ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001104

Complaint for Resolution:

Venue: Ashdown Park Hotel, Gorey Co Wexford

Date of Adjudication Hearing: 18/05/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under section 13 of the Industrial Relations Act, 1946 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background

The Complainant has been employed as a Receptionist since July 2003. She works 18.5 hours and is paid €178.91 per week. She has claimed that she was mistreated by the Respondent which led to absence from work, loss of pay and medical costs. She is seeking compensation.

Complainant’s Submission and Presentation:

On 9^th November 2011 there was an incident where a Coach Driver was rude and aggressive towards the Complainant. A colleague reported the Coach Driver to the manager. The manager phoned the Complainant to see if she was OK and stated that she would be seeking for the Driver to apologise to her. There was another incident on 18^th June 2014 with the same Driver. Following a transaction with a customer the Driver followed her into the street and was abrupt and threatening towards her. She reported this incident to her manager in the presence of a colleague. The manager stated that the Driver had no right to do that. The Complainant expressed concern that the Driver would repeat it. On 1^st October 2014 the Complainant was called to a meeting with her manager and she had a colleague with her. She was advised that the Driver had made a complaint against her about her tone of voice. She denied the allegation. On 7^th October 2014 she received a letter from the manager advising of their obligation to investigate the complaint. It went on to state that as there was no witness they cannot substantiate the complaint. She was then certified with “reactive anxiety”. On 14^th October she replied expressing her disappointment with the letter from her manager. The manager responded that her findings were such because there were no witnesses. She included a copy of the complaint, which was neither signed nor dated. The Complainant responded with her account of what had happened and disagreed completely with the happenings also that it was 5 weeks after the meeting when she got a copy of the complaint. On 6^th January December she was invited to a welfare meeting with the Acting Manager and Company Secretary to discuss her illness and to get an estimate of her return to work. She told the Company Secretary that she wanted her name cleared. Mediation was offered and accepted with the Driver which took place on 12^th January. They both shook hands. Following that meeting the Company Secretary wrote to confirm that he did not accept the allegations made by the Driver and he confirmed his utmost confidence in her ability to carry out her duties professionally. She returned to work from illness on 9^th February 2015. She raised her loss of earnings and medical costs with her Acting Manager. The Respondent stated that they could not pay compensation or expenses.

It is her case that she was treated inappropriately by the Driver 2011. Once a letter of complaint was received the matter should have been dealt with in a formal way, with an investigation and a report. She was again treated inappropriately and threatened in 2014. Again her manager failed to deal appropriately with this matter. Her manager dealt with her incorrectly in October 2014 at the “informal” meeting. There was no formal investigation to the written complaint. The Respondent was fully aware of the torment and stress that she suffered. It is her contention that the manager evaded the two previous incidents because they didn’t want to upset the Driver who brings business to the Centre. They failed to intervene for some 3 months after the alleged complaint was made. It is clear from the Company Secretary’s letter that the Complainant did nothing wrong.

Management has failed her in not dealing with these matters correctly. They chose not to deal with the incidents. The Complainant is an exemplary employee. She has paid for management’s failures and suffered reactive anxiety and has suffered stress and loss of income for 17 weeks and incurred medical costs. She is seeking compensation for her loss and medical expenses. The Respondent paid eight weeks sick pay in 2011. She cited the Labour Court case AD0824 in support where an award of €7,500 was made. Her actual loss of income was €2,492 and medical costs were €200.

Respondent’s Submission and Presentation:

On 28^th September 2014 the Respondent received a complaint from a customer relating to the Complainant. An informal meeting took place with the Complainant. The Respondent concluded that there was no case to answer and issued am outcome letter. The Complainant responded in writing and submitted sick certificates. She was paid for three week’s sick leave as per the policy. Because the certificate referred to “work procedures/issues she was invited to a welfare meeting. At that meeting it was agreed that mediation between the Complainant and the customer would be beneficial. The mediation took place on 12^th January 2015 and it was successful. She returned to work on 9^th February 2015 and a return to work meeting was held on 10^th February 2015. She did not raise any further issues at any stage of the process. At a later stage she asked to be reimbursed for the time off not covered by the sick pay scheme. This was refused as she had exhausted her sick leave entitlement. A meeting took place with her union official and again the request was declined.

The Respondent has met its obligations to the Complainant. They cited Looney & Co Vs Looney UD843/1984 and the Health Board and BC and the Labour Court in support of their position. The Respondent has acted in line with their responsibilities as an employer and have addressed the Complainant’s issues.

Findings

I note that there were two incidents with the Driver and the Complainant on 9^th November 2011 and 18^th June 2014. Also in October 2014 the Driver made a complaint against the Complainant.

I accept that the Respondent was obliged to investigate the complaint.

I note that the Respondent made enquiries and decided that as there were no witnesses there was no case to answer.

I note that the Respondent wrote to the Complainant to advise her of that fact but went on to state that they expect all employees to conduct themselves professionally.

I fail to understand why the Respondent would advise that they can’t substantiate the complaint and then go on to say that they request all employees conduct themselves.

I find that this infers that she may not have conducted herself professionally.

I note that the complaint from the Driver was not signed or dated.

I find that once a written complaint was received the Complainant should have been copied without delay. I note that this did not happen.

I find that when a written complaint was issued it would warrant a formal investigation.

I note that the Complainant responded with her account of what had happened and disagreed completely with the happenings as set out by the Driver.

I accept that a finding of ‘no case to answer’ is an outcome but it should not have been followed by a statement of request that all employees, in this case the Complainant, should conduct herself professionally.

I note that this caused upset which led to an absence from work due to reactive anxiety.

I find that the Respondent did not carry out a proper investigation and so I find that they have denied the Complainant natural justice and fair procedure.

I find that the Respondent erred in requesting the Complainant to conduct herself professionally.

I note that at a later stage the Company Secretary exonerated her totally.

I conclude that this incident may well have caused the reactive anxiety, I cannot be sure. However I find that the Respondent should have responded more compassionately to her request for support with her loss of income and medical costs.

On the balance of probability I conclude that the Respondent has contributed to her absence from work and to having to incur medical costs.

I note that they used their discretion in 2011 and paid eight weeks sick pay.

Therefore they had to option again to use their discretion.

I note that the Complainant incurred medical costs of €200, which could not be offset by any health insurance policy.

I note that she incurred a loss of income of €2,490 which could not be offset by social welfare contributions.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act and under section 13 of the Industrial Relations Act, 1946.

I recommend that the Respondent contributes €200 towards her medical costs.

I recommend that the Respondent pays her €2,490 to compensate her for loss of income associated with this incident.

In addition I recommend that the Respondent pays her €1,000 (one thousand) compensation for the upset caused by their failure to investigate allegations properly and their failure to respond positively to her requests for financial assistance associated with this incident.

This should be paid within six weeks of the date below.

Dated:   25/07/2016