ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000010
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00000009-001 | 01/10/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00000962-001 | 19/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946 | CA-00000962-002 | 19/11/2015 |
Date of Adjudication Hearing: 2/03/2016 and 14/06/2016
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The complainant raised Health & Safety issues referred to her from members of the public in relation to a colleague with her Manager in September and December 2011. Following this the complainant has been penalised. The Manager stated that the health and safety issues that she raised were addressed and matter closed. In September 2012, Management triggered the dignity at work policy with no explanation and appointed a Mediator. The complainant felt intimidated to attend the mediation and she participated in the mediation process. In November 2012, the colleague in question initiated retaliatory grievances against her. The penalisation continued for the past 4 years as the complainant was repeatedly denied information in relation to this. Management appointed an external investigator but to her knowledge that investigation never happened. Since the submission of health and safety issues there has been negative speculation, misportrayal of the complainant and she is continuing to suffer isolation and stress in her workplace. The penalisation escalated further on the 09th April 2015 when the complainant was attacked verbally by a member of the public, all relating to the mismanagement of the health and safety procedures and initiating of HR procedures to manage the situation. The complainant was intimidated, humiliated, called a bully by the member of the public and he was aggressive and threatening. He sent a damning letter to my CEO. Management continued to escalate the penalisation by uploading this letter onto the respondent’s filing system for viewing. The complainant felt coerced, intimidated and seriously distressed in her workplace. The respondent failed to deal with this properly. The complainant does not consider that she has a safe working environment. In September 2015 on the recommendation of the Rights Commissioner, of which the complainant had no prior knowledge, Management told her that the grievances against her were going to be concluded, the investigation was a sham. The complainant was brought to a meeting with management on the 17th September 2015 and given a verbal evasive outcome to one of the grievances, it was contended that the other grievances were previously concluded of which she was not informed. The duty of care by her employer has been breached, omitting to protect her from attacks and threatening behaviour from the public. The complainant has been isolated in her workplace and repeatedly been intimidated. She does not consider that she has a safe working environment. The complainant has been penalised for raising health and safety issues in the first place and reserves the right to raise additional info in future. |
A previous complaint was referred for hearing by an adjudicator ref:CA000000009 and since referring her complaints, she has been further penalised. On the 25th September H&S Officer denied record of Health and Safety reports for a customer in an email to her which contradicts the electronically submitted form, to the Health and Safety section that she sent in May 2015 and no record of her previous concerns submitted in writing in 2011. On the 14th October the complainant was not requested to attend relevant training.. On the 19th October her Manager had a meeting with Agent of the customer and excluded her, when this was her file. On the 21st October the complainant asked management who was managing the customer’s file and was told that it was better for whole Organisation if she did not have any further contact with that customer. On the 23rd October her Manager stated that she was no longer working on the customer’s file, that he is managing the entire file and offered no explanation for this. The complainant is being penalised for doing her job. On the 23rd October she sent an email to her section manager relating to her exclusion from the meeting of the 19th October, no response. This is a change of her duties and responsibilities. It is also undermining the complainant in her position and suggesting that she has done wrong, which she has not. It also puts her in a vulnerable position. The Manager also stated that he had knowledge of previous aggressive behaviour from this individual from previous site inspections but she is being excluded. No risk assessment has been conducted by the respondent and no consultation with her. Still no investigation into breach of data protection or proper rectifying measures for the complainant, this in itself is a form of penalisation. |
The complainant has repeatedly requested copies of all of the related documentation and details of what has been alleged and said about her. She has not been provided with same. The Personnel Officer also denied his involvement/management of the grievances. The complainant considers that at a minimum she is entitled to receive copies of all related documentation and the outcomes into grievances made against her. |
Respondent’s Submission and Presentation:
The respondent is not aware of a health and safety concern being raised by the complainant in September 2011. The first time that the respondent became aware of such concerns was on 22 December 2011 when the complainant sent an email outlining complaints raised by service users regarding a colleague and highlighting a threat to that colleague’s well-being made by a user during a site inspection in September 2011.
The working relationship between the complainant and her colleague deteriorated after the latter was made aware of the contents of the email. Because of this and the effect that it had on the work of the department the respondent offered mediation to both parties in September2012.. This offer was declined.
The complainant’s colleague lodged formal grievances against her in November 2012 which referred mainly to the contents of the email of December 2011. These were copied to the complainant and she was invited to respond. A number of meetings took place with the respondent’s Personnel Officer. It was eventually decided that the matter should be the subject of an independent investigation and following further correspondence between the parties an external investigator was appointed in February 2014.
The investigator encountered difficulties in engaging with the parties and there is no mechanism to compel staff members to participate. A draft report was issued in October 2014 which did not reach any conclusions. The complainant’s colleague referred the issue to the Rights Commissioners Service in January 2015.
At the LRC hearing the Rights Commissioner expressed the view that the internal grievance procedure had not been exhausted and requested that the respondent conclude the process. Meetings took place with the relevant parties in an attempt to reach some form of resolution.
In April 2015, at a meeting where the complainant and other officials were representing the respondent, a user verbally abused the complainant. The meeting was adjourned and the user advised that his remarks were unacceptable. The user wrote a letter to the respondent’s CEO setting out his issues with the complainant. Following discussions the user withdrew that letter and also wrote to the complainant advising her of same and apologising for any offence cause
The letter to the CEO was inadvertently uploaded onto the respondent’s electronic filing system. It was removed as soon as the error was discovered and the official responsible had personally apologised to the complainant.
Because of the above events it was decided that the file pertaining to that particular user should be allocated elsewhere. This was done in the best interests of all concerned and is not a form of penalisation. All the complainant’s other duties remain unchanged.
The complainant continues to attend training courses and seminars and to represent the respondent on a number of working groups. The respondent denies that it has attempted to isolate her or undermine her position. The complainant has not lodged any complaints under the Dignity at Work Policy.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Issues for Decision:
Whether the complainant was penalised by the respondent for making a complaint or representation on a matter relating to safety, health or welfare at work.
Legislation involved and requirements of legislation:
Section 27(3) 0f the Safety, Health and Welfare at Work Act 2005 states:
An employer shall not penalise or threaten penalisation against an employee for –
acting in compliance with the relevant statutory provisions
performing any duty or exercising any right under the relevant statutory provisions
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…
Decision:
Following the second day of the hearing further written submissions were received from both parties. The complainant is employed in a senior investigative / enforcement role in the Environment Department of a local authority. Her employment commenced in October 1999.
There are two complaints under the Safety, Health and Welfare at Work Act, 2005 which essentially deal with the same set of issues and arise from the same matters. There is a complaint under the Industrial Relations Act which is linked to these events.
Complaints under the Safety, Health and Welfare at Work Act, 2005.
Complaint Nos. CA-00000009-001 & CA-00000962-001
The complainant stated that she was penalised as a result of concerns raised by her in relation to threats made by a third party against a colleague. The penalisation was in various forms. She was denied information regarding investigations into grievances lodged against her, she encountered hostility and isolation in the workplace, an investigation was undertaken without her consent or participation, she was not advised when some of the grievances were withdrawn, she was verbally abused at a meeting by a third party who made reference to her bullying a colleague, a written complaint was made by that third party to the respondent’s CEO but ,when the complaint was withdrawn and an apology tendered to the complainant, correspondence in relation to it appeared on the electronic filing system. The complainant further stated that she was excluded from training courses and a file that was part of her responsibilities was removed from her.
The Labour Court examined the remit in relation to penalisation in Determination No. HSD102 (a School v a Teacher). The Court stated:
“The Court must be careful not to claim jurisdiction which it does not have by classifying as penalisation conduct, by act or omission, which is properly classified as a failure to fulfil a general duty imposed by the Act. Accordingly, the Court must now consider if the subject matter of within complaints, taken at their height, should properly be classified as penalisation as opposed to a contravention of the general health and safety imperatives of the Act.”
I have given careful consideration to the extensive submissions as well as the oral evidence. I find that there were inordinate delays in dealing with issues that stretch over four years. The respondent acknowledged in their submission that the matter has been ongoing for far too long. I do not believe that this constitutes penalisation within the statutory meaning of the term. Similarly, the respondent was not the instigator of the grievances or complaints lodged against the complainant. There are three issues which the complainant raises which could be classed as penalisation. The first concerns the complainant’s assertion that she was not facilitated in attending relevant training courses. The complainant provided details of courses which some members of her Dept. were sent to but she was not. The respondent also provided details of courses that the complainant did attend over this period. I do not believe that there is evidence of penalisation in this regard.
Secondly, there was the issue of the letter in relation to the complaint sent to the CEO by the third party and it’s uploading unto the respondent’s internal electronic filing system. I note that the official concerned, who was responsible for the uploading, has explained how the error occurred and has apologised to the complainant regarding the matter. I believe that the action was inadvertent and therefore does not amount to penalisation.
Finally, there is the matter of the removal of the file for which she had responsibility from the complainant. This file was in relation to the third party who abused the complainant at the meeting in the respondent’s office in April 2015 and who made the subsequent complaint about her to the CEO. The respondent stated that the file was reassigned in the best interests of all concerned and because there was going to be continued interaction between the third party and the respondent. Section 27(2)(c) of the Act specifically mentions “transfer of duties” in the definition of what constitutes penalisation. The Labour Court in Determination No. HSD095 stated:
“the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act.”
I believe that the reassignment of that particular file by the respondent was due to the regrettable behaviour of the third party and, however unacceptably one might view this decision, it does not amount to penalisation as defined in the Act.
I therefore find that these complaints are not well founded and consequently fail.
Complaint under the Industrial Relations Act, 1946.
Complaint No. CA-00000962-002
As previously noted this matter has remained unresolved over a period of more than four years. This is unacceptable.
The email of 22 December 2011 was requested by the complainant’s line manager following a discussion in which the complainant voiced concerns in relation to her colleague’s communication skills following complaints received from users of the respondent’s services. The final point referred to a remark made by a user during a site visit in September 2011 who stated that it would not be safe for the colleague to inspect sites on her own. The complainant felt that this raised health and safety issues. Presumably the line manager requested that it be put in writing so as to address the issues raised. In a report on the matter compiled by the respondent’s Personnel Officer in October 2015 it is accepted that the threatening remark was reported in September 2011 and that the senior department manager decided that no single visits be made to that specific site. The report then states that for “whatever the reason, the (senior manager’s) view does not appear to have been formalised.” As a result of this the complainant’s colleague was only informed of the situation in January 2012.
It is clear therefore that a lot of responsibility for the lack of initial communication lies with the respondent. Indeed the report goes on to state that “the failure to pass on this information is, without question, a serious omission.”
It is at the core of every grievance procedure that matters be dealt with as expeditiously as possible with timelines in place to ensure that this happens. All documentation pertinent to the process should be made available to the parties concerned, who in turn should not raise copious preconditions to participation in that process. Ideally, the form and length of the procedure should be agreed at the start of the process. There are hardly any definite timelines in the respondent’s policy at present.
I note that the colleague transferred at her own request to another office in a different location. Subsequent to this transfer the colleague withdrew two of the three grievances in relation to the complainant in August 2013 leaving the issue of the colleague being unaware of the threat made against her in September 2011. The respondent inexplicably delayed informing the complainant of this for some time.
In relation to the incident in April 2015 in which the complainant was verbally abused, I note that the complainant filed a Violence and Aggression Reports Form and that the incident was classified as being at the high end of the scale. The respondent decided not to issue a warning letter to the party involved as he had written a letter of apology and withdrawn his complaint. What they did decide to do was to withdraw that party’s file from the complainant. The effect of this was to effectively grant the party concerned what they had requested at the meeting – i.e. the removal of the complainant from dealing with him. There was no consultation with the complainant in this regard.
I recommend therefore the following;
That the respondent reviews its grievance policy (particularly as it operated in this case) with a view to introducing definitive timelines for each stage. If timelines are not met then the next stage of the procedure can be invoked unless all parties agree to the extension of the current stage.
That the respondent’s management accept that the failures outlined in the Personnel Manager’s Report of October 2015 impacted negatively on the complainant as well as on her colleague.
That the respondent reviews the decision to withdraw the file from the complainant and accept that, if similar situations occur in the future, there will be discussions with the official concerned prior to any such decisions being made.
That, if considered necessary by either party, an agreed mediator / facilitator be appointed with a view to finalising issues between the respondent and the complainant and normalising the working relationship.
Dated: 16 August 2016