ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00002278
Parties:
| Complainant | Respondent |
Anonymised Parties | A Laboratory Manager | A Consulting Company |
Representatives | A Barrister | A Barrister |
Complaint(s):
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Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) |
CA-00003078-001 | 07/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00003078-002 | 07/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00003078-003 | 07/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 |
CA-00003078-004 | 07/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 |
CA-00003078-005 | 07/03/2016 |
Date of Adjudication Hearing: 14/09/2017
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 28 of the Safety, Health & Welfare at Work Act, 2005 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 submitted five employment law claims which were heard over a number of Hearings. Claim Reference numbers CA 00003078-001/CA 00003078-002/CA 00003078-003 and CA 00003078-004 were withdrawn at the preliminary Hearings so this decision only deals with claim reference number CA-00003078-005 under Section 28 of the Safety, Health & Welfare at Work Act, 2005 regarding a claim for penalisation. |
Summary of Complainant’s Case:
The Complainant was recruited in December 2001 and commenced work in January 2002. His contract of employment provides that in addition to a salary, he would benefit from private medical insurance for his spouse and children, and the use of a motor car to assist him in carrying out his duties and reasonable private use. By September 2011 his salary was €58,905
The recession and the cutbacks in investment led to major challenge for the business. The Complainant led the Irish Branch through a difficult adjustment in 2011-13, and directed all Irish operations.
Post June 2014, the Complainant was progressively isolated and excluded, by members of his senior management. The Complainant was the first, and was the Senior Employee of Test Consult Ireland for 15 years, was a director of the company and managed the day to day business of the company in Ireland at the time the events complained of, and for many years before that.
The Company was taken over by another company in June 2014.
Further detail on the background to the disputes is contained in the original submission made to the WRC.
The first Penalisation complaint reference number CA-00003078 – was submitted on 7 March 2016. This was adjourned at the last hearing. His complaint was that he was overworked and otherwise bullied and penalised subsequent to repeated requests by him in 2014, 2015 and 2016 that terms and conditions that he previously enjoyed be restored as promised. The hours he worked in that context exceeded the statutory norms, and he had an insufficient allocation of rest days.
The approach and conduct of his employers and in particular of his supervisors (named) breached the Safety Health and Welfare at Work Act 2005 [inter alia section 27]. That was the subject of the first penalisation complaint being considered here. It had patent and very serious consequences for the health and wellbeing of the Complainant.
The medical report of his doctor at that time is included in the booklet of documents complementing this submission.
This complaint was given an initial hearing at the WRC on 27 June 2016, and a draft agreement was drawn up. Regrettably that compromise was not finally concluded.
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Summary of Respondent’s Case:
In respect of the first complaint under the Safety, Health and Welfare Act, 2005 (the “2005 Act”), the Respondent relies on its submissions dated 15 April 2016.
On 7 March 2016, the Complainant issued claims pursuant to the Terms of Employment (Information) Act, 1994 (the “1994 Act”), the 2005 Act, the Organisation of Working Time Act, 1997 (the “1997 Act”), and European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 (the “2003 Regulations”).
In summary these claims were as follows: Claim under the 2005 Act (the “First 2005 Act Claim”): that the Complainant was penalised by way of being excluded from management decisions, being excluded from management, revenue being taken from the Complainant’s unit so it looks like it is losing money which has the effect of undermining him; Claim under the 1994 Act: that the Complainant’s terms and conditions of employment which were altered in 2011 were not reinstated and he was offered a substantially less favourable contract of employment in 2014. Claim under the 2003 Regulations: that following the purchase of the share capital in the Respondent by (x Company) in 2014, the Complainant’s terms and conditions of employment failed to transfer and the Respondent failed to lift the temporary reduction in his terms and conditions of employment. Claim under the 1997 Act: that the Complainant was required to work in excess of 48 hours a week as calculated over a 4 month period.
These four claims were listed for hearing on 9 February 2017 wherein, following legal argument from the Respondent, the claims of the Complainant pursuant to the 1994 Act, 1997 Act and 2003 Regulations were withdrawn by him. This was on the basis that the Complainant accepted, following legal advice, that there was an unnecessary overlap between those claims and the personal injuries proceedings (bearing the record number 2016/ 11283P) (the “Personal Injuries Proceedings”) issued on his behalf. The Personal Injuries Proceedings seek the reinstatement of the Complainant’s 2011 salary, damages for personal injuries and other declaratory relief. The Complainant, further alleges that the pre 2011 terms and conditions of employment should be restored; that he was excluded from management and strategic business decisions; that work was taken away from him; that he was required to work excessive hours. The Complainant also alleges that the Respondent in these proceedings was restored to profit in 2014 but that the Complainant’s pre 2011 terms and conditions were not restored.
On 9 February 2017, the Adjudication Officer adjourned the consideration of the application on the part of the Complainant to adjourn the First 2005 Act Claim pending the outcome of the Personal Injuries Proceedings. It appears this application was refused as this claim has been relisted. The Claimant alleges that he was penalised by the Respondent within the meaning of “penalisation” under the 2005 Act. It is denied that the Respondent penalised the Claimant under the 2005 Act.
As a preliminary point, the Claimant has not specified in the Complaint Form when he made his complaint and to whom he made it within the Respondent. The Claimant has not raised any formal grievance with the Respondent in relation to his working hours and / or his health. Further, the Respondent has not been provided with any medical evidence from the Claimant that he is suffering from any health issues allegedly arising from his working conditions. On that basis the Respondent is unclear as to the precise details of the Claimant’s allegations that it has breached the 2005 Act.
On the basis that the Claimant has failed to provide the date (or dates) on which he was allegedly penalised by the Respondent, pending further clarification by the Claimant in this regard, the Respondent reserves its position as to whether or not the Claimant has brought his claim under the 2005 Act, within the statutory 6 month time limit from the date of the alleged contravention of the 2005 Act.
In order to succeed in his claim under Section 28, the Claimant must be able to demonstrate three things: firstly, that he suffered a detriment within the meaning of Section 27(1) or Section 27(2); secondly, that he has acted in accordance with one of the protected acts set out in Section 27(3) and thirdly, that the reason why the employer imposed the detriment on him was because of, or in retaliation for, the action taken by him in Section 27(3). In other words, a clear causal link must be established between the action taken by the employee and the alleged act or omission of the employer, such act or omission of the employer having resulted directly in the employee suffering a detriment. In addition, an employee is required to make a protected act in the form of raising a complaint under the 2005 Act as a result of which an act of detriment is visited upon them by the employer. No such action was taken by the Claimant and therefore he must fail in his claim of penalisation. An extract of section 27 of the 2005 Act was provided with this submission.
Without prejudice to the Respondent’s position that it is unclear as to the precise details of the Claimant’s complaint under the 2005 Act, the Respondent understand that the Claimant spoke with the Regional HR Manager, by telephone on 18 September 2015. During this call the Claimant verbally raised issues in relation to his working hours as a result of being required to travel to the X to Y (the ‘abc’) project in (a town) , time he was required to spend away from his home and issues he was having with his Line Manager, (named).
Following this call, the Regional HR Manager emailed the Claimant advising that the Respondent takes “all issues of this nature seriously” and as discussed with the Claimant, agreed to raise the Claimant’s concerns with the General Manager of UKCo and the Managing Director. The Regional HR Manager also provided the Claimant with a copy of the Respondent’s grievance procedure. A copy of the Regional HR Managers email to the Claimant on 18 September 2015, a copy the grievance procedure to him was attached to this submission.
As agreed with the Claimant, the Regional HR Manager discussed the Claimant’s concerns with senior management In discussion and with the agreement of the Claimant, he was no longer required on the (XYZ) project. The Claimant’s reporting line was moved from one Manager to another. The Claimant was in full agreement with the changes made by the Respondent in response to his telephone call with Regional HR Manager . It should be noted that it was open to the Claimant to overnight in (a Town) at the expense of the Respondent if and whenever it suited him in order to reduce his travel time to and from home. This had previously been suggested to the Claimant by (named) in an email to the Claimant on 13 July 2015. The Claimant did not suffer any detriment or retaliation for any alleged action taken by him under the 2005 Act.
The Claimant did not raise any formal grievance in relation to the issues discussed with Regional HR Manager on 18 September 2015. Further, when the Regional HR Manager met with the Claimant when he attended a training course in the UK on 8 and 9 December 2015, the Claimant confirmed to Regional HR Manager that the issues raised during the call on 18 September 2015, had been resolved. The Claimant did not subsequently raise any concerns either formally or informally in relation to his health and / or working hours.
It is submitted that the Claimant was not penalised by the Respondent under the 2005 Act.
For the reasons outlined above, , it is submitted that the Claimant should fail on all four claims before the WRC. It should be noted that to date, the Claimant has not invoked the Company grievance procedure to address of the issues complained of in his Complaint Form. The Respondent is committed to dealing with any complaints the Claimant may have internally through its grievance procedure.
The Respondent reserves the right to adduce any further evidence as may be appropriate or as necessary in any further submission or hearing of this matter, in particular in circumstances where the Claimant has provided insufficient detail in relation to his claims |
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Decision
Section 28 of the Safety, Health & Welfare at Work Act, 2005requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Section 28.3.
The Law Penalisation is defined by s. 27 of the Act as follows: -
(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. Subsection 3 of Section 27 prescribes the circumstances in which penalisation is rendered unlawful under the Act. It provides: - (3) An employer shall not penalise or threaten penalisation against an employee for—
(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.
In order for the Complainant to avail of the protections available in Section 27(3) it is essential that the detriment complained of be causally connected to one or more of the matters referred to in that subsection. The Complainant must show that ‘but for’ having made a protected act under the subsection the detriment would not have happened. The Complainant specific complaint, lodged with the WRC on March 7th 2016, was as follows” I made a complaint that I was overworked and my health was undermined for having to work to long and too intensely. Arising from this, I have been excluded from management decisions at my business unit and excluded me from the management of the Galway job and taken associated revenue from the Galway job to make it look like my section of the company is loosing money which is not the case, which has the effect of undermining my position and they are using this to prevent re-instating my terms and conditions”. The Adjudicator must consider whether there was a causal connection between the complaint made by the Complainant, as alleged during his employment, and the penalization effects described as the result of making that complaint. No specific written grievance document was available as to the exact complaint made by the Complainant although it was matter of record that the Complainant lodged a verbal grievance on September 18th 2015, although the exact nature of that grievance was not clear.. As no specific written complaint was either submitted by the Complainant or made available, It is for the Adjudicator to determine whether the Complainant was over worked, his health affected, his position was undermined and the lack of reinstating his terms and conditions were both penalization under the Act and arose because of a penalization act by the Respondent. In essence the Adjudicator has to determine whether the Complainant made a complaint of penalization, , were the actions of the Respondent an act of penalization and if the effects of that alleged penalization on the Complainant were both valid and directly attributable to an act of penalization by the Respondent. In Paul O'Neill v Toni & Guy Blackrock Limited[2010] ELR 21, this Court held that the detriment complained of must have been imposed “for” having committed a protected act within the meaning of Section 27(3) of the Act: ‘The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that "but for" the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.’ The Adjudicator has heard the evidence of the factors which the Complainant alleges was penalization and during and subsequent to the Hearing evaluated those claims to see they are valid. Some of the Complainants terms were changed by agreement on September 20th 2011. The Complainant was not unique both internally and nationally in this respect. These changes involved a reduction in pay, a pension contribution holiday, change to the Complainants family medical insurance, and while not documented a change to car policy. The Complainant also alleged he was overworked and his health suffered due to this penalisation. He also stated he had to work to long and intensely, was undermined and the Company refusal to return his terms to pre September 2011 levels were all contributing to penalisation. It is a fact, from the accounts information provided at the Hearing, that the Respondents Irish business suffered a serious loss in revenue ad approximately 9 staff were made redundant and only 6 remained. The Complainant was not able to provide any evident of revenue being transferred from one area to anointer to undermine his main location. Equally, the Complainant provided medical evidence that he suffered from stress in 2012 and 2014, significantly before the Complainant lodged his claim and outside the six month time limit in that respect.. The Complainant also advised that he had access to a company vehicle at all times after the changes to his terms were introduced and that even though he may have used a company van for a while his company Jeep was restored in January 2016. In the minutes of meetings between Management and the complainant prior to and after he lodged his complaint under the Act the Complainant makes not mention of being penalised or stress. The Respondents evidence was that they addressed the Complainants travel concerns and there is no record of any complaint of this nature to do with excessive work hours or the intensity of the Complainants work prior to the claim submitted to the WRC. With regard to being overworked the Complainant, by his own records, worked and average of 42.47 hours per week over 49 weeks 2014, 46.42 hours per week over 43 weeks in 2015 and 40.9 hours per week over 46 weeks in 2016. He was contracted to work 37.5 hours per week but his contract also stated that he must work “such additional hours as may be necessary for the proper performance of your duties”. From the evidence submitted by the Complainant it appears in 2014 he took 16 days holiday and 2 TIL days, in 2015 he took 40 days holidays and in 2016 he 16 days holidays during that period. He was contractually entitled to 20 days per year. He did not put forward any evidence to show that the 48 hour/4 month statutory rule was broken. This evidence does not support the claim made “that I was overworked and my health was undermined for having to work to long and too intensely”. If the penalisation complaint is centred around the retraction of the changes made in September 2011 then the Complainant had six months from that date to lodge a complain under the Act, other wise he is time barred from introducing that as penalisation. Having considered all the evidence the Adjudicator finds that the Complainant’s case that he made a complaint of penalization very weak, if at all, and if indeed it was made then a breach of section 27.1 (change to terms of employment) seems the only option open for consideration. As these terms were both accepted by the Complainant initially and mainly restored except for the change to pay the resulting penalisation claimed by the Complainant was not proven to any relevant degree and definitely no direct link was established by the Complainant. The changes to his terms occurred back in 2011(which he had a greed to albeit reluctantly) and as no penalisation, in any form was proven by the Complainant in the areas he said he was penalised, for these reasons, the complaint fails. |
Dated: 14/11/17
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Penalisation |