CORRECTION ORDER PURSUANT TO SECTION 39 OF THE
ORGANISATION OF WORKING TIME ACT
This Order corrects the original Decision/Recommendation issued on 6 June 2018 and should be read in conjunction with that Decision/Recommendation.
ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00009146
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | A Licenced Premises |
Representatives | Ciana Mulchrone Sheehan & Co Solicitors | Shane MacSweeney MacSweeney & Company Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00012024-001 | 20/Jun/201720/Jun/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00012024-002 | 20/Jun/201720/Jun/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00012024-003 | 20/Jun/201720/Jun/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00012024-004 | 20/Jun/201720/Jun/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00012024-005 | 20/Jun/201720/Jun/2017 |
Date of Adjudication Hearing: 20/Sept/2017 and 7/Nov/2017
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 79 of the Employment Equality Acts, 1998 - 2015 and Section 13 of the Industrial Relations Acts 1969 and following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute
Background:
The Complainant commenced employment with the Respondent, a public house, on 14 June 2010 in the capacity of waitress/bar staff.
The Complainant work for the Respondent mostly on a part-time basis before being requested to work full-time. |
Summary of Complainant’s Case:
On 28 April 2016, the Complainant was involved in an accident in her workplace. The Complainant injured her back and ankle. The Complainant was unable to work for six – eight weeks after the accident and received no sick pay from the Respondent when out of work.
The Complainant stated that she was aggrieved by the Respondent’s attitude towards her after the accident. The Complainant stated that as there was no contract of employment and no policy in relation to work-related accidents, coupled with increasing medical expenses, reduction in hours and loss of wages due to the accident, she had no alternative to contact a solicitor for advice.
By way of letter, from her solicitor, dated 2 February 2017, the Complainant notified the Respondent of her intention to bring a claim for personal injuries sustained during the course of employment. The Complainant contends that she noticed an immediate change in the Respondent’s attitude once he received this letter of claim.
The Complainant claims that she was discriminated against by the Respondent due to the injuries she sustained in the accident at work. According to the Complainant, the Respondent demanded her to complete duties which the Respondent knew she was unable to do as a result of the accident. The Complainant stated that she had complained to the Respondent about how the injuries restricted her ability to complete certain duties. According to the Complainant, the Respondent made no allowances for her injuries and disregarded her complaints in this regard.
The Complainant claims that she was bullied at work by the Respondent after he had received the letter of claim of 2 February 2017. According to the Complainant, the Respondent made numerous references to her claim in a manner which she suggested was unprofessional and made her feel uncomfortable in a workplace. The Complainant further contended that she felt intimidated and picked on by the Respondent for taking a personal injury claim. The Complainant described the Respondent’s attitude as hostile towards her.
The Complainant stated that she believes that she was penalised for initiating a personal injuries (PI) claim. The Complainant claims that she was asked to come in at short notice to cover shifts and while her shifts were given over to other staff members. She also claims that hours were reduced and changed regularly. The Complainant also claimed that the Respondent was abusive to her in front of customers and other staff.
According to the Complainant matters culminated on 1 April 2017, on which date she contended she was subjected to an abusive outburst on behalf of the Respondent, which resulted in her being dismissed from her employment.
The Complainant stated that, on the day in question, she was due to start a shift at 1:00 pm but was informed by the Respondent to attend early and, as a result, she arrived to work at 12:15 pm. The Complainant claimed that she had been having hassle all week from the Respondent, who told her that she would get nothing from her injury claim as the insurance company, as they were going to refused to pay her.
The Complainant stated that on arrival at work on 1 April 2017, she received a text from the Respondent requesting her to take chairs from the bar and store them in the area at the back of the premises. The Complainant stated that she phoned the Respondent and informed him that she was not physically able to move to chairs in question. According to the Complainant, the Respondent became very angry and demanded that she inform one of her colleagues, who was present at the time to move the chairs.
According to the Complainant, the colleague spoke to the Respondent on the phone and agreed to move the chairs once the soccer match, which was on the TV at the time, was over. The Complainant confirmed that her colleague moved the chairs.
The Complainant stated that the Respondent arrived on the premises between 2:30 and 3:00 pm. She further stated that the Respondent was carrying two high stools, as he arrived into the bar. The Complainant stated that the Respondent threw one of the stools towards her. The Complainant stated that she ran behind the counter to take cover but that the stool hit off the bar knocking glasses from behind the bar. The Complainant stated that the Respondent then threw the other stool, which actually hit one of her friends, who was sitting at the counter, and also an old man who was drinking at the bar. The Complainant stated that this was all witnessed by various customers, all of whom were shaken by the event.
According to the Complainant, the Respondent, who was screaming and had completely lost control, was shouting that the wrong chairs had been removed to the back area. The Complainant stated that when her colleague, who had originally moved the chairs, went to explain to the Respondent what had happened, the latter informed him that he would rather close the bar then have the Complainant working for him anymore.
The Complainant stated that, as she was the only staff member on duty at the time, she had no choice but to remain at work. She stated that when the Respondent returned to the premises at approximately 5:00 pm, he was raging again. She further stated that when the Respondent was working behind the bar he was constantly bumping off her and making things uncomfortable. The Complainant stated that her shift was due to finish at 7:00 pm, but because the bar was so busy she didn’t get leave until 7:30 pm, when other staff came on duty.
The Complainant stated that the Respondent then paid her and, while doing so, flashed a letter at her, which he did not allow her to read. According to the Complainant the Respondent indicated that she could no longer work as he could not insure her, due to the fact that she had not done a manual handling course. The Complainant stated that she explained to the Respondent that the manual handling course was only organised when she was off work after her accident and, as a result, could not complete the course. According to the Complainant, the Respondent laughed at her and said he did not care.
The Complainant stated that she asked the Respondent if he was firing her and he replied that he was not. However, the Complainant stated that the Respondent said she could not work there anymore. According to the Complainant the Respondent informed her that he would contact her during the week. The Complainant stated that she was due to return to work on Tuesday, 4 April, but on the previous day she received an email from the Respondent stating that he had not sacked her but that she could not go back to work until she organised a manual handling course for herself. According to the Complainant she replied to the Respondent indicating that she was in no doubt that she had been sacked on 1 April 2017.
The Complainant stated that she did not return to work after that as she understood she had been fired. The Complainant further stated that, in any event, the Respondent had been so angry on 1 April 2017 that she could not return to work as she feared for her safety due to his behaviour.
Complaint CA-00012024-001: - Terms and Conditions of employment.
The Complainant claims that she never received a contract or terms and conditions of employment from the Respondent throughout the duration of her employment with him. The Complainant claims that she was completely left in the dark with regard to the terms and conditions of employment.
Complaint CA-00012024-002: - Unfair Dismissal
This complaint was withdrawn by the Complainant’s legal representative at the commencement of the first Hearing on 20 September 2017.
Complaint CA-00012024-003: - Bullying and Harassment (Industrial Relations claim)
The Complainant claims that she suffered bullying at the hands of the Respondent contrary to the Codes of Practice of the Labour Relations Commission and the Health and Safety Authority. According to the Complainant the Respondent deliberately made her working environment more difficult and pressurised. The Complainant claims that after receipt of the letter of claim of 2 February 2017 her shift pattern started to change. The Complainant also claimed that she was not invited to the Staff Christmas party which took place in February 2017. She also claims she was deliberately left to deal with a wedding party of a hundred people on her own. In this regard, the Complainant stated that the Respondent would have been aware as to the extent of the crowd in the bar on that occasion as it would have been obvious from the CCTV cameras.
In relation to the incident on 1 April 2017, the Complainant claimed that the Respondent got so upset on the phone that she had to hang up. The Complaint stated that there were customers in the bar while the contentious phone calls will be made by the Respondent. The Complaint stated that she was very upset and shocked at how the Respondent spoke to her in front of customers.
The Complainant further stated that she had been bullied and harassed by the Respondent since leaving his employment. She claimed that he refused to furnish her with her P 45. She also claims that the Respondent had sent texts and emails to her which she regarded as hassling her after the incident on 1 April 2017. The Complainant also stated that the Respondent was waiting for her outside her new place of employment attempting to discuss matters with her which only heightened the Complainant’s anxiety regarding the matter.
The Complainant stated that, as a workplace had no adequate bullying policy in place, she brings this complaint in accord with her rights under the Safety, Health and Welfare at Work Act.
Complaint CA-00012024-004: - Penalisation/Victimisation
The Complainant states that Section 27 of the Safety, Health and Welfare at Work Act, 2005, sets out that 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 employment. The Complainant submits that this legislation clearly prohibits an employer penalised employee for raising complaint or complaints concerning her health and safety at work.
The Complainant claims that she made a number of informal complaints outlining her concerns about her injuries and the impact this was having on her physical health. She stated that she specifically made her employer aware that she could not lift chairs and was not able to do this as a result of her injuries. According to the Complainant, her complaints and due care for her physical well-being were ignored and, as a result, her place of work was not a safe place and was a risk to her physical health, in light of injuries.
The Complainant alleges that it is clear that when she raised concerns in this regard, she was ignored and continually left to deal with customers on her own and take down chairs from tables. In addition, the Complainant claims that she was demoted and was bullied and harassed by her employer by asking her to complete tasks and not asking other staff to do so.
The Complainant claims that her working hours were changed and she was forced to take sick leave, which was not paid and that she had no terms and conditions of employment to refer to in this regard. The Complainant further stated that it was clear that, after receiving her letter of claim and her raising of complaints/concerns regarding her duties, she was subjected to bullying, harassment and intimidation in her workplace, at the hands of the Respondent. The Complainant claims that this behaviour continued until her employment was terminated. The Complainant claims that this constitutes intimidation, which is a detriment amounting to penalisation under Section 27 of the 2005 Act.
The Complainant claims that it is clear that such penalisation was perpetrated on her as retaliation for the protected activities as set out in Section 27 (three) of the 2005 Act.
Complaint CA-00012024-005: - Discrimination on the grounds of disability and reasonable accommodation.
The Complainant claims that she suffered discrimination on the grounds of disability and that she was denied appropriate facilitation and accommodation for her ill-health. The Complaint states that she suffers from a disability within the statutory meaning of that term.
According to the Complainant she was suffering from a disability because of severe back problems sustained in a workplace accident. The Complainant claims that she was left working alone in the bar on several occasions when she had made the Respondent aware of her back pain. In her evidence in support of her claim in this regard, in addition to the events of 1 April 2017, the Complainant referred to the following incidents: (1) 25 February 2017 - serving on her own at a time when the bar was very busy due to a six Nations rugby match, (2) 2 March 2017 - all the barstools were left on top of tables with the result that the Complainant could not physically remove them and had to get the assistance of colleagues to do so and (3) 16 March 2017 - left on her own to serve approximately 100 people after a wedding.
In conclusion, on this aspect of her claim, the Complainant stated that the Workplace Relations Commission is entitled to make an award for the discriminatory treatment as well as the discriminatory dismissal, making award of up to for years remuneration possible.
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Summary of Respondent’s Case:
The Respondent stated that the Complainant commenced employment on 14 June 2010. The Respondent submitted, in evidence, a copy of the un-executed Terms and Conditions of Employment, which issued to the Complainant on 25 May 2017. The Respondent stated that the Complainant's role involves normal duties associated with bar work and that she was very competent in this role.
According to the Respondent, the Complainant only wished to work part-time hours, although full-time work was available to her. The Respondent stated that the Complainant was concerned that working in excess of 22 hours/week would jeopardise social welfare entitlements. The Respondent stated that the Complainant usually worked Tuesdays (seven hours), Thursdays (six hours) and Saturdays (seven hours).
Background:
The Respondent set out the background in relation the events underpinning the Complainant's complaints. It was submitted that the Complainant claimed to have suffered an injury to her ankle (and latterly claimed to have hurt her back also) in an alleged (unwitnessed) trip and fall type accident at her workplace on 28 April 2016. The Respondent submits that they are still awaiting proof of claim that the Complainant was injured.
The Respondent submitted that the Complainant was absent from work for six weeks and initiated a personal injury claim by way of letter dated 2 February 2017.
The Respondent submitted that the matter was duly notified to his insurers, who declined indemnity on the basis that he had failed to comply with the policy endorsement requiring him to ensure that all employees had been provided with manual handling training (notwithstanding the fact that the accident was not manual handling related). Evidence in relation to the declining of indemnity was presented at the hearing.
The Respondent stated that the insurer’s decision to decline indemnity had enormous financial implications for the business, as it does not have the resources to defend or to meet a significant personal injury claim/award, without the benefit of insurance. It was further contended that as a result of this situation the Respondent would encounter serious difficulty in having the policy renewed when it expired.
With regard to the events of 1 April 2017, the Respondent submitted that the Complainant was rostered to work from 12:30 p.m. until 19:30 p.m. The Respondent contended that it was envisaged business would be brisk on that evening, as a popular local band were playing a concert at an adjacent venue.
The Respondent submitted that he sent a text to the Complainant at 11:23 a.m., with instructions in relation to the removal of chairs from the bar to a back area of the premises. It is contended that the text message further stated that, in the event the Complainant was unable to lift the chairs in question, she was to request a named colleague to perform the task.
The Respondent submitted that the Complainant carried out none of the moving/lifting of chairs involved in the earlier text instruction. It is submitted that she instructed the named colleague to carry out the work. However, it is further contended that the Complainant mis-instructed this colleague, with the result that there were no chairs whatsoever for customers to sit on, during the earlier/quieter part of the evening.
It was submitted in evidence that when the Respondent came into the premises at 2:00 p.m., he was justifiably annoyed at, what he considered to be the reckless or the intentionally provocative mis-instruction/disregard of his instructions and the established practice of the premises.
The Respondent submitted that he had to needlessly waste his time and personal energy single-handedly removing the majority of the chairs/stools from storage and reinstating them in the bar. It is contended that the chairs/stools, which numbered more than 30, were cumbersome to move and as a result the exercise was time-consuming.
The Respondent stated in evidence that he was annoyed at having to do this and admitted that he threw one of the chairs up along the outside of the bar area in the middle of this process. However, the Respondent stated that for the Complainant to suggest that she was somehow in fear arising from her dramatised depiction of this action, is wholly disingenuous and, at best, could be construed as self-serving and egregious slanderer. The Respondent further contends that the Complainant had known him for more than seven years and she was never once the subject of any threatening behaviour.
The Respondent stated that at the end of the shift on 1 April 2017, he spoke with the Complainant in relation to the letter he had received from the insurance company. The Respondent submits that he did, as the Complainant has confirmed, indicate to her that he could not allow her to continue to work until she had completed the manual handling training course. It was further stated that the Respondent explained the rationale for this decision to the Complainant.
The Respondent submitted that he then informed the Complainant that he would arrange for her to complete a manual handling course and that once it was completed he would be insured to roster her again. The Respondent submitted that he did not tell the Complainant she was dismissed and in fact, when she queried whether she was being "fired", he informed her that was not the case but he just needed to organise the manual handling training.
The Respondent submitted in evidence that he had previously arranged for all staff to undergo manual handling training on 9 December 2016. According to the Respondent the date for the training had been advised to all staff well in advance of the event. According to the Respondent, the Complainant failed and refused to attend the course, as she was certified sick. The Respondents admitted in evidence that, given the insurance implications of her non-attendance, he telephoned the Complainant and implored her to attend and/or just observe, if she was not in a position to fully participate. The Respondent stated that the Complainant refused to attend the training, stating that she had previously been trained while working for a different employer.
The Respondent admitted that there was some delay in arranging a course specifically and exclusively for the Complainant. However, it was stated that running a course for the exclusive benefit of a single employee was excessive and expensive, particularly in the context of the recruitment of two seasonal employees for the summer who would also require to be trained. Consequently, Respondent stated that he intended to run the course once he was satisfied that the Complaint was in a position to attend, in tandem with the training of the newly recruited seasonal employees.
The Respondent next referred to a letter, dated 13 April 2017, sent by the Complainant. In this regard, the Respondent pointed out the Complainant's reference to emails exchanged between the parties in the post one April 27 period and, in particular, to her reference to not been fired and to coming back to work following completion of the manual handling course.
The Respondent stated in evidence that he was away on leave from 20 April to 4 May 2017. Consequently, the Respondent claims that he was on leave when the letter arrived from the Complainant, which he claimed was in the last week of April, despite having been dated 13 April 2017. The Respondent claims that, immediately on receipt of the letter, he sent a text to the Complainant, inviting her to contact him to discuss arrangements for the manual handling course. However, the Respondent stated that the Complainant flatly refused to engage with him and failed to make the requested contact. In this regard, the Respondent made reference to emails sent to the Complainant on 4, 9 and 12 May 2017, questioning whether she was in a position to return to work and confirming that arrangements were being made to carry out the training on her return.
The Respondent submits that he did not have any contact from the Complainant. However, he received a letter from the Complainant's solicitors, dated 19 May 2017, which asserted that she had been "summarily and discriminatorily" dismissed on 1 April 2017. The Respondent's representative suggested that this was a clear attempt to escalate matters and referred to the fact that the letter demanded compensation and threatened litigation in default of same.
Having set out the background as detailed above, the Respondent went on to make specific responses to the individual complaints raised.
Complaint CA-00012024-001: - Terms and Conditions of employment
The Respondent conceded that the Complainant was not furnished with a written statement of the terms and conditions of employment within two months of employment commencing.
The Respondent further stated that the Complainant had not sought a written statement of employment prior to the events described in her complaint. The Respondent stated that, in response to a request at that stage, the Complainant was provided with a Statement of Terms and Conditions of Employment on 25 May 2017.
The Respondent stated that, while it cannot revisit the past and acknowledges non-compliance with the statutory requirement, once the issue was brought to his attention he took appropriate steps to comply with his obligations in this regard.
Complaint CA-00012024-002: - Unfair Dismissal
This complaint was withdrawn by the Complainant’s representative at the commencement of the first Hearing on 20 September 2017.
Complaint CA-00012024-003: - Bullying and Harassment (Industrial Relations claim)
The Respondent referred the fact that the Complainant is pursuing five separate claims arising out of the same set of the facts. Consequently, it is submitted by the Respondent that the Complainant has incorrectly invoked the jurisdiction of the WRC and that the complaint under the Industrial Relations Act, 1969, is an abuse of process.
The Respondent makes reference to the narrative relating to this particular element of the Respondent's complaint. In particular, he made reference to the fact that she asserts it is brought to address bullying and harassment procedures. The Respondent summarised the Complainant's complaint as one of being "penalised" by the Respondent because of her decision to initiate a personal injury claim. It is contended by the Respondent that the Complainant advances an almost identical claim pursuant to the Safety, Health and Welfare at Work Act, 2005, and the Employment Equality Act, 1998.
In response to the Complainant’s claim that the Respondent made reference to her claim on numerous occasions, it is submitted that this is simply not the case and, in any event, would not constitute bullying. The Respondent pointed out in evidence that he did not even reference her claim when discussing his insurance difficulties with her in the course of their conversation on 1 April 2017. It is further contended that the Complainant's own correspondence supports this.
The Respondent contends that the Complainant does not cite a single instance that might credibly support a serious allegation of bullying. With regard to the incident on 1 April 2017, the Respondent stated that this was a non-event. It is contended, that on that occasion, the Respondent was entitled to be annoyed at poor employee performance and the needless waste of his time and energy. However, it is contended that one could not remotely extrapolate therefrom that he was guilty of bullying and harassment.
Consequently, in summary, on this aspect of the Complainant's complaint, the Respondent contends that it is unfounded and ill-conceived.
Complaint CA-00012024-004: - Penalisation/Victimisation
In a context where she was not dismissed and where her lay off was for a genuine insurance/risk related reason, the Respondent submits that the Complainant has not suffered any detriment.
It was also submitted that the claim as advanced could not be considered in the narrow parameters of the penalisation provisions of Section 27 (1) of the Safety, Health and Welfare at Work Act, 2005. The Respondent further submits that the letter of 2 February 2017 cannot be construed as satisfying the "complaint representation" requirements as set out in Section 27 (1) (3) of the Act.
The Respondent submits that a "letter of claim" should not be conflated with a bona fide complaint or representation to the employer concerning a matter of health and safety. It was submitted that a letter of claim is primarily a formulaic demand for compensation for injury arising from negligence, which demands an admission of liability and threatens litigation in default. The Respondent submitted case law in support of their submission in this regard.
The Respondent further submitted that, even if the letter of claim constituted a "complaint or representation", within the meaning of the Act, the Complainant must demonstrate that "but for" the initiation of the claim, she would not have suffered the alleged detriment. The Respondent contends that the genesis of this claim is inextricably linked with the alleged dismissal of 1 April 2017.
The Respondent points to the Complainant's claim that the trigger for this was a letter from insurers and its implication for the Complainant, given her failure to undertake the manual handling course. Consequently, the Respondent submits that it cannot remotely be claimed that "but for" the initiation of a personal injury claim the alleged detriment would not have occurred
Complaint CA-00012024-005: - Discrimination on the grounds of disability and reasonable accommodation.
The Respondent submitted that, in the first instance, there are questions over whether or not the Complainant has the "disability". The Respondent states that while he is aware the Complainant is pursuing a claim for personal injury, he has neither seen evidence of her alleged "disability" nor does he accept that she is "disabled".
The Respondent accepts that the Complainant was on sick leave in April 2016, for a period of six weeks, following an alleged accident at work. It is further submitted that the Complainant was then certified as fit to return to work without qualification. It is further submitted that the Complainant missed one further week in December 2016 due to certified sickness from which she returned again, without qualification.
The Respondent submits that no evidence to support the Complainant's claim of disability has been tendered. While the Respondent accepts that an injury, of the nature allegedly sustained in April 2016, may wax and wane, it is a considerable step to equate this with what might constitute a bona fide disability.
It is further submitted that on 1 April 2017, the Complainant was sufficiently fit to commute to and from work by bicycle, which involved a return journey of circa 10 miles. The Respondent submitted that the Complainant presented at all times as fit and healthy. It is further submitted that the Complainant had no functional limitation in terms of capacity to carry out work nor did she submit any medical certification to support such a claim.
The Respondent also submitted that the Complainant did not seek any particular accommodation and has not alleged that there has been any failure to provide "reasonable accommodation" in the claim form.
Consequently, the Respondent claims that the Complainant's injuries (if any) cannot be viewed as sufficiently serious to constitute a disability within the meaning ascribed there to under Section 2 (1) of the Employment Equality Act, 1998. The Respondent submits that it cannot be credibly argued that the Complainant's injuries constitute a significant and ongoing "malfunction" or "disfigurement" of her body.
It is further submitted that, to the extent that she has any ongoing health issues (vis-a-via her back), that it, at best, amounts to "sickness", rather than a significant, permanent and lasting condition, necessitating hospitalisation or surgery and are which could be expected to affect her for the remainder (or a substantial portion of) her life.
The Respondent submitted that the Complainant undertook a full range of duties. She did not undertake heavier lifting duties and indeed, it is apparent from what she describes in her narrative, that she was excused from same. It is further contended that the Complainant was fully fit to carry out all the normal functions involved in bar work and the fact that she may on occasion have been very busy, cannot be construed as less favourable treatment, i.e. discrimination.
It is contended by the Respondent that there is no evidence that the Complainant was treated less favourably than a colleague by reason of her alleged disability. The Respondent submits that such evidence simply does not exist and that she was asked to undertake normal duties whilst being excused from heavier aspects, if she felt unable for them. It is further submitted that all of the Complainant's colleagues were required to undertake similar duties in similar circumstances, with some shifts being busier and more demanding than others.
However, the Complainant stated that, even if it were the case that the Complainant was treated less favourably, then even on the basis of her own narrative and the claim made under the Safety, Health and Welfare at Work Act, 2005, she claims it arose due to the fact that she decided to pursue a personal injury claim. The Respondent contends the pursuing a claim for compensation is by no means proof of disability.
In summary, the Respondent denied that the Complainant was treated less favourably in any manner and to the extent that she feels she has a grievance, it arises because of the operational issues relating to her insurance status, pending the completion of a manual handling course.
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Findings and Conclusions:
Having carefully reviewed all the evidence adduced in relation to this complaint, I'm satisfied that all five complaints our based around the same set of events. In addition, I find that there are a number of specific incidents and periods of time that assume particular relevance when assessing the Complainant's complaints.
Incident at work – 28 April 2016: The first of these relate to the incident on 28 April 2016. The Complainant claims that an accident occurred in the course of her work on this day, which resulted in injuries to her ankle and back. The Complainant was absent from work for six weeks following this incident.
June 2016 to February 2017: The second significant aspect for consideration in this case relates to the period between the Complainant's return to work in around June 2016 (following the 28 April accident) and the issuing of a personal injuries claim by way of letter dated 2 February 2017. No evidence was presented which would suggest that the Complainant had any issues carrying out her duties during this period. On her return to work following the incident on 28 April 2016, the Complainant did not provide any indication to the Respondent that she required any specific accommodation in order to carry out her duties.
Letter of 2 February 2017: The next significant event took place in February 2017 when the Respondent received a letter, dated 2 February 2017, seeking an admission of liability and compensation for the injuries received by the Complainant on 28 April 2016. The letter went on to state that, in the event the Respondent did not comply with the requirements set out in the letter, a personal injuries claim would issue.
2 February to 27 March 2017 The receipt of the letter 2 February 2017 saw the commencement of the second significant period of time in relation to this case. The Complainant claims that following receipt of this letter the Respondent's attitude changed towards her to the extent that she claims she was penalised in terms of working conditions, bullied and harassed and discriminated against on the grounds of her disability.
With regard to penalisation, the Complainant alleged that her shift hours changed following receipt of the letter of 2 February 2017. According to the Complainant, prior to this, she worked three shifts – Tuesday (7:30 p.m. – close), Thursday (2:30 p.m. – 7:30 p.m.) and Saturday (12:30 p.m. – 7:00 p.m.). The Complainant stated that this totalled approximately 15 hours per week. The Complainant alleges that, post to February 2017, she no longer worked the Thursday shift.
The Hearing was not presented with any specific evidence to support the Complainant's allegation that shift pattern changed in a significant way following receipt by the Respondent of the letter of 2 February 2017.
The only evidence presented by the Complainant, with regard to the Thursday shift, was a copy of a text message, dated 28 March 2017, wherein the Complainant queried whether she was working the following Thursday (30 March) or if it was just the Saturday shift she was working. In his reply to this text, the Respondent stated that it was just the Saturday shift. However, his text goes on to state that the Complainant had been requested to do a shift on the Sunday, but apparently, she had declined this request.
I considered this text to be significant in the context of the Complainant's claim that her Thursday shifts were removed following receipt of the letter of 2 February 2017. If the Thursday shifts had been removed unilaterally following receipt of the letter, then it might be expected that some reference would have been made to this prior to 28 March 2017. In addition, if the Complainant had not worked the Thursday shift in the seven weeks prior to the text, it appears somewhat unusual then for her to be querying whether or not she's working the shift on 30 March 2017.
Finally, in this regard, the evidence from the text message clearly suggests that while the Complainant was not working the Thursday shift on 30 March 2017, she had been offered an alternative shift on 4 April 2017, which she appears to have declined.
Consequently, taking all of the above into consideration, I find that the evidence does not support the Complainant's contention that she was penalised, by way of reduction in her shifts, following the issuing of the claim letter of 2 February 2017.
With regard to this period (2 February – 1 April 2017), the Complainant referred to a number of specific incidents where she alleged the Respondent treated her inappropriately, such that she contends this constituted bullying.
The first of these related to an incident in relation to the manual handling of coin, which the Complainant claimed took place on 27 February 2017. In his evidence, the Respondent stated that this incident took place on 9 December 2016.
The second incident related to 25 February 2017, on which date the Complainant alleges she was left to attend the bar on her own, on the occasion of a Six Nations rugby match, when it was very busy. In his evidence, the Respondent stated that he worked in the bar that day alongside the Complainant, from before 5:00 p.m., precisely because he knew it would be busy. In response, the Complainant said that the match in question was on earlier in the afternoon.
The records show that there were two Six Nations rugby matches played on 25 February 2017 – Scotland V Wales at 14:25 pm and Ireland V France at 16:50 p.m. I believe it is reasonable to conclude the premises was likely to be most busy during the Ireland game. Consequently, in those circumstances, I find the Respondent's evidence, that he came on duty just before 5:00 p.m., to be a more credible account of the events in question.
The third incident referred to by the Complainant, in this regard, allegedly took place on 2 March 2017, when all the barstools were left on the tables and the Complainant could not physically lift the cheers down on her own and had to get assistance in doing so. In response to this, the respondent stated, that a new employee cleaned up the previous night and, in error, had left the stools on top of the tables. The Respondent stated that the normal practice is to place them on the floor after cleaning. The Respondent stated that this was a genuine and innocent mistake by a colleague and, in any event, the Complainant got another colleague to lift them down.
Having reviewed all the evidence presented, I am satisfied that this was a once off event, with a reasonable and genuine explanation. I also note from the Complainant own evidence that she did not have to lift the stools, as a colleague did so on this occasion. Consequently, I can find no evidence to suggest that the Respondent had any knowledge of or involvement in this incident.
The final incident referred to by the Complainant as constituting deliberately inappropriate behaviour by the Respondent related to a wedding party that visited the bar on 16 March 2017. The Complainant alleged that she was in the bar on her own serving the region of 100 people on this occasion. In response, the Respondent stated that both he and the Complainant were present in the bar on 14 March 2017, when a customer indicated that a family wedding, consisting of approximately 40 people, would call to the bar, on 16 March, for a couple of hours between the ceremony which was taking place in a local church and moving on to the hotel where the reception was to be held.
According to the Respondent, he queried the Complainant if she would be able to manage. He claimed he specifically asked if she wanted him to roster additional staff. The Respondent stated, in evidence, that the Complainant indicated she could manage. The Respondent further stated that a larger crowd than anticipated actually turned up and it is accepted that the bar was very busy for a few hours.
Having carefully considered the evidence presented in relation to this particular incident, I am satisfied that it must be viewed from the perspective of an operational business issue and I find no evidence to suggest that the situation was in any way contrived by the Respondent to penalise or punish the Complaint.
Consequently, taking all of the above into consideration, I am satisfied that the incidents alleged by the Complainant do not constitute inappropriate behaviour on the part of the Respondent and could not in any way be construed to constitute bullying.
Letter of 27 March 2017: When the Respondent notified his insurers about the letter received from the Complainant's solicitors on 2 February 2017, they responded, by way of letter, dated 27 March 2017, informing him that his insurance indemnity had been declined, on the basis that he had failed to comply with the policy endorsement requiring him to ensure that all employees had been provided with manual handling training.
Events of 1 April 2017 The next and, potentially most significant of all of the incidents, pertaining to the Complainant's complaint, were the events which took place on 1 April 2017. Details of the evidence in relation to these events are clearly laid out in both the Complainant’s and the Respondent's submissions above. In summary, the Complainant alleges that the Respondent behaved in such an aggressive and inappropriate manner that she feared for her safety.
The Complainant alleges that the Respondent was initially abusive to her during phone calls to the bar in relation to the removal of chairs/stools to a back area of the premises. The instruction from the Respondent was initially issued by text to the Complainant. This text was provided in evidence and clearly identifies particular furniture that was required to be moved. In addition, the text also advised the Complainant that if she was not able to lift the chairs herself, she should ask a named male colleague, who was also on duty that day, to move them.
The evidence presented by both parties states that the chairs were moved by her male colleague and not by the Complainant. However, it appears that, rather than just moving the chairs identified in the Respondent's earlier text, all of the chairs were removed from the bar to the back of the premises. The Respondent confirmed in evidence that, when he arrived in the bar, he was annoyed that is instruction in relation to the removal of the chairs/stools had not been complied with correctly.
It is also clear that, when he arrived in the bar, the Respondent displayed this annoyance as he himself brought the furniture back. While denying that he threw the chairs, in the manner alleged by the Complainant, the Respondent admitted that one chair banged off the counter.
Having carefully considered all of the evidence adduced in relation to the events of 1 April 2017, it would appear that the Respondent was clearly annoyed by the removal of all the chairs from the bar and the fact that he had to replace them himself. In doing so, one of the chairs hit against the counter. While it might be understandable in the circumstances, such expressions of frustration and annoyance must be considered as inappropriate and unprofessional in a work situation.
However, notwithstanding the above, I do not believe that the incident was as severe or dramatic as portrayed in the Complainant's account of events. I am also satisfied that this was a once off event and that the Complainant had never before witnessed such behaviour from the Respondent. In addition, I am satisfied that, based on the evidence contained in the Respondent's initial instruction, as contained in his text to the Complainant, there was no expectation that she was required to move the chairs. The instruction clearly identifies that they were to be moved by her male colleague, in the event that she felt she was unable to do so.
Consequently, taking all of the above into consideration, I find that, while the Respondent’s behaviour in relation to the moving of the chairs may not have been wholly appropriate, it was not directed at the Complainant nor was there any attempt, by the Respondent, to require her to move the chairs.
Finally, in relation to the events of 1 April 2017, the evidence presented by both parties clearly shows that the Respondent approached the Complainant, at the end of her shift, and informed her that, based on the letter he had received from his insurers, she would have to complete a manual handling training course before returning to work again.
Events post 1 April 2017: According to the Complainant’s evidence, the discussion between the parties at the end of the shift on 1 April 2017, lead her to construe that she had been dismissed from her employment and this forms the basis of a complaint of unfair dismissal.
Having carefully reviewed this aspect of the Complainant's complaint, I found her evidence in this regard, to be rather confusing and contradictory. This is clearly evident from the Complainant's letter to the Respondent dated 13 April 2017. In this letter the Complainant states that she understood from the conversation at the end of the shift on 1 April 2017 that she had been fired because she was not insured to work for the Respondent. She also referred to the fact that comments by the Respondent in a text message she received from him, post 1 April 2017, in which he thanked her for her time working with him, was further indication that she was no longer working for him.
However, the Complainant also referred, in this same letter, to the fact that the Respondent had sent emails confirming that she had not been fired and that she could come back to work once she had completed manual handling training course. The Complainant also indicated, in this letter that she wanted her job and that if the Respondent did not let her back to work, she would take it that she had been dismissed from her job.
Having reviewed the evidence presented I am satisfied that due to the Respondent being on annual leave at the time the letter was received, it did not come to his attention until his return to work on 4 May 2017. Evidence was presented at the Hearing in the form of emails, which the Respondent sent to the Complainant on 4, 12 and 24 May 2017, and which clearly referred to her returning to work and completing a manual handling training course being organised for when she did return.
However, notwithstanding those emails, the Respondent received a letter from the Complainant's solicitors, dated 19 May 2017, stating that she had been summarily and discriminatorily dismissed. The letter went on to state that if the Respondent was not willing to admit liability and agreed to compensate the Complainant, within seven days, a complaint would be submitted to the WRC.
The evidence presented suggests that, following receipt of the above letter, the Respondent made an attempt to meet with the Complainant to discuss the matter. However, the Respondent's attempts in this regard appeared only to further alienate the Complainant.
Having carefully considered all of the evidence presented in this regard and, in particular, the Complainant’s letter of 13 April 2017, I am satisfied that, as a result of his insurers declining indemnity, the Respondent was left with no option but to lay off the Complainant, pending completion of the manual handling training course. I am further satisfied, from the evidence presented, that the Respondent made this position clear to the Complainant during their discussions at the end of a shift on 1 April 2017 and, subsequently, in his emails during May 2017.
The evidence also suggests that the Respondent made significant efforts to ensure that the Complainant completed a manual handling training course, as required by his insurers. Consequently, I am satisfied that had the Complainant cooperated with the Respondent in relation to the completion of this course, it is, on the balance of probability, most likely that she would still be working for the Respondent, as it is clear from the evidence presented that he considered her a good and competent bar-person and was anxious to retain her in his employment.
Complaint CA-00012024-001: - Terms and Conditions of employment
The Respondent admits the Complainant did not receive a statement in writing of her terms and conditions of employment and is, therefore, in breach of Section 3 of the Terms of Employment (Information) Act, 1994.
Consequently, I uphold the Complainant's complaint in this regard.
Complaint CA-00012024-002: - Unfair Dismissal
As this element of the Complainant’s complaint was withdrawn by her legal representative at the commencement of the first Hearing on 20 September 2017, no consideration or decision is necessary.
Complaint CA-00012024-003: - Bullying and Harassment (Industrial Relations claim)
The Complainant alleged that she was bullied by the Respondent, particularly in the period after he had received the letter of 2 February 2017 from her solicitors, in relation to her personal injuries claim. The evidence presented by both parties in relation to the claim of bullying and harassment and my consideration of that evidence, are clearly set out above. In considering complaints of bullying, it is necessary to establish some form of measurement mechanism to evaluate whether bullying has occurred or not. In a 2014 High Court case, Glynn v Department of Justice, Kearns N. (then President of the High Court) provided clear guidelines in this regard.
In his judgement, Justice Kearns stated that bullying “…involves a deliberate and repeated course of action designed to humiliate and belittle the victim. It is conduct which is intended to reduce that person’s sense of self-worth. It may occasion significant pain and suffering to any person so treated.”
Justice Kearns went on to say, inter alia: “bullying, workplace stress and occupational stress are all things which conceptually at least, are quite different from each other, though on occasion they can overlap and coincide………… Occupational stress is something which every employed person may experience at some stage of his or her working life and can occur for reasons quite distinct from and unrelated to bullying.”
The court observed that the following question should be asked in respect of bullying: "whether the behaviour complained of by reference to an objective test, imports that degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or occupational stress."
In considering this question in the current case, I am satisfied all of the incidents presented by the Complainant in support the claim of bullying and harassment were related to the vagaries the pressures associated with the job and, in addition, could not be construed as having been deliberately orchestrated by the Respondent, in an effort to humiliate or belittle the Complainant.
Consequently, taking all of the above into consideration I find that the evidence does not support the Complainant's complaint of bullying and harassment.
Complaint CA-00012024-004: - Penalisation/Victimisation
Based on the findings and conclusions set out above, I find that the evidence presented does not support the complaint of penalisation and, therefore, the Complainant's claim in this regard is not upheld.
Complaint CA-00012024-005: - Discrimination on the grounds of disability and reasonable accommodation.
Section 2 (1) of the Employment Equality Act, 1998, defines "disability" as follows:
a) The total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body, b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, c) the malfunction, malformation or disfigurement of a part of a person's body, d) a condition or malfunction which results in a person learning differently from a person without the condition our malfunction, or e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgements which results in disturbed behaviour,
Having carefully reviewed all of the evidence presented and considering it in line with the definition set out above, I find it does not support the claimant’s contention that she was suffering from a disability. Consequently, the Complainant's claimed that the Respondent victimised her on the grounds of disability must fall.
With regard to the Complainant's claimed that the Respondent failed to give her reasonable accommodation for her disability, I find that, notwithstanding the previous finding, the Complainant did not bring the matter to the Respondent's attention in an appropriate manner and at no time formally sought accommodation for her situation. In this regard, I am satisfied that the Complainant's return to work following her period of absence after her workplace accident of 28 April 2016 was unconditional from a medical perspective and the Respondent was not provided with any indication that accommodation of any kind was required.
Again, notwithstanding the above finding, I further find that the evidence suggests there may have been an issue with the Complainant's ability to lift heavy objects. From a review of the evidence, it is clear that the Complainant was never required to do anything she did not feel capable of doing in this regard.
Consequently, taking all of the above into consideration and having carefully reviewed all the evidence in this regard, I find that the Complainant's complaint in this regard is not upheld.
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Decisions/Recommendation:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints/dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, my decisions/recommendation in relation to the various elements of the Complainant's complaint, as follows:
Complaint CA-00012024-001: - Terms and Conditions of employment
Based on the evidence of the parties concerned, I find that the Respondent is in breach of Section 3 of the Terms of Employment (Information) Act, 1994. Consequently, I find in the Complainant's favour and award her compensation in the amount of €750.
Complaint CA-00012024-002: - Unfair Dismissal
This complaint was withdrawn by the Complainant’s legal representative at the commencement of the first Hearing on 20 September 2017. Consequently, no decision issues.
Complaint CA-00012024-003: - Bullying and Harassment (Industrial Relations claim)
The Complainant's complaint under the Industrial Relations Act is not upheld.
Complaint CA-00012024-004: - Penalisation/Victimisation The claim in relation to penalisation/victimisation is not upheld.
Complaint CA-00012024-005: - Discrimination on the grounds of disability and reasonable accommodation.
The Complainant’s claims that the Respondent discriminated against her, by reason of her disability, by victimising her and by failing to give a reasonable accommodation for her disability. Having carefully reviewed the evidence presented in this regard, I find that the Complainant did not have a disability in line with its meaning in the Act and/or that she never sought reasonable accommodation in any event.
Consequently, the Complainant's claim of discrimination under the Employment Equality Act, 1998, it is not upheld. |
Dated: 6th June 2018
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Key Words:
Unfair Dismissal Terms of Employment Penalisation Reasonable Accommodation Disability Bullying and Harassment Victimisation |
ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00009146
| Complainant | Respondent |
Anonymised Parties | An Employee | A Licenced Premises |
Representatives | Ciana Mulchrone Sheehan & Co Solicitors | Shane MacSweeney MacSweeney & Company Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00012024-001 | 20/Jun/201720/Jun/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00012024-002 | 20/Jun/201720/Jun/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00012024-003 | 20/Jun/201720/Jun/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00012024-004 | 20/Jun/201720/Jun/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00012024-005 | 20/Jun/201720/Jun/2017 |
Date of Adjudication Hearing: 20/Sept and 7/Nov/2017
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 79 of the Employment Equality Acts, 1998 - 2015 and Section 13 of the Industrial Relations Acts 1969 and following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute
Background:
The Complainant commenced employment with the Respondent, a public house, on 14 June 2010 in the capacity of waitress/bar staff.
The Complainant work for the Respondent mostly on a part-time basis before being requested to work full-time. |
Summary of Complainant’s Case:
On 28 April 2016, the Complainant was involved in an accident in her workplace. The Complainant injured her back and ankle. The Complainant was unable to work for six – eight weeks after the accident and received no sick pay from the Respondent when out of work.
The Complainant stated that she was aggrieved by the Respondent’s attitude towards her after the accident. The Complainant stated that as there was no contract of employment and no policy in relation to work-related accidents, coupled with increasing medical expenses, reduction in hours and loss of wages due to the accident, she had no alternative to contact a solicitor for advice.
By way of letter, from her solicitor, dated 2 February 2017, the Complainant notified the Respondent of her intention to bring a claim for personal injuries sustained during the course of employment. The Complainant contends that she noticed an immediate change in the Respondent’s attitude once he received this letter of claim.
The Complainant claims that she was discriminated against by the Respondent due to the injuries she sustained in the accident at work. According to the Complainant, the Respondent demanded her to complete duties which the Respondent knew she was unable to do as a result of the accident. The Complainant stated that she had complained to the Respondent about how the injuries restricted her ability to complete certain duties. According to the Complainant, the Respondent made no allowances for her injuries and disregarded her complaints in this regard.
The Complainant claims that she was bullied at work by the Respondent after he had received the letter of claim of 2 February 2017. According to the Complainant, the Respondent made numerous references to her claim in a manner which she suggested was unprofessional and made her feel uncomfortable in a workplace. The Complainant further contended that she felt intimidated and picked on by the Respondent for taking a personal injury claim. The Complainant described the Respondent’s attitude as hostile towards her.
The Complainant stated that she believes that she was penalised for initiating a personal injuries (PI) claim. The Complainant claims that she was asked to come in at short notice to cover shifts and while her shifts were given over to other staff members. She also claims that hours were reduced and changed regularly. The Complainant also claimed that the Respondent was abusive to her in front of customers and other staff.
According to the Complainant matters culminated on 1 April 2017, on which date she contended she was subjected to an abusive outburst on behalf of the Respondent, which resulted in her being dismissed from her employment.
The Complainant stated that, on the day in question, she was due to start a shift at 1:00 pm but was informed by the Respondent to attend early and, as a result, she arrived to work at 12:15 pm. The Complainant claimed that she had been having hassle all week from the Respondent, who told her that she would get nothing from her injury claim as the insurance company, as they were going to refused to pay her.
The Complainant stated that on arrival at work on 1 April 2017, she received a text from the Respondent requesting her to take chairs from the bar and store them in the area at the back of the premises. The Complainant stated that she phoned the Respondent and informed him that she was not physically able to move to chairs in question. According to the Complainant, the Respondent became very angry and demanded that she inform one of her colleagues, who was present at the time to move the chairs.
According to the Complainant, the colleague spoke to the Respondent on the phone and agreed to move the chairs once the soccer match, which was on the TV at the time, was over. The Complainant confirmed that her colleague moved the chairs.
The Complainant stated that the Respondent arrived on the premises between 2:30 and 3:00 pm. She further stated that the Respondent was carrying two high stools, as he arrived into the bar. The Complainant stated that the Respondent threw one of the stools towards her. The Complainant stated that she ran behind the counter to take cover but that the stool hit off the bar knocking glasses from behind the bar. The Complainant stated that the Respondent then threw the other stool, which actually hit one of her friends, who was sitting at the counter, and also an old man who was drinking at the bar. The Complainant stated that this was all witnessed by various customers, all of whom were shaken by the event.
According to the Complainant, the Respondent, who was screaming and had completely lost control, was shouting that the wrong chairs had been removed to the back area. The Complainant stated that when her colleague, who had originally moved the chairs, went to explain to the Respondent what had happened, the latter informed him that he would rather close the bar then have the Complainant working for him anymore.
The Complainant stated that, as she was the only staff member on duty at the time, she had no choice but to remain at work. She stated that when the Respondent returned to the premises at approximately 5:00 pm, he was raging again. She further stated that when the Respondent was working behind the bar he was constantly bumping off her and making things uncomfortable. The Complainant stated that her shift was due to finish at 7:00 pm, but because the bar was so busy she didn’t get leave until 7:30 pm, when other staff came on duty.
The Complainant stated that the Respondent then paid her and, while doing so, flashed a letter at her, which he did not allow her to read. According to the Complainant the Respondent indicated that she could no longer work as he could not insure her, due to the fact that she had not done a manual handling course. The Complainant stated that she explained to the Respondent that the manual handling course was only organised when she was off work after her accident and, as a result, could not complete the course. According to the Complainant, the Respondent laughed at her and said he did not care.
The Complainant stated that she asked the Respondent if he was firing her and he replied that he was not. However, the Complainant stated that the Respondent said she could not work there anymore. According to the Complainant the Respondent informed her that he would contact her during the week. The Complainant stated that she was due to return to work on Tuesday, 4 April, but on the previous day she received an email from the Respondent stating that he had not sacked her but that she could not go back to work until she organised a manual handling course for herself. According to the Complainant she replied to the Respondent indicating that she was in no doubt that she had been sacked on 1 April 2017.
The Complainant stated that she did not return to work after that as she understood she had been fired. The Complainant further stated that, in any event, the Respondent had been so angry on 1 April 2017 that she could not return to work as she feared for her safety due to his behaviour.
Complaint CA-00012024-001: - Terms and Conditions of employment.
The Complainant claims that she never received a contract or terms and conditions of employment from the Respondent throughout the duration of her employment with him. The Complainant claims that she was completely left in the dark with regard to the terms and conditions of employment.
Complaint CA-00012024-002: - Unfair Dismissal
According to the Complainant, she was eventually dismissed from her employment for initiating legal proceedings against the Respondent, by way of her letter of claim for personal injuries dated 2 February 2017.
The Complainant claims that the Respondent placed an advertisement, for what she considers to be her job, in a local newspaper on 20 April 2017. The Complainant claims that this clearly illustrates the Respondent’s intention to replace her despite sending her text inviting her back to work before and after this date.
Complaint CA-00012024-003: - Bullying and Harassment (Industrial Relations claim)
The Complainant claims that she suffered bullying at the hands of the Respondent contrary to the Codes of Practice of the Labour Relations Commission and the Health and Safety Authority. According to the Complainant the Respondent deliberately made her working environment more difficult and pressurised. The Complainant claims that after receipt of the letter of claim of 2 February 2017 her shift pattern started to change. The Complainant also claimed that she was not invited to the Staff Christmas party which took place in February 2017. She also claims she was deliberately left to deal with a wedding party of a hundred people on her own. In this regard, the Complainant stated that the Respondent would have been aware as to the extent of the crowd in the bar on that occasion as it would have been obvious from the CCTV cameras.
In relation to the incident on 1 April 2017, the Complainant claimed that the Respondent got so upset on the phone that she had to hang up. The Complaint stated that there were customers in the bar while the contentious phone calls will be made by the Respondent. The Complaint stated that she was very upset and shocked at how the Respondent spoke to her in front of customers.
The Complainant further stated that she had been bullied and harassed by the Respondent since leaving his employment. She claimed that he refused to furnish her with her P 45. She also claims that the Respondent had sent texts and emails to her which she regarded as hassling her after the incident on 1 April 2017. The Complainant also stated that the Respondent was waiting for her outside her new place of employment attempting to discuss matters with her which only heightened the Complainant’s anxiety regarding the matter.
The Complainant stated that, as a workplace had no adequate bullying policy in place, she brings this complaint in accord with her rights under the Safety, Health and Welfare at Work Act.
Complaint CA-00012024-004: - Penalisation/Victimisation
The Complainant states that Section 27 of the Safety, Health and Welfare at Work Act, 2005, sets out that 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 employment. The Complainant submits that this legislation clearly prohibits an employer penalised employee for raising complaint or complaints concerning her health and safety at work.
The Complainant claims that she made a number of informal complaints outlining her concerns about her injuries and the impact this was having on her physical health. She stated that she specifically made her employer aware that she could not lift chairs and was not able to do this as a result of her injuries. According to the Complainant, her complaints and due care for her physical well-being were ignored and, as a result, her place of work was not a safe place and was a risk to her physical health, in light of injuries.
The Complainant alleges that it is clear that when she raised concerns in this regard, she was ignored and continually left to deal with customers on her own and take down chairs from tables. In addition, the Complainant claims that she was demoted and was bullied and harassed by her employer by asking her to complete tasks and not asking other staff to do so.
The Complainant claims that her working hours were changed and she was forced to take sick leave, which was not paid and that she had no terms and conditions of employment to refer to in this regard. The Complainant further stated that it was clear that, after receiving her letter of claim and her raising of complaints/concerns regarding her duties, she was subjected to bullying, harassment and intimidation in her workplace, at the hands of the Respondent. The Complainant claims that this behaviour continued until her employment was terminated. The Complainant claims that this constitutes intimidation, which is a detriment amounting to penalisation under Section 27 of the 2005 Act.
The Complainant claims that it is clear that such penalisation was perpetrated on her as retaliation for the protected activities as set out in Section 27 (three) of the 2005 Act.
Complaint CA-00012024-005: - Discrimination on the grounds of disability and reasonable accommodation.
The Complainant claims that she suffered discrimination on the grounds of disability and that she was denied appropriate facilitation and accommodation for her ill-health. The Complaint states that she suffers from a disability within the statutory meaning of that term.
According to the Complainant she was suffering from a disability because of severe back problems sustained in a workplace accident. The Complainant claims that she was left working alone in the bar on several occasions when she had made the Respondent aware of her back pain. In her evidence in support of her claim in this regard, in addition to the events of 1 April 2017, the Complainant referred to the following incidents: (1) 25 February 2017 - serving on her own at a time when the bar was very busy due to a six Nations rugby match, (2) 2 March 2017 - all the barstools were left on top of tables with the result that the Complainant could not physically remove them and had to get the assistance of colleagues to do so and (3) 16 March 2017 - left on her own to serve approximately 100 people after a wedding.
In conclusion, on this aspect of her claim, the Complainant stated that the Workplace Relations Commission is entitled to make an award for the discriminatory treatment as well as the discriminatory dismissal, making award of up to for years remuneration possible.
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Summary of Respondent’s Case:
The Respondent stated that the Complainant commenced employment on 14 June 2010. The Respondent submitted, in evidence, a copy of the un-executed Terms and Conditions of Employment, which issued to the Complainant on 25 May 2017. The Respondent stated that the Complainant's role involves normal duties associated with bar work and that she was very competent in this role.
According to the Respondent, the Complainant only wished to work part-time hours, although full-time work was available to her. The Respondent stated that the Complainant was concerned that working in excess of 22 hours/week would jeopardise social welfare entitlements. The Respondent stated that the Complainant usually worked Tuesdays (seven hours), Thursdays (six hours) and Saturdays (seven hours).
Background:
The Respondent set out the background in relation the events underpinning the Complainant's complaints. It was submitted that the Complainant claimed to have suffered an injury to her ankle (and latterly claimed to have hurt her back also) in an alleged (unwitnessed) trip and fall type accident at her workplace on 28 April 2016. The Respondent submits that they are still awaiting proof of claim that the Complainant was injured.
The Respondent submitted that the Complainant was absent from work for six weeks and initiated a personal injury claim by way of letter dated 2 February 2017.
The Respondent submitted that the matter was duly notified to his insurers, who declined indemnity on the basis that he had failed to comply with the policy endorsement requiring him to ensure that all employees had been provided with manual handling training (notwithstanding the fact that the accident was not manual handling related). Evidence in relation to the declining of indemnity was presented at the hearing.
The Respondent stated that the insurer’s decision to decline indemnity had enormous financial implications for the business, as it does not have the resources to defend or to meet a significant personal injury claim/award, without the benefit of insurance. It was further contended that as a result of this situation the Respondent would encounter serious difficulty in having the policy renewed when it expired.
With regard to the events of 1 April 2017, the Respondent submitted that the Complainant was rostered to work from 12:30 p.m. until 19:30 p.m. The Respondent contended that it was envisaged business would be brisk on that evening, as a popular local band were playing a concert at an adjacent venue.
The Respondent submitted that he sent a text to the Complainant at 11:23 a.m., with instructions in relation to the removal of chairs from the bar to a back area of the premises. It is contended that the text message further stated that, in the event the Complainant was unable to lift the chairs in question, she was to request a named colleague to perform the task.
The Respondent submitted that the Complainant carried out none of the moving/lifting of chairs involved in the earlier text instruction. It is submitted that she instructed the named colleague to carry out the work. However, it is further contended that the Complainant mis-instructed this colleague, with the result that there were no chairs whatsoever for customers to sit on, during the earlier/quieter part of the evening.
It was submitted in evidence that when the Respondent came into the premises at 2:00 p.m., he was justifiably annoyed at, what he considered to be the reckless or the intentionally provocative mis-instruction/disregard of his instructions and the established practice of the premises.
The Respondent submitted that he had to needlessly waste his time and personal energy single-handedly removing the majority of the chairs/stools from storage and reinstating them in the bar. It is contended that the chairs/stools, which numbered more than 30, were cumbersome to move and as a result the exercise was time-consuming.
The Respondent stated in evidence that he was annoyed at having to do this and admitted that he threw one of the chairs up along the outside of the bar area in the middle of this process. However, the Respondent stated that for the Complainant to suggest that she was somehow in fear arising from her dramatised depiction of this action, is wholly disingenuous and, at best, could be construed as self-serving and egregious slanderer. The Respondent further contends that the Complainant had known him for more than seven years and she was never once the subject of any threatening behaviour.
The Respondent stated that at the end of the shift on 1 April 2017, he spoke with the Complainant in relation to the letter he had received from the insurance company. The Respondent submits that he did, as the Complainant has confirmed, indicate to her that he could not allow her to continue to work until she had completed the manual handling training course. It was further stated that the Respondent explained the rationale for this decision to the Complainant.
The Respondent submitted that he then informed the Complainant that he would arrange for her to complete a manual handling course and that once it was completed he would be insured to roster her again. The Respondent submitted that he did not tell the Complainant she was dismissed and in fact, when she queried whether she was being "fired", he informed her that was not the case but he just needed to organise the manual handling training.
The Respondent submitted in evidence that he had previously arranged for all staff to undergo manual handling training on 9 December 2016. According to the Respondent the date for the training had been advised to all staff well in advance of the event. According to the Respondent, the Complainant failed and refused to attend the course, as she was certified sick. The Respondents admitted in evidence that, given the insurance implications of her non-attendance, he telephoned the Complainant and implored her to attend and/or just observe, if she was not in a position to fully participate. The Respondent stated that the Complainant refused to attend the training, stating that she had previously been trained while working for a different employer.
The Respondent admitted that there was some delay in arranging a course specifically and exclusively for the Complainant. However, it was stated that running a course for the exclusive benefit of a single employee was excessive and expensive, particularly in the context of the recruitment of two seasonal employees for the summer who would also require to be trained. Consequently, Respondent stated that he intended to run the course once he was satisfied that the Complaint was in a position to attend, in tandem with the training of the newly recruited seasonal employees.
The Respondent next referred to a letter, dated 13 April 2017, sent by the Complainant. In this regard, the Respondent pointed out the Complainant's reference to emails exchanged between the parties in the post one April 27 period and, in particular, to her reference to not been fired and to coming back to work following completion of the manual handling course.
The Respondent stated in evidence that he was away on leave from 20 April to 4 May 2017. Consequently, the Respondent claims that he was on leave when the letter arrived from the Complainant, which he claimed was in the last week of April, despite having been dated 13 April 2017. The Respondent claims that, immediately on receipt of the letter, he sent a text to the Complainant, inviting her to contact him to discuss arrangements for the manual handling course. However, the Respondent stated that the Complainant flatly refused to engage with him and failed to make the requested contact. In this regard, the Respondent made reference to emails sent to the Complainant on 4, 9 and 12 May 2017, questioning whether she was in a position to return to work and confirming that arrangements were being made to carry out the training on her return.
The Respondent submits that he did not have any contact from the Complainant. However, he received a letter from the Complainant's solicitors, dated 19 May 2017, which asserted that she had been "summarily and discriminatorily" dismissed on 1 April 2017. The Respondent's representative suggested that this was a clear attempt to escalate matters and referred to the fact that the letter demanded compensation and threatened litigation in default of same.
Having set out the background as detailed above, the Respondent went on to make specific responses to the individual complaints raised.
Complaint CA-00012024-001: - Terms and Conditions of employment
The Respondent conceded that the Complainant was not furnished with a written statement of the terms and conditions of employment within two months of employment commencing.
The Respondent further stated that the Complainant had not sought a written statement of employment prior to the events described in her complaint. The Respondent stated that, in response to a request at that stage, the Complainant was provided with a Statement of Terms and Conditions of Employment on 25 May 2017.
The Respondent stated that, while it cannot revisit the past and acknowledges non-compliance with the statutory requirement, once the issue was brought to his attention he took appropriate steps to comply with his obligations in this regard.
Complaint CA-00012024-002: - Unfair Dismissal
In response to the Complainant's complaint of Unfair Dismissal, the Respondent referred to "the reason for dismissal", as set out in her WRC Complaint Form. The Respondent's representative pointed out a number of inconsistencies with regard to the Complainant's accounts of the reason for her dismissal.
Firstly, reference was drawn to the Complainant's contention that she could not return to work until she had repeated a manual handling training course. It is contended by the Respondent that, based on this statement, the Complainant could not have considered herself as dismissed, but that her return to work was conditional on completing the manual handling course. It is contended on behalf of the Respondent that this could not equate to dismissal.
Secondly, reference was drawn to the Complainant's statement that she did not return to work after 1 April 2017, as she understood the Respondent had fired her for not completing the course. The Respondent's representative pointed out that this is a clear contradiction with the Complainant's previous statement that her return to work was conditional on completing the training course.
Finally, in this regard, reference was drawn to the Complainant's narrative supporting her claim under the Industrial Relations Act (CA-0001 2024-004), where she stated that she did not return to work after the incident on 1 April 2017 because she was "too frightened" of the Respondent, whose behaviour was too intolerable and reckless for her to return to work.
It was submitted on behalf of the Respondent, that the number of inconsistencies in the Complainant's submission in relation to her dismissal, points to her trying to organise the history around the conflicting narratives she is attempting to advance in her numerous complaints.
The Respondent's representative submitted that there were legitimate grounds for lay off, in circumstances where the Complainant's employment presented unwarranted risks, without the manual handling course been undertaken. It is further contended that the Complainant is fully aware of the fact that she was not, as alleged, dismissed and in a number of her version of events, she expressly acknowledges this.
In summary, in relation to the complaint of unfair dismissal, the Respondent's representative stated that the Complainant herself is entirely equivocal as to her position vis-à-vis her job. It is stated that the Complainant variously asserts that she "assumed she was fired" and/or that she was told that returning to work was conditional upon her undertaking an important health and safety course.
It was further contended that the Complainant acknowledged that her correspondence was issued at a time when the Respondent was on leave. It was further stated that for reasons that were unclear, but which may have been connected to a desire to pursue litigation, the Complainant choose to ignore the Respondent's request to meet, undergo the necessary training and resume her role.
It was stated on behalf of the Respondent that, having written to him on the matter, it behoved the Complainant to afford him the courtesy of a meeting and to hear his proposals in relation to her resuming work.
The Respondent stated that the Complainant's complaint was one of Unfair Dismissal as opposed to Constructive Dismissal. Therefore, the case which the Respondent has to meet is that the Complainant was "summarily and discriminatorily dismissed".
The Respondent contends that even in the Complainant's own version of events, this is patiently not the case. The Respondent submitted in evidence that the Complainant was laid off, in circumstances, which may appear harsh, albeit to constitute a temporary inconvenience only. The Respondent submitted that the Complainant's continued employment presented unacceptable risk, something which the Complainant should have been acutely aware of, in circumstances where she herself was pursuing personal injury litigation against the Respondent, for which he was not insured.
Consequently, the Respondent contends that in such circumstances, he behaved reasonably by laying off the Complainant to avoid the risk of suffering a further injury which would not be covered by his insurance.
Complaint CA-00012024-003: - Bullying and Harassment (Industrial Relations claim)
The Respondent referred the fact that the Complainant is pursuing five separate claims arising out of the same set of the facts. Consequently, it is submitted by the Respondent that the Complainant has incorrectly invoked the jurisdiction of the WRC and that the complaint under the Industrial Relations Act, 1969, is an abuse of process.
The Respondent makes reference to the narrative relating to this particular element of the Respondent's complaint. In particular, he made reference to the fact that she asserts it is brought to address bullying and harassment procedures. The Respondent summarised the Complainant's complaint as one of being "penalised" by the Respondent because of her decision to initiate a personal injury claim. It is contended by the Respondent that the Complainant advances an almost identical claim pursuant to the Safety, Health and Welfare at Work Act, 2005, and the Employment Equality Act, 1998.
In response to the Complainant’s claim that the Respondent made reference to her claim on numerous occasions, it is submitted that this is simply not the case and, in any event, would not constitute bullying. The Respondent pointed out in evidence that he did not even reference her claim when discussing his insurance difficulties with her in the course of their conversation on 1 April 2017. It is further contended that the Complainant's own correspondence supports this.
The Respondent contends that the Complainant does not cite a single instance that might credibly support a serious allegation of bullying. With regard to the incident on 1 April 2017, the Respondent stated that this was a non-event. It is contended, that on that occasion, the Respondent was entitled to be annoyed at poor employee performance and the needless waste of his time and energy. However, it is contended that one could not remotely extrapolate therefrom that he was guilty of bullying and harassment.
Consequently, in summary, on this aspect of the Complainant's complaint, the Respondent contends that it is unfounded and ill-conceived.
Complaint CA-00012024-004: - Penalisation/Victimisation
In a context where she was not dismissed and where her lay off was for a genuine insurance/risk related reason, the Respondent submits that the Complainant has not suffered any detriment.
It was also submitted that the claim as advanced could not be considered in the narrow parameters of the penalisation provisions of Section 27 (1) of the Safety, Health and Welfare at Work Act, 2005. The Respondent further submits that the letter of 2 February 2017 cannot be construed as satisfying the "complaint representation" requirements as set out in Section 27 (1) (3) of the Act.
The Respondent submits that a "letter of claim" should not be conflated with a bona fide complaint or representation to the employer concerning a matter of health and safety. It was submitted that a letter of claim is primarily a formulaic demand for compensation for injury arising from negligence, which demands an admission of liability and threatens litigation in default. The Respondent submitted case law in support of their submission in this regard.
The Respondent further submitted that, even if the letter of claim constituted a "complaint or representation", within the meaning of the Act, the Complainant must demonstrate that "but for" the initiation of the claim, she would not have suffered the alleged detriment. The Respondent contends that the genesis of this claim is inextricably linked with the alleged dismissal of 1 April 2017.
The Respondent points to the Complainant's claim that the trigger for this was a letter from insurers and its implication for the Complainant, given her failure to undertake the manual handling course. Consequently, the Respondent submits that it cannot remotely be claimed that "but for" the initiation of a personal injury claim the alleged detriment would not have occurred
Complaint CA-00012024-005: - Discrimination on the grounds of disability and reasonable accommodation.
The Respondent submitted that, in the first instance, there are questions over whether or not the Complainant has the "disability". The Respondent states that while he is aware the Complainant is pursuing a claim for personal injury, he has neither seen evidence of her alleged "disability" nor does he accept that she is "disabled".
The Respondent accepts that the Complainant was on sick leave in April 2016, for a period of six weeks, following an alleged accident at work. It is further submitted that the Complainant was then certified as fit to return to work without qualification. It is further submitted that the Complainant missed one further week in December 2016 due to certified sickness from which she returned again, without qualification.
The Respondent submits that no evidence to support the Complainant's claim of disability has been tendered. While the Respondent accepts that an injury, of the nature allegedly sustained in April 2016, may wax and wane, it is a considerable step to equate this with what might constitute a bona fide disability.
It is further submitted that on 1 April 2017, the Complainant was sufficiently fit to commute to and from work by bicycle, which involved a return journey of circa 10 miles. The Respondent submitted that the Complainant presented at all times as fit and healthy. It is further submitted that the Complainant had no functional limitation in terms of capacity to carry out work nor did she submit any medical certification to support such a claim.
The Respondent also submitted that the Complainant did not seek any particular accommodation and has not alleged that there has been any failure to provide "reasonable accommodation" in the claim form.
Consequently, the Respondent claims that the Complainant's injuries (if any) cannot be viewed as sufficiently serious to constitute a disability within the meaning ascribed there to under Section 2 (1) of the Employment Equality Act, 1998. The Respondent submits that it cannot be credibly argued that the Complainant's injuries constitute a significant and ongoing "malfunction" or "disfigurement" of her body.
It is further submitted that, to the extent that she has any ongoing health issues (vis-a-via her back), that it, at best, amounts to "sickness", rather than a significant, permanent and lasting condition, necessitating hospitalisation or surgery and are which could be expected to affect her for the remainder (or a substantial portion of) her life.
The Respondent submitted that the Complainant undertook a full range of duties. She did not undertake heavier lifting duties and indeed, it is apparent from what she describes in her narrative, that she was excused from same. It is further contended that the Complainant was fully fit to carry out all the normal functions involved in bar work and the fact that she may on occasion have been very busy, cannot be construed as less favourable treatment, i.e. discrimination.
It is contended by the Respondent that there is no evidence that the Complainant was treated less favourably than a colleague by reason of her alleged disability. The Respondent submits that such evidence simply does not exist and that she was asked to undertake normal duties whilst being excused from heavier aspects, if she felt unable for them. It is further submitted that all of the Complainant's colleagues were required to undertake similar duties in similar circumstances, with some shifts being busier and more demanding than others.
However, the Complainant stated that, even if it were the case that the Complainant was treated less favourably, then even on the basis of her own narrative and the claim made under the Safety, Health and Welfare at Work Act, 2005, she claims it arose due to the fact that she decided to pursue a personal injury claim. The Respondent contends the pursuing a claim for compensation is by no means proof of disability.
In summary, the Respondent denied that the Complainant was treated less favourably in any manner and to the extent that she feels she has a grievance, it arises because of the operational issues relating to her insurance status, pending the completion of a manual handling course.
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Findings and Conclusions:
Having carefully reviewed all the evidence adduced in relation to this complaint, I'm satisfied that all five complaints our based around the same set of events. In addition, I find that there are a number of specific incidents and periods of time that assume particular relevance when assessing the Complainant's complaints.
Incident at work – 28 April 2016: The first of these relate to the incident on 28 April 2016. The Complainant claims that an accident occurred in the course of her work on this day, which resulted in injuries to her ankle and back. The Complainant was absent from work for six weeks following this incident.
June 2016 to February 2017: The second significant aspect for consideration in this case relates to the period between the Complainant's return to work in around June 2016 (following the 28 April accident) and the issuing of a personal injuries claim by way of letter dated 2 February 2017. No evidence was presented which would suggest that the Complainant had any issues carrying out her duties during this period. On her return to work following the incident on 28 April 2016, the Complainant did not provide any indication to the Respondent that she required any specific accommodation in order to carry out her duties.
Letter of 2 February 2017: The next significant event took place in February 2017 when the Respondent received a letter, dated 2 February 2017, seeking an admission of liability and compensation for the injuries received by the Complainant on 28 April 2016. The letter went on to state that, in the event the Respondent did not comply with the requirements set out in the letter, a personal injuries claim would issue.
2 February to 27 March 2017 The receipt of the letter 2 February 2017 saw the commencement of the second significant period of time in relation to this case. The Complainant claims that following receipt of this letter the Respondent's attitude changed towards her to the extent that she claims she was penalised in terms of working conditions, bullied and harassed and discriminated against on the grounds of her disability.
With regard to penalisation, the Complainant alleged that her shift hours changed following receipt of the letter of 2 February 2017. According to the Complainant, prior to this, she worked three shifts – Tuesday (7:30 p.m. – close), Thursday (2:30 p.m. – 7:30 p.m.) and Saturday (12:30 p.m. – 7:00 p.m.). The Complainant stated that this totalled approximately 15 hours per week. The Complainant alleges that, post to February 2017, she no longer worked the Thursday shift.
The Hearing was not presented with any specific evidence to support the Complainant's allegation that shift pattern changed in a significant way following receipt by the Respondent of the letter of 2 February 2017.
The only evidence presented by the Complainant, with regard to the Thursday shift, was a copy of a text message, dated 28 March 2017, wherein the Complainant queried whether she was working the following Thursday (30 March) or if it was just the Saturday shift she was working. In his reply to this text, the Respondent stated that it was just the Saturday shift. However, his text goes on to state that the Complainant had been requested to do a shift on the Sunday, but apparently, she had declined this request.
I considered this text to be significant in the context of the Complainant's claim that her Thursday shifts were removed following receipt of the letter of 2 February 2017. If the Thursday shifts had been removed unilaterally following receipt of the letter, then it might be expected that some reference would have been made to this prior to 28 March 2017. In addition, if the Complainant had not worked the Thursday shift in the seven weeks prior to the text, it appears somewhat unusual then for her to be querying whether or not she's working the shift on 30 March 2017.
Finally, in this regard, the evidence from the text message clearly suggests that while the Complainant was not working the Thursday shift on 30 March 2017, she had been offered an alternative shift on 4 April 2017, which she appears to have declined.
Consequently, taking all of the above into consideration, I find that the evidence does not support the Complainant's contention that she was penalised, by way of reduction in her shifts, following the issuing of the claim letter of 2 February 2017.
With regard to this period (2 February – 1 April 2017), the Complainant referred to a number of specific incidents where she alleged the Respondent treated her inappropriately, such that she contends this constituted bullying.
The first of these related to an incident in relation to the manual handling of coin, which the Complainant claimed took place on 27 February 2017. In his evidence, the Respondent stated that this incident took place on 9 December 2016.
The second incident related to 25 February 2017, on which date the Complainant alleges she was left to attend the bar on her own, on the occasion of a Six Nations rugby match, when it was very busy. In his evidence, the Respondent stated that he worked in the bar that day alongside the Complainant, from before 5:00 p.m., precisely because he knew it would be busy. In response, the Complainant said that the match in question was on earlier in the afternoon.
The records show that there were two Six Nations rugby matches played on 25 February 2017 – Scotland V Wales at 14:25 pm and Ireland V France at 16:50 p.m. I believe it is reasonable to conclude the premises was likely to be most busy during the Ireland game. Consequently, in those circumstances, I find the Respondent's evidence, that he came on duty just before 5:00 p.m., to be a more credible account of the events in question.
The third incident referred to by the Complainant, in this regard, allegedly took place on 2 March 2017, when all the barstools were left on the tables and the Complainant could not physically lift the cheers down on her own and had to get assistance in doing so. In response to this, the respondent stated, that a new employee cleaned up the previous night and, in error, had left the stools on top of the tables. The Respondent stated that the normal practice is to place them on the floor after cleaning. The Respondent stated that this was a genuine and innocent mistake by a colleague and, in any event, the Complainant got another colleague to lift them down.
Having reviewed all the evidence presented, I am satisfied that this was a once off event, with a reasonable and genuine explanation. I also note from the Complainant own evidence that she did not have to lift the stools, as a colleague did so on this occasion. Consequently, I can find no evidence to suggest that the Respondent had any knowledge of or involvement in this incident.
The final incident referred to by the Complainant as constituting deliberately inappropriate behaviour by the Respondent related to a wedding party that visited the bar on 16 March 2017. The Complainant alleged that she was in the bar on her own serving the region of 100 people on this occasion. In response, the Respondent stated that both he and the Complainant were present in the bar on 14 March 2017, when a customer indicated that a family wedding, consisting of approximately 40 people, would call to the bar, on 16 March, for a couple of hours between the ceremony which was taking place in a local church and moving on to the hotel where the reception was to be held.
According to the Respondent, he queried the Complainant if she would be able to manage. He claimed he specifically asked if she wanted him to roster additional staff. The Respondent stated, in evidence, that the Complainant indicated she could manage. The Respondent further stated that a larger crowd than anticipated actually turned up and it is accepted that the bar was very busy for a few hours.
Having carefully considered the evidence presented in relation to this particular incident, I am satisfied that it must be viewed from the perspective of an operational business issue and I find no evidence to suggest that the situation was in any way contrived by the Respondent to penalise or punish the Complaint.
Consequently, taking all of the above into consideration, I am satisfied that the incidents alleged by the Complainant do not constitute inappropriate behaviour on the part of the Respondent and could not in any way be construed to constitute bullying.
Letter of 27 March 2017: When the Respondent notified his insurers about the letter received from the Complainant's solicitors on 2 February 2017, they responded, by way of letter, dated 27 March 2017, informing him that his insurance indemnity had been declined, on the basis that he had failed to comply with the policy endorsement requiring him to ensure that all employees had been provided with manual handling training.
Events of 1 April 2017 The next and, potentially most significant of all of the incidents, pertaining to the Complainant's complaint, were the events which took place on 1 April 2017. Details of the evidence in relation to these events are clearly laid out in both the Complainant’s and the Respondent's submissions above. In summary, the Complainant alleges that the Respondent behaved in such an aggressive and inappropriate manner that she feared for her safety.
The Complainant alleges that the Respondent was initially abusive to her during phone calls to the bar in relation to the removal of chairs/stools to a back area of the premises. The instruction from the Respondent was initially issued by text to the Complainant. This text was provided in evidence and clearly identifies particular furniture that was required to be moved. In addition, the text also advised the Complainant that if she was not able to lift the chairs herself, she should ask a named male colleague, who was also on duty that day, to move them.
The evidence presented by both parties states that the chairs were moved by her male colleague and not by the Complainant. However, it appears that, rather than just moving the chairs identified in the Respondent's earlier text, all of the chairs were removed from the bar to the back of the premises. The Respondent confirmed in evidence that, when he arrived in the bar, he was annoyed that is instruction in relation to the removal of the chairs/stools had not been complied with correctly.
It is also clear that, when he arrived in the bar, the Respondent displayed this annoyance as he himself brought the furniture back. While denying that he threw the chairs, in the manner alleged by the Complainant, the Respondent admitted that one chair banged off the counter.
Having carefully considered all of the evidence adduced in relation to the events of 1 April 2017, it would appear that the Respondent was clearly annoyed by the removal of all the chairs from the bar and the fact that he had to replace them himself. In doing so, one of the chairs hit against the counter. While it might be understandable in the circumstances, such expressions of frustration and annoyance must be considered as inappropriate and unprofessional in a work situation.
However, notwithstanding the above, I do not believe that the incident was as severe or dramatic as portrayed in the Complainant's account of events. I am also satisfied that this was a once off event and that the Complainant had never before witnessed such behaviour from the Respondent. In addition, I am satisfied that, based on the evidence contained in the Respondent's initial instruction, as contained in his text to the Complainant, there was no expectation that she was required to move the chairs. The instruction clearly identifies that they were to be moved by her male colleague, in the event that she felt she was unable to do so.
Consequently, taking all of the above into consideration, I find that, while the Respondent’s behaviour in relation to the moving of the chairs may not have been wholly appropriate, it was not directed at the Complainant nor was there any attempt, by the Respondent, to require her to move the chairs.
Finally, in relation to the events of 1 April 2017, the evidence presented by both parties clearly shows that the Respondent approached the Complainant, at the end of her shift, and informed her that, based on the letter he had received from his insurers, she would have to complete a manual handling training course before returning to work again.
Events post 1 April 2017: According to the Complainant’s evidence, the discussion between the parties at the end of the shift on 1 April 2017, lead her to construe that she had been dismissed from her employment and this forms the basis of a complaint of unfair dismissal.
Having carefully reviewed this aspect of the Complainant's complaint, I found her evidence in this regard, to be rather confusing and contradictory. This is clearly evident from the Complainant's letter to the Respondent dated 13 April 2017. In this letter the Complainant states that she understood from the conversation at the end of the shift on 1 April 2017 that she had been fired because she was not insured to work for the Respondent. She also referred to the fact that comments by the Respondent in a text message she received from him, post 1 April 2017, in which he thanked her for her time working with him, was further indication that she was no longer working for him.
However, the Complainant also referred, in this same letter, to the fact that the Respondent had sent emails confirming that she had not been fired and that she could come back to work once she had completed manual handling training course. The Complainant also indicated, in this letter that she wanted her job and that if the Respondent did not let her back to work, she would take it that she had been dismissed from her job.
Having reviewed the evidence presented I am satisfied that due to the Respondent being on annual leave at the time the letter was received, it did not come to his attention until his return to work on 4 May 2017. Evidence was presented at the Hearing in the form of emails, which the Respondent sent to the Complainant on 4, 12 and 24 May 2017, and which clearly referred to her returning to work and completing a manual handling training course being organised for when she did return.
However, notwithstanding those emails, the Respondent received a letter from the Complainant's solicitors, dated 19 May 2017, stating that she had been summarily and discriminatorily dismissed. The letter went on to state that if the Respondent was not willing to admit liability and agreed to compensate the Complainant, within seven days, a complaint would be submitted to the WRC.
The evidence presented suggests that, following receipt of the above letter, the Respondent made an attempt to meet with the Complainant to discuss the matter. However, the Respondent's attempts in this regard appeared only to further alienate the Complainant.
Having carefully considered all of the evidence presented in this regard and, in particular, the Complainant’s letter of 13 April 2017, I am satisfied that no dismissal took place. As a result of his insurers declining indemnity, the Respondent was left with no option but to lay off the Complainant, pending completion of the manual handling training course. I am further satisfied, from the evidence presented, that the Respondent made this position clear to the Complainant during their discussions at the end of a shift on 1 April 2017 and, subsequently, in his emails during May 2017.
The evidence also suggests that the Respondent made significant efforts to ensure that the Complainant completed a manual handling training course, as required by his insurers. Consequently, I am satisfied that had the Complainant cooperated with the Respondent in relation to the completion of this course, it is, on the balance of probability, most likely that she would still be working for the Respondent, as it is clear from the evidence presented that he considered her a good and competent bar-person and was anxious to retain her in his employment.
Complaint CA-00012024-001: - Terms and Conditions of employment
The Respondent admits the Complainant did not receive a statement in writing of her terms and conditions of employment and is, therefore, in breach of Section 3 of the Terms of Employment (Information) Act, 1994.
Consequently, I uphold the Complainant's complaint in this regard.
Complaint CA-00012024-002: - Unfair Dismissal
Based on the considerations and findings as set out above, I find that the Complainant was not dismissed by the Respondent. I find that she was, in fact, laid off by the Respondent pending completion of the manual handling training course in order to comply with the requirements of his insurers.
Consequently, based on the above, I find that the Complainant’s claim of unfair dismissal it is not upheld.
Complaint CA-00012024-003: - Bullying and Harassment (Industrial Relations claim)
The Complainant alleged that she was bullied by the Respondent, particularly in the period after he had received the letter of 2 February 2017 from her solicitors, in relation to her personal injuries claim. The evidence presented by both parties in relation to the claim of bullying and harassment and my consideration of that evidence, are clearly set out above. In considering complaints of bullying, it is necessary to establish some form of measurement mechanism to evaluate whether bullying has occurred or not. In a 2014 High Court case, Glynn v Department of Justice, Kearns N. (then President of the High Court) provided clear guidelines in this regard.
In his judgement, Justice Kearns stated that bullying “…involves a deliberate and repeated course of action designed to humiliate and belittle the victim. It is conduct which is intended to reduce that person’s sense of self-worth. It may occasion significant pain and suffering to any person so treated.”
Justice Kearns went on to say, inter alia: “bullying, workplace stress and occupational stress are all things which conceptually at least, are quite different from each other, though on occasion they can overlap and coincide………… Occupational stress is something which every employed person may experience at some stage of his or her working life and can occur for reasons quite distinct from and unrelated to bullying.”
The court observed that the following question should be asked in respect of bullying: "whether the behaviour complained of by reference to an objective test, imports that degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or occupational stress."
In considering this question in the current case, I am satisfied all of the incidents presented by the Complainant in support the claim of bullying and harassment were related to the vagaries the pressures associated with the job and, in addition, could not be construed as having been deliberately orchestrated by the Respondent, in an effort to humiliate or belittle the Complainant.
Consequently, taking all of the above into consideration I find that the evidence does not support the Complainant's complaint of bullying and harassment.
Complaint CA-00012024-004: - Penalisation/Victimisation
Based on the findings and conclusions set out above, I find that the evidence presented does not support the complaint of penalisation and, therefore, the Complainant's claim in this regard is not upheld.
Complaint CA-00012024-005: - Discrimination on the grounds of disability and reasonable accommodation.
Section 2 (1) of the Employment Equality Act, 1998, defines "disability" as follows:
a) The total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body, b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, c) the malfunction, malformation or disfigurement of a part of a person's body, d) a condition or malfunction which results in a person learning differently from a person without the condition our malfunction, or e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgements which results in disturbed behaviour,
Having carefully reviewed all of the evidence presented and considering it in line with the definition set out above, I find it does not support the claimant’s contention that she was suffering from a disability. Consequently, the Complainant's claimed that the Respondent victimised her on the grounds of disability must fall.
With regard to the Complainant's claimed that the Respondent failed to give her reasonable accommodation for her disability, I find that, notwithstanding the previous finding, the Complainant did not bring the matter to the Respondent's attention in an appropriate manner and at no time formally sought accommodation for her situation. In this regard, I am satisfied that the Complainant's return to work following her period of absence after her workplace accident of 28 April 2016 was unconditional from a medical perspective and the Respondent was not provided with any indication that accommodation of any kind was required.
Again, notwithstanding the above finding, I further find that the evidence suggests there may have been an issue with the Complainant's ability to lift heavy objects. From a review of the evidence, it is clear that the Complainant was never required to do anything she did not feel capable of doing in this regard.
Consequently, taking all of the above into consideration and having carefully reviewed all the evidence in this regard, I find that the Complainant's complaint in this regard is not upheld.
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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.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, my decisions/recommendation in relation to the various elements of the Complainant's complaint, as follows:
Complaint CA-00012024-001: - Terms and Conditions of employment
Based on the evidence of the parties concerned, I find that the Respondent is in breach of Section 3 of the Terms of Employment (Information) Act, 1994. Consequently, I find in the Complainant's favour and award her compensation in the amount of €750.
Complaint CA-00012024-002: - Unfair Dismissal
The decision in relation to this element of the Complainant's complaint is that no dismissal took place and, therefore, the claim in this regard is not upheld.
Complaint CA-00012024-003: - Bullying and Harassment (Industrial Relations claim)
The Complainant's complaint under the Industrial Relations Act is not upheld.
Complaint CA-00012024-004: - Penalisation/Victimisation The claim in relation to penalisation/victimisation is not upheld.
Complaint CA-00012024-005: - Discrimination on the grounds of disability and reasonable accommodation.
The Complainant’s claims that the Respondent discriminated against her, by reason of her disability, by victimising her and by failing to give a reasonable accommodation for her disability. Having carefully reviewed the evidence presented in this regard, I find that the Complainant did not have a disability in line with its meaning in the Act and/or that she never sought reasonable accommodation in any event.
Consequently, the Complainant's claim of discrimination under the Employment Equality Act, 1998, it is not upheld. |
Dated: 6th June 2018
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Key Words:
Unfair Dismissal Terms of Employment Penalisation Reasonable Accommodation Disability Bullying and Harassment Victimisation |