ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00009712

Complaint(s):

Date of Adjudication Hearing: 16/05/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant, an Office Administrator for a National Representative Body (the Association) submitted that she was discriminated on the grounds of her age by Members of the Association’s Board, and that she was penalised for making a complaint under the Safety, Health and Welfare at Work Act, 2005.

Summary of Complainant’s Case:

The Complainant commenced employment 2000 and was appointed as office manager in 2005. She maintained that up until the end of 2015 she had an excellent working relationship with the management team and previous Presidents of the Association. She contended that shortly after the current President took up office the current President began to have difficulties with staff and some of the management team.

The Complainant submitted that after raising her own concerns she had been subject to an investigation and disciplinary process, and she was under notice of dismissal where an appeal to dismiss her was due for internal hearing.

The Complainant submitted that at a Council Meeting on 11th June 2016 a number of Council Members complimented the office staff and where it was recommended by a Council Member that the staff needed proper contracts of employment, and independent HR advice. It was also noted that another Council Member had complimented the staff for doing a great job and highlighting how dedicated they were.

On 6th October 2016 the Complainant, along with another staff member, emailed the management team requesting a meeting. In this email she expressed concerns about the future of the Association, of feelings of being undermined, undervalued, and disenfranchised. On 18th October 2016 the Complainant again emailed a member of the management team highlighting her concerns and where she believed the President had made false claims regarding access to the Association’s HQ, and where and alleged the President resident was bypassing her as office manager to access the IT system.

All CA-00012648-001 Complaint under section 77 of the Employment Equality Act, 1998              

The Complainant submitted that on 13th July 2016 that comments had been made about her age by a Council Member at a meeting chaired by the President. She was 62 years of age at the time of the comment. A comment about her age and that the Complainant was the elephant in the room was made about the Complainant. The Complainant maintained that she raised a complaint about this matter and an external review of her complaints upheld that her age had been referred to at the meeting. She maintained that the Association has not recognised this with her and she has never received an apology or an assurance that the Association did not condone such attitudes. As a consequence, the Complainant contended that the Respondent had discriminated against her because of her age and maintained that the President had raised a campaign to get rid of her.

CA-00012648-003 Complaint under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Complainant submitted that she had concerns about the way she was being treated and initially raised these matters with the Respondent in October 2016 but that her complaints were not properly investigated. The Complainant maintained that she subsequently raised a bullying and harassment complaint against the President and where the President took umbrage against her for raising such complaints, and where the President had referred to the complaints as being a lengthy and costly diatribe against the President. From there the Complainant maintained that the Respondent pursued a policy of obstruction, intimidation, and penalisation.

The Complainant advised that the Respondent failed under its own dignity at work policy issued in November 2016, and continued to obstruct the Complainant in her appeals regarding the investigation of her complaints to a point where the Respondent directed her to the WRC. When the complaint was submitted to the WRC the Respondent then objected to the cases being heard in the WRC forcing the Complainant to take a section 20 case the Labour Court. The Complainant maintained that the Respondent’s handling of her bullying and harassment case has therefore been nothing short of disgraceful.

Since raising her complaining of bullying and harassment, which the Respondent maintained was a health and safety issue, she alleged she was subject to acts of penalisation. The alleged the Acts of penalisation amounted to:

• The Respondent failing in their duty of care by ignoring and/or delaying the processing of the Complainant’s serious complaints against the President and a Council Member which in turn resulted in stress and sick leave for the Complainant.
• Failure to appropriately address her complaints, in that a procedure set up in October 2016, did not address her bullying complaint and it was not until March 2017 that another process was set up for the bullying complaint to be heard. The Complainant submitted that during the October 2016 process she was asked if she would take a payment to exit the organisation. Furthermore, she maintained that when the March 2017 investigation report was issued in May 2017 she was not provided with an opportunity of appealing the findings to her grievance and complaints.
• Failure of the President to withdraw unsubstantiated, serious, and untrue and defamatory statements made against the Complainant both when giving evidence to an external party appointed to review the Complainant’s grievance, and also in statements to members of the Association’s Council.
• Since making her complaint in October and November 2016 the Complainant alleged she has experienced what she referred to as a sinister attempt to drive her from her employment by advertising her role; by requiring her to leave a Council Meeting; by changing her duties and responsibilities; by dismantling her function without discussion or agreement; by diminishing her authority (in that when she returned to work from her sick leave her work was being completed by a colleague, her phone had been disconnected, and emails were not being answered to); by subjecting her to reputational damage, stress, humiliation, intimidation, and loss of status; and by failing to adequately process and address grievances raised by the Complainant. Furthermore, the Complainant maintained that job advertisements regarding her role were placed by an external party who was appointed to review her complaint in March 2017, and therefore maintained this person was not impartial.
• The non-payment of the Complainant’s sick pay. In this regard the Complainant submitted that she was on sick leave from 20th January to 21st February 2017 and she had been taken off payroll, and was provided with payslips showing a nil figure, yet the direct debit was never cancelled. The Complainant maintained that it was custom and practice that employees would get paid for sick leave. The Complainant also maintained that when she contacted the Respondent’s accountant she was advised that she would be returned to the payroll with immediate effect. She submitted that the Treasurer gave the instruction to the Accountant   not to pay her sick leave. The Complainant maintained he P60 showed she only received 48 weeks payment.
• Despite many attempts through her solicitor, the Respondent failed to respond in a timely and appropriate manner to the complaints of bullying and harassment which amounted to a breach of the Respondents duty of care to the Complainant.
• The failure of the Respondent to make the Complainant familiar with the policy under which she could progress her complaints of bullying and harassment including a failure by the Respondent to address the bullying and harassment complaint.
• Appointing an external investigation into fifteen instances against the Complainant whilst not providing the Complainant a right to appeal the findings of her grievance. She maintained   one of the complaints against her was backdated to an incident in June 2016, and where ultimately the progress of this investigation amounted to a disciplinary hearing resulting in the Complainant receiving a notice of termination of employment. The Complainant was appealing this decision at the time of the WRC hearing.

The Complainant maintained she had an exemplary record and she had never been the subject of disciplinary action of any criticism of her performance in her role until the alleged acts of penalisation occurred. She maintained she would not have experienced any of the aforementioned actions had she not raised concerns of bullying and harassment which had impacted on her safety health and welfare at work.

Summary of Respondent’s Case:

The Respondent submitted procedural matters regarding the complaints in that it maintained the complaint under the Employment Equality Act 1998 regarding the comment about the Complainant’s age was out of time, and that there was never a health and safety matter raised by the Complainant that would provide the Complainant with protection from penalisation under the Safety Health And Welfare At Work Act 2005.

Without prejudice to these procedural matters the Respondent submitted that the Complainant had opposed the appointment of the President prior to the President’s election, and that the Complainant continued with her agenda of opposition towards the President after the President’s appointment and extended this to other members of the management committee. The Respondent maintained it did not discriminate the Complainant on the grounds of age, or nor did it penalise the Complainant as a consequence of a health and safety issue.

CA-00012648-001 Complaint under section 77 of the Employment Equality Act, 1998     

The Respondent submitted that the complaint of discrimination under the Employment Equality Act, 1998 was statute barred as it was outside twelve months since the alleged incident happened. The Respondent advised that the complaint referred to the latest date of discrimination, where he age was mentioned, as being 13th July 2016 but the complaint was not received by the WRC until 19th July 2017, which was 12 months after the alleged event. As such the Respondent submitted that the complaint was out of time and should not be heard.

CA-00012648-003 Complaint under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Respondent submitted that the details of the complaints do not compromise a complaint within the meaning of the Safety, Health And Welfare At Work Act 2005 (the 2005 Act). The Respondent submitted in order to grant a complaint of penalisation the Complainant must satisfy one of the provisions of section 27(3)(a) to (f) of the 2005 Act. In this regard the Respondent submitted that the Complainant must have done one of the Acts as set out in section 27(3) of the 2005 Act, and suffered penalisation as result of doing one of the acts. The Respondent maintained that the Complainant had not satisfied the provisions of section 27 (3) of the Act.

The Respondent contended that the Complainant did not suffer a personal injury within the meaning of section 2 of the 2005 Act which provides, that a personal injury is any injury, disease, disability, occupational illness or any impairment of physical or mental condition that is attributable to work.

The Respondent maintained that it did not fail in its duty of care by ignoring and/or delaying the processing of the Complainant’s complaints. It advised that it appointed an external third party to review the Complainant’s grievance of bullying and harassment and that matter was reported on in May 2017.

The Respondent denied that the President had made unsubstantiated, serious, untrue and defamatory statements against the Complainant. It maintained that the Complainant was relying upon statements of others with regard to what the President was alleged to have said, and as such it was the others who may have told the Complainant about the alleged statements that were responsible for any stress experienced by the Complainant. It denied the President would have made such statements and therefore it submitted it had not acted in a manner that could be regarded as penalisation under the 2005 Act. The Respondent further stated that it intended to investigate this complaint and if it was the case that members were making statements as alleged the members would be dealt with appropriately.

The Respondent denied it attempted to drive the Complainant from her employment by advertising her role; by changing her duties and responsibilities, or by diminishing her role. The Respondent advised that the Complaint was asked to leave a Council meeting as discussions were taking place regarding the departure of her son who had also been an employee. It maintained it was appropriate that the Complainant would not be present for such discussions, and another employee had also been asked to leave the meeting.

The Respondent further maintained that the job advertisements that were placed were to fill the job activities that were required after the departure of the Complainant’s son, and where the President also had other job functions to be filled. The Respondent also denied that the person involved in advertising the Complainant’s grievance was the same person who had placed the job advertisements. It maintained it retained the same company for its external HR advice, but different persons were used for the grievance hearing and the job advertisements. It therefore denied this issue was an act of penalisation.

In response to the non-payment of the Complainant’s sick pay, the Respondent submitted that the contention the Complainant was taken off the payroll was incorrect. The Respondent advised that the Complainant was not taken off the payroll as she had been paid during her sick leave. It acknowledged that the Complainant’s pay slip may have read zero for a number of weeks while she was out sick, but this occurred as the accountant had made a unilateral decision not to pay the Complainant when she was sick as there was no sick play policy. However, the Respondent did not stop the payment and therefore the Complainant had not been taken off the payroll. Accordingly, the Respondent submitted no act of penalisation occurred, and in any event it does not amount to penalisation within the meaning of section 27 of the 2005 as the Complainant was still paid and did not suffer any loss, financial or otherwise. The Respondent advised that the first it was aware that the Complainant P 60 only showed 48 payments for the year was at the hearing and this matter had never been raised before., it therefore was not in a position to respond to this element. In response to the allegation that the complaints P 60 show she only made 48 contributions during the year the Complainant advised that it would arrange for its accountant to make a statement to the WRC post the hearing that it was the accountant who made the error. (This statement was never submitted).

The Respondent maintained that it complies with its obligations under the 2005 Act. The Respondent further maintained that it never requested or required the Complainant to act in any manner that would be non-compliant under the 2005 Act, nor did the Complainant ever submit a complaint regarding a contravention of the 2005 Act either to the Respondent or to the Health and Safety Authority. Accordingly, the Respondent submitted that the Complainant could not have been penalised in respect of an act that she had never taken.

The Respondent acknowledged that at the time of the Complainant raising her issue internally there was no grievance procedure or bullying and harassment procedure in place.

Findings and Conclusions:

CA-00012648-001 Complaint under section 77 of the Employment Equality Act, 1998     

The Complainant submitted that derogatory comments had been made about her age at a meeting on 16th July 2016. The Respondent maintained that the complaint was not received by the WRC until 19th July 2017 and was therefore out of time and could not be heard.

In accordance with S77(5)(a) of the Employment Equality Act 1998, as amended, subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of a period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence. Section 5(b) states on application by a Complainant the Director General of the Workplace Relations Commissionor Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the Complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

The Complainant stated the most recent date of the discrimination, which was based on a comment on the Complainant’s age being 62 years, was on 13th July 2016. The Complainant submitted her complaint to the WRC on 19th July 2017. I find that the complaint was submitted after period exceeding 12 months. I am therefore precluded from hearing the complaint.

CA-00012648-003 Complaint under Section 28 of the Safety, Health & Welfare at Work Act, 2005

In accordance with Section 27 of the Safety, Health & Welfare at Work Act, 2005, penalisation includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

Penalisation includes—(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation.

The Respondent argued that the Complainant has not made a complaint consistent with any of the provisions as set out in Section 27(3) of the Act, and therefore maintained the Complaint could not have been penalised.

In accordance with Section 27(3) an employer shall not penalise or threaten penalisation against an employee for—(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work.

Having considered the complaint, I am satisfied the Complainant had, from October 2016, raised concerns of being bullied. Bullying at Work is identified by the Health and Safety Authority as a health and safety issue in so far as bullying has been identified as hazardous or dangerous as it can lead to both safety problems and health problems... Employers have a Duty of Care to all employees, to ensure they are both mentally and physically safe at work and that their health is not adversely affected by work.  This Duty of Care means employers must behave and react reasonably in relation to such matters.

I therefore find that the Complainant had, in accordance with S27(3)(c), made representations and made a complaint of bullying which was a matter relating to a potential safety, health and welfare at work matter. She was therefore protected from any act of penalisation as identified in S27(2) of the 2005 Act for raining a complaint of bullying.

Having considered the evidence I am satisfied that the Complainant sought for her complaint of bullying to be dealt with in a reasonable manner. A reasonable employer is expected to have a policy in place to deal with such complaints. The requirement for such policies are identified in the Health and Safety Authority Code of Practice on The Prevention of Workplace Bullying made under the Safety, Health and Welfare at Work Act, 2005; and are also identified in the Labour Relations Commission Procedures for Addressing Bullying in the Workplace established under Section 42 of the Industrial Relations Act 1990 (S.I. No. 17/2002 - Industrial Relations Act 1990 (Code of Practice Detailing Procedures For Addressing Bullying in The Workplace) (Declaration) Order 2002).

I find that in in a response to an email on 6th October 2016 when the Complainant sought to have her concerns addressed (where she referred to feeling inter alia undermined and undervalued, isolated, and working in a hostile environment), the Respondent advised the Complainant on 26th October 2016 that management had appointed an external party to deal with the grievance matters raised. When the Complainant became aware that the external third party was not prepared to consider her complaint, the Complainant raised a formal complaint to the President and other Council Members in November 2016. I therefore find that it was obvious at this time that the Complainant had raised a complaint of inappropriate behaviour against the President and two other senior officials of the Association. The Complainant sought advice on what procedures were open to her to have her complaints progressed, however I am not satisfied that the Respondent reasonably addressed the Complainant’s complaints at this time; and did not put such a process in place until March 2017.

The Respondent felt matters remained difficult for her from October 2016, and despite ongoing correspondence from her solicitor to the Respondent, her complaints were not progressed by the Respondent. She reported sick on 20th January 2017 indicating workplace stress as the reason for her absence and returned to work on 21st February 2017. By this time she had still not received a response to her complaints of bullying and how they were to be addressed by the Respondent. This necessitated the Complainant instructing her solicitor. An exchange of letters between the Complainant’s solicitor and the Respondent’s solicitor progressed without the Complainant being provided with an opportunity to have her complaint heard. Rather than addressing the Complainant’s entitlement to have her complaint heard, the response from the Respondent was adversarial in nature.

The evidence also supports that the Complainant received pay slips for the four weeks of her sick leave that stated a zero sum for her pay, and where she was told she was not entitled to sick pay, although she would have received sick pay before when she had been ill. It is noted that despite this she was paid during her sick leave. I conclude the Complainant was threatened with not being paid during her sick leave which was not consistent with her previous experience when being on sick leave. I do not find the Respondent’s evidence that the Accountant acted unilaterally in making this decision to be credible, particularly as the Complainant failed to follow that assertion with evidence from the Accountant despite being asked to provide same to the hearing within. I find that the decision not to pay the Complainant during sick leave without first informing her of this decision, amounts to an attempt to reduce her wages. Despite the fact that the Complainant did receive her pay, she nonetheless received notification from her employer that she was taken off the pay roll. All of this occurred when the Complainant was certified as experiencing stress, and when the Respondent would have been aware complaints of bullying behaviour had been raised by the Complainant against the President and two senior officials of the Respondent’s association. Under the circumstances I find this action amounts to an attempt to reduce the Complainant’s wages, and/or an act that attempted to coerce and intimidate her. Under the circumstances I find this amounts to an act of penalisation by the Respondent.

It was not until 6th March 2017 that the Complainant was eventually invited to meet with another external party to review her complaint. She was asked to attend a meeting within two days, this being some five months after she first raised her concerns.   The Complainant subsequently met with this external third party, and experienced HR practitioner, on 15th March 2017, but was not facilitated with a change of the meeting date to be accompanied at the meeting with her representative. The third party advised that the bullying complaint was to be dealt with as a general grievance, this despite the existence of the Statutory Instrument placing an obligation on an employer to have a separate policy and procedure for dealing with complaints of bullying. It was clear at this stage that the Complainant was unhappy that her bullying complaint was being dealt with as a general grievance. She had been advised by the third party appointed that her bullying complaint was essentially a grievance when you strip away all the legislation. I therefore conclude that the Respondent failed to deal in a reasonable manner when responding to the Complainant’s bullying complaint. This act was coercive and intimidating for the Complainant. Under the circumstances I find the actions amount to an act of penalisation by the Respondent.

Furthermore, the Complainant noted during this time job advertisements were posted by the Respondent which featured aspects of her role, and where she believed she was now being side-lined. The Respondent advised these jobs were advertised to replace a vacancy that had occurred. However, I find it remarkable that there was no consultation with the Complainant as the Office Manager of long standing regarding the job advertisements. The fact that the job advertisements were issued by the same company conducting the investigation of the Complainant’s complaint also created a concern for the Complainant. Under the circumstances I find the Respondent’s assertion that these advertisements related to a different job and a job to fill a vacancy does not appear to be a credible response, particularly as the Respondent did not advise the Complainant as its Office Manager of the plans being put in place. I therefore find these acts amount to an intention to transfer the Complainant’s duties, and under the circumstances find this action amounts to an act of penalisation by the Respondent.

The external review of the Complainant’s bullying complaint was issued in May 2017, and the Complainant was unhappy with aspects of the report. She therefore sought to appeal the outcome, but she received no response from the Respondent regarding her appeal until she was told she could refer the matter to the WRC. The Respondent then progressed in July 2016 to conduct an investigation into the Complainant, and where the outcome of that investigation process was a disciplinary hearing that recommended the Complainant should be dismissed.

I find that the failure to allow the Complainant a right to appeal the findings of an investigation of her grievance is contrary to fair procedures; and the progression of a disciplinary process prior to any appeal being heard or concluded was unreasonable. As the outcome of that process led to a threat of dismissal, I find the Complainant was penalised by the Respondent.

When considering acts of penalisation the jurisprudence of the Labour Court’s decision in 2016 in Aidan & Henrietta McGrath Partnership V Monaghan PDD162, must be considered. The Labour Court followed the “but for” test laid out in O’Neill versus Toni and Guy BlackRock Ltd (2010) E.L.R. 21 in relation to penalisation under the 2005 Act, as follows: “the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one casual factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed to protecting act he or she would not have suffered the detriment. This involves a consideration of the motive for reasons which influence the decision maker in opposing the impugned the detriment.”

Having carefully considered all the evidence presented I am satisfied that had the Complainant not raised her bullying complaints about the Association’s President, she would not have experienced the sequence of events she did. The events amounted to acts and omissions by a person or persons acting on behalf of her employer that affected, to her detriment, terms and condition of her employment including a failure to progress her bullying complaint contrary to the aforementioned codes of practice and fair procedures; a threat not to pay her and then blame that decision on the accountant; a potential transfer of her duties in light of the job advertisements and intimidation by not consulting with the Complainant as Office Manager in relation to the plan to recruit new people; and the imposition of a disciplinary process before matters relating to the Complainant’s own complaints were afforded a fair appeal process. All of the above lead to penalisation of the Complainant contrary to Section 27(3) of the 2005 Act where an employer shall not penalise or threaten penalisation against an employee for—(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work.

I acknowledge the Respondent maintained that the Complainant had not supported the President’s election, and where the President’s appointment may have been upsetting for the Complainant. However, the evidence supports that the escalation of matters only occurred when the Complainant raised a bullying complaint, which is a health and safety issue and a protected act. I conclude that but for the Complainant raising her complaint, and pursuing it, it is unlikely she would have been subjected to the acts and omissions by the Respondent at that time. I therefore find that the Complainant would not have suffered the detriments she experienced had she not raised her concerns of bullying against the Association’s President, and others.

Decision:

CA-00012648-001 Complaint under section 77 of the Employment Equality Act, 1998     

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.

As I find the complaint is out of time it is not upheld.

CA-00012648-003 Complaint under Section 28 of the Safety, Health & Welfare at Work Act, 2005

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

In accordance with Section 28 of the Safety, Health & Welfare at Work Act, 2005, as I have found the Respondent is in contravention of Section 27 of the Act, I declare the complaint is well founded.  

I therefore require the Respondent to implement appropriate grievance and bullying procedures in accordance with the aforementioned Codes of Practice.

I also require the Respondent to pay to the employee compensation of €20,000 as being just and equitable having regard to all the circumstances, and in light of the five months it took the Complainant to have the Respondent agree to have her complaint heard; the subsequent flaws in the procedure adopted by the Respondent by not allowing the Complainant appeal the outcome of the decision relating to her complaint before progressing to a disciplinary process against the Complainant; and the acts of penalisation taken by the Respondent after the Complainant had raised a health and safety related complaint to her employer.

Dated:   6th November 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: