HSD1315

In this Determination the worker is referred to as the Claimant and the Travel Department is referred to as the Respondent.

Background

The Claimant was employed by the Respondent between 29^thMay 2012 and 20^thSeptember 2012 as a Management Team Executive Assistant / Personal Assistant. In that capacity she acted as a personal assistant to the Chief Executive Officer and the Chairman of the Respondent. Her employment was subject to a probationary period of three months.

The Claimant was dismissed by the Respondent with effect from 20^thSeptember 2012.

The Claimant contends that her dismissal arose from complaints that she had made concerning matters relating to the Respondent’s duties under the Act. The Respondent contends that the dismissal was solely on grounds of its dissatisfaction with the manner in which the Complainant discharged her duties which became apparent during her probationary period. The Respondent denies that the Claimant made any complaints concerning matters coming within the purview of the Act.

The claim was heard by a Rights Commissioner pursuant to Section 28 of the Act. The Rights Commissioner found against the Claimant. The Claimant then appealed to this Court pursuant to Section 29 of the Act.

The Legal Context
What is in issue in this case is whether the Complainant was penalised within the meaning of s.27 of the Act. This section provides: -

Section 27 of the Act 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.

  (4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

  (5)[not relevant]

  (6) [not relevant]

  (7) [not relevant]

It is, however, essential that a Claimant established that he or she committed a protected act, within the meaning of Section 27(3) of the Act before the other elements in this test come into play. The protected act upon which the Claimant relies in this case is the making of a complaint to the Respondent of a type envisaged by Section 27(3)(c) of the Act, that is to say a complaint relating to health and safety. The Respondent denies that any such complaint was made.

The evidence
Evidence was given by the Claimant and by a named individual, who is the Chairman of the Respondent.

The Claimant’s evidence
The evidence tendered by the Claimant can be summarised as follows:-

Having outlined the background to the events grounding her claim, the Claimant told the Court that on 3^rdAugust 2012 she went to lunch with the CEO of the Respondent to discuss her work performance. She was then approaching the end of her probation. She said that the CEO told her that he was happy with her and she was given to understand that there were no difficulties with her performance. She was, however, advised that the Chairman was unhappy with the level of attention that his requirements were being given by the Claimant. According to the Claimant, she raised issues with the CEO concerning the workload that she was expected to carry and in particular what she regarded as excessive demands being placed on her by the Chairman. She said that the CEO advised her to raise these issues with the Chairman. After lunch she approached the Chairman in his office to discuss these complaints with him. It was the Claimant’s evidence that the Chairman became aggressive towards her, that he told her that he did not want her in the office and that he use strong and offensive language towards her. The Claimant said that she sought the intervention of the CEO who was due to commence two weeks annual leave on that day. The CEO suggested that during his absence the Claimant should devote more of her time to the Chairman in the hope that these these difficulties could be overcome.

The Claimant gave evidence of other incidents that subsequently occurred in the workplace which are not directly material to the point now under consideration. These, according to the Claimant, resulted in her being absent for work on certified sick leave from 23^rdAugust 2013 until 12^thSeptember 2013. On 20^thSeptember 2013 the Claimant was dismissed by the Respondent.

Evidence of the Named Individual
 A named individual , who is Chairman of the Respondent, gave evidence.

According to the named individual  he had become dissatisfied with the work performance of the Claimant for reasons that were outlined to the Court. According to this witness he decided to terminate the Claimant employment during her probationary period. He met with the CEO on the morning of 3^rdAugust 2013 and informed him of his decision in that regard. The CEO did not demur. He said that he met with the Claimant on the morning of 3^rdAugust 2013 and informed her of his decision. He said that the Claimant was upset and sought to argue with him on the matter. He said that the CEO became involved in the discussion as a result of which it was decided to extend the Claimant’s employment for a further two weeks to see if the situation improved. It was the named individual's evidence that the situation did not improve. The Claimant went on sick leave and on her return he decided to terminate her employment. This decision was given effect by the HR Manager.

In reference to the Claimant’s evidence, the witness told the Court that her recollection of the material events could not be correct. He said that the CEO left Ireland in the early afternoon of 3^rdAugust to commence his holidays and would have been due in the airport at around 13.30h on that day. He said that the meeting with the Claimant took place in the morning and not in the afternoon. He also said that the meeting was convened by him and not by the Claimant. The witness further denied that the Claimant had made any complaints in relation to health and safety matters. According to Mr Haugh the sole reason for the Claimant’s dismissal was what he regarded as her poor performance.

Conclusions of the Court
The Court was faced with a sharp difference of recollection between the Claimant and the named individual on practically every material point in relation to the meeting of 3^rdAugust. According to named individual's evidence the decision to terminate the Claimant’s employment had been taken before that meeting was convened and that the purpose of the meeting was to convey that decision to the Claimant.

According to the Claimant, she initiated the meeting with the named individual and it was for the purpose of conveying her concerns in relation with her workload. It was the Claimant’s evidence that the CEO had expressed himself satisfied with her work performance over lunch on the 3^rdAugust and that none of the issues referred to by the named individual as giving rise to his decision to terminate the Claimant’s employment had ever been brought to her attention. The Claimant’s recollection is that the meeting took place after lunch on the day in question. The named individual recollection is that it took place in the morning of that day. According to named individual , the CEO could not have been involved in a meeting on the afternoon of 3^rdAugust 2013 because he was on route to London at that time.

In considering these conflicting recollections the Court has had regard to the consistency of the evidence tendered. The Claimant told the Court that the CEO expressed himself satisfied with her work performance when they met over lunch on 3^rdAugust 2013. In the written submission which the Claimant filed with the Court it was asserted that having met with the named individual she approached the CEO who told her that she should use the next two weeks to change her behaviour and that her job was not safe. This assertion seems inconsistent with the evidence tendered in relation to what was said over the lunch time meeting. The Court is also inclined to the view that the CEO did leave the office to commence his annual leave in the late morning of 3^rdAugust and that the Claimant is mistaken in her evidence concerning a lunchtime meeting and the timing of the meeting with the named individual. It also appears that the evidence in relation to the lunchtime meeting was not tendered to the Rights Commissioner at first instance.

The evidence given by the named individual was, overall, more consistent. Faced with the different recollections of both witnesses the Court has concluded that the evidence of named individual provides a more reliable account of what occurred. The Court is, therefore, satisfied, as a matter of probability, that the decision to terminate the Claimant’s employment had effectively been taken before the meeting of 3^rdAugust 2012. The Court is also satisfied, as a matter of probability, that issues relating to health and safety were not raised by the Claimant at that meeting. Even if that conclusion is incorrect, any complaints raised at that stage could not have been an operative reason for the Claimant’s dismissal as the decision to terminate her employment was taken before the meeting commenced.

In relation to other matters referred to in the course of this appeal, the Court does not accept that any of them disclose a contravention of Section 27 of the Act.

Determination

For all of the reasons set out herein the Court can see no reason to interfere with the Decision of the Rights Commissioner. Accordingly the within appeal is disallowed and the Decision of the Rights Commissioner is affirmed.

Signed on behalf of the Labour Court



Kevin Duffy
29th October, 2013______________________
JFChairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.