ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001757

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 07/09/2016

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

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

Background

The claimant commenced work with the respondent on the 28th march 2011 as Practice Manager, having previously been employed since 12th October 1998 as Practice Secretary. The Claimant has been on certified sick leave from her employment since in or around the 20th march 2015. The Claimant’s stated reason for such sick leave is stress in the workplace.

The claimant submitted that she had brought to the respondent's attention of ongoing difficulties she was having with a work colleague. It was submitted that despite her best efforts the respondent failed to take adequate steps to deal with the situation In fact the claimant wrote to the respondent   dated the 17th January 2014 where she requested the respondent to provide help to address the situation where by she could return to work

The respondent submitted that the claimant has issued High Court personal injury proceedings against the respondent

The claimant made her initial complaint to the Workplace Relations Commission pursuant to a complaint form which was signed by the claimant on the 29th January 2016. The cognisable period for this complaint under the Act is, therefore, 30th August 2015 to the 29th January 2016. The claimant has made no reference in her complaint form of any application to extend the cognisable period. It was submitted that the claimant has made no reference to any issues which arose in the cognisable period which in her view represented breaches of section 27(3) of the act. In that regard, the claimant has been certified sick leave from her employment since 20th March 2015 which is outside the cognisable period referred to. The Respondent contends that no act of penalisation has been established by the claimant as having occurred in the cognisable period and therefore no complaint within the time limit specified in section 28(4) of the act has been put to the WRC

Findings

The complaint was received by the Service on the 29th January 2016

.

Section 27

7. .—(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 of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), 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 another penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not be penalised or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising 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,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

28. —(1) Without prejudice to section 27 (4), an employee may present a complaint to a rights commissioner that his or her employer has contravened section 27

(2) Where a complaint under subsection (1) is made, the rights commissioner shall—

(a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint,

(b) give a decision in writing in relation to it, and

(c) communicate the decision to the parties.

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded;

(b) require the employer to take a specific course of action;

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances.

(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of the contravention to which the complaint relates or such further period not exceeding 6 months as the rights commissioner considers reasonable.

(5) (a) A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

(b) A copy of a notice under paragraph (a) shall be given to the other party concerned by the rights commissioner concerned.

(6) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public.

(7) A rights commissioner shall furnish the Labour Court with a copy of any decision given by the commissioner under subsection (2).

I find that it is not the date of the occurrence of an act of penalisation which determines jurisdiction under 28(4) of the act. It is the date upon which a complaint as regards such an act is made which determines*( Brother of Charity v Kieran O Toole(2016)ILCR )

I find that the cognisable is from the 30th August 2015 to 29th January 2016

Decision:

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

I find the complaint is out of time and falls.

Jim O Connell

Adjudicating Officer

Date: 24^th January 2017