HSD161

She argues that those complaints dealt with matters that relate to her safety health and welfare at work and accordingly constituted protected acts within the meaning of the statute. She further argues that as consequence of undertaking those protected acts she suffered a number of detriments that affected her terms and conditions of employment. Her complaint is that such detriments amount to penalisation within the meaning of the Act and are as a consequence unlawful. The respondent denies penalising the claimant.

Both the complainant and the respondent made extensive written and oral submissions to the Court.

The Law

Section 27 of the Act states

• 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—

• 
  (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

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 been incurred because of, or in retaliation for, the Claimant 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 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.

Findings

The complainant states that having made a complaint she suffered four distinct detriments. They are:

1. Management closely supervised her after she made the complaints and in particular reduced the interval between case load reviews from 8 weeks to 6 weeks.
2. Management required her to attend a nominated medical practitioner when she complained she was suffering from stress at work.
3. Management overlooked her for promotion to the post of acting manager and appointed a person with less service to the post despite the fact that she had been placed second on the panel when the post had been originally filled some 2 years earlier.
4. Management threatened her with disciplinary action for failing to comply with instructions issued to her and with which she took issue.

Close Supervision.

Having considered the extensive written submissions on this matter the Court finds that the complainant was treated no differently to other members of staff employed on similar duties. The case reviews undertaken by the respondent were normally undertaken on a 6 week cycle. This enabled management to ensure that case-loads were reasonable and proportionate. It also enabled it to intervene in cases where staff were experiencing difficulties with work complexity or work volumes.

The Court notes that the complainant was consciencious and prepared in great detail for such reviews. Accordingly the movement from an 8 to a 6 week review cycle imposed a considerable amount of work on her. However the Court finds no evidence that the decision to conduct such reviews or to increase their frequency was anything other than a prudent approach to the management of the staff and a sensible support process where difficulties were experienced in the performance or discharge of the duties in any particular case.

Accordingly the Court finds that this complaint is not well founded and is dismissed.

Requirement to Attend Company Doctor

The Court notes that the complainant told management that she was suffering from stress as a result of the manner in which she was being treated by her superiors. She argues that management’s response was to require her to attend the Company doctor for an assessment. She argues that this amounts to adverse treatment and constitutes penalisation within the meaning of the Act.

The Court has examined the written documents submitted by both sides and considered the oral submissions they each made. The Court finds that management’s decision to require the complainant to attend the Company’s medical advisor was a reasonable response to the claimant’s statement that she was suffering work related stress symptoms. The Court finds that such a response was reasonable and prudent and designed to assist the respondent assess the actions it would need to take, if any, to facilitate the claimant make a full recovery. Medical advice was an essential first step in that process and the requirement that the claimant attend the company doctor was the most appropriate means by which to get such advice. The Court finds no evidence to support the contention that the requirement was motivated by anything other than the report made by the claimant that she was suffering from work related stress. The Court finds no evidence that it amounted to penalisation within the meaning of the Act.

Accordingly the Court finds that this complaint is not well founded and is dismissed.

Temporary Promotion

The Complainant argued that had she not undertaken the protected act referred to above she would not have been passed over for the temporary vacant post of centre manager.

Having considered the extensive documentation opened to it and the oral submissions of both sides the Court finds that the post of manager fell vacant when the manager left the employment in December 2013. The complainant had competed for the post when it was advertised in March 2013 and was placed second on the panel. When the successful candidate vacated the post in December the complainant was not appointed to fill the temporary vacancy that arose. She argues that the decision to pass her over for the temporary vacancy amounts to penalisation within the meaning of the Act.

The respondent told the Court that the centre was engaged in discussions with another body regarding a transfer of undertakings that were then live. Another member of staff had been involved in a transfer of undertakings in another company and had an expertise in the area that was relevant and pertinent at that time. The respondent decided to avail of that experience and appointed that person to fill the temporary vacancy. It stated that the decision to do so was appropriate and necessary in the complex business circumstances then prevailing. It was not related to the complaint the complainant had made.

The Complainant stated that she had been involved in a transfer of undertakings also but that she was not asked about her experience in that area. She argues that the only reasonable explanation for the decision to pass her over for the promotion is that she made a complaint and was pursuing it against management and was being penalised for so doing.

The Court finds that the respondent’s explanation for the decision it took is reasonable and consistent with the complex business circumstances in which it was operating. It would have been preferable had it advertised the job and given all members of staff and indeed others an opportunity to apply for the post. However it did not do so. Instead it relied on its knowledge of the experience one of its employees possessed and decided to appoint her to the temporary position. In doing so it disenfranchised all other members of staff not just the complainant.

In those circumstances the Court understands why the complainant would feel aggrieved. However the Court finds that she was no different to any other member of staff who might have felt that the promotional opportunity would have been a welcome career development outlet for them.

On that basis the Court finds that the decision to appoint the selected person to the vacant temporary post did not amount to discrimination within the meaning of the Act.

Threat of Disciplinary Action

The complainant states that at a meeting with her manager on 17 September 2013 she was threatened with disciplinary action if she refused to complete the relevant case review template prior to the next case review. She argues that she was singled out for such treatment by the person against whom she made the complaint. She states that no other advocate in Region 3 was so required or threatened regarding the completion of the case review template.

The respondent argues that a case review template was developed and required as an aid to the management of the work of the centre and the proper management of staff. The complainant refused to complete the template. She further states that no other advocate was required to complete it and that she was in fact singled out in that regard. She states that Management advised her that if she did not carry out the instruction to complete the template she would be disciplined.

Management stated that it developed a case review template. It introduced it and required all staff to complete it. It needed the template to be completed as an aid to the efficient management of the work of the centre and for the purposes of conducting effective case load reviews. The complainant was treated no differently to other members of staff. The matter was finally resolved and no action was taken against the complainant. No threat of disciplinary action was issued but the complainant was told to complete the template and would be expected to comply with instructions.

The Court finds that an issue developed around the introduction of the template. The complainant was of the view that she did not have the time to complete it and so told management. Management took the view that it was needed and should be completed. After some engagement on the matter it was resolved to the satisfaction of all.

The Court considered the complainant’s assertion that the threat of disciplinary action arose because she performed a protected act under the 2005 Act. The Court finds no merit in that assertion. Management sought to introduce a new reporting form. The Complainant resisted it and was told she could be disciplined if she refused to do as she was instructed. Engagement followed and the matter was resolved. The Court finds no grounds for concluding that the interaction between the parties was in any way related to the protected act that had been undertaken by the complainant.

Having considered the matter in its totality the Court finds that the complainant did undertake a protected act but that the four alleged detriments suffered by the complainant were not penalisation within the meaning of the Act.

An issue arose as to whether the correct complainant had been impleaded in these proceedings. Between the date on which the complaint was filed with the LRC under the Act and the date on which the matter came before the Court a transfer of undertakings had taken pace and the complainant’s employer had changed. Neither the complainant nor the respondent joined the new employer in the proceedings. Accordingly a point arose as to whether the correct respondent was before the Court.

The Court considered that matter and notes the difficulty that would arise were it to be addressed in full. However the Court was in a position to dispose of the case on its facts alone. In those circumstances the Court makes no decision on that matter.

Determination

The Complaint is not well-founded. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
12th January, 2016.Deputy Chairman



NOTE

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