FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : LEAHY & CO (REPRESENTED BY MAURICE LEAHY WADE CO SOLICITORS) - AND - SINEAD MORAN (REPRESENTED BY HUGHES & LIDDY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-101766-hs-10/DI.
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on 7th October 2011, and a Labour Court hearing took place on 1st February 2012.
DETERMINATION:
This is an appeal by Leahy & Co. against the Decision of a Rights Commissioner in a complaint of penalisation made against by Ms Sin�ad Moran. The complaint was made pursuant to Section 27 of the Safety Health and Welfare at Work Act 2005 (hereafter referred to as the Act). Ms Moran was employed from 31stAugust 2009 until her dismissal on 15thJuly 2010. Ms Moran made complaints of bullying against the Office Manager in the company. She contends that in consequence of those complaints she was dismissed and such dismissal constituted penalisation of her within the meaning of Section 27 of the Act.
The complaint was heard by Rights Commissioner who found that Ms Moran had been penalised and awarded her the sum of €15,000 in compensation. Leahy & Co. appealed to this Court.
For ease of reference in this Determination the parties are referred to as they were at first instance. Hence, Ms Sin�ad Moran is referred to as “the Complainant” and Leahy & Co. is referred to as “the Respondent”.
Background
The Respondent is an accountancy firm employing 12 employees.The Complainant was employed by the Respondent as a receptionist from the 31st August 2009 until her dismissal on 15th July 2010.In or around January 2010 the Complainant made complaints of bullying and harassment against the Office Manager. These complaints were addressed by the Respondent through its informal disciplinary procedures.
The Complainant made a further complaint in writing on 3rd March 2010. This was followed bya formal written complaint made by the alleged perpetrator (the Office Manager) against the Complainant alleging mal treatment and attitude.
The complaints were investigated by the Respondent pursuant to itsPreventing and Dealing with Harassment Policyand a written decision was furnished on 5th March 2010. On foot of its investigation the Respondent concluded that the behaviour complained of by the Complainant could be construed as bullying. Following on from this conclusion disciplinary action was initiated against the perpetrator.The complaint made by the Office Manager against the Complainant was not validated.
On28thJune 2010 the Complainant made a complaint against her immediate line manager, concerning an email which the Complainant felt was rude. This allegation was investigated under the Respondent’s informal procedure and the complaint was not upheld.
On 8thJuly 2010 the Complainant went on a week's holidays, when she returned on 15th July 2010, she was summoned to a meeting where she was informed that things were "not working out" and her employment was terminated.
Summary of The Complainant’s Case
Mr Brendan Liddy, Hughes & Liddy, Solicitors, on behalf of the Complainant contended that the Complainant’s dismissal was as a direct result of the complaints she made against the office manager and this constituted penalisation of her within the meaning of Section 27 of the Act, for having committed a protected act as provided in Section 27(3) of the Act.
Mr Liddy dismissed the contentions contained in the Respondent’s submission that the Complainant's dismissal was due to her unprofessional conduct which reflected poorly on the company and as such warranted her dismissed.
He submitted that on the occasions when the Respondent had reason to speak to the Complainant about her work that the matters raised were trivial, andwere issues that one could expect to rise in any workplace.
He listed a number of examples of the complaints e.g.
- copy letters posted with original letters,
- in one case the addressee's address in a window envelope was obscured (4thJune 2010)
- practice of detaching letters/copies on a group rather than on an individual basis (11thJune 2010)
- stocks of envelopes running low (12thJune 2010)
- leaving Reception Desk without notifying other staff members (16thJune 2010)
- three misfiled documents and emails (29thJune 2010)
Mr Liddy accepted that management spoke to the Complainant about inefficiencies in the month prior to her dismissal. However, he stated that these complaints were completely trivial and that if the management had regarded them seriously they would have invoked their disciplinary procedures. He stated that these were simply being used as a cover up for the real reason for her dismissal namely the fact that she had made a number of complaints of bullying and harassment.
Summary of The Respondent’s Case
Ms Niamh McGowan B.L. instructed by Maurice Leahy Wade & Co, Solicitors, on behalf of the Respondent, stated that the Complainant was dismissed because of her poor performance, she said that the fact that she had complained of bullying and harassment was not taken into consideration by the Respondent whe deciding to dismiss her. Ms McGowan said that the Respondent had no issue with the Complainant's making complaints of bullying and harassment, and it engaged fully with her and staff to resolve the issues complained of. Ms McGowan thatdespite anumberofmeetings held to discuss the Complainant's level of performancetherewas noimprovement in theComplainant’s work and therefore the Respondent decided that her employment should not continue. Ms McGowan said that performance issues had beenraisedwith the Complainant for the entire duration of her employment and before anybullying complaintsweremade.
Ms McGowan told the Court that shortly after commencing employment with the Respondent the Complainant complained of interpersonal difficulties with her work colleague in the reception area. She raised this matter with the Office Manager. As a result the work colleague was moved from the reception area to a desk in the open plan office. Then some months into the Complainant’s employment, a dispute arose between her and the Office Manager.The latter had issues with the manner in which the Complainant did her job and with how she interacted with other members of staff.Ms McGowan said that byJanuary 2010 the Office Manager had even considered the possibility of extending the Complainant's probationary period in oder to establish if matters could be resolved. The Office Manager raised her concerns with the Complainant regarding her attitude and quality of work. However, before these could be dealt with the Complainant made an informal complaint of bullying in respect of the Office Manager, to a senior member of management. A series of meetings took place on the 14th, 18thand 25thJanuary 2010 which concluded with a meeting in February 2010 in which the senior manager thanked both parties for their efforts to improve matters between them. Because the Complainant's complaint coincided in time with the review of her probationary period it was decided not to extend the probationary period notwithstanding the performance difficulties. Both partners in the Company were concerned that the Complainant might perceive an extension of the probationary period as an act of penalisation.
On 1stMarch 2010, a formal written complaint was received by the Respondent from the Office Manager in which she detailed concerns regarding the Complainant's attitude towards her and treatment of her.
On the same day the Complainant made a verbal complaint that she was being bullied by the Office Manager. A senior manager, Mr O'D, requested her to put her complaint in writing in order that it might be formally investigated. This was provided in writing on the 3rdMarch 2010.
Following a number of meetings with the parties a report was issued on the 5thMarch 2010 which upheld the Complainant's complaint of bullying and recommended that the Office Manager attend training, it also advised that the Complainant should report to a senior manager rather than the Office Manager pending completion of that training. The Office Manager received a verbal warning. The Office Manager’s complaint against the Complainant was not upheld although the investigator did express the view thattheComplainant should make better efforts to fit into the company and develop aworkingrelationship with the Office Manager.
On the 5th May 2010 the Complainant requested a performance assessment review. At that assessment review she confirmed that she was happy with the outcome of enquiry made into her complaints of bullying. Ms McGowan told the Court that the Complainant participated in the assessment review although her focus was on seeking an increase in pay. A pay increase was not granted mainly due to the economic difficulties facing the company. Ms McGowan submitted that following that assessment review the Complainant’s work, performance and attitude deteriorated. One of the Partners in the company, Mr L, became dissatisfied with her deteriorating performance as her work was becoming unprofessional and reflected poorly on the company. Mr L held a numberofmeetings with her in June 2010 to address a rangeof different issues.
Then on28thJune2010,theComplainant spoke with Mr O'Dabout an email she had received from the Office Manager and she told Mr O’D that"the tonehas gone bad again,with [the office manager]".The Complainant had received the email from the Office Manager that morning. The Complainant was of the opinion that the contents of the email were a further example of inappropriate behaviour by the Office Manager. Ms McGowan contended that the contents of the email could not in any context give rise to an allegation of inappropriate behaviour. The email from the Office Manager was in response to a query from the Complainant in relation to a Company Social outing, the details of which were intended to be a surprise. The Complainant informed the Office Manager that she would not be able to attend the evening partof the event due to her mother's illness. The contents of the alledged offensive email were as follows:
- Hi[the Complainant]
That's disappointing.
The day part will run until 5.30 and you won't be near the office when its over so you may have to get a taxi back at your own expense.
Sorry but I can't advise where from!
[signed off by the Office Manager]
Ms McGowan contended that there were textural differences between the March 2010 complaints and the complaint of 28thJune, 2010. The earlier complaints were very specific in the matters they referred to whereas the June 2010 complaint was vague and with the exception of a reference to the email no specific complaints were made, the focus instead, related to fears of what may happen.
Mr O’D carried out an investigation into the matter and met with the Complainant, the Office Manager and another work colleague who had previously been interviewed as part of the initial investigation. The Complainant’s complaint of bullying was not upheld by the Respondent and the investigator made findings entitled"areastoconcentrateon".
Ms McGowan told the Court that during that investigation a number of matters were raised which gave rise to concern on the part of the Respondent in relation to the Complainant’s work and attitude. The Complainant’s complaint was not upheld.
Otherperformanceissuesarose leadingto Mr Lmeeting with the Complainantagainon 29thJune 2010.At thisstagetherehad beenfurther incidentsrelatingtothemisfiling ofdocumentsand emails. The Respondent kept contemporaneous notes of various meetings which recounted the difficulties encountered with the Complainant’s performance. Ms McGowan contended that the decision to dismiss was based simply on the Complainant’s poor performance and the complaints of bullying had no bearing on the decision.
Ms McGowan stated that while none of the specific issues raised where hugely significant, the Respondent formed the view that the cumulative effect of the errors, lack ofattention andgeneral poor performance, all of which had worsened since the Complainant's performance review meeting on 5thMay 2010, indicated an unprofessional approach and reflected poorly on the Respondent. It was further the case that a disproportionate amount of management time was spent addressing performance issues which did not immediately resolve themselves once brought to the attention of the Complainant. Therefore, the Respondent made a decision to terminate the Complainant's employment.
Ms McGowan accepted that in a different forum the Respondent mighthave difficulty with a claim for unfair dismissal on the basis of lack of procedures.
The Law
Penalisation is defined by s. 27 of the Act as follows: -
- 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
- (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,
- (2) Without prejudice to the generality of subsection (1), penalisation includes—
Subsection 3 of Section 27 prescribes the circumstances in which penalisation is rendered unlawful under the Act. It provides: -
- (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) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions
(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.
In order for the Complainant to avail of the protections available in Section 27(3) it is essential that the detriment complained of be causally connected to one or more of the matters referred to in that subsection. The Complainant must show that ‘but for’ having made a protected act under the Subsection the detriment would not have happened.
In the instant case the protected act relied upon is the making of a complaint of bullying. The detriment complained of is the dismissal of the Complainant. The Complainant made a number of complaints early in 2010 which were thoroughly, effectively and expeditiously dealt with by management and which brought about a resolution to the difficulties at the time. The complaint made on 28thJune 2010 was ostensibly about an email sent to the Complainant from the Office Manager. Having read the contents of the email, the Court is completely satisfied that its contents could not in any way ground a complaint of bullying on the part of the recipient, it merely supplied information to the Complainant and when viewed against the facts surrounding the information contained therein there could be no sense of impropriety about it. When making her complaint about the email to Mr O’D on 28thJune 2010 the Complainant told him that she was once again being subjected to similar difficulties as had arisen earlier in the year. As had been the case earlier in the year management dealt with the matter in an effective and expeditious manner and concluded that the Complainant’s complaint of bullying was not upheld. However, one working week later, on return from her holidays she was summarily dismissed (she had been on holidays from 6thuntil 15thJuly 2010).
Section 27 provides that where an employee does something of the type referred to at subsection (3) and then is subjected to unfavourable treatment by his employer on that account, that unfavourable treatment is penalisation. Hence the decisive consideration is that of causation.
Having considered the positions of both sides the Court must consider whether there was a causal connection between her dismissal and the making of a complaint of bullying on 28thJune 2010. Did the dismissal arise'because of'an act protected by subsection (3) or'but for'the protected act the employee would not have suffered the detriment complained.
InPaul O'Neill v Toni & Guy Blackrock Limited[2010] ELR 21, this Court has held that the detriment complained of must have been imposed“for”having committed a protected act within the meaning of Section 27(3) of the Act:
"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 suggests 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 detriment. "
- "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 (see Joseph
Constantine Steamship LinevImperial Sheltering Corporation
(1942) AC154where this rule of evidence was described by
Maugham VC as "an ancient rule founded on considerations of
good sense and it should not be departed from without strong
reasons ")".
Therefore, the Complainant must establish, in aprima facieway at least, that a causal connection exists between her dismissal and the complaint she made regarding her welfare at work. The Court is satisfied that the lack of any disciplinary sanction taken against the Complainant coupled with the proximity between that the making of that complaint and her dismissal raise an inference of such a causal connection. The Respondent told the Court that a number of matters gave rise for concern regarding the Complainant’s work and her unprofessional attitude. These difficulties seem to have been present from the beginning of the Complainant’s employment with the Respondent.
The facts of this case pose certain difficulties for the Court as on the one hand the Respondent clearly had concerns about the Complainant’s poor performance and on the other there are complaints of bullying which arose prior to her dismissal.
Having examined the evidence as a whole the Court finds on the balance of probabilities that the Complainant’s dismissal was influenced to a significant extent by the final complaint of bullying made on 28thJune 2010. The Court has formed the view that it was at that point that the Respondent decided it could not tolerate the situation any longer and together with her lack of performance which was reflecting poorly on the company, decided to terminate her employment. The Court is fortified in this decision by the lack of any warnings given to alert the Complainant that her employment was in jeopardy despite the number of work related issues raised by Mr L between 4thand 29thJune 2010. Therefore, while the Court is not concerned with the fairness of otherwise of the dismissal it concludes that the making of the complaint of bullying on 28thJune 2010 was a factor which influenced the Respondent to a material degree to terminate her employment at that point.
Findings
Consequently, the Court finds that the Respondent was in breach of Section 27 of the Act and the Complainant was penalised in the manner referred to in Section 27(2) for having committed a protected act as provided for under Section 27(3) of the Act. As previously indicated the Court does not find that the complaint of bullying on the 28thof June 2010 was valid. The only question the Court had to decide was whether the Complainant was penalised as a result.
Determination
The Court believes that the appropriate form of redress is an award of compensation pursuant to Section 28(3) of the Act, in an amount which is just and equitable having regard to all the circumstances of the case. The Court believes that the award made by the Rights Commissioner is disproportionate in the circumstances and does not taken account of all the facts of the situation. Therefore, the Court is satisfied that an award of €3,500 is appropriate.To that extent the within appeal is allowed and the Decision of the Rights Commissioner is accordingly varied.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th March, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.