ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002146

Complaint for Resolution:

Date of Adjudication Hearing: 26th July 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act 1969 and following the referral of the disputes to me by the Director General, I inquired into the disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the disputes.

 Attendance at Hearing: 

Summary of Complainant’s Case:

Bullying and Harassment: I have been bullied and harassed. Full details will be furnished at the hearing which include but are not limited to a refusal to allow me to return to work having been deemed fit to return by my doctor, causing me to go to a hearing specialist which involved me in an unnecessary expense of €2,000, making unlawful breaks in my service and invoking unwarranted disciplinary procedures against me.

Appeal of a Disciplinary Sanction: I wish to appeal the fixing of an unwarranted disciplinary sanction.

The Complainant said his claim includes the following:

1. Bullying and harassment
2. Failure to pay him his travelling allowance for a stated period, but it was confirmed that this was paid following the submission of these claims and has been reinstated to him.
3. Refusal to allow the Complainant to return to work, he having been deemed fit to return to by his Doctor and the Respondent requiring him to go to a hearing specialist which involved him in unnecessary expense.
4. Failure by the Respondent to pay superannuation for the period the Complainant was on unpaid sick leave from 18th February 2014 to 6th April 2014, which resulted in a shortfall in his reckonable service for pension purposes of 0.132 of a year
5. That the Respondent has miscalculated the Complainant’s service period.
6. That the Respondent invoked an unwarranted disciplinary procedure against the Complainant’s alleged unauthorised absence from work and fixed him with an unwarranted disciplinary sanction.

The Complainant said he commenced employment with the Respondent on 15th January 2011 and in 2006 he was promoted to the position of Foreman.

In relation to 3 above the Complainant said that on 11th June 2013 he was diagnosed with a vestibular schawwanoma (a tumour) in his left ear and as a result he was on certified sick leave. The tumour caused him to suffer some hearing loss in one ear. From 4th November 2013 to 6th April 2014 he was on further certified sick leave suffering from illness and stress. He was seen by the then Community Mental Health Team on 20th November regarding his stress.

On 7th April 2014, the Complainant was certified by his Doctor as fit to return to work. Upon reporting for a return to work the Complainant mentioned to his Line Manager that he had some difficulty with his hearing in one ear he was not allowed to return to his normal range of work until such time as he had a medical certificate that he was fully fit to return to work. He was not allowed to return to work at all. Following a telephone call from the Complainant the Respondent the Respondent wrote to him on 16th April 2014, requesting that he submit a certificate from his GP stating that he was fit for work despite his then current hearing level.

On 7th May 2014, the Complainant’s GP wrote to the Respondent stating that he had “normal hearing on his right hand side” and suggested that he be assessed by the Respondent’s Occupational Health Physician. Despite this the Respondent required the Complainant to have an assessment carried out by a specialist and they required him to the pay the cost of this.

It was submitted that as the Complainant had been certified fit to return to work that should have been the end of the matter. It was further submitted that the Respondent delayed in the matter by waiting from 7th to 22nd April 2014 before contacting the certifying doctor.

Regarding 4 above the Complainant said the Respondent refused to pay the superannuation contributions in relation to the Complainant for the period from 18th February 2014 to 6th April 2014, because he was on unpaid sick leave for that period. The Complainant said that the Respondent has discretion as to whether to pay superannuation in respect of unpaid sick leave and he said the Respondent’s reason for not paying is because he had not applied to have it paid.

The Complainant said that taking into account that he had undergone surgery on the tumour in his ear and his mental health difficulties, the Respondent should at least have informed him in advance that because he was on unpaid leave no superannuation would be paid for him unless he requested that it be done and further that taking into account the short period involved it was unreasonable for the Respondent not to have paid the superannuation.

Regarding 5 above the Complainant said that the Respondent has miscalculated his period of service. He said his service details are recorded as 11.9760 years and it should be 12.9760 years.

Regarding 6 above the Complainant said the Respondent invoked the grievance procedure against him on two occasions. The first was in respect of travelling expenses and the second was in respect of an allegation of unauthorised absence.

In respect of the travelling expenses the Complainant submitted the following:

On 18th August 2015, the Respondent wrote to the Complainant requiring clarification from him in relation to travel claims for the 5 days to week ending 14th August 2015; specifically confirmation of journeys made, times they took place, what vehicle was used and the information was required by 21st August 2015. The Complainant was informed that these “claims are currently on hold” until the Respondent received “satisfactory clarification of the information requested.” This letter was sent despite the fact that this matter had been the subject of a meeting between the Complainant’s Trade Union and the Respondent on 30th July 2015. On 18th August 2015, the Complainant’s Trade Union on his behalf wrote to the Respondent seeking an urgent meeting to discuss a number of issues the Complainant had raised that had not been acted upon. The Trade Union again wrote on behalf of the Complainant to the Respondent on 20th August seeking a response to their letter of 18th August and stating that the Respondent had taken upon themselves to put the Complainant “under scrutiny” and that the issue in question had been address by the Trade Union with the Respondent on 30th July 2015; the Respondent was informed that the Complainant was willing to co-operate, but the Respondent must set out precisely why they were seeking such clarification. On 20th August 2015, the Respondent responded to the Trade Union stating that before a meeting would be agreed to they required full details of the issues raised by Complainant that he alleged had not been acted upon.

On 26th August 2015, the Respondent wrote again to the Trade Union and they acknowledged that the Complainant’s travelling claims had been discussed at the Meeting on 30th July 2015, but that the specific details requested were not provided and that the matter was not addressed to their satisfaction. The Respondent said that the travelling claim involved was a claim that was submitted after 30th July 2015, being in respect of a claim for week ending 14th August 2015 and they accepted that the Complainant was unclear about the rules up to it being clarified for the Complainant on 30th July 2015.

On 27th August 2015, the Trade Union again wrote on behalf of the Complainant confirming that he would provide the information requested if he was provided in writing the specific details required along with a justifiable reason for such a request. It was also pointed out by the Trade Union that the document relied on by the Respondent was not known to their member and was not a document agreed with the Trade Union. The Trade Union requested a meeting with the Respondent to resolve and clarify the procedures for travelling claims.

The Complainant said that he has at all times submitted travelling claims in accordance with custom and practice, similar to his work colleagues. He said the travelling claims in respect of week ending 14th August 2015 were bona fide claims and he had nothing to gain from not providing the information requested by the Respondent. However, he and his Trade Union do have an issue with him being singled out and the reason for the Respondent seeking clarification in circumstances where the Trade Union had dealt with this issue at a meeting on 30th July and in circumstances where the Claim Form does not require some of the information such as the times of journeys.

It was submitted that the action of the Respondent and this action was taken on the day the Complainant’s appeal of a disciplinary sanction in the third issue was received by the Respondent, is unwarranted, unnecessary and it caused the Complainant considerable stress. The Complainant said they wished to draw attention to the fact of the closeness in time and circumstances of the travelling claims issue and his appeal of the verbal warning for an alleged unauthorised absence.

However the Complainant said the travelling claims have been honoured and reinstated since May 2016 and accordingly he is making no application in that respect

In regard to the alleged the Complainant submitted the following:

The Complainant said he was authorised to go for training on 21st May 2015. He said that 3 of his work colleagues also attended the training and no disciplinary action was taken against them. The Complainant said the Respondent paid for the training course. The Complainant said that accordingly, not only was it unwarranted to invoke the disciplinary procedure, but it was unwarranted and unlawful to impose a disciplinary sanctioned.

The Complainant said that in an internal email of the Respondent of 6th May 2015 referring to training on MEWPS, which states that “there will be scope to get some of the lads training.” The Complainant said there is a further internal email of the Respondent of 19th May 2015, where it is stated that the Complainant had informed a named member of the Respondent that training had been approved for him on Thursday 21st May 2015 and that an order number had already been sought from a named member of Personnel to cover the cost and it further states 4 will be attending this training and that he was just making sure it is still a runner as a named Company have us booked in and that if he did not hear anything to the contrary he would take it as all okay.

On 8th July 2015, the Respondent wrote to the Complainant requesting him to attend a disciplinary interview on 17th July 2015 regarding to his failure to notify his immediate supervisor of his pre- planned absence from work on Thursday 21st May 2015, to attend an unauthorised training on Mobile Elevated Working Platforms.

On 30th July 2015, the Disciplinary Meeting was held and the Complainant was represented by his Trade Union. On 14th August 2015 the Complainant was issued with a verbal warning.

On 17th August 2015, the Trade Union on behalf of the Complainant wrote to the Respondent appealing the verbal warning, however it was unsuccessful.

The Complainant sought the following redress in relation to his claims/complaints.

1. A refund of the fee in respect of the Ear Specialist - the Complainant confirmed that he was seeking reimbursement of the sum of €2,100.00c paid by him for a hearing aid.
2. A direction that the Respondent pay superannuation in respect of the Complainant for the period from 18th February 2014 to 6th April 2014, this being superannuation in respect of 0.132 of a year and to adjust the Complainant’s service details to reflect this.
3. A direction that the Respondent correctly calculate the Complainant’s service period and to let the record reflect the correct service details in respect of the Complainant’s service period.
4. A declaration that there was no unauthorised absence; that the disciplinary procedure should not have been invoked; that a disciplinary sanction should not have been imposed and a direction that the Complainant’s record reflect same.
5. Compensation for bullying and harassment.

The Complainant said that since he made his complaint to the WRC the bullying and harassment has subsisted and to a very large degree ceased.

The Complainant gave direct evidence of his alleged bullying and harassment. In response to questions the Complainant confirmed that he had not made a formal written complaint of bullying and harassment. However he said that he had stated directly to a named Manager that he believed that he was being bullied and said he was led to believe that this would be dealt with. He again confirmed that since the referral of the instant case to the WRC matters have been okay and it has essentially ceased. The Complainant’s Representative submitted that the Complainant should have been clearly told that nothing would/could happen until he put his complaint in writing.

The Complainant sought a favourable recommendation.

Summary of Respondent’s Position:

The Respondent said that the Complainant commenced employment with them on 15th January 2001; he is a permanent employee and is currently employed as a Roads Foreman.

The Respondent said they have a long-established procedure in relation to the lodging and investigations of complaints of bullying and harassment (copy submitted to the Hearing). The Respondent said the Complainant had not availed of this procedure prior to the submission of his complaint to the WRC.

On 30th September 2013, the Complainant met with members of the Respondent’s Personnel Section and informed of matters in relation to his health. He requested that these matters be treated with the utmost confidentiality and he was assured that this would be the case.

The Complainant was absent from work on a period of certified sick leave, which commenced on 4th November 2013. He exhausted his entitlement to paid sick leave, a maximum period of 12 weeks paid sick leave in any rolling 12 month period, on 17th February 2014 and payment of wages ceased from that date and this is in accordance with the provisions of the Sick Leave Scheme for Local Authority employees.

Having submitted a certificate of fitness to return to work from his own GP the Complainant reported for work on Monday 7th April 2014. However, on that morning during a discussion with his Line Manager, the Complainant made reference to an issue with his hearing. As far as the Respondent was aware the ‘hearing’ issue was unrelated to the health matters discussed at the Meeting on 30th September 2013.

Given the nature of the Complainant’s job as a Roads Foreman, his Line Manager, understandably, was reluctant to allow him to return to work until such time as medical certification was provided confirming his fitness for work, notwithstanding his self-declared hearing difficulties. The Respondent said this decision was made having regard to their duty of care to the Complainant, and on grounds of health and safety concerns for his work colleagues under his supervision. The Complainant was verbally requested to provide the relevant medical certification. On 16th April 2014, the Complainant was formally informed of this and was also informed that arrangements were being made to place him on sick pay.

The Respondent said that notwithstanding the fact that he had exhausted his entitlement to paid sick leave, they, as an exceptional measure, reinstated the Complainant on full pay from 7th April 2014 to 2nd May 2014, to afford him an opportunity to provide the required certification of fitness with regard to his hearing. On 8th May 2014, the Complainant returned to work. A report from his own GP, dated 7th May 2014 noted that the concern of hearing loss was a “legitimate concern” and suggested that the Complainant be referred to the Respondent’s medical practitioner for independent assessment. The Complainant was paid annual leave in respect of 6th and 7th May 2014 and payment of his wages recommenced on 8th May 2014.

The Respondent said that the Complainant was referred to their GP on 12th May 2014, following which it was confirmed that although he does have a significant hearing loss in one ear, he was fit for work. The Respondent took responsibility for the cost of this assessment and it has continued to refer the Complainant for further annual assessments. The cost of these annual assessments is borne by the Respondent.

The Respondent said that at no stage was it suggested by them that the Complainant should attend a hearing specialist – in fact they were unaware that he had attended a private specialist until he sought reimbursement of expenses incurred by him, which request was refused by the Respondent.

The Respondent said that the invoking of disciplinary proceedings against any employee is done in line with their own Grievance and Disciplinary Procedure of March 2014 (copy submitted to the Hearing).

In his case, the Complainant attended a Disciplinary Hearing with his Trade Union Representative on 30th July 2015; one foot of this Hearing the Complainants was given a verbal warning. He appealed this decision to the Personnel by letter of 17th August 2015 and he attended the Appeal Hearing on 1st September 2015, accompanied by his Trade Union Representative. The Hearing resumed on 16th September 2015 at which further consideration was given to his Appeal. By letter of 24th September 2015, the Appeal was rejected and the original decision was upheld.

The Respondent said that they reject out of hand any suggestion that they subjected the Complainant to bullying and harassment of any kind. They said that they have, at all times, acted within the parameters of their legal and regulatory obligations and requirements and their own policies and procedures

The Respondent said that a complaint of ‘harassment’ can only be made on the following grounds: gender, marital status, family status, sexual orientation, religion, age, disability, race or membership of the Traveller Community. The Respondent said they are wholly satisfied that the Complainant will fail this fundamental test.

The Respondent said that ‘bullying is defined as “repeated inappropriate behaviour” and the Respondent said that again they are wholly satisfied that they have acted appropriately at all times and that their actions and decisions are fully justified in the circumstances as outlined.

The Respondent said it must be noted that the Complainant has not availed of the internal mechanisms available to him in relation to dealing with alleged issues of bullying or harassment, or indeed grievances of any kind. It is the view of the Respondent that a referral of these matters to a third party, before these internal procedures have been fully exhausted is, of itself, a breach of these very procedures.

In regard to the disciplinary issue, the Respondent said they conducted their disciplinary procedure fully in line with established procedures. If there was any breach of that procedure, it was on the part of the Complainant at the Appeal Stage. However, the Respondent chose to accept the appeal and they gave it due consideration.

The Respondent said that it should be noted that the full details of the Complainant’s complaint has not been provided to them prior to this Hearing and accordingly they may not be in a position to respond in full to the issues raised at today’s hearing. The Respondent said that the Complainant’s failure to adhere to their well-established procedures has denied them the opportunity to address or resolve the issues at hand.

For all of the foregoing reasons the Respondent submitted that the claims/complaints were not well founded and they should be rejected.

Findings and Recommendation:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the disputes in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations Act 1969, requires that I make a recommendation setting forth my opinion on the merits of the dispute.

I have carefully considered the evidence and the submissions made and I have concluded as follows:

Taking the elements of the claims/complaints in the order as outlined by the Complainant and as contained at Page 2 of this documents the following are my findings and conclusions in relation to each of them and my recommendations.

No. 1. Bullying and Harassment:

I note it was confirmed at the Hearing that the Complainant had never made a formal complaint of bullying and harassment. It is necessary and is part of all the Codes of Practices on Workplace Bullying, including the LRC Code of Practice, the HSA Code of Practice, the EA Code of Practice, and even more significantly in the Respondent’s Procedures that before the Employer can commence any investigation or take any action in relation to allegations of bullying and harassment a formal written complaint specifying it is a complaint of bullying and harassment and must contain precise details of the actual alleged incidents of bullying must be made. There are competing rights involved, there is the right of the person making the complaint not to be bullied or harassed and to have any complaints in that respect properly investigated and there is the right of the person(s) against whom the complaint is made to defend themselves fully. An employer must be neutral as between the parties and cannot commence any action or any investigation until a formal complaint is made.

I cannot accept that the Complainant was not aware of the requirements and the policy in that respect. Firstly the Complainant is employed as a Foreman and it is to be expected that in that respect he would be familiar with the policy as he may be required to advise employees he supervises in that respect. Secondly the Complainant is an active member of his Trade Union; he in fact used the services of his trade union to vigorously represent and defend him in relation to all of the other matters raised by him and it is exceedingly difficult for me to understand why he could not have taken advice from his Trade Union in relation to the question of bullying and harassment.

I do not see merit in the element of the claims/complaints in relation to bullying and harassment and it is rejected by me.

No. 2. Failure to pay travelling allowance for a stated period:

It was confirmed at the Hearing that this allowance now was paid and accordingly there was no need to make any finding or recommendation in that respect.

No. 3. Refusal to allow the Complainant to return to work and requiring him to go to a hearing specialist, which involved him in unnecessary expense:

This element of the claims is divided into two parts namely:

(a) Refusal to allow the Complainant return to work: Upon his initial return to work on 7th April 2014, the Complainant in discussion about his return to work with his Line Manager referred to an issue with his hearing. Due to the nature of the Complainant’s work the Respondent decided it was prudent and necessary as part of their duty of care to the Complainant and his colleagues that it was appropriate on health and safety grounds not to allow the Complainant to work until they had medical certification confirming his fitness for work taking into account his (self declared) hearing difficulties. I consider this to be a perfectly reasonable position for the Respondent to take or adopt. When this medical certification was obtained the Complainant was fully facilitated with a return to work and indeed they Respondent sought to mitigate any loss to Complainant by reinstated him on sick pay despite him having exhausted his entitlement to sick pay.

I do not see merit in this element of claims/complaints and it is rejected by me.

(b) Requiring the Complainant to go a hearing specialist, which involved him in unnecessary expense: It is a fact that the Respondent never required the Complainant to attend a hearing specialist. The suggestion that the Respondent should reimburse the €2,100.00c paid to the Hearing Specialist for a hearing aid which is now considered an unnecessary expense is a quite extraordinary proposal: if the Complainant was sold a hearing aid that was unnecessary that is a matter between him and the Hearing Specialist who provided it and has absolutely nothing to do with the Respondent.

This element of the claims/complaints is entirely without merit, it is entirely misconceived and it is rejected by me.

No. 4. Failure by the Respondent to pay superannuation for the period the Complainant was on unpaid sick leave for a stated period:

It is my understanding that superannuation can only be paid in respect of periods of service where there is pay due or paid to the employee.

In relation to the period of unpaid sick leave I recommend that the Respondent pay the Complainant pension rate of pay for the period he was on unpaid sick leave, from 18th February 2014 to 6th April 2014.

No. 5. That the Respondent has miscalculated the Complainant’s service period:

The Respondent said that if the Complainant’s service period was calculated wrong it could and should be corrected.

I recommend that the Complainant’s service period be rechecked in consultation with him, that he provide the Respondent with any and all information in relation to what be believes is wrong or incorrect in his service calculation to date to allow it to be thoroughly checked and if any correction is required it be made promptly.

No. 6. That the disciplinary sanction imposed on the Complainant was unwarranted:

I note that the Complainant was disciplined for being absent attending a training course; I further note there were 3 other of his colleagues who also attended this course at the same time as the Complainant, but none of them was disciplined in that respect and he was the only one disciplined. No reason for this difference in treatment was advanced to me by the Respondent.

Based on this fact alone the discipline imposed on the Complainant was unfair, the Respondent have an obligation to be consistent in the application of disciplinary sanctions. In addition I am not convinced that what occurred could reasonably be considered an ‘unauthorised absence’

I see considerable merit in this element of the claims/complaints and it is upheld by me.

I recommend that the warning be removed and expunged from the Complainant’s record, I further recommend that the Complainant be paid the sum of €500.00c as a gesture of compensation for the manner this matter was handled by the Respondent; this money is not wages or arrears of wages.

In addition to the above recommendations I note that in view of what has occurred the Complainant is not happy working in the area he works at present. I recommend that the Respondent should afford the Complainant any operation to transfer to a suitable alternative location that may arise or occur; however I do recognise that this can not be used to displace any employees already on the transfer list.

I recommend that both parties accept the above recommendations as a full and final settlement of all matters in dispute between the parties.

Dated: 07/11/2016