HSD126

This is an appeal by A Worker (the Complainant) under the Section 29(1) of the Safety Health and Welfare at Work Act 2005 against Rights Commissioner's Decision NoR-100532-HS-10/TB.

The worker made a complaint that, contrary to the provisions of Section 27(1) of the Act she had been made redundant after she raised a grievance with her Manager relating to safety health and welfare at work.

The Rights Commissioner decided that her employer, (“the Respondent”), did “not penalise or threaten penalisation against”her for—

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  (a)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,

The Labour Court conducted an investigation into the complaint by way of oral hearing on 3 January 2012. In the course of the hearing a number of issues arose that required further submissions from both sides. These were subsequently submitted to the Court and were taken into account in reaching its determination in this case.

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  Background

  The Respondent employed the Complainant from the 5^thMay, 1999 to 26^thNovember, 2010. She had an unblemished employment record for the entire 11 years she worked for the Respondent.

  Complainant’s Case

  On November 26^th2009 the Complainant sent an email to the Human Resources Department advising that an employee had been mistakenly paid for 4 days annual leave. The days were in fact taken as unpaid leave and should have been recorded as such. In that email she advised Human Resources that it was “our error” meaning an error made by both the Complainant and her direct Manager Ms K to whom she copied the email.

  She submitted that she was approached on November 27^th2009 by a Mr G, Operations Manager, who, without seeking her version of events, instructed her to apologise to Ms K for sending the email and told her that she reminded him of his “nagging wife.”

  On the afternoon of November 27^th2009 she informed Ms D, the Human Resources Manager, that an alleged “affair” between Mr G and Ms K was the cause of his intervention in the matter and that it was generally having a negative effect on her. The behaviour in which they allegedly engaged included inappropriate communication within the office to which she was privy. She also alleged she was being disadvantaged at work as Mr G was, to her detriment, showing favouritism towards Ms K in the workplace.

  On November 30^th2009 she made a formal verbal complaint to Ms D in which she outlined details of the inappropriate communications between Mr G and Ms K, the nature of the favouritism and an example of inappropriate behaviour.

  On December 2^nd2009 Ms D phoned the Complainant and told her that the matter “had been dealt with.” The Complainant says this was the only phone call she received from Ms D or management following her complaint.

  The inappropriate behaviour continued. Seven days after Ms D’s phone call further inappropriate emails were exchanged between the parties. The Complainant was privy to these emails also as she and Ms K shared computers and passwords.

  Over the following months the Complainant’s working conditions deteriorated. She experienced non-cooperation and isolation from Ms K. In relation to this behaviour she was told by Ms K on May 27^th2010 “Don’t fight me”.

  On May 28^thMs K sent an email to Human Resources in which she called the Complainant a “sneak”. Human Resources did not refer this email to the Complainant for comment.

  On another occasion the Complainant was, without reason or explanation, asked to leave a meeting by Mr G. She took this to be a further example of an adverse reaction to the complaints she had made regarding his behaviour towards her.

  The Complainant submitted that she felt penalised for bringing a complaint on the basis that her work environment became worse rather than better.

  She submitted that if Ms K had a difficulty with her performance she should have raised it with her in direct conversation. Ms K did not do this.

  She also submitted that Ms K never raised with her any of the complaints she had set out in the email she sent to Ms D about her on May 28^th2010.

  She also submitted that the content of the email conflicted with the appraisal score she received in her annual review on 17^thDecember 2009.

  On July 21^st2010 the Complainant attended her Doctor who certified her unfit for work for one week. Ms D contacted her to enquire if she had injured herself. She phoned Ms D and told her she was out sick with stress from the issues raised in December 2009. She said she hoped to be back in work on 28^thJuly 2010.

  On 27^thJuly her Doctor extended her sick cert until 3^rdAugust 2010.

  On 28^thJuly Ms D emailed her to advise her that she had arranged an appointment for her with the Company Doctor for 29^thJuly. The Complainant advised that she would attend the appointment. The Company Doctor reported to the Company that she should remain on sick leave for a further two to three weeks.

  On July 29^ththe Respondent changed the passwords on the Complainant’s computers and mobile devices that had the effect of removing her remote access to her computer and email.

  On 3^rdAugust she advised Ms D that the Company Doctor had advised her to remain off work for another week. She said she would attend her own Doctor on August 4^thwith a view to returning to work on the 6^thAugust.

  On 4^thAugust the Company contacted the Complainant advising her to attend an appointment with the Employee Assistance Counsellor and to remain on sick leave until after that date.

  On 6^thAugust she contacted the Company querying the Employee Assistance scheme as in her 11 years in employment with the Company she had never come across it before. She also advised that she had a final cert from her Doctor and was fit to return to work.

  On 9^thAugust another member of the Human Resources team a Ms C advised her that the report of the Counsellor would form part of the decision to confirm her fitness to return to work and that the decision to refer her to the Counsellor was taken on the advice of the Company Doctor.

  On 10^thAugust she attended the interview with the Counsellor. On enquiry she was told that a verbal report would be made to the Company.

  On 11^thAugust Ms C instructed to remain on sick leave until she (Ms C) had received the written report of the Counsellor. At this time she had a certificate saying she was fit for work. Furthermore the Counsellor had told her that she would supply a verbal report only to the Company. On checking with the Counsellor she discovered that the report that Ms C said she was awaiting was already with the Company before the email referred to above had been sent. She was now concerned for her employment position and made enquiries of Ms C in that regard.

  On 12^thAugust Ms C told her to remain on paid leave until the Company received the Counsellor’s written report. The Complainant did not receive the Counsellor’s written report until the 17^thSeptember.

  The Company did not arrange a follow up meeting with the Company Doctor. However she, at her own initiative, attended the Company Doctor on the 12^thAugust in an effort to return to work as she was now certified to do so by her own Doctor.

  On 13^thAugust Ms C emailed her noting her visit to the Company Doctor and enquiring if she wished to cancel her annual leave and meet to facilitate a return to work. She responded by email advising that she was on annual leave until 31^stAugust.

  On the 18^thAugust Ms C wrote to her advising that the Company Doctor had not in fact certified her fit to return to work and as she had not in fact returned to work before commencing her annual leave the Company was reclassifying her absence from work from annual to sick leave.

  On 31^stAugust the Respondent blocked the Complainant’s access to her email account.

  On 31^stAugust the she attended what she understood would be a return to work interview. Instead she was told that the Company had lost a major contract, a redundancy situation now existed and she put on notice that her job was in jeopardy.

  On the 6^thof September she emailed both Ms D and the Managing Director advising them that she had an outstanding grievance that she wished to have heard.

  Ms D arranged a meeting to discuss the grievance for the 9^thSeptember.

  On the 9^thSeptember she emailed the Managing Director asking that he hear the grievance as she felt Ms D was part of the grievance she wished to pursue.

  The grievance meeting took place on September 10^th. The Managing Director conducted the meeting with Ms D in attendance as a minute taker.

  The grievance related to the complaint the Complainant had originally made in November 2009. The Managing Director sent the complaint to both Ms K and Mr G seeking their response.

  On September 17 the Managing Director sent her a copy of the responses of both Ms K and Mr G and Human Resources respectively. She noted that the properties of all three documents were the same ie they had been edited on a computer by the same person.

  A grievance meeting took place on September 21^stat which the steps that had been taken on foot of her complaint were outlined to her. This was the first time such information had been given to her. She was asked to consider and respond to the information that had been provided to her.

  On September 22^ndshe received a note from the Managing Director seeking her immediate response to the issues raised the day before. She noted that this was in marked contrast to the 19 days she was required to wait to receive a copy of the minutes of earlier meetings and took place at a time when she was locked out of her email account and working from home.

  On September 24^ththe Managing Director wrote to her setting out his decision. He had concluded that her treatment by HR whilst she was out on sick leave was appropriate; that if she felt her presence in the Passenger Service Department was untenable after the HR intervention in November 2009 she would have applied for some Managerial positions that became available between February and July 2010; that it would not be feasible to alter the reporting lines without detrimentally impacting frontline operational performance; that she refused to purposefully engage with the EAP Counsellor thereby thwarting the process and at no point during 2010 did Ms K make a formal complaint against her.

  On 28^thSeptember she requested an appeal hearing. This was held on October 4^th2010.

  On October 8^th2010 she received a note from the Managing Director to the effect that her complaints against HR, Ms K and Mr G were uncorroborated by fact or evidence and that through his investigations the Company charter, policies and procedures had been upheld in relation to her. He also decided that the corporate governance expectations of the Company had been met.

  On 16^thNovember 2010 she submitted a complaint to the Rights Commissioner.

  She submits that she suffered penalisation within the meaning of the Act for making a complaint in respect of health and safety matters in the workplace.

  She referred to the Court to the judgements in the cases of

  Patrick Kelly t/a Western Insulation v Algirdas Girdsius (HSD081);

  Tony and Guy Blackrock Ltd and O’Neill (Determination No HSD095);

  and

  Oglaigh Naisiunta Na Heireann Teoranta v Michael McCormack (Determination No HSD115)

  She submits that she had made a complaint or representation to her employer as regards a matter relating to safety, health or safety at work on the 27^thand 30^thNovember 2009. She further submits that she suffered penalisation within the meaning of the Act when she was coerced by her superiors; was threatened with a change of work location; lost wages and shift pay whilst on sick leave and was subsequently dismissed by her Employer. She submits that the penalisation she suffered arose out of the complaint she made regarding matters relating to safety health and welfare at work on the 27^thand 30^thNovember 2009. Finally she submits that the Company’s failure to properly investigate and deal with the complaint she made in November 2009 amounts to penalisation within the meaning of the Act.

  Respondent’s Case

  The Respondent acknowledged that the Complainant did raise a grievance regarding health safety and welfare at work in November 2009. The Respondent submits that the Company addressed the issues raised, advised the Complainant accordingly and there the matter rested.

  Some months later the Complainant went on sick leave. Her Doctor recorded on the medical certificate that work related stress was the cause of her illness. The Respondent submits that it was concerned at this development and that it sought to support the Complainant through the illness and facilitate a return to work. In that regard it arranged for her to visit the Company Doctor and to attend with a counsellor under the Employee Assistance Programme. However the Complainant was uncooperative with this process.

  The Respondent submits that the Complainant was not cut off from access to her email accounts. The Complainant was supplied with a Blackberry phone that provided her with access to her email accounts. At various stages she sought to have the Blackberry phone replaced by an I-Phone. This was in the process of being arranged. Furthermore the Complainant complained that she was getting emails at all hours of the day and late into the night whilst she was out sick. It was to address this issue that the Company subsequently took the action it did.

  The Company did not seek to interfere with the Complainant’s annual leave. It is Company policy that one cannot be simultaneously on both annual leave and sick leave. As the Company Doctor had not certified the Complainant fit to return to work before her leave commenced the Company could not consider he absences as annual leave and advised her accordingly.

  The Company rejects the accusation that it interfered with or orchestrated the responses from the HR Department, Mr G and Ms K to the grievances. The responses were received by email in the HR Department. The Department opened the attachments and saved them down onto a departmental computer. It is clear from the file properties referred to by the Complainant that the time spent editing the documents is very short and is consistent with the Company’s explanation.

  The Company made good any underpayment that arose in relation to the Complainant’s annual leave or sick leave. Any shortfall in payments were the result of an oversight rather than an act of penalisaiton.

  The Company did not refuse to allow the Complainant back to work. The Company could not allow her back to work until she had been certified fit to work by its own medical advisors. The documentation shows that the Complainant’s version of events does not accord with the emails and records in this regard. Had the Company Doctor certified the Complainant fit to return to work the Company would have facilitated this.

  The Company rejects the Complainant’s view that Ms D of the Human Resources Department was inappropriately in attendance at the investigation into her grievance by the Managing Director. Ms D attended for the purpose of minute taking only and played no part in the decision making process.

  The Company submits that the reason for the Complainant’s redundancy arose out of a loss of business that required a considerable downsizing of the operation. The Company submits that it was not related to a complaint that had been raised and dealt with over 12 months earlier.

  Findings of the Court

  It is common case that the Complainant made a complaint relating to matters of safety health and welfare at work in November 2009. The Complainant contends that this matter was never properly investigated. The Respondent contends that it was dealt with and the Complainant advised accordingly. Thereafter there is no further record of the complaint being followed up by the Complainant or being pursued in any way.

  The Court finds that the Respondent Company investigated the complaint and reverted to the Complainant on the 2^ndof December 2009 advising her that the matter had been dealt with. The Complainant did not pursue the matter further at that time. Accordingly the Court finds that the Respondent dealt with the complaint, advised the Complainant accordingly and considered the matter closed. .The Court further finds that the Complainant acted in a manner consistent with that of a person who accepted that the matter was satisfactorily dealt with.

  In December 2009 Ms K signed off on an excellent performance management appraisal in respect of the Complainant. This was counter signed by Ms D. This suggests that there were no issues between the parties at that time and that the matter had been addressed and closed.

  Thereafter the first next incident referred to by the Complainant in her submissions to the Court occurred on the 9^thof July 2010 some eight months later and after the performance management appraisal completed in December 2009.

  On the basis of the documentation supplied to the Court and the submissions made in the course of the hearing the Court has formed the view that whilst there may have been a difficult working relationship between the Complainant, Ms K and Mr G and whilst the latter two may have behaved in an inappropriate manner towards each other there is no evidence to connect the complaint made in November 2009 with their subsequent interactions with the Complainant. Indeed the performance review would suggest the opposite. Furthermore there is no evidence to suggest that the Respondent Company was aware of the Complainant’s perception of events after it had dealt with the complaint and reported back to her in December 2009. The development of a stress related illness first manifested on 21^stof July 2010 and had not been raised with the Company before that date.

  On reviewing the documentation supplied to the Court and taking into account the submissions made by both parties the Court further finds that the Respondent Company behaved reasonably in requiring the Complainant to attend the Company Doctor for a medical review after her sick leave commenced in July 2010; that it subsequently acted in a reasonable manner consistent with the medical advice; that its intentions in sending the Complainant to the Employee Assistance Counsellor was benign and was motivated by its concern for the Complainant rather than out of any effort to frustrate her return to work; that its behaviour around the Complainant’s annual leave arrangements was consistent with its policies on sick and annual leave entitlements and lastly that its failure to pay the Complainant her shift pay for the month of September and the underpayment of holiday pay were inept but did not amount to penalisation for making a complaint in November 2009.

  Finally the Court finds that the decision to make the Complainant redundant was not a response to the complaint made in November 2009.

  Section 27 (3) of the Act provides that

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  (b)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,

  It is clear from this section that acts of penalisation perpetrated against an employee only come within the scope of this section where it arises in retaliation to an employee making a complaint or representation to their Safety Representative or employer under the Act. In this case a complaint was made to the Employer. Whilst the Court can see some evidence of a difficult working relationship between the Complainant and some of her Managers, the Court can see no evidence that these difficulties arose out of the complaint she made in November 2009. Indeed the evidence suggests that these difficulties both pre and post-dated that complaint.

  Furthermore the Court finds that the interactions between the Complainant and the Respondent Company after she went on sick leave in Jul 2010 do not amount to penalisation within the statutory meaning of that term. The Respondent may have been deficient in the manner in which it dealt with the Complainant but that deficiency was not, on the balance of probability, the consequence of the complaint made in November 2009.

  Finally, the Court finds that the redundancy was not a response to the complaint made in 2009 but arose for other reasons unrelated to the complaint. The Court makes no finding on the appropriateness of the selection of the Complainant for redundancy.

  Determination

  The Court determines that the complaint is not well-founded, upholds the Decision of the Rights Commissioner and disallows the appeal.

  The Court so determines.