HSD165

Section 27 of the Act prohibits penalisation. The relevant parts of the Section provide;

• 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 ofsubsection (1), penalisation includes:

  • (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—
  • (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,

Background

The Complainant is employed by the Respondent as an Executive Engineer since 2007. In 2012 he was assigned to work in the Environment Department where he alleges he was bullied and harassed by his line manager over a period of time. He claims that on 15 July 2013 he sent an email to the Human Resources Department advising it that he intended to pursue a formal complaint of bullying and harassment against his line manager. He submits that later that day the line manager invoked a disciplinary procedure against him. He submits that this amounts to penalisation within the meaning of the Act as it was in direct retaliation for the protected act he had undertaken earlier in the day.

Complainant’s Position

The Complainant submits that he was over a long period of time subjected to bullying behaviour by his line manager. He submits that this culminated in a decision he took to make a complaint against him to the Human Resources Department on 15 July 2013. He submits that that email was copied to the line-manager whom he submits initiated unwarranted disciplinary proceedings against him on receipt of that email. He submits the initial email to the Human Resources Department was a “protected act” within the meaning of the legislation and that the threat of disciplinary action against him was in retaliation for having undertaken that “act”. he submits that this amounts to penalisation within the meaning of the Act.

The Respondent acknowledges receipt of an email from the Complainant on 15 July 2013. However it submits that the disciplinary process had been initiated before that email was written. It refers to an email from the line-manager to the Complainant dated [insert date]. It submits that the line manager referred the Complainant’s failure, contrary to an instruction, to attend a meeting as the incident that finally led to a decision to initiate disciplinary proceedings against the Complainant. It submits that when the Complainant received that letter he submitted the impugned email alleging bullying to the Human Resources Department. It submits that the Human Resources Department, quite independently, was reviewing an earlier request from the line manager for direction as to how to commence the disciplinary process against the Complainant. It was the response to that letter that was delivered to the Complainant on the afternoon of the 15^thJuly 2013. It submits that the two processes, though simultaneous, were independent of each other. It also submits that proof of the independence of the two processes is that it suspended the disciplinary process to allow an investigation into the bullying complaint be completed. It submits that it was only after that process was finished that it proceeded to deal with the disciplinary issue that had been raised. It acknowledges that the Complainant was issued with a verbal warning arising out of that process. It submits that a coincidence of timing is what links the two issues but that there is no causality between them two events and the manner in which they were dealt with confirms the separation of the issues.

Findings of the Court

The Court has considered the extensive written and oral submissions of both sides in this case. Having considered the information before it the Court finds that there was a coincidence of timing between the two issues that gave rise to a reasonable belief that they may have been related. However having examined the flow of correspondence and the manner in which the Respondent processed and separated the issues the Court finds that there was no causality between the protected act and the notification of the disciplinary procedure. The Court finds that the line manager had notified the complainant that he was taking steps to notify the Human Resources Department of his wish to escalate matters before the protected act was undertaken. The Court accepts the explanation given by the Respondent that it had considered that request for escalation and had approved a letter in the terms delivered to the Complainant after he had undertaken the protected act. The Court also accepts the submission of the Human Resources Department that the letter had only been delivered to the Complainant on the 15^thJuly 2013 as he had been out sick between the date on which the request for escalation had been sent by the Line Manager and 15 July 2013. The Court also accepts that the timing of the delivery of that letter on that day was not influenced by the Complainant’s decision to undertake a protected Act.

The Court observes that the statutory protections are designed to ensure that a person cannot be penalised for making a complaint under the Act. However it is not a protection against the normal and unrelated exercise of management within an employment. Where there is a coincidence of timing between the performance of a protected act and the taking of a sanction or prospective sanction against a worker the Court will require a clear explanation for the two events. Where it is not convinced that they are independent of each other the Court will exercise the powers vested in it under statute to protect a workers statutory rights. However where two incidents occur around the same time and the Court is convinced that they are independent of each other the Court must allow management to function normally.

In this case the Court is satisfied that the two events were concurrent but unrelated. Accordingly the Court finds that the Complaint is not well founded. The appeal is not allowed. The decision of the Rights Commissioner is affirmed. The Court so decides.

Signed on behalf of the Labour Court



Brendan Hayes
13th June 2016______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.