ADJUDICATION OFFICER DECISION

An Employee –v- A property Management Company

Adjudication Decision Reference: ADJ-00004397

Complaint for Resolution:

Date of Adjudication Hearing: 12/12/2016

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and pursuant to 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 

Complainant’s submissions:

The complainant commenced employment with the respondent on the 2nd December 2015 as a lettings negotiator. She was dismissed with pay in lieu of notice on the 18th April 2016 on the grounds of alleged poor performance. As per her contract of employment, her hours of work were 42.5 hours per week and her annual salary was €35,000.

The complainant alleges that she was subjected to bullying and harassment by her manager from the outset of her employment. She raised a grievance on the 9th January 2016 by writing to the respondent’s associate vice president. The email made complaints, inter alia, of:

1. The complainant not being liked by her manager
2. The complainant being actively impeded in the performance of her duties by her manager
3. The complainant’s requests being ignored or sensationalised
4. The complainant working hours far in excess of her contract
5. The complainant being verbally abused by her manager
6. The complainant having veiled threats made about her raising concerns about her working condition
7. The complainant being the subject of daily snide remarks from her manager
8. The complainant’s reports to her manager being ignored
9. The complainant being undermined in her work
10. The prospect of the complainant being unfairly criticised due to the behaviour of her manager.

The letter dated the 9th January above is relevant only to the complainant’s submission that the letter constituted a complaint or representation regarding health, safety and welfare at work. It is submitted that each of the lettered items above are the hallmarks of bullying as defined in the HSA Code of Practice.

The allegation that the complainant was informed informally on the 27th January 2016 of performance issues is rejected. The complainant stated in evidence that whilst there was a meeting conducted on that date, at her request, the meeting was to discuss the hiring of additional employees to assist with the workload. No performance issues were raised or mentioned in that meeting.

The complainant suffered a slip and fall injury while at work on the 6th February 2016 and suffered a collapsed lung and suspected broken rib. The complainant’s injuries were communicated to the respondent by phone calls, e-mail and texts. None were replied to. She was admitted to hospital on the 7th February 2016 and returned to work on the 11th February 2016 despite medical advice to rest for 2 weeks. She was absent again related to these injuries between the 29th February 2016 and 15th March 2016, certified by her GP.

On the 22nd March 2016, having returned from sick leave, the complainant was presented with a performance review. The complainant stated that in her opinion the review was incorrect, unfair, contrived and motivated by her complaints regarding her manager and her notification of having suffered a workplace accident. The complainant gave evidence that at no time prior to the review did anyone raise the issue of her performance.

Arising out of the performance review, the complaint formally invoked the grievance procedure 2 days later on the 24th March 2016. She was suspended with pay pending the investigation of her complaint. The suspension, she stated, was a gross breach of fair procedures in that she was the alleged victim and yet she was the one suspended.

It is alleged that the independent investigator appointed did not perform the investigation fairly, did not give any adequate consideration to the complaints and evidence proffered, and attempted to coerce the complainant to a “no fault agreement” where she would leave her employment in exchange for a few weeks’ pay. The report of the investigator which did not uphold the complaints was furnished on the 14th April 2016 and the complainant’s employment was terminated 4 days later on the 18th April 2016. It is submitted that the foregoing satisfies the necessity to show a breach of fairness and proximity sufficient to conclude that the complaint was an operative cause in the complainant’s dismissal.

The complainant was subjected to the following detriments:-

1. Dismissal – On the 18th April 2016.
2. Suspension – In response to her making a formal complaint dated the 24th March 2016.
3. Reprimand – The delivery of the performance review on the 22nd March 2016 approximately 10 weeks after her first complaint of bullying and harassment and within a week of returning to work from certified sick leave following a serious workplace accident.
4. Coercion – The attempts of the independent investigator to get the complainant to agree to end her employment on a “ no fault” basis.

Respondent’s submissions:

The complainant commenced her employment with the respondent in December, 2015. Within a short period of time there were numerous complaints from the respondent’s customers about the complainant’s performance. Arising out of these complaints, the respondent decided to dismiss the complainant.

In February, 2016 the complainant suffered a fall whilst at work. She did report this to the respondent immediately following the accident. Then on 24^th March 2016 she made a complaint that she was being bullied by her line manager. The respondent took the complaint very seriously and appointed an external independent third party to investigate the matter. The investigator found no evidence of bullying and held that “on the balance of probability the allegation of bullying cannot be substantiated”.

Between December 2015 and March, 2016 the respondent received numerous complaints in relation to the complaint. Those complaints are set out in the booklet of documents.

On the 9th January, 2016 the complainant sent an e-mail to the AVP of operations complaining about the ability of her line manager and stated that her line managers complaints about her work were impeding her doing her job. She went on to say that she was for the most part enjoying her role at the respondent company but she needed clarification on her hours of work. The complainant requested that the AVP of operations keep her e-mail private.

Whilst keeping her e-mail private he did ask the complainant’s line manager how things were going generally with the complainant.

A decision was made to split the complainant’s workload with another employee in an attempt to ease the burden on her. Unfortunately her standard of work did not improve and further complaints were received.

The complainant reported a fall in the workplace on the 6th February, 2016. She was out on sick leave from the 8th – 11th February and again from the 29th February to 15th March, 2016.

On the 19th February, 2016 the complainant e-mailed the respondent stating; “ I am enjoying my time at XXX and I am constantly busy which I really enjoy. I could easily commit to a long term career with this company and I feel I have proven myself over the last few months” She then asked for a pay rise of over 40%.

On the 2nd March, 2016 the respondent received notice of the complainant’s personal injury claim.

On the 22nd March, 2016 the complainant attended for her 3 month formal performance review meeting with her line manager and one other manager. During this meeting her line manager discussed her performance issues with her. She was given her appraisal which set out the issues with her performance.

On the 24th March, 2016 the complainant lodged a formal complainant of bullying by her line manager to her the HR advisor in the Canada. Given the serious nature of the allegation the complainant was suspended on pay pending the outcome of the investigation into her complaint.

The respondent appointed an independent third party to investigate the complainant.

On the 14th April, 2016 the investigator found that the allegations of bullying were not substantiated.  

On the 18th April, 2016 the complainant’s employment was terminated.

DECISION:

Section 41(4) of the Workplace Relations Act 2015 and Section 28 Health & Safety and 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.

The initial burden of proof is on the complainant to establish a protected act and a detriment. If and only if the complainant established a protected act and a detriment does the burden shifts to the respondent to put forward evidence that the detriment suffered was not due to the protected act being an operative cause. Toni & Guy Blackrock v. Paul O’Neill [2010] 21 E.L.R. 1 established that the burden of proof is on a complainant to establish that on the balance of probabilities (a) she committed a protected act, and (b) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed. The Labour Court held that if both limbs were satisfied, the burden shifted to the employer to show, on credible evidence, on the balance of probabilities, that the protected act did not influence the detriment imposed.

Section 27.

(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 other penalty (including a   financial penalty), and

e)            coercion or intimidation.

The acts protected from penalisation are set out in s. 27(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 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.

The scope of what can be a protected act is broad. The mere request for a copy of a bullying and harassment policy was sufficient for the Labour Court in In Board of Management of St. David’s CBS Secondary School Artane v. Siobhan McVeigh (HSD 118, 8th July 2011), to find that it a protected act. the It is also well establish that an employee does not have to use the respondent’s grievance procedure for their act to amount to a protected act. In Stobart Ireland Driver Services v. Carroll [2013] IEHC 581, a truck driver asked that he not to be rostered due to his fatigue. This act was held to be a protected act by the Labour Court and the High Court, on appeal. Kearns P. spoke to the broadness of the Act of 2005 by stating, at paragraph 26:-

“There is no requirement in the Act to report any complaint via a grievance procedure. The Act specifically states "report…as soon as practicable". Thus the respondent in this case can be deemed to have made his complaint when he reported that he was too tired to drive.

It is clear that the subject matter of a protected complaint or representation is not relevant to determination of claims pursuant to s. 27. In St. John's National School v Jacinta Akduman [2010] 21 E.L.R. 301, the Labour Court held that it was making no finding in relation to the veracity of the complaint of bullying, in making its determination pursuant to s. 27.

On the 6^th February, 2016 the complainant notified the respondent in relation to her fall whilst at work that day. Arising out of that fall, the respondents were put on notice of the complainant’s personal injury claim against them on the 2^nd March, 2016. I am satisfied that both of this acts are protected acts within the meaning Section 27 (3) (c) and (b) respectively.

On 24^th March, 2016 the complainant lodged a formal complaint of bullying. I am satisfied that this complaint is a protected act within the meaning of Section 27 (3) (c)

Having established, in this case, three protected acts I must establish, having regard to the circumstances, that the protected act was an operative consideration leading to the detriment imposed.

I find that the relevant detriments imposed were as follows:

1. Dismissal
2. Suspension

I must now establish if there is a link between the protected act and the detriment. In a case stated above, Toni & Guy Blackrock v. Paul O’Neill [2010] 21 E.L.R. 1 it also sets out the “but for” test. ‘But for’ the complainant having committed the protected act she would not have suffered the detriment. The accepted method of analysing a situation where there is a protected act, but some other reason proffered by the employer for the detrimental act, is to require both a deviation from fair procedures and proximity in time to the protected act.

-              The suspension.

The complainant lodged a formal complaint in relation to bullying. She did so on the 24th March, 2016. She was suspended on that date. She was suspended pending an investigation into the allegations. A suspension is an extremely serious measure which employers are all too quick to turn to without first address the potential consequence of or need for.   Noonan J. in Bank of Ireland v. Reilly [2015] IEHC 241, at paras. 40 and 41, are apt:-

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee's employment record with consequences for his or her future career. As noted by Kearns J. (as he then was) in Morgan v. Trinity College Dublin [2003] 3 I.R. 157 , there are two types of suspension, holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire. In Mr. Reilly's case, his evidence was that rumours and reports circulated about him ranging from possibly being involved in fraud to participation in a tiger kidnapping.

Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer's own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process. Indeed, this is explicitly recognised by the bank's own disciplinary procedures in force at the relevant time.”

There can be no doubt whatsoever that the reason and the only reason the complainant was suspended was because she committed a protected act in that she lodged a formal complaint of bullying against her line manager. It is conceded by the respondent in evidence and in their written submissions that “ given the serious and sensitive nature of the allegations and in accordance with standard practice in such situations and in accordance with the Respondent’s Dignity at Work Policy, the complainant was given paid leave until the matter could be formally investigated.

The complainant’s suspension was fundamentally unfair and could not have been in accordance with any proper Dignity at Work Policy or any other policy for that matter.

I am satisfied that ‘but for’ the complainant’s grievance she would not have been suspended.

-              The Dismissal

The complainant was dismissed on the 18th April, 2016. Prior to that date there had been numerous complaints in relation to the complainant’s failure to carry out her duties in a timely fashion or at all. The respondent stated that following receipt of the complaints it soon became apparent that the complainant was not suited to the role. It was for that reason only that they decided to terminate her employment. The complainant’s ‘three month’ appraisal was carried out on the 22nd March, 2016. It was then that the respondent stated that they outlined the issues with the complainant’s performance. The complainant lodged her grievance o the 24th March. She did not work again due to the fact that she remained on paid suspension until the outcome of the investigation was known and then she was dismissed. It should be noted that the complainant was dismiss in the absence of any procedure or opportunity to state her cause.

If the respondent was so dissatisfied with the complainant’s performance such as to warrant a dismissal, why did they not dismiss her following her appraisal on the 22nd March? As she did not work been the appraisal meeting and the dismissal the respondent cannot say that it was solely due to work related issues. The only intervening act was her grievance. I find that ‘but for’ the filing of the grievance the complainant would not have been dismissed.

In all of the circumstances outlined above I find that the complainant’s complaint is well founded. The respondent is to compensate the complainant in the amount of € 25,000.00.

Dated:   9^th March 2017