FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : BUS EIREANN - IRISH BUS - AND - MS THERESE BROWNE (REPRESENTED BY DES RYAN B.L. INSTRUCTED BY NOONAN & CUDDY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioners Decision No: r-127324-hs-12/EOS
BACKGROUND:
2. This case is an appeal by the worker of Rights Commissioners Decision No: r-127324-hs-12/EOS. The issue concerns a complaint of penalisation against the employer made in accordance with Section 27 of the Safety Health and Welfare at Work Act, 2005 (the Act). The matter was referred to a Rights Commissioner for investigation. A Decision issued on 18th July 2013 and did not find in favour of the workers claim. On the 26th August 2013 the worker appealed the Rights Commissioner's Decision in accordance with Section 29(1) of the Act. A Labour Court hearing took place on the 21st November 2013.
The following is the Court's Determination:
DETERMINATION:
This is an appeal from the decision of a Rights Commissioner in relation to a complaint of penalisation made by Ms Therese Browne against Bus Éireann-Irish Bus. The complaint was made pursuant to Section 27 of the Safety Health and Welfare at Work Act 2005 (the Act).
For ease of reference the parties are referred to in this Determination using the same designation as they had at first instance. Hence, Ms Therese Browne is referred to as “the Complainant” and Bus Éireann-Irish Bus is referred to as “the Respondent”.
The Rights Commissioner found against the Complainant, he found that the complaints referred to did not constitute evidence of penalisation, were misconceived or outside his jurisdiction. The Complainant appealed to this Court.
Background
The Complainant has been employedby the Respondent since 19thDecember 2005 as a Clerical Officerin the School Transport section in Athlone.The Complainant referred a complaint of penalisation by her employer contrary to Section 27 of the Act to the Rights Commissioner Service on 23rdOctober 2012 in circumstances where she had made a complaint to her employer relating to safety, health and welfare at work in April 2010.
In or about April 2010 the Complainant made complaints of bullying againsther Office Supervisor.The Complainant went on sick leave in April 2010.An investigation was initiated by the Respondent into the complaint. On 1stJuly 2010a mediation process took placeconducted by the Manager Personnel & Organisational Developmentunder the Respondent’s “Dignity & Respect” Policy. This resulted in an agreement on progressing matters for the future between the two people involved and an apology was given tothe Complainant.The Complainant accepted this apology and returnedto workon 14thJuly 2010.
On the day of her return to work the Complainant contacted the Manager Personnel & Organisational Development to ascertain if there were any alternative jobs available in the company. She was advised to check the weekly circular.
On 9thSeptember 2010, in line with the agreed mediation termsthe Complainant and her Supervisor had a meeting, following which the Complainant stated that she was very pleased with the progress made and reported to the Manager of Personnel & Organisational Development that things were working out really well.
On or about April 2012, an incident occurred which gave rise to a suspicion by the Complainant that the terms of the mediation had been breached. This was followed by an incident on 3rdMay 2012 between the Complainant and her Supervisor which resulted in the latter publicly apologising to the Complainant for her use of inappropriate words and tone.
The Complainant went out on sick leave on 8thMay 2012. She was certified as unfit for work on the grounds of stress and she submitted a complaint of bullying tothe Manager Personnel & Organisational Development on 15thMay 2012.
By letter dated 26thJune 2012, thePersonnel & Equality Officerwrote to the Complainant regarding her complaintandrequested that she confirm whether she wished to invoke the formal orinformal procedure under the “Dignity & Respect” policy.The Complainant telephoned thePersonnelandEqualityOfficeron 27thJune, 2012 expressing her preference to go the formal route.By letter dated 3rdJuly 2012 the Respondent indicated that a formal investigation into her complaints would beinitiated and that two trained internal investigators had been appointed to carry out the
investigation into her allegations.
The investigators began this process on 4thJuly 2012 and completed their work on 5thSeptember, 2013 when they issued their report findings.The Complainant was transferredfrom the School Transport Section to the Travel Centre on 25thOctober 2012 where she no longer worked on a flexitime arrangement. The Complainant returned to work in the School Transport Office on 12thSeptember 2013, on the same day her Solicitors on her behalf lodged an appeal against the investigation findings. The appeal is on-going.
Summary of the Complainant’s Case
Mr Des Ryan, B.L., instructed by Noonan & Cuddy Solicitors, on behalf of the Complainant submitted that the Complainant had been penalised by the Respondent for making a complaint of bullying in April 2010. He said that penalisation by the Respondent had occurred since the time ofmaking hercomplaint in April2010, and thatthesaid penalisation hadbeen designed to punish, undermine and target the Complainant for havinginvoked the protections of the Act.He identified four areas where the Complainant suffered a detriment by virtue of the acts/omissions of the Respondent. These were detailed as follows:-(i)the delay by the Respondent in progressing the investigation into the complaint of bullying made by the Complainant on 15thMay 2012;
(ii)the decision by the Respondent to transfer the Complainant from the School Transport Section to the Travel Centre on 25thOctober 2012;
(iii)the Complainant’s loss of flexitime arrangements on taking up the position in the Travel Centre, and
(iv)the failure to inform her of a promotional post advertised on 12thDecember 2012.
Mr Ryan submitted that the failure of the Respondent to seriously deal with the Complainant’s complaintof bullying in May 2012, particularly when it followed her previous complaint and incircumstances wherethe Complainanthad been off work on certified sick leave, comprised an omission on the part of Respondent which he submitted constituted part of the penalisation which has been meted out to her in this case.He said that since the submission of her grievance,theComplainanthas been afforded no or no adequate communication from the Respondent,its servants or agents as to the status of her complaint. This had left theComplainantfeeling totally unsupported and isolated for having chosen to pursue her complaint of bullying and harassment.
Mr Ryan submitted that the Complainanthad been further inconvenienced since the submission of her grievance, in that she was transferred to work in an alternative department within the company. She was required to transfer into the Travel Centre resulting in her having to learn a completely new job and further she could not avail of flexi-time which had been available to her in the School Transport section. This Mr Ryan submitted was further evidence of penalisation of the Complainant by the Respondent.
Mr Ryan said that the Complainantfelt further isolated and excluded when, on 6thDecember 2012, an email was sent by the Respondent to staff in the School Transport Department seeking application for maternity cover at a promotional level within the School Transport Department.The Complainant was not included in the email.
Mr Ryan submitted thatthe Court had jurisdiction to consider all items referred as the allegations cannot be viewed in isolation but must instead be regarded as forming one part of a broader continuum of acts and omissions by the Respondent amounting to unlawful penalisation.
.
Summary of the Respondent’s Position
Ms Mary Rose McLoughlin on behalf of the Respondent denied the Complainant’s penalisation allegation. She said that no punitive action was taken against the Complainant for making a complaint of bullying. Quite the contrary, she said that from the time the Complainant first raised concerns in April 2010 the Respondent made every effort to find a satisfactory resolution through internal processes and all signs from the Complainant indicated that this had been successful. When the Complainant raised another concern in May 2012 a formal investigation took place at the Complainant’s request, the outcome of which is currently going through the agreed appeal process.
Ms McLoughlinresponded to the four alleged detriments as follows:
- (i)The delay in progressing the investigation into the complaint of bullying made by the Complainant on 15thMay 2012
Theinvestigatorswroteto the Complainanton 4thJuly,2012 requesting a written submissionin relation to her allegation of bullying which should be returned within 14daysin accordancewith theagreed Companyprocedures. Despite a number of written requests the Complainant’s submission was not received until 17thOctober, 2012, three months later.
Ms McLoughlin stated that the Complainant was under the care of the Respondent’s Chief Medical Officer (CMO) throughout this time and support was available to her at all times through management, its Employee Assistance Programme and/or the CMO.
- (ii)The Complainant’s transfer from the School Transport Section to the Travel Centre on 25thOctober 2012
Ms McLoughlinstrongly denied that there had been any penalisation of the Complainant, shestated that theRespondent acted to facilitatethe Complainant's request to return to a different area as the Complainant had strongly expressed her wish not to work with her Office Supervisor. Ms McLoughlin stated that the Respondent acted to facilitate her as it wasconcerned that the Complainantwascomingto theend ofher paid sick leave entitlementsand accordingly believed that it was important to have her back in the workplace.Ms McLoughlinstated that the Complainantwas not demoted.
- (iii)The Complainant’s loss of flexitime arrangements on taking up the position in the Travel Centre
Ms McLoughlin stated that the Complainant took up duty in the Travel Centre, Athlone on 25thOctober 2012. Details of the starting and finishing time and her duties were outlined and agreed with her and itwas made clear that shewould be working fixed-hours rather than flexi-time,duetothenature ofthe services provided bythe
Travel Centreto the general public. The Complainant raised no objection to this.
Ms McLoughlin statedthe overriding consideration for the operation of flexi-time or fixed-time is dependent on the exigenciesof the service and the requirements of each office/department rather than on an individual basis.Flexi-time is not a term and condition of employment for clerical staff.Staff who transfer between offices comply with the relevant attendance hoursof that particular office and the nature of work. The nature of the work in the Travel Centres requires fixed-hours attendance. The Complainantreturned to her role in School Transport on 12thSeptember,
2013 and re-commenced her flexi-time arrangements.
- (iv)The failure to inform her of a promotional post advertised on 12thDecember 2012
Ms McLoughlin statedthis issue arose afterthe Complainanthad
submitted her complaint to the Rights Commissioner Service and accordingly the Labour Court had no jurisdiction to hear the complaint. In any eventMs McLoughlinstated that the Complainantdid not lose opportunities for promotion.
The Law Applicable
Statutory provisions
The Act came into operation on 1st September 2005. Section 27 provides in relevant part 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) 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.
- (e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or
Findings of the Court
Section 27 provides that where an employee performs an action of the type referred to at subsection (3) and then is subjected to unfavourable treatment by his/her employer on that account, that unfavourable treatment is penalisation.
It is not disputed that the Complainant performed an action of the type referred to at subsection (3) when she made the complaints of bullying in April 2010, therefore the Court must examine whether or not the alleged four identified detriments complained of constitute penalisation within the meaning of the Act.
Counsel for the Complainant referred to the effect that the Respondent’s alleged delay in meeting its obligations to carry out the investigation in an expeditious fashion constituted omissions which operated to the detriment of the Complainant with respect to her terms and conditions of employment.
Having read the investigators report into the alleged bullying the Court notes that the investigators wrote to the Complainant on 4thJuly 2012 seeking written submissions of her grievances and imposed a deadline of 18thJuly 2012. They were also in contact with the alleged perpetrator to advise her that the written submission was due from the Complainant. The Complainant failed to meet the deadline. The investigators then wrote on 1stAugust 2012, on 13thSeptember 2012 and again on 15thOctober 2012, each time imposing a new deadline. The Complainant failed to provide the requisite submission until 17thOctober 2012. One week later, on 23rdOctober 2012, the Complainant referred her complaint under the Act to the Rights Commissioner Service.
The Court is satisfied from the information supplied that any delay caused was on the Complainant’s behalf and not on the Respondent’s. In its final letter to the Complainant dated 15thOctober 2012 the investigators informed the Complainant that as the submission had not been received the investigation could not proceed and that the alleged perpetrator would be advised of this. The Complainant then sent in her submission on 17thOctober 2012. The Court is satisfied that the investigators used all in their power to expedite matters and were working within the guidelines of the Respondent’s “Dignity & Respect” policy. As the Court finds that there was no delay on the part of the Respondent it cannot find in favour of the Complainant on this point.
The Court must now consider whether the Respondent’s decision to relocate the Complainant to the Travel Centre on 25thOctober 2012 when she returned from sick leave, the removal of her flexi-time arrangements and the failure to notify her of a temporary promotional position on 6thDecember 2012 were influenced by the making of a complaint of bullying in April 2010.The Court notes that all three alleged complaints of detriments took place after the Complainant has made her complaint under the Act and accordingly the Court could have no jurisdiction to hear the complaints.
However, it was submitted on behalf of the Complainant that the decision to relocate her would have been made by management prior to the date she recommenced work. The Respondent told the Court that the Complainant made it clear from around May/June 2012 that she did not want to work in the same location as the Office Supervisor and sought to be relocated to another department. When it received the communications from both the CMO and her Solicitor the Respondent said that it considered the options available. However, as the area in which the Complainant was employed was a relatively small office the only vacancy available was in the Travel Centre. The Respondent was anxious to accommodate her particularly as her sick pay had run out.
The Court notes that it was at the specific request of both the CMO and the Complainant’s own Solicitor that she was relocated. In such circumstances the Court finds it difficult to find that her relocation was a detriment imposed by the Respondent for having made a complaint in April 2010. The Court fully accepts the Respondent’s contention that it was anxious to facilitate the Complainant and acceded to the requests made. The Complainant’s Solicitor specifically requested that she be accommodated with a move “downstairs” – the Travel Centre was located downstairs.
The Court notes that the terms and conditions associated with the relocation included the necessity to work fixed-hours due to the fact that the office was dealing with the public and required staff to be present during opening hours. This was fully explained to the Complainant. She made no objection to the terms and signed a contract accepting the new terms on 25thOctober 2012, on taking up the position in the new location, having referred her complaint under the Act - two days previously.
As was pointed out by this Court inO’Neill v Toni & GuyBlackrock21 ELR 1, in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed“for”having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant 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 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 determent.
The Court is satisfied that the reasons submitted by the Respondent for the relocation and the removal of flexi-time arrangements are fair and reasonable in the circumstances. The Court is satisfied that there is no causal connection between those events and the making of a complaint in April 2010 and therefore cannot find that these were imposed because of, or in retaliationforthat reason. Accordingly the Court does not find that the complaints are well-founded.
The complaint regarding the advertisement for the filling of a promotional post related to the Respondent’s failure to send the email to the complainant on 12thDecember 2012. Since the occurrence to which that complaint relates post-dated the referral to the Rights Commissioner it could not have been contemplated by that referral. In these circumstances that aspect of the Complainant’s complaint must be disallowed as being outside the appellate jurisdiction of the Court.
Conclusions of the Court
The Complainant bears the burden of establishing, as a matter of probability, some nexus between the detriments of which she complains and the complaint of bullying made in April 2010. The Court is not satisfied that the Claimant has discharged that burden. In the circumstances the Court must hold that the within complaints are not well-founded.
Determination
The Court upholds the Decision of Rights Commissioner and the Complainant’s appeal fails.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th December 2012______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.