Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 26 of the Chemicals Act, 2008

CA-00006976-001

13/09/2016

The Respondent is a hotel, which also incorporates a Leisure Centre.

The Complainant works as a Leisure Attendant at the Respondent's leisure centre. He commenced employment with the Respondent on 19 October 2015 and was still in employment at the time of the hearing.

In his complaint, the Complainant stated that from the commencement of his employment with the Respondent he had been working between 28 and 30 hours per week, Mondays to Fridays. The Complainant contended that he never worked any day during any weekend. The Complainant stated in evidence that, in June 2016, the previous Club Manager left and was replaced, on a temporary basis, by another employee of the Leisure Centre, pending a formal appointment of a new Club Manager.

In his evidence, the Complainant stated that following the appointment of the temporary manager his situation at work deteriorated. The Complainant contends that the temporary manager was constantly bullying and victimising him in an effort to force him (the Complainant) to give up his job. In support of his allegation in this regard, the Complainant stated that the temporary manager cut his weekly hours and put him on the weekend roster, despite the fact that the Complainant told him on numerous occasions that he does not work weekends and never did since he started his employment at the Leisure Centre.

The Complainant stated in further evidence that the reason the temporary manager behaved in this manner towards him was because he (the Complainant) went to both the HSE and the HSA to complain about health and safety issues that existed at the Leisure Centre. The Complainant stated that he gave management several opportunities to sort the matter out internally but no one took him seriously but, instead, started to bully and victimise him.

According to the Complainant's evidence that things got more intense, he started attending a psychologist and psychiatrist as he was feeling depressed. The Complainant also stated that the situation at work was impacting on his family life.

The Complainant also contended that while senior management at the Respondent were fully aware of his situation they did nothing to address the issues but, on the contrary indicated that they could easily turn the accusations he was making against the temporary manager back towards him (the Complainant).

The Complainant provided detailed evidence in relation to concerns he had with regard to Health and Safety at his place of work. The Complainant stated that he raised these issues in shift reports on a number of occasions up to and including 1 August 2016. According to the Complainant these issues caused him great concern and raised serious issues of health and safety for himself, other employees and patrons of the Leisure Centre. He also stated in evidence that there were other health and safety and hygiene issues which he had raised.

According to the Complainant he met with the temporary manager on 3 August 2016 to have the issues addressed, he stated in evidence that the temporary manager refused to speak with him about these issues following which the Complainant advised the manager that if they were not dealt with would be obliged to report the matter to the HSE given the serious health risks that were involved.

The Complainant stated that the temporary manager responded by saying that if he made a complaint then the HSE might shut the place down and, if that happened, the company would sue him (the Complainant) for causing the closure. The Complainant stated that he informed the manager that he was acting correctly and had evidence to back up his allegations. The Complainant stated that he was very disappointed with his manager's reaction to his raising these issues.

The Complainant contended that the failure of the Respondent to deal with these issues caused him considerable stress and resulted in health issues for him. He stated that he tried to keep up the correct professional standards in the Leisure Centre but given all the issues involved it was impossible for him, as one person, to do this without the assistance of management to change the procedures and work practices to provide normal health and safety requirements for a Leisure Centre. The Complainant contended that this assistance was not forthcoming from management.

In response to the complaint, the Respondent stated that the Complainant had submitted numerous complaints via email and letter, the first of which was dated 5 August 2016. The Respondent submits that each of these complaints and all issues raised by the Complainant have been dealt with as and when they were submitted, in a timely manner as possible.

The Respondent further submitted that their Operations Manager met with the Complainant on numerous occasions to discuss the issues he had raised. It was further submitted that the Complainant was also invited to attend a formal meeting the Group CEO on 16 August 2016. The Respondent stated that the purpose of this meeting was to investigate and discuss the Complainant's issues and to investigate his claims of bullying and victimisation in the workplace.

According to the evidence submitted by the Respondent, when requested to do so at this meeting, the Complainant refused to provide examples of any situation or incident that he felt had led to his upset. It is contended that the Complainant refused to provide examples supporting his allegation that he was being bullied or victimised. According to the Respondent's evidence, the Complainant was informed that if he was unwilling to provide examples of his allegation, then the company could not investigate the said allegations any further. It was stated that the Complainant was also reminded that his allegations were of the serious nature and that he needed to cooperate with the company so that these allegations could be investigated. However, the Respondent stated that the Complainant refused to co-operate.

The Respondent stated that it was agreed at this meeting that the company would make improvements in relation to some of the areas of concern raised by the Complainant, such as improvements to the plant room, training and PPE equipment. The Respondent stated that all these issues were addressed as agreed at the meeting.

According to the Respondent's submission it was also agreed at the meeting that the Complainant would sign his contract of employment, which he had been refusing to do up to that point, the following day and return it to management. It was submitted that the complainant has still not complied with this request despite having been reminded on numerous occasions since then.

The Respondent stated that two scheduled follow-up meetings to which the Complainant had been invited to attend in order to review progress, did not take place as the Complainant, on both occasions, called the day before the meeting was due to take place and advised he would not be attending.

With regard to the issue of complaints made to the HSE and HSA, the Respondent stated that they were aware that a complaint had been made against the Leisure Club and that it had been made by a member of staff. However, the Respondent stated that, during the meeting on 16 August 2016, the Complainant stated that it was not he who made the complaint.

The Respondent stated in evidence that they had a visit from an Environmental Health Officer, from the HSE, who, while making a number of recommendations that should be carried out, was happy with the overall operation of the Leisure Club.

The Respondent denied the Complainant's allegation that his work roster, duties and hours changed following his raising of these issues, both internally and with the HSE. The Respondent also rejected the Complainant's contention that these changes were in breach of an arrangement the Complainant had place the previous Club Manager. The Respondent stated that the roster hours and duties of all employees were subject to change on an ongoing basis in line with business demands. The Respondent also rejected the Respondent's contention that arrangement existed with the previous Club Manager and, in this regard, presented documentary evidence from the former Club Manager to the effect that no such special arrangement applied in the Complainant's case.

In their submission, the Respondent stated that they had significant concerns in relation to the Complainant's well-being, as a result of his actions and behaviours at work in relation to a number of issues. It was stated in evidence, that, on a number of occasions, the Complainant had made comments to the Respondent's Operations Manager claiming that he felt he was mentally unstable. According to the Respondent, these concerns were brought to the Complainant's attention on several occasions.

The Respondent stated that they requested the Complainant to speak with his GP and to provide a medical certificate confirming his fitness to work. The Respondent stated that, while agreeing that he would speak with his doctor, the Complainant failed to provide any medical confirmation of his fitness to work.

The Respondent further stated that, due to a series of incidents which took place between 4 August 2016 and 12 August 2016 involving interactions between the Complainant and colleagues/management, the Respondent's concerns in this regard increased to the point where they decided to suspend the Complainant from work, on full pay, with effect from 12 August 2016. The Respondent stated that this decision was taken as they feared for the Complainant's well-being and that of those around him.

In addition, the Respondent stated that they decided to send the Complainant to the Company Doctor for an occupational health review, as they wished to obtain a professional view on the Complainant's fitness to work. The Respondent stated that they also wish to obtain any professional advice that the doctor may offer in relation to helping the Complainant deal with his upset. The Respondent stated that, while they were well aware of their duty of care to the Complainant, they also had a duty of care to other employees and guests.

The Respondent also provided evidence in relation to several formal complaints which had been made against the Complainant by other employees. The Respondent stated that they were holding off on the investigation of these complaints for the time being due to their concerns over the Complainant's well-being. However, the Respondent stated that they would need to commence these investigations at the appropriate time following receipt of the doctor's report and advice.

In summary, the Respondent stated that they had been very fair and reasonable in their dealings with the Complainant and had addressed all concerns which were brought to their attention.

The case for decision is whether or not the Complainant was victimised and bullied by the Respondent, as a result of him raising Health and Safety issues both internally and/or with relevant external statutory agencies.

I have carefully reviewed the significant volume of documentary evidence, the majority of which was provided by the Respondent. Having done so, a number of issues stand out for me with regard to the complaint being made.

Firstly, from the evidence presented, it is unclear whether or not the Complainant actually made complaints to either of the suggested external agencies. While the Complainant submitted, in oral evidence, that he had made complaints, the documentary evidence clearly shows him denying having done so, when questioned in this regard during the meeting on 16 August 2016 with the Respondent's CEO.

In any event, it is clear from the evidence presented that the Respondent was subjected to a visit from an Environmental Health Officer (EHO) in September 2016. While it is unclear as to whether or not this visit resulted from complaints received by the HSE, it would appear that subject to implementation of a small number of recommendations by the EHO, no major issues were highlighted as a result visit.

Secondly, it is very clear from the evidence presented that poor workplace relations existed between the Complainant and his colleagues, line supervisor and senior management in general. From the significant documentary evidence presented, it is clear that during July and August 2016 the Complainant's working relationships across his workplace significantly deteriorated. It would appear from an analysis of this evidence that the catalyst for this change may well have been the departure of the previous Club Manager and his replacement, on a temporary basis, by a staff member from the general body of Leisure Assistance.

Analysis of the evidence would further suggest that the Complainant had a serious issue with the individual who was appointed to the temporary managerial position. While the Complainant appears to have ruled himself out of this temporary position, as a result of his preference not to work weekends, it is noted that he did consider applying for the position when it was formally advertised.

I am satisfied from the evidence presented that the Complainant's approach and attitude towards the individual who was appointed into the temporary role as Club Manager, played a significant and influential role in the ensuing difficulties which arose in their working relationship. Documentary evidence presented, would suggest that the temporary manager made several attempts to deal with the issues being raised by the Complainant and appears to have done so in a fair and reasonable manner. This is particularly evident in email responses from the temporary manager when issues were raised with him by the Complainant in relation to the roster.

Thirdly, I am satisfied that, while the Complainant may not have worked significant weekend days during the period from the commencement of his employment in October 2015 up to June 2016, it is clear that the contract of all employees indicates that rosters are subject to change in line with business needs. I am further satisfied that no special arrangement existed for the Complainant and this is clearly set out in the documentary evidence supplied from the former Club Manager.

Consequently, I am satisfied that the Respondent was well within their rights to proposed changes to the Complainant's rosters which occurred during the months of July and August 2016. These are clearly in line with contract terms, are a clear response to business needs and appear to have been applied to all employees in a fair and reasonable manner.

Therefore, taking all of the above into consideration, I find that the evidence does not support the Complainant's allegation of bullying and victimisation as a result of protected disclosures allegedly made to external agencies. On the contrary, the evidence clearly suggests that the Complainant's own behaviour at work contributed significantly to a serious breakdown in his working relationships both with his colleagues and with management. I am satisfied that this, rather than any deliberate actions taken by management to bully or victimise him, was responsible for the difficulties that subsequently arose for the Complainant in his workplace.

Having carefully considered all of the evidence adduced and based on the conclusions/findings as set out above, I find that the evidence does not support the Complainant's claim and, therefore, find that his complaint is not upheld.

Whistleblowing

Bullying

Victimisation