ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004808

Complaint(s):

Date of Adjudication Hearing:

Workplace Relations Commission Adjudication Officer: Michael Hayes

Location of Hearing:

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and the abovementioned 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 complainant was employed by the respondent as an office administrator/manager from May 1982 until the 11^th of July 2016. She was paid €1,228.50 and worked 39 hours per week. The parties made written and oral submission to the hearing. Additional submissions were received post hearing. The complainant elected to pursue the complaint under the Safety, Health and Welfare at Work Act, 2005. The complaint under the Unfair Dismissals Act, 1977-2014 falls therefore.

Summary of Complainant’s Case:

The complainant submits that on the death of her late boss his widow decided to take an active role in the day to day running of the business. She assisted her to do so but despite best effort she found her working relationship with the now major shareholder difficult. She shared her misgivings with that lady’s son himself a director of the company but no action was forthcoming. Accordingly due to the unhappy working environment and the effect on her health she was left with no alternative but to lodge a formal grievance in the matter ranging from complaints of a bullying nature and issues regarding the safety of the work environment. As a direct result she was summarily dismissed from her employment by letter of the 11^th of July 2016 which acknowledges inter alia that the termination of employment was directly linked to her having made a formal grievance. Accordingly it is submitted that the complainant has been penalised in breach of s. 27 (2) of the Act for having made a complaint relating to health and safety in the workplace in breach of s. 27 (3) of the Act.

Summary of Respondent’s Case:

The respondent submits that the complainant was not penalised within the meaning of s. 27(3) of the Act but rather as a consequence of a breakdown in the relationship between her and the principal employer in a small family run business. Furthermore it is asserted that the complainant’s letter could not be regarded as being a protected act. Following her husbands death the principal employer in this case became more involved in the day to day running of the business. She found the complainant to be difficult to manage and increasingly uncooperative. The complainant had taken on and assumed additional duties in mid-2011which were not part of her role and this became an issue. She took long breaks and her attendance practices became increasingly unacceptable. Her expectations in respect of annual leave were unreasonable and she refused to engage with the principal employer to constructively address operational issues. She was defensive and argumentative and a very bad atmosphere developed which worsened after December 2015. “The Principal found her-self unable to manage and wanted to terminate the Claimant’s employment.” She was issued with a verbal warning in May 2016 after which she absented her-self from work alleging that she was suffering from work related stress and corresponded with the respondent on the 27^th of June 2016 casting the workplace issues as health and safety concerns.

“The employer, in the person of the principal and her sons, was by then deeply frustrated with the Claimant’s behaviour and attitude to work. Her absence from work confirmed that for them, they could manage without her and that the atmosphere had improved in her absence and took the decision to terminate her employment. The question of health and safety or the Claimant’s expressed concerns were not factors in the decision. “

Findings and Conclusions:

It is simply not credible that the complainant turned into the employee from hell as submitted by the respondent having given 30 years of unimpeachable service to the point at which it is alleged she acted in such an offensive and reprehensible manner. In any event it would have been open to the respondent to deal with her behaviour and any such matters under contract. In fact it was in such circumstances incumbent upon it to do so. The respondent asserts that a verbal warning was issued in May 2016 (denied by the complainant) but no written record was supplied to either the complainant or the hearing.                                                                                                                                                    I note that the respondent has conceded that “the issues raised could constitute health and safety concerns but the question of whether there was in fact bona fide health and safety concerns in existence at that time is a matter for scrutiny.” It is for the respondent in first instance to scrutinise the complaint. The respondent failed to do so in this case and in that circumstance it is not for me to do so.

I find that the contents of the letter of 27^th of June 2016 to the respondent amounts to a complaint within the meaning of s. 27 (3) of the Act.  

The respondent asserts that from late2012/early 2013 the principal employer found the complainant difficult to manage but that matters became significantly worse from December 2015 onwards. I find it significant in those circumstances that the dismissal was effected within two weeks of the date on the letter of complaint.                                                                                                                           In these circumstances the submission of the respondent that “the question of health and safety or the Claimant’s concerns were not factors in the decision” is not credible and I find that the dismissal in this case therefore amounted to penalisation within the meaning of s. 27 (2) of the Act and that it is reasonable to imply the existence of a causal link in this case.                                                                                                                                    

Decision:

Section 41 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 that the complaint is well founded and hereby require that the respondent pay the complainant €159,705 (say one hundred and fifty nine thousand seven hundred and five euro) in compensation for breach of s. 27 of the Act.

Dated: 02/06/2017

Workplace Relations Commission Adjudication Officer: Michael Hayes