ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002591
Complaint 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-00003586-001 | 31/03/2016 |
Date of Adjudication Hearing: 16/08/2016
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under Section 28 of the Safety, Health & Welfare at Work Act, 2005 following the referral of the complaint 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.
Attendance at Hearing:
By | Complainant | Respondent |
Parties | General Operative | An Employer |
Background
The Complainant is employed as an Assembly Operator since the 15th September 2008. She is paid €538.57 gross €462.13 net per week. The complaint has been referred under the Health Safety & Welfare at Work Act, Section 27 for treatment constituting penalisation within the meaning of the act following the making of complaints of bullying against her Supervisor. She is seeking that she is given a letter from the Respondent declaring that all adverse negative unsubstantiated comments are withdrawn and that she is given compensation.
The Respondent has rejected this complaint.
Complainant’s Submission and Presentation:
The complainant experienced difficulties with a new Supervisor who had taken up the position in around July 2015. The complainant considered that he was aggressive; he was over monitoring her and treated her with disrespect. The complainant had to attend her Doctor in early October 2015, he diagnosed her with stress and she was certified unfit to work from the 7th October 2015 until 12th November 2015.
Since the commencement of her employment in 2008, the complainant had worked in the Balloon Room, where she got on well, which was overall incident free. In around mid-2015, a new Supervisor started in the Balloon Room, Mr A. Almost immediately the complainant experienced difficulties with him, she considered that he spoke aggressively to her, that he had a very authoritarian manner, he was over monitoring her, he would question her every move, he would not listen to any explanations, she considered that he was picking on her. On the 7th October 2015, the complainant attended her Doctor who certified her unfit to work due to stress. On the 12th November the complainant returned to work.
In late November 2015 the complainant applied for a position on the weekend shift, her application was rejected on the basis that she was required in the Balloon Room and that she was too highly trained and skilled to release her from there.
The complainant continued to experience difficulties with the supervisor and on the 7th December 2015, there was an incident relating to the set up on a new lot and she had not been provided with the Tapers, she looked around and the supervisor was not there so she went to the person making the Tapers to enquire about them, the person did not have them and told her that another operator was getting them and to sit down and wait for them. She did and when the supervisor returned and he aggressively questioned her as to what was going on. She attempted to explain that she was waiting on the Tapers, he accused her of not executing her duty, the other operator informed him of what had transpired, he gave the complainant the impression that he did not want to listen and he was in the right and she was in the wrong attempting to not do her work. The complainant got very upset and distressed and had to request that she could leave early. She attended her Doctor and was again certified unfit to work due to stress.
On the 14th December she initiated a formal written complaint of inappropriate behaviour against the supervisor.
On the 17th December she was required to travel to Dublin to attend the Company Doctor, which she did and he confirmed that she was suffering with symptoms of stress which she wholly attributed to her workplace. He wrote the report on the 21st December and recommended her return on the same date. He also recommended that Management give her the opportunity to sit down and further discuss her concerns. This did not happen. The complainant did not receive a copy of the medical report until mid-January 2016.
The complainant returned on the 4th January 2016 and was informed by the supervisor that she was to report to a Supervisor in Production. The complainant reported to the Supervisor and she informed her that she was been taken from the Balloon Room to the Production Line. The following day Supervisor approached the Complainant to enquire how she was getting on; she informed her that she was not getting on well that she considered that the job was very difficult and stressful and that she would prefer to return to her own position.
On the 20th January 2016, the complainant initiated a formal complaint of penalisation. In that she complained that it was the most stressful and difficult position in the factory, she questioned why the supervisor had not been moved. She also referred to her application in November to work on week-end shift and that it was rejected on the basis that she had too many skills to be moved from the area. She concluded by stating “I am very stressed and distressed about the way I am being treated”.
On the 20th January 2016, the complainant had her first investigation meeting with management into her complaints of bullying against the supervisor. The Supervisor was interviewed on the 26th January 2016 and during that interview made serious negative allegations against the complainant.
Another meeting was held with the complainant on the 29th February at which she and her representative took multiple issues with the damaging, inaccurate speculative comments made by Mr A. We sought that he would substantiate them or retract them.
The report was issued in late February, and there was no reference to the issues that we raised relating to the above.
On the 9th February 2016, the complainant had a meeting with Mr W, she outlined why she considered that she was being penalised for initiating her complaints against Mr A and sought to be moved back to her area the Balloon Room.
On the 29th February 2016, Mr W met the complainant and informed her that he was upholding the decision on her location. The Union Official asked him on what basis had he upheld it, he shrugged his shoulders and said that was his decision and handed us a letter, one liner, again he was questioned on what basis had he arrived at that, what had he considered, he stated in letter he would clarify. He could not justify. The Official told him that she considered that the failure to properly address the complaint was a form of penalisation in itself and that this was going to be referred to an Adjudicator and that no third party would accept that 1 liner as a proper explanation for the decision. That this was a serious complaint under the Health and Safety legislation and that they were obliged to take it seriously and give an explanation as to what they had done and why they had come to the conclusion that they had.
The Case
Section 27.-(1) In this section penalisation includes any act or omission by an employer or a person acting on behalf of an employer or a person acting on behalf of an employer that affects, to his 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-
(a) suspension, lay off or dismissal, (including dismissal within the meaning of the unfair dismissals Acts, or the threat of suspension, lay off or dismissal
(b) demotion or loss of opportunity for promotion,
(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-
a) acting in compliance with the relevant statutory provisions
b) performing any duty or excising 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
There is also a General Provision in Section 13 (1) (a) of the act that an employee shall while at work comply with the relevant statutory provisions, as appropriate, and take reasonable steps to protect his or her safety and welfare and the safety, health and welfare of any other persons who may be affected by the employers acts or omissions at work.
The complainant in making her complaint of bullying against the Supervisor, she was acting in compliance with statutory provisions, she made her complaint to her employer and it related to her health and welfare at work. On her return to work on the 4th January 2016, following her submitting her written complaint of bullying, her employer transferred her to a new location, with different duties. In fact we argue that she was put on what is considered to be one of the most difficult jobs in the Production area. This was the first act of penalisation.
In relation to the detriment related to the conditions of employment, it is well established that every contract of employment contains an implied term that the worker will be provided with a workplace free from bullying, consequently, making a decision to remove an individual from their location/area before any investigation has commenced does not comply with that implied term and does amount to the imposition of a determent in respect of the workers conditions of employment similar to those mentioned in s.27. The decision to move the complainant had a detrimental effect on her; she considered that she was the wrong doer. This she considered was very damaging to her as she had a very good work record, no performance issues and a good working relationship with her peers and management prior to that. The complainant considered that her good reputation and standing was immediately damaged by this. She also considered that any possibility of promotion was gone. The complainant considered that her removal was sending out a clear message that management were supporting the supervisor. The detriment was compounded by the fact that the position that she was put on was perceived by her and other operators to be a highly undesirable and tough demanding position. The complainant struggled desperately, she complained of feeling under serious pressure, she was suffering with stress on the new position and experienced severe pain in her hand.
It also has to be borne in mind that the actual work location and area are extremely important for an individual in a factory environment, which tends to be where their friends are, their support is and where their competencies lie. So all of those factors being taken away were damaging and detrimental to the complainant.
The other factor in considering this is the fact that the complainant had applied for a weekend position in late November 2015 and was informed at the end of November that her application was rejected as she was too well trained, skilled in the area to be released. It is evident that the complainant would not have been relocated to the Production Line but for her making a formal complaint of bullying against her Supervisor.
The second act of penalisation that arose was during the investigation into the complaints of bullying, whereby the accused made a series of unsubstantiated negative allegations against the complainant. At the meeting of the 29th February the complainant and her representative raised the issues and requested that they be substantiated or retracted. Neither was done. This omission on the part of management is further damaging for the complainant, her reputation and her standing in the company. This has to be rectified. It is evident that the allegations made by the Supervisor would not form part of the written records but for the fact that a formal investigation had to be conducted following the formal complaint being made by the complainant.
The third act of penalisation occurred from the complainant making a complaint of penalisation. Management blatantly disregarded the complaint. They provided no evidence whatsoever to support that they investigated it. They provided no rationale whatsoever for not upholding the complaint. They provided no rationale whatsoever for upholding that the complainant stay in the new location. The complainant had a right to have her complaint objectively considered; the points that she raised objectively evaluated and responded to. Her terms and conditions under the provisions of the grievance procedures provide for that. She had a right to full disclosure of what was investigated, what was considered, how it was considered, what decision was made and why it was. This goes right to the core of her conditions of employment; to be deprived of such is a detriment. The complainant found this extremely hurtful; she considered that she was being treated with contempt. This was extremely damaging to her, her reputation and her standing. She knows that all of this has damaged her prospects of promotion in the future. This would not have been dealt with in this way but for the fact that it was directly relating to the complainants formal complaints of bullying against her Supervisor and all of management’s subsequent actions were taken to protect him and Management authority and prerogative.
In Summary
In considering these sections, the complainant when she complained in the first instance of being bullied was “acting in compliance with the relevant statutory provisions” by taking reasonable steps to protect her safety and welfare which was adversely affected by his Supervisors actions inappropriate behaviour towards her. The employers’ actions of moving her to a new location on a highly undesirable and tough position was detrimental and did relate to her conditions of employment and constitutes penalisation.
The allowing of the accused to mis-portray and damage the complainant, and further not get him to either substantiate his allegations or retract them, was detrimental to the complainant and again amounts to penalisation
The complete and deliberate failure of management to properly deal with the complainants complaints of penalisation again amounts to penalisation within the meaning of the act.
As was pointed out by the Labour Court in case HSD 095 the Chair of the court stated “This Court in Toni & Guy, there are two tests inherent in the statutory definition of penalisation. Firstly the claimant must have suffered a detriment of a type referred to at subsections (1) and (2) of S27”, which we have already pointed out , taken from her location, being put on one of the toughest positions in the production line, not having unsubstantiated allegations dealt with and not having her complaints of penalisation properly dealt with.
“Secondly, the detriment complained of must have been imposed for having committed a protected act or omission of a type referred to at subsection (3) of the section, in the sense that “but for” the protected act or omission having been committed the detriment would not have been imposed. This imports a requirement to show a chain of causation between the impugned detriment and the protected act or omission”.
In applying those legal principles in this case we conclude; If it was not for the complainant raising of her complaints of bullying related to her health and welfare and right to dignity at work, she would not have been removed from her area as only the previous month she was informed she was too well trained and skilled to be moved, so clearly these actions all occurred following the complaint of bullying demonstrating the chain of causation between the impugned detriment and the protected act or omission.
The Adjudicator is requested to
Declare that the complaint was well founded
Determine that the complainant is given a letter from the respondent declaring that all of the adverse negative unsubstantiated comments relating to her alleged by her supervisor (A.A) are without substance and are withdrawn in their entirety
Determine that the complainant is awarded appropriate compensation
In deciding the appropriate level of compensation we ask you to bear in mind ELISABETH KAMANN V LAND NORDREIN-WESTFALEN” “although directive no 76/207/EEC, for the purpose of imposing a sanction for the breach of the prohibition of discrimination, leaves the member states free to choose between the different solutions suitable for achieving its objective, it nevertheless requires that prohibition by the award as compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred in connexion with the application”
In essence the award must be effective, proportionate and dissuasive
Respondent’s Submission and Presentation:
The Complainant was employed as an Assembly Operator, contrary to the statement in the Complainant’s claim form; she is not employed as a “Balloon Room Operative”. Assembly Operators work in a number of areas, including the production lines and the “balloon room”. They are trained on different stations and in different areas depending on business needs.
Assembly Operators are, as a matter of routine, moveable and moved between functions, departments and shifts. So, for example, 7 Assembly Operators (out of a total of approximately 60), including the Complainant, were moved out of the Balloon Room section of the Respondent’s plant between January and May of this year in circumstances where there had been a significant reduction in orders. That same reduction in orders also resulted in 9 redundancies in the Balloon Room and an overall reduction in headcount among Assembly Operators at the plant from 375 to 345 between November 2015 and February 2016.
She was moved from the Balloon Room area of the Plant to the Production Lines on 4 January 2016 in the context of the changes referred to above, but on the basis of a decision that had been made some considerable time earlier set out in the email from the Production Supervisor on 23 November 2015.
The Complainant’s time-keeping and attendance record over the course of 2015, in particular, and 2016 has been poor. That has given rise to a number of “counselling” sessions, or meetings with supervisors regarding her attendance over the period in question. These counselling sessions are not formal disciplinary processes and do not form part of the disciplinary procedure. The counselling sessions took place on 29 July 2015 (poor attendance) and 1 September 2015 (timekeeping and poor attendance).
When further issues arose in relation to the Complainant’s attendance a disciplinary hearing was held on 25 November 2015. It was not concluded on that day and was completed on 30 November 2015. Following same the Complainant was issued with a verbal warning (effective for 6 months) on 8 December 2015 as she had been absent for 20.99% of her working hours – the equivalent of 1 day in 5 - in 2015 up to that time. The Complainant went out sick that day and did not return until January 2016.
The Complainant confirmed at the disciplinary hearing on 30 November that she had no concerns over the process or procedures and had nothing further to add. However, she elected to appeal the warning – as is her right – on 14 December 2015. It was on that same day that she made her complaint against her Team Leader. As she was absent on sick leave at the time, the Complainant simply dropped in her letter of appeal and her letter of complaint. She remained on sick leave and did not return to work until January 2016.
The Complainant’s appeal against her verbal warning was not finally resolved until 9 February 2016 because of her sick leave, holidays and lack of availability of certain individuals. However, the warning was rescinded on appeal on that date. Critically, it is submitted that if the company had been seeking to penalise the Complainant for making a complaint against her Team Leader on 14 December 2015 it is highly unlikely that a disciplinary warning that had already been issued to her would have been overturned subsequent to the complaint having been made.
Over the course of the early part of the winter of 2015-2016 it had become apparent that production requirements would decrease in early 2016 due to decreased orders. That eventually led to a reduction by 30 of the number of Assembly Operators employed by the Respondent in 2016. The Balloon Room was impacted by these developments with 9 employees losing their jobs due to redundancy and a further 7 being moved to alternative operator functions elsewhere in the plant. In addition, the weekend shift was cancelled, meaning that 5 additional people had to be slotted back into the regular roster from that shift.
The Complainant was one of the 7 who were moved, because there was a vacancy on the Production Lines and she was deemed to have the requisite technical skills. Her move was being discussed and arranged by members of management as far back as November 2015 as per the email referred to above and was, for that reason, being planned a number of weeks before she made any complaint about her Team Leader.
The Complainant returned to work after her latest absence on 4 January 2016. On that day the Production Supervisor, met with her and advised her that she was to move to the production lines in order to be trained on the “proximal station”.
On 11 February 2016 the 9 redundancies in the Balloon Room took place.
In light of the above, the Respondent submits that moving the Complainant from the Balloon Room to the Production Lines was a routine management decision arising as a direct consequence of the termination of the weekend shift. In that regard, the Complainant wishes to refer to Considine v Limerick City and County Council, HSD165, in which the Labour Court held in favour of an employer who had summoned an employee to a disciplinary hearing on the same day that the employee had made a complaint of bullying and harassment against his line manager. In dismissing the claim, the Court stated that: “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 worker’s 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.”
It is further submitted that the Complainant’s move was being planned well in advance of her making a complaint against her Team Leader and might well have taken place before the said complaint was made had she not been absent on sick leave for most of December 2015.
The Complainant’s Team Leader was in the Balloon Room between late June 2015 and 4 January 2016 when she moved to the Production Lines.
On 14 December 2015 (the same day that she appealed her verbal warning), the Complainant wrote to the HR Manager complaining about supposed “inappropriate behaviour” on the part of the Team Leader. In her complaint she gave three examples of the supposed “inappropriate behaviour”:
The first allegation was that the Complainant confronted him on 26 November 2015 as to why he had not checked balloons on which she was working, he replied “I will change them as I want to.”
The second allegation was that she confronted him on 4 December 2015 about what she believed to be a breach of procedure on his part and that he replied “I know”.
The third allegation is that on an unspecified date he “aggressively” asked her a question and “accused” her of not doing what she was supposed to be doing. She acknowledges in her complaint of 14 December that she had made a “little mistake”.
It is respectfully submitted that it is difficult to imagine exactly what he is supposed to have done wrong in 1 and 2 above. The third accusation, meanwhile, seems to be entirely based on the Complainant’s adverse reaction to being corrected by her Team Leader and her perception that she asked her a question “aggressively”. In that context, it is submitted that there was little substance to the complaint.
Even then, on reading the Complainant’s complaint of 14 December, it is noteworthy that she never uses terms like “bullying” or “harassment”. In that context, it is submitted that the complaint of 14 December simply does not constitute 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” within the meaning of the 2005 Act. Therefore, the Complainant’s complaint under the 2005 Act is entirely without foundation.
As the Complainant went out sick prior to submitting her complaint on 8 December and it subsequently took some time to arrange a date for an investigatory meeting that suited both the Complainant and her trade union representative, that hearing did not take place until 20 January 2016; some weeks after the Complainant had been moved to the production lines. Efforts had been made to commence the investigation on 6 January but the Complainant sought – and was granted – a postponement.
An investigation was eventually conducted by a Production Supervisor. Even at the investigatory meeting on 20 January 2016, neither the Complainant nor her trade union representative made any mention of supposed "bullying” or “harassment”. Rather, it was only at the very end of a second and final investigatory meeting with the Complainant on 29 February 2016 that the Complainant’s trade union representative first used the word “bullying.” That was almost two months after the Complainant’s move to the production lines; a fact that completely undermines the claim that is now being made under the 2005 Act. Ironically, at that same meeting the Union Official indicated that the Complainant would not want to remain in the balloon room because of the Team Leader’s presence there.
Ultimately, following a comprehensive investigation it was found that that there was no intentional inappropriate behaviour by the Team Leader but that there may have been miscommunication at times. That conclusion was communicated to the Complainant on 6 April 2016.
On 20 January 2016 the Complainant submitted a formal grievance relating to her move to the Production Lines. Her grievance was heard by the Production Manager, (under stage B of the company’s grievance or problem resolution procedure) on 9 February 2016, on which occasion the Complainant was accompanied and represented by a full-time trade union official.
Having considered the Complainant’s grievance the Production Manager upheld the move and confirmed same to the Complainant and her representative at a meeting on 29 February 2016. He confirmed same in a letter on that same date.
It is clear that the Complainant was unhappy with the decision. In those circumstances, it was open to her to appeal the decision under the company’s grievance or problem resolution procedure to senior management (stage C) and ultimately to the Managing Director (stage D). She did not do so, however. Rather, her representative made it clear at the meeting on 29 February that they intended to refer a complaint under the 2005 Act rather than exhaust the internal procedure. In those circumstances, it is submitted that it would have been more appropriate to appeal the decision internally before pursuing any external claim.
Claim
Although same is not specified on any of the documentation received from the WRC by the Respondent, the Complainant’s claim appears to be that the Respondent has allegedly breached section 27 of the Safety Health and Welfare at Work Act 2005 .
In making a complaint under the Safety, Health and Welfare at Work Actand, that she: penalised by being “removed” from what she describes as her “area” for making a complaint of bullying against her “Supervisor”; and that she was penalised because her complaint of penalisation was, according to her, “not dealt with properly”. These complaints are without any substance or justification whatsoever.
First Aspect of Complaint
The first aspect of the Complainant’s complaint is that she was penalised by being “removed” from what she describes as her “area” for making a complaint of bullying against her “Supervisor”.
In response to same, it is submitted that:
The grievance submitted by the Complainant was not a complaint of bullying;
The conduct complained of could never reasonably have been regarded as constituting bullying;
The complaint was not, therefore, “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” within the meaning of the Act;
Even if the Complainant’s grievance had constituted a complaint within the meaning of section 27 there was no penalisation in relation to her terms and conditions of employment (as required under section 27(1);
Any transfer of duties was not in reaction to her complaint and the Complainant has not and is incapable of proving any causal connection between the two because none exists. In fact, the move had been discussed and planned by management some weeks before the Complainant made her complaint against her Team Leader and was only communicated after that complaint was made because the Complainant had been on lengthy sick leave.
In that regard, the Respondent would point to the decision of the Labour Court in Babianskas v First Glass Limited, HSD166. In that case the Complainant was called to a disciplinary hearing after he made complaints because of his non-attendance at work following the birth of his daughter. The Court held in favour of the employer, concluding that: “In order for the Complainant to avail of the protections available in Section 27(3) it is essential that the detriment complained of be causally connected to the claim he made under the Act on 16th February 2015 and the detriment which he alleged he suffered in his employment.”
In Tony and Guy Blackrock Limited v Paul O’Neill, HSD095, the Labour Court considered the circumstances in which an infringement of section 27 may occur. It stated: “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.”
The decision in the Tony and Guy case was quoted and applied again in A Worker v Katherine Gordon & Co. Limited, HSD155, in November 2015. Similarly, in A Worker v County Offaly Citizens Information Service Limited, HSD161, the Labour Court applied the same logic, clearly stating that: “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.”
Second Aspect of Complaint
The second aspect of the Complainant’s complaint is that she was penalised because her complaint of penalisation was, according to her, “not dealt with properly”.
In response to same, it is submitted that:
The Complainant raised a grievance with the Respondent on 20 January 2016. It was properly addressed and dealt with under the Company’s Problem Resolution (Grievance) Procedure.
Even if the Complainant’s grievance had not been properly addressed (which is denied), same could not be classed as “penalisation” for the purposes of section 27 of the Act as it is not an act or omission of the employer that impacts on the Complainant detrimentally in relation to her terms and conditions of employment (as required under section 27(1)) and certainly does not fall within the scope of the examples of possible penalisation listed in section 27(2).
Once again, there is no causal connection between the outcome of stage B of the grievance process and any complaint that had been made by the Complainant regarding Mr. A. Once again, the Complainant relies on the Labour Court’s decisions in the cases of Babianskas v First Glass Limited, HSD166, Tony and Guy Blackrock Limited v Paul O’Neill, HSD095, A Worker v Katherine Gordon & Co. Limited, HSD155, A Worker v County Offaly Citizens Information Service Limited, HSD161, and Considine v Limerick City and County Council, HSD165.
In light of the above, the Respondent seeks to have the complaint dismissed.
Findings
I note the detailed submissions made by both parties.
I note that following complaints of bullying made against her Supervisor she alleged that the Respondent penalised her as follows;
1st Act of Penalisation ; Removal from the Balloon Room in retaliation to making the complaint
2nd Act of Penalisation; Supervisor making unsubstantiated allegations against the Complainant in retaliation for making a complaint against him.
3rd Act of Penalisation; Failure by management to properly investigate the complaint and to provide rationale for not upholding her complaint.
1) 1st Act of Penalisation; Removal from the Balloon Room
I note that the Complainant deemed that the removal was an act of penalisation for making a complaint against her Supervisor. She believed that she was moved to the most stressful and difficult part of the factory in retaliation for making that complaint. This is despite the Respondent’s refusal to transfer her in November 2015 because of her skills in that Room. She believed that the Supervisor could have been moved instead of her.
I find that the Complainant was employed as an Assembly Operator not “Balloon Room Operative” as alleged by the Complainant.
I accept the Respondent’s position that as an Assembly Operator she could be moved to any part of the Plant.
I note that the Respondent supplied details of staff being removed from the Balloon Room and that there were 9 redundancies in the Balloon Room due to a reduction in business.
I note the email from Mr H to Mr G dated 23rd November 2015 which confirms that management had been contemplating transferring the Complainant. It states, “the only person that I could release is (the Complainant)”.
I find that this supports the Respondent’s position that this removal from the Balloon Room was contemplated prior to her making a complaint against her Supervisor. Therefore there cannot be any casual connection between the two incidents. Therefore I find that the removal from the Balloon Room could not be in retaliation for making a complaint as no complaint had been made at that time.
2) 2nd Act of Penalisation; Supervisor making unsubstantiated allegations against the Complainant in retaliation for making a complaint against him.
She believed that the Supervisor made a number of unsubstantiated complaints against her. She and her representative requested that these complaints be substantiated or withdrawn. She has complained that the Respondent did not.
I have examined the written complaint made by the Complainant against her supervisor which is the basis of the alleged bullying complaint.
I note that this letter of complaint had 3 sections to it.
I find that sections 1 and 2 are not complaints of alleged bullying by the Supervisor but the Complainant’s allegations of breaches of procedure by the Supervisor.
I find that the issues raised in section 3 were instances of the Supervisor checking up on the Complainant.
I note that at the investigation meeting Mr A responded to the allegations made against him by commenting on the Complainant’s behaviour and conduct.
I note that this was interpreted as him making serious negative allegations against her.
I note that she and her union official requested that these should be substantiated or withdrawn. This did not occur and no reference was made in the investigation findings.
I have considered the statements made by Mr A. He has had issues with her behaviour and has verbalised them.
I find that these comments were in response to the allegations made against him.
I note that the Investigator found that there was no intentional inappropriate behaviour by Mr A, there may have been some miscommunication at times.
I note that the Investigator made no comment in her findings regarding the alleged serious negative allegations made by Mr A against the Complainant.
I note that the Respondent did not address the allegation that Mr A made serious negative allegations against the Complainant either.
I conclude that both the Investigator and the Respondent at this hearing did not place any such weight upon the alleged comments.
I note that the Complainant did not raise a grievance about these.
I have found that the Complainant has not established that these comments were made in retaliation to the Complainant making a complaint against the Supervisor.
3) 3rd Act of Penalisation; Failure by management to properly investigate the complaint and to provide rationale for not upholding her grievance. She believed that the Respondent failed to properly investigate the complaint and only gave a very brief finding that the grievance was not upheld. No rationale for that decision was provided.
I have examined the written complaint made by the Complainant against her supervisor which is the basis of the alleged bullying complaint.
I note that bullying is not mentioned and nor was it raised by the Complainant or her representative for some time afterwards.
I note that this letter of complaint had 3 sections to the complaint.
I find that sections 1 and 2 are not complaints of alleged bullying by the Supervisor but the Complainant’s allegations of breaches of procedure by the Supervisor.
I find that the issues raised in section 3 were instances of the Supervisor checking up on the Complainant.
I find that the Complainant had made mistakes and the Supervisor spoke to her following which she went home.
I note that the complaint was investigated and the Investigator met with the Complainant and her Union Official and explained why he did not uphold the complaint.
I note that he then confirmed that the complaint was not upheld in a very brief letter.
I note that the Complaint’s employment was not “incident free” as alleged by her. I note that there were some instances of time keeping and attendance, which necessitated counselling sessions. In November 2015 she was issued with a verbal warning as she had an absence of 20%. This sanction was appealed and was rescinded following that appeal. This would suggest that there was no victimisation or penalisation of the Complainant.
I have found that the Complainant has not established that the Respondent retaliated to this complaint / grievance by not properly investigating them.
I find that the Investigator carried out a detailed examination of the situation over a number of meetings.
I find that he grievance outcome was explained at a meeting with the Complainant and her Union Official.
I find that penalisation can only be established if conduct or omissions which are included in the statutory meaning of the term penalisation arise and as a consequence of an act protected in Sec 27 subsection 3 and but for the protected acts of subsection 3 the claimant would not have suffered the detriment complained of.
I have found that the Complainant was not removed from the Balloon Room in retaliation for making the complaint.
I have found that the Complainant has not established that Mr A’s comments were made in retaliation to the Complainant making a complaint against him.
I have found that the Complainant has not established that the Responded retaliated to the complaint / grievance by not carrying out proper investigations.
Decision:
Section 41(4) of the Workplace Relations Act 2015 and Section 28 of the Safety, Health & Welfare at Work Act, 2005 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that the Complainant is unhappy with her work situation however she has not established that the actions complained thereof were done in retaliation to her making a complaint or raising a grievance.
I have decided that this complaint is not well founded and that it fails.
Dated: 15th November 2016