HSD153

• The following is the Decision of the Court.
  

The Case came on for hearing before the Court on 15th July 2015. At the hearing the Respondent Company made reference to documents that were not available to the Court and on which it was relying in support of its decisions. The Court allowed the Company time to submit those documents and for the Claimant to make submissions on them. Those documents and submissions were finally received in August 2015.

Facts of the Case

The Respondent Company operates a small contract security business in the north east region of the Country. It employed the Complainant on the 12th November 2013 as a security operative on one of its contracts. The Complainant was employed on a 6 months fixed term contract.

The Complainant was assigned to work with another employee with whom she had a difficult working relationship. On 7th February 2014 she telephoned Mr Stephen McDermott her manager, complaining of what she described of bullying behaviour by her work colleague. She followed up the conversation with an email to Mr McDermott that day. Mr McDermott responded later that day seeking a more detailed statement from the complainant. There followed an exchange of email messages arranging a meeting to discuss matters. That meeting took place on 12th February. The Complainant set out a more detailed statement of her complaints on 13th February 2014 which she sent to Mr Mc Dermott. Mr McDermott set up an investigation into the complaints. The Complainant followed up by way of email on 18thFebruary 2014 in which she requested an update on the progress of the matter. Mr McDermott replied stating that he had received the detailed complaint, had set up an investigation but also needed to follow up with her on the clients reduced staffing requirements. On 19th February Mr McDermott wrote to the Complainant advising her that the client had requested that it downsize the manning level on the security contract and as a consequence the Company had no option but to terminate her employment. The Complainant sought alternative employment and was provided with a good reference by the Respondent Company.

On 27th February the Complainant wrote to the Company seeking to be updated on the outcome of the investigation into her complaint of bullying by another employee. The Company completed the investigation on 27th February 2014 and wrote to the Complainant in the following terms:-

“The result of the investigation proves to be inconclusive as Ms McDermott strongly refutes the content of your written complaint along with fact that there are no independent witnesses to substantiate these incidents. Therefore, I cannot find in favour of either party. The only assurance that I can give is that neither party shall work together whilst in the employ of Provincial Security Services Ltd.”

On 13th March 2014 the Complainant wrote to Mr McDermott seeking copies of a) internal grievance procedures, b) Copies of the notes of the meeting the 12th February 2014 and c) copies of the notes of the meeting with the person against whom she made the complaint. The Company responded on 14th March in the following terms:-

"The site documentation is client confidential as is the security handbook which was specific to the Dundalk site. I regret I have no authority to distribute such documentation to anyone”.

Mr McDermott did however send the Complainant a copy of the Company Union agreed internal grievance procedures as contained in the on site documentation. He again refused to provide copies of the minutes of the meetings the Complainant requested.

On 11th April 2014 the Complainant’s Solicitor sent a letter to the Respondent Company on her behalf in which she raises the protections against penalisation afforded to an employee under the 2005 Act. The Respondent Company replied by letter dated 27th May 2014. In it, it asserts that the Complainant was dismissed by reason of redundancy stating that it refuted “the allegation that she was dismissed from her employment as a direct result of her complaint.”

The matter was then referred to the Rights Commissioner in accordance with section 28 of the Act.

Position of the Parties

The Complainant states that she made a complaint to the Company of bullying and harassment by a fellow employee and was subsequently dismissed as a consequence of that that complaint. She argues the coincidence of timing and the failure of the Company to properly investigate the complaint establish a prima facie case of penalisation. She further argues that the Company did not apply the terms of the Company Union Agreement regarding the selection of staff for redundancy.

She further argues that the Company did not apply the terms of the Agreement regarding the investigation of the complaint of bullying she submitted. She argues that had she not made a complaint of bullying her employment may not have been terminated at the time and in the manner in which it was.

The Respondent states that it is a small employer and that it carried out a reasonable investigation into the complaint made by the Complainant. The allegations were vehemently denied by the other party to the complaint. No evidence was presented in support of the allegation of bullying and the Company found that it was not in a position to come to a conclusion on the merits of the complaint.

It argued that it was providing security during the construction phase of an extension to an established multi-national company. Employment on the contract was always limited to the lifetime of the construction project. That project was coming to an end and the security contract was being phased down by the client.

It argues that it was notified by the client on 5th February 2014 that budget for the security contract on the construction project had been cut by 50% and that this necessitated a reduction in manpower by a similar amount. Four staff were employed on the project two of which were now redundant. It argues that it made the decision to reduce the numbers by 50% on the 5thFebruary two days before the original complaint of bullying.

It decided, in line with Company policy, to make the two employees with the least service redundant. It so notified the other employee on the 14thFebruary. However it decided that in light of the complaint in this case it would not notify the Complainant that her job was also redundant until the investigation into the matter was finalised.

To that end it arranged to meet the Complainant on 12th February and commenced the investigation. It notes that it told the Complainant at the start of that meeting that the Client had decided to reduce the security budget by 50% and that this would mean the Complainant’s employment would terminate early but that she would remain in employment until the investigation was completed. The Company immediately met the other party to the complaint and decided that it was not possible to come to a definitive finding on the matter as she contested the allegation and there were no independent witnesses in support of either sides contentions.

On 19th February the investigation was complete and at that point the Company decided to tell the Complainant’s that she was redundant as had been decided before the complaint had been filed on the 7thFebruary.

Finally the Company argues that the decision to make the Complainant redundant was exclusively the consequence of the decision of the client to reduce the security budget by 50%. Had that decision not been made by the client the Company would not have made the Complainant redundant. The complaint of bullying had no influence in the decision to terminate the Complainant’s employment and accordingly the complaint of penalisation is not well founded.

The law

This matter is before the Court by way of a complaint of penalisation within the meaning ascribed to that term by s. 27 of the Act of 20005. In that regard the Court’s sole function is to establish whether or not the dismissal was caused by the Claimant having performed an act protected by s.27(3) of the Act.

The relevant statutory provision is 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,

• (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

• 
  (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 insubsection (2)(a).

In Toni and Guy Blackrock Ltd v Paul O’Neill the Court set out the manner in which this section of the Act should be applied. It stated:-

"It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent 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 incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one casual 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"

The Court in that case went on to consider the manner in which the burden of proof should be allocated. Having reviewed the case law on the matter it stated:-

"Having regard to these considerations, it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal."

This Court has adopted that approach in this case.

Findings and Conclusions

It is common case that the Complainant made out a complaint within the meaning of section 27(3)( c) of the Act. It is also common case that the Respondent Company terminated the Complainant’s employment shortly after that complaint was made. These two events, so closely following each other in time gives rise to an inference that the complaint was an operative factor in the decision to terminate the Complainant’s employment. It is for the Respondent Company to satisfy the Court that the protected act was, on the balance of probabilities, not an operative consideration leading to the dismissal.

The Company argues that the decision to terminate the Complainant’s employment was not influenced by the protected act but was rather the necessary and inevitable consequence of a decision taken by the client to reduce the security budget by 50% necessitating a reduction in the head count by an equal amount. It argues that, in line with company policy, it selected the two most recently employed staff members for redundancy.

The Court notes that in its written submissions the Respondent states that it was first advised by the client of the reduction in the security budget on 10th February 2014 three days after the date on which the complaint was first notified to Mr McDermott. In the course of the hearing however it argued that it was in fact first notified by the client of the reduction in the security budget on the 5thFebruary 2014 some two days before the complaint was first notified to Mr McDermott. It further told the Court that the relevant members of management had decided as early as the 6thFebruary to select the two most junior staff members for redundancy. In its submissions however it stated that it had not made that decision until the 10thFebruary. It went on the state that it so notified the other affected employee on the 12thFebruary 2014 but decided not to terminate the Complainant until after the complaint of bullying and harassment had been finalised. Yet according to its submissions to the Court it notified the Complainant that she had been selected for redundancy on the 19thFebruary whereas it notified her of the outcome of the investigation some 8 days later on the 27thFebruary 2014.

The Court notes a further inconsistency in the Respondent’s submissions. It argues that its policy was to make the most junior person redundant whereas the Company/Union Agreement on which it also relies provides that it should seek volunteers for redundancy in the first instance. In this case it did not seek such volunteers. Instead, by its own submissions, it moved to select the two most junior security officers, including the Complainant, for redundancy in breach of that agreement but allegedly in accordance with its policy on such matters. Both positions cannot be correct. The Respondent Company did not resolve that inconsistency in the submissions it made to the Court.

The Court notes that the Respondent Company states in its submissions that it told the Complainant at the meeting of the 12th February that her contract would be expiring early. While the the letter of the 19th February 2014 from Mr MacDermott to the Complainant refers to such a conversation, the contemporaneous notes of that meeting make no reference to such a conversation. The Company did not resolve this inconsistency for the Court.

The Complainant states that she was told at the meeting of the 12th February that there would be a need to downsize the Company however she states she was not told that she would be made redundant. This version of events is more credible as the letter of the 19threfers to a downsizing of the Company rather than the termination of the Complainant’s employment. It is also consistent with the Company’s obligation under the Company/Union Agreement to seek volunteers before selecting staff for compulsory redundancy. The Court therefore accepts the Complainant’s version of what transpired at that meeting. The Court finds therefore that the Company had not decided to terminate the Complainant’s employment before the 12thFebruary.

When then did the Company decide to terminate the Complainant’s employment. The evidence would suggest that the decision was taken on the 18thFebruary 2014. The Complainant wrote to the Company on the 13thFebruary 2014 setting out details of the alleged bullying she experienced. She followed that up with an email sent at 2:14 pm on the 18thFebruary 2014 enquiring how the investigation was progressing. The Company responded by email at 4:57pm in the following terms:-

“Yes I did receive your mail last week. This investigation is ongoing at present and I will revert in due course. As discussed at our meeting last Wednesday I must address the issue of our client requirements on the construction site. I can meet you in person on Thursday or I can give you a call tomorrow at 10am if that suits.”

The Claimant agreed to meet the following morning. The Respondent Company then issued the letter of the 19thFebruary 2014. The Company had met with the other party to the complaint on the 12thFebruary. The minutes of that meeting were supplied to the Court. The Company took no other action in the investigation of this complaint.

The Respondent gave no evidence to the Court as to when it considered the respective positions of the parties to the Complaint. Indeed there appears to have been no consideration of the matter after the 12thFebruary until the Complainant sent her follow up enquiry on the 18thFebruary. At that point things moved very quickly. The Company acknowledged receipt of the correspondence and moved to terminate the Complainant’s employment.

The issue for the Court to decide is whether the Complainant’s pursuit of the matter was a factor in the Company’s decision or whether the Company has offered a reasonable alternative version of events that discharges the obligation of proving that the two matters were not related.

Having considered the totality of the evidence available to it the Court finds that the Complainant has established that she made a complaint within the meaning of section 27(3) of the Act and that it was an operative consideration leading to her subsequent dismissal. The Respondent Company has not discharged the burden of proving that the decision to dismiss the Complainant was not influenced by that complaint.

Determination

The Court determines that the complaint is well founded. The appeal is not allowed. The Court so determines.

Remedy

In determining the remedy in this case the Court is mindful that employees who make complaints relating to matters of health and safety at work must be protected from reprisal by their employer. To do otherwise would put pressure on workers to continue to work in unsafe conditions to their detriment and to the detriment of other workers and in some cases of the general public. The legislation has been enacted to ensure that such circumstances do not arise.

In this case the Complainant made a complaint and suffered dismissal as a consequence. That is a very serious matter and the Court takes a very serious view of such a reprisal by an employer regarding a complaint relating to a matter of safety and health.

The Court is also mindful that the Complainant’s employment was due to end within a number of months by the effluxion of time as she was employed on a fixed term contract for six months. Nevertheless the Complainant suffered an adverse consequence for making a complaint and in addition lost her employment prematurely.

Taking all matters into account the Court finds that the Rights Commissioner’s award of compensation was inadequate in this case. The Court increases the award of compensation to €10,000 and determines accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
27th October, 2015.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.