Complainant

Respondent

Anonymised Parties

A Supervisor

A Cleaning Company

Representatives

SIPTU

Management Support    Services (Ireland) Ltd

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-00010188-001

13/03/2017

The   complainant made a complaint at workplace level against two managers of   bullying and he says he was the subject of retaliation for making them.

He has   been employed by the respondent since 2006 and is now a Supervisor earning   €585.34 per week.

The complainant made the   bullying complaint on August 21^st 2016.

On October 14^th he   was invited to a disciplinary investigation whose purpose was described as   being to investigate late arrival for work on several occasions and   ‘fraudulent’ submission of timesheets.

On October 17^th he   sought full details of the allegations and the evidence which would be used   against him.

He was not provided with this   and attended the meeting with his full-time trade union official.

At the meeting, certain   information was given and a dispute arose about its provenance from a data   protection point of view. The union official raised the fact that this was   penalisation arising from the complainant’s bullying complaint.

The complainant was invited to   a second meeting but was unable to attend on health grounds, a third which he   could not attend for family reasons and a fourth which did not suit.

It is also part of the   complaint that in September 2016 there had been an instruction to deduct nine   hours pay from the complainant and that in the course of the investigation of   his bullying complaint his managers (the subjects of the bullying complaints)   made critical comments about him.

At that point the matter was   referred to the WRC.

The respondent notes that in   order to make out a complaint of penalisation that acts complained of must represent   a detriment of the complainant and be imposed ‘for’ having committed one of   the acts protected by section 27(3) of the Health, Safety and Welfare at Work   Act, 2005 (The Act).

It must be an act of   retaliation.

In this case the comments made   by the managers in question were part of the process of investigating the allegations of bullying.   They were entitled to give their explanation of, and response to the events   under investigation. This cannot be seen as retaliation, but part of their   response to the process triggered by the complainant.

In relation to the pay   deduction (of thirteen hours and not nine as claimed by the complainant) this   arose as a result of the incorrect completion of a time sheet and the   complainant agreed to the deduction. He accepted that he had not worked the   hours claimed.

Finally, the complainant   suffered no actual detriment. There was no disciplinary sanction and the   issue related to claiming payments for time not worked have yet to go through   the company’s procedures, at which point the complainant will have the   opportunity to respond to the allegations, which is their current status.

The Health, Safety and   Welfare of Work Act defines penalisation as follows in section 27 (1).

“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.

It goes on in subsection (2) to   list example such as suspension, lay off or dismissal (or the threat to do   so), demotion or loss of opportunity for promotion, change of work location,   reduction in wages or change in working hours, imposition of any discipline,   reprimand or penalty, and coercion or intimidation

This confirms two things.

In the first place that there   must be an act of some substance in relation to the employee’s conditions of   employment and secondly it gives a clear flavour of what those acts might be   (or more accurately should not be).

There were three episodes   referred to in the complainant’s submission; the retrieval of monies paid for   hours not worked, which the respondent says was agreed by the complainant,   the invitation to a workplace investigation, which did not get beyond that   stage and the comments by the respondents in the investigation of the   bullying complaint made by the complainant.

It is clear that these do not   meet the explicit requirements of section 27 that there be an act resulting   in a detriment to the complainant. There has been no detriment.

In addition, no case was made   that these actions were retaliatory and a response to his complaint of   bullying. They may have followed it in time but were not linked to it to the   extent that there was independent justification for them.

In respect of the disciplinary   investigation the respondent simply moved to the first stage and appeared to   have some prima facie evidence for doing so (although how this evidence was   gathered was hotly contested by the complainant’s union).

In respect of the wage clawback   he consented to it and, finally he can have no basis for complaining about   the right of a respondent in an investigation   to state their case.

The complaint is without merit   and fails.

For the reasons set out above I do not uphold complaint   CA-10188-001 and it is dismissed.

Penalisation