly and creatively about various approaches to open-ended problems and to communicate these approaches effectively. The Complainant argued that it was impossible to approach one of the tasks in any manner other than the one she had previously suggested and refused to consider alternative approaches.
The follow-up meetings, scheduled for 23rd and 30th July 2009 did not take place, as the Complainant was absent on sick leave from 16th
July 2009 onwards.
On 14th September 2009 the report into the Complainant’s allegations against Mr R. was issued, it found that the complaints made were not well-founded. The Complainant appealed this decision on 30th September 2009; an appeal was heard on 13th and 28th October 2009.
The Respondent told the Court that on 13th November 2009, Mr M., Mr. R. and Mr. O’D. (with Ms K. in attendance), met to review the Complainant’s performance. The agenda for that meeting included the following:
- The nature of her role and its requirements.
- The performance issues identified at [the Complainant’s] first probationary meeting and subsequent meetings.
- Her attitude and approach to recognising and addressing these gaps.
- The level of support required by her to adequately perform the role.
- Her ability to address performance and/or behavioural deficiencies in general including the degree to which she has exhibited improvement in the areas of deficiencies identified.
- Instances of behaviour outside the formal probationary process which were of concern.
It identified the following options as one of the expected outcomes:
- Retain [the Complainant] in regular employment.
- Extend her probationary period.
- Terminate her employment with [the Respondent].
The Respondent submitted that, given the extensive period of time that management had spent trying to assist the Complainant in closing the performance gaps identified and her response to same, management were of the view that even with considerably more effort from them her performance was unlikely to improve sufficiently to allow her to successfully complete her probation. In those circumstances, therefore, it was decided to recommend to the Board that the Complainant’s employment be terminated. However, it was agreed that if her appeal against the rejection of her bullying complaint was upheld then they would reconsider this decision. Therefore, no recommendation for her dismissal would be made until after her appeal had been determined.
The appeal decision was reported on 16th November 2009 and found that her appeal was rejected. On 17th November 2009 Mr. O’D. forwarded the recommendation for the termination of her employment to the Group Finance Director who then signed the memo authorising the termination of her employment.
The Respondent submitted that the two processes - the decision to dismiss and the determination of the Complainant’s complaint and appeal - were independent of each other. Indeed, it submitted that from the time when the Complainant expressly requested that the probationary process not be delayed pending the determination of her bullying complaint, it was always possible that the probationary process might finish before the investigative process.
It was further submitted by the Respondent that the mere facts that :
- the involvement of Mr. R. in the process,
- the fact that the Complainant was cautioned arising out of a complaint by Mr. R. during the course of the process; and
- the fact that the management team decision to recommend the Complainant’s termination of employment
pre-dated the determination of the Complainant’s appeal did not demonstrate that the Complainant was dismissed “for” or “in retaliation for” her bullying complaint as required by Section 27(3)(c) of the Act. By contrast, it was contended that Mr. M. and Mr. R. had continuing concerns regarding the Complainant’s work performance and her lack of capacity to improve, demonstrate that the dismissal was based on her performance and was not “for” or “in retaliation for” her bullying complaint.
The Conclusions of the Court
The Applicable law
The relevant statutory provisions are at Section 27 of the Act. This Section provides: -
- 27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.
(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 undersection 11or appointed undersection 18to 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.
- (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,
In Department of Justice Equality and Law Reform (Determination HSD082) this Court considered how the probative burden should be allocated in cases under the Act. The Court held as follows: -
- "It is clear, however, that in the absence of any contrary statutory provision, the legal burden of proof lies on the person who asserts that a particular fact in issue is true (seeJoseph Constantine Steamship Line v Imperial Sheltering Corporation[1942] A.C.154 where this rule of evidence was described by Maugham V.-C. as 'an ancient rule founded on considerations of good sense and it should not be departed from without strong reasons').”
It is, however, settled law that in civil matters there is an exception to this rule known as the peculiar knowledge principle. This is a rule of evidence which provides that where it is shown that a particular fact in issue is peculiarly within a Defendant’s knowledge the onus of proving that fact rests with the Defendant (seeMahoney v Waterford, Limerick and Western Railway Co.[1900] 2.IR 273, per Palles C.B.)
InO’Neill v Toni & GuyBlackrock21 ELR 1 this Court held that in order to make out a complaint of penalisation it is necessary for a Complainant to establish that the detriment of which he or she complains was imposed“for”having committed one of the acts protected by subsection 3. The Court held that:
- “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 suggested 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.”
As was pointed inToni & Guy, there are two tests inherent in the statutory definition of penalisation. Firstly, the Claimant must have suffered a detriment of a type referred to at Subsections (1) and (2) of Section 27. Secondly, the detriment complained of must have been imposed for having committed a protected act or omission of a type referred to at Subsection (3) of the Section, in the sense that ‘but for' the protected act or omission having been committed the detriment would not have been imposed. This imports a requirement to show a chain of causation between the impugned detriment and the protected act or omission.
InFergal Brodigan t/a FB Groundworks v Juris Dubina, Determination HSD0810this Court held that a central fact in issue was the motive or reason for the Complainant’s dismissal and held that it would be palpably unfair to require the Complainant to prove that the Respondent was influenced by the issuance of the proceedings under the Act in deciding to terminate his employment. Therefore, it found that it was eminently reasonable to require the decision-maker to explain the reason for the decision and to show the absence of an unlawful motive.
Findings of Fact
The Court has carefully considered all of the evidence tendered in this case. There was a significant conflict in the evidence of the Complainant compared to that of Mr. M. relating to the details of when the Complainant made a complaint of bullying. Having examined the evidence the Court is satisfied that up until the beginning of May 2009 it would appear that the Complainant was classifying her complaints as “micro-management by her line Manager” where she stated that he was excessively monitoring her work and she found this abnormal and obsessive. There is no evidence to show that she made a complaint of bullying until the meetings which took place on 1st and 6th May 2009. After which the Respondent initiated their Dignity at Work Policy in line with its procedures. The Court is satisfied that these complaints, which were subsequently formally outlined in detail to the Respondent by letter dated 8th June 2009, constitute the making of complaints concerning health and safety matters under Section 27 of the Act.
The Court notes that the Complainant disputed the negative performance assessment of her by the Respondent claiming that it was an inaccurate account of her performance and was used to intimidate her further and was disproportionate, unfair and unjustified. Whereas, the Respondent held the view that the Complainant displayed an unwillingness or inability to think flexibly and creatively about various approaches to open-ended problems and to communicate these approaches effectively. It referred to her rigid behaviour, which was demonstrated in an angry and defensive manner, saying that she argued that it was impossible to approach one of the tasks assigned to her in any other way other than the way she had previously suggested and refused to consider alternative approaches.
Mr. M and Mr. R. gave evidence of their continuing concerns regarding the Complainant’s performance and her capacity to improve from an early stage in her probation
The Court is satisfied that the Respondent did go to some lengths to ensure that the Complainant’s performance assessment was conducted in an independent and separate manner to the complaint of bullying by suspending the probationary process for the duration of the investigation and by ensuring that all meetings were attended by the Complainant’s trade union representative and an independent witness from the HR Department. It was in fact the Complainant who expressly requested that the probationary process should not be delayed pending the determination of her bullying complaint.
The Court is also satisfied that there was sufficient evidence to show that the Complainant’s performance was a matter of concern at an early stage after she commenced employment. Furthermore, there were at least two episodes where the Respondent has justifiable cause to be concerned and the Complainant was issued with cautions, neither of which were appealed.
The Findings of the Court
The Court is essentially asked to determine, on the evidence available to it, whether or not the Respondent dismissed the Complainant as a result of a complaint she made about a matter relating to her welfare at work.
InToni & Guythe Court held 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 Complainant 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.
In the instant case the protected act relied upon is the making of a complaint of bullying in 2009. The detriment complained of is the dismissal of the Complainant on 17th November 2009.
The Court was given evidence of the Complainant’s performance assessment which highlighted a number of areas where she fell down and a number of areas which she specifically needed to address in order to improve. These included development of her ability to communicate and discuss results of reports, analyses, etc. and to demonstrate engagement in Group Risk issues and teamwork.
In an effort to assist the Complainant and give her an opportunity to demonstrate her skills, the Respondent assigned her three tasks, two of which she had previously worked on, and told her that it was willing to assist her by giving her feedback throughout the process and help her shape solutions. However, the Complainant told the Court that she argued that it was impossible to approach the tasks in any way other than the way she had previously suggested and refused to consider alternative approaches. The Respondent described her failure to complete these tasks as being due to “unwillingness or inability to think flexibly and creatively about various approaches to open-ended problems and to communicate these approaches effectively” and stated that her rigid behaviour was demonstrated in an angry and defensive manner.
The Court notes that the meeting on 13th November 2009 was called to consider the options available to the Respondent at that time.
Mr. O’D., Mr. M., Mr. R. and Ms. K. who attended the meeting, gave evidence to the Court that the decision to terminate the Complainant’s employment was taken due to the level of her unsatisfactory performance, her unwilling manner and the fact that her probationary period was nearing completion together with her ensuing entitlements which she could gain under the Unfair Dismissals Act 1977 if she had one year’s continuous service. They decided to terminate her employment by seeking approval for such a termination from the Board, and without going through any further procedures.
Having considered all the evidence the Court is satisfied that the reason for the Complainant’s dismissal was related to the gaps in her performance/skill-mix coupled with her reluctance to change. Furthermore, in a small team her inability to fit in caused difficulties which the Respondent made efforts to surmount without success.
The Court is satisfied, as a matter of probability, that the performance difficulties, which the Respondent identified early on in her employment, would have resulted in the dismissal of the Complainant regardless of the complaints she made of bullying by her line Manager. These performance concerns were continually raised throughout her probationary period.
The Court is further of the view that these factors alone may not have been the sole reason for the termination of her employment in an organisation of this size and structure but the lack of any alternative suitable location into which to transfer the Complainant was also a factor which influenced the decision and, finally, the pending expiry of her probationary period and her ensuing rights under dismissal legislation were other factors influencing the decision to dismiss.
Accordingly, from the evidence before it the Court finds that the aforementioned complaint made by the Complainant was not the dominant and operative reason for her dismissal but was made for other unrelated reasons. Therefore, the Court is not satisfied thatbut forthe complaint of bullying she would not have been dismissed. Accordingly, the complaint of penalisation has not been made out.
Determination
The Court upholds the Respondent's appeal and sets aside the Decision of the Rights Commissioner.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th March, 2011______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.