Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00018020-001

16/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00018020-002

16/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00018020-003

16/03/2018

The Complainant was employed by the Respondent as an Accounts Receivable Manager and commenced her employment on the 15th March 2017. She was dismissed on the 20th September 2017. She says that the dismissal was:

(a)    implemented without the notice agreed in her Contract of Employment,

(b)    amounted to Penalisation under the terms of the Health, Safety and Welfare at Work Act, 2005 – Penalisation for raising a complaint about bullying and

(c)     Was unfair insofar as the Respondent did not provide fair procedures to her, in line – as a minimum – with the terms of S.I. 146/2000.

The Respondent says that the Complainant was dismissed because she had not passed her probationary review and that this was essential for her continued employment with the Respondent company.

The Complainant says she was employed by the Respondent company under a contract of employment dated February 2nd 2017 and that she commenced on the March 15th 2017. She reported to the Managing Director.

She says that the contract included a 90-day probationary period. It goes on “during your probationary period your employment hereunder may be terminated at any time by either party by one week’s notice in writing. Your probationary period may be extended by notice in writing to you but may in no event exceed 6 months in total.

She says that under these terms she became a permanent, fulltime employee on the 15th June 2017. She says that this, or any other term of the contract cannot be unilaterally changed by one party without the express consent of the other.

She says that she did not receive written notice of the extension to her probationary period.

She says that subsequent to signing the Contract of Employment and working for 3 weeks in excess of the probationary period she was called to a probation review meeting though she should, by then have been a permanent employee. She says that when these meetings commenced she was not given any notification of the agenda items. She says that there was no notification of the possibility that she could lose her job with the Respondent. She says that she was not offered any representation at these meetings though she says that her manager and HR discussed issues before the meetings and the HR manager, she says, was there to support the Managing Director(MD).

She says that the MD says that he intended to extend her probationary period. She says that she challenged this decision under the terms of the Contract of Employment. She says that in return the MD said “3 months’ probation is too short, I don’t agree with it and neither does HR, too short for decision, given above areas for concern, I am extending her probation”.

She says that the Respondent said that she, the Complainant, had undermined him at the start of her time there”. She says that this was almost 4 months after she commenced and, she says this had not been addressed with her before this meeting.

At a follow-up meeting on the 12th of July the MD stated “they would meet in two weeks to formalise his expectations and this would bring us up to 6 months and we would know how it was going then, most likely“

The complainant had initiated a program of introducing “values” to the company, which she had been involved in during a previous employment. These values were agreed in advance before being rolled out to the organization. The complainant was never given credit for this work. To the contrary she says that at a meeting with executives from the US head office she was asked to give a report on developments within her team and progress on the tasks. She started to give the presentation but was interrupted shortly thereafter by the MD who asked her to truncate the presentation. She was the only manager who was treated in this way.

On a subsequent trip to the company’s head office in the US the senior management there were very impressed with the work she was doing and she was highly commended.

The complainant says that, what turned out to be the final “probation meeting“ on the 20th of September, which was past the date of the six month probation period, and well past the date of the contract of three- month probation which had been extended wrongly and that was disputed by the complainant. She says that raising this complaint about the validity of extending the probation, after its expiry date was the beginning of what she says was a period of bullying of her by her manager.

She was invited to a meeting the day before i.e. on the 19th of September, by email from the MD, that advised that he and the HR manager would be attending the meeting. She was advised she could bring along a representative “internal work colleague”. When she asked what the reason for bringing a representative was, the MD replied that “I have asked the HR manager to attend to support from her job perspective and I want to offer you the same courtesy “

The complainant said that she had discussed her problems with the HR manager in terms of how she believed the MD was treating her and that during those discussions the HR manager had advised her, such as: “you know what he’s like, just keep your head down and don’t respond, everyone knows what he is like “. Subsequently she says that the advice from the HR manager was not so supportive. The HR manager said that “The complainant gets emotional “and “HR doesn’t get involved unless requested by the manager“. The complainant says that the HR manager advised her that “the probation policy update is a separate issue that she is dealing with for the Ireland sites and the approval for which is resting with the corporate HR team”. The Complainant says that this confirms that the terms of the probation policy could not be altered by the MD

She says that at no stage in the notification process about the “Probation review meetings was she advised that her employment was at risk of termination.

She said that she was concerned at the tone of the email from the MD, as this was the first time that “representation” was mentioned. She says that she felt that the proposed meeting was to be more disciplinary in nature. She says that the meeting was organised on the 19th of September 2017 to take place on the following day the 20th of September.

She says that she saw no end to what she saw as the ongoing bullying behaviour by the MD so she decided she had to raise a complaint to this affect with HR and she did so on the afternoon of the 19th September 2017.

She says that the reason given for having the meeting was that it was a probation review, to review the complainant‘s performance, behaviour and conduct. She says this was not notified in advance of the meeting, but at the meeting.

She says that nowhere in the company documentation is there a procedure or policy that details any Probation Review process or procedure.

In the contract of employment she says that the discipline and grievance policy will be used for any perceived issues of misconduct and/or underperformance.

She says that if the correct representation been offered in line with the minimum standard as outlined in SI 146/2000 or under the health and safety code, she could have prepared for the meeting, with an external representative. She says that she was denied this statutory entitlement. She says that as far as she was concerned she was going to a “probation review meeting “. There was no notice of her representation rights or the seriousness of the meeting to come and it’s possible outcomes. She understood that meeting this was not going to result in her dismissal, only a possible extension of her probation period which in any case she considered to be outside of the terms of her contract.

She says that what occurred, following her complaint of bullying of her by the MD, to the HR manager, was that she was ambushed at the meeting and she believes dismissed, not because of her work performance, but because she had raised a complaint of bullying.

She says that the company discipline and grievance policy clearly outlines the procedure to be used and the progression of warnings for an employee’s failure to meet required standards of conduct and performance. She says that had these procedures been used she would have at least understood the procedure. She would have had the right to proper representation by a representative of her choice, and she would have had a clear understanding of where she was in that procedure and would have had the right to appeal any decision to dismiss her.

She contends that the MD was angered when presented with the bullying complaint against him and decided that the complainant was to be dismissed. She says that it was clear to her that the decision to dismiss was made prior to the commencement of the meeting.

She says that there is no probation review procedure in the company, which allowed for dismissal. The issues raised should have been dealt with under the terms of the discipline and grievance procedure.

She says that she is in entitled to fair procedure at least in line with Si 146/2000 and that she has been denied these by the respondent.

She says that even if the respondent had he abided by their contractual and policy obligations, policy on the Disciplinary and Grievance procedures fall short of SI 146/2000 provisions in that it limits her to representation to an internal colleague rather than from expert trade union or legal representation from outside the company, in such circumstances.

She says that the terms of her contract of employment were broken on a number of occasions:

(1) in the Respondent not recognising her probation period deadlines on two occasions and

(2) by not affording her fair procedure as required under its own discipline and grievance procedure.

(3) She said that she raised a complaint of bullying and that the company completely failed in its obligations to investigate her specific complaint. She says that in fact she was dismissed on the day following her complaint without warning and without the opportunity of appeal. She says that she was denied her basic rights to fair procedure and that further, contrary to section 27 of the Safety, Health and Welfare at Work Act, 2005 she was penalised for making a complaint, by being dismissed from her employment with the Respondent. She says that the only obvious reason for this was her raising the complaint

The complainant summarises her complaints under the three pieces of legislation, as follows:

(1)Claim under the minimum notice and terms of employment act 1973:

The complainant says that she was entitled to 3 months notice under her contract of employment. Her maximum probation period of six months had elapsed, resulting in her passage from probationary employee to permanent employee before her dismissal and therefore the company, she says, is not entitled to invoke the one-month notice rule, applying to dismissals within the probation period. She says that her maximum probation period of six months had elapsed before her dismissal and therefore she would have been entitled to the 3 months notice stated in the Disciplinary procedure.

(2) In her claim under the Health, Safety and Welfare at Work Act, 2005, the complainant is claiming penalisation by the respondent for her raising a complaint of bullying against her direct manager.

(3) In her claim under the Industrial Relations Act, 1969, the complainant asserts that she was dismissed from her employment and that her contractual terms were not afforded to her by the respondent, In that she was not afforded fair procedures in line with Statutory Instrument 146/2000. Under this heading she is claiming that:

she was summoned to a meeting without knowing the possible outcomes of the meeting

But she was denied representation by an external expert representative and

She was dismissed without the right to appeal the decision.

The complainant is seeking redress by way of compensation under the above three headings.

The respondent at the outset rejects the allegations that the claimant was penalised, that she had not been provided with appropriate notice, or payment in lieu of notice, and that she was not offered fair procedures.

By way of background the respondent says that the claimant was employed as an accounts receivable manager by the respondent from the 15th of March 2017. They say that the claimant was issued with written terms and conditions of employment on the 8th of February 2017.

They further say that as part of the induction process the complainant acknowledged receipt and understanding of the respondent’s policies and procedures including but not limited to HRP01, Dignity at Work Policy, or RP02 Grievance Procedure, and HRP03, Disciplinary and Appeals Procedure. The disciplinary and appeals procedure of the company provides scope to all employees once they have successfully passed the probationary period.

The say that the claimant’s employment terminated on the 20th of September 2017, due to the claimant being unsuccessful in passing their probationary period because of issues around performance and conduct.

In commenting on the background to the claim they say that the complainant is alleging that she was penalised for making a complaint under the Safety, Health and Welfare at Work Act,2005; that she was not paid proper notice or provided with pay in lieu of notice, as per the Minimum Notice and Terms of Employment Act,1973 and that there were issues relating to her dismissal under the Industrial Relations Act, 1969.

In their response to complaint CA - 0018020 – 001 the respondent put forward the following arguments:

The matter was before the adjudicator by way of complaint of penalisation within the meaning ascribed to the term by section 27 of the act of 2005. Hence the say that the adjudicator is not concerned with the fairness of the dismissal per se. Its sole function is to establish whether or not the dismissal was caused by the claimant having committed an act protected by 27(3) of the Act.

They say that the relevant statutory provision, section 27 provides:

that “penalisation“ includes any act or omission by an employer or a person acting on behalf of the employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

Without prejudice to the generality if subsection (1), penalisation includes (a) suspension, layoff or dismissal – including a dismissal within the meaning of the Unfair Dismissals Act, 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 financial penalty – and(e) coercion or intimidation.

They say, quoting the act, that an employer shall not penalise or threaten penalisation against an employee for –

acting in compliance with the relevant statutory provisions

Performing any duty or exercising any right under the relevant statutory provisions

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,

Giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions

Being a safety representative or in employee designated under section 11 or appointed under section 18 to perform functions under this act or

Subject to subsection 6, in circumstances of danger which the employee reasonably believed to be serious and imminent and was she or she could not reasonably have been expected to avert, leaving – or proposing to leave – or, why the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking – or proposing to take – appropriate steps to protect himself or herself or other persons from the danger.

And they say that it is clear from the language of the section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for the claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of the protected act must be an operative cause in the sense that “but for” the claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.

They say that the Act is silent on the question of how the burden of proof should be allocated as between the parties. They say that the question was considered by the Labour Court in Department of Justice, Equality and Law Reform v Philip Kirwan (Determination HSD082), where the court held as follows:

“It is clear, however that in the absence of any contrary statutory provision, the legal burden of proof lies on the person who asserts that a particular fact you in issue is true. They went on to say that later in Fergal Brodigan, t/a FB Groundworks v Juris Dubina, Determination (HAD0810), the Court, in qualifying the statement in the Kirwan case, said:

“it is, however, settled law that in civil matters there is an exception to this rule known as the peculiar knowledge principle. This is a rule of evidence which provides that where it is shown that a particular fact in issue is peculiarly within the defendant’s knowledge the onus of proving that fact rests with the defendant”.

They say that in the instant case what is at issue is the motive/reason for the claimant’s dismissal. This is to be found in the thought process of the decision-makers at the time the decision to dismiss the claimant was taken. That is something which is peculiarly within the knowledge of the respondent. It would be palpably unfair to expect the Complainant to adduce direct evidence to show that the respondent was influenced by her earlier complaints in deciding to dismiss. Conversely, it is perfectly reasonable to require the respondent to establish that the reasons for the dismissal were unrelated to his complaints under the act. They say that the burden of proof is a shifting one similar to that in employment equality law nd should be applied in the instant case. They say the claimant must establish, on the balance of probabilities, that she made complaints concerning health and safety. It is then necessary for her to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that her complaints were an operative consideration leading to her dismissal and should be applied in the instant case. This means, they say, that the claimant must establish, on the balance of probabilities that she made complaints concerning health and safety. It is then necessary for her to show that having regard to the circumstances of the case, it is apt to infer from the subsequent events that her complaints were an operative consideration leading to her dismissal. If those two limbs of the test are satisfied it is for the respondent to satisfy the adjudicator, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the complainant’s dismissal.

They further say that the only claim raised by the complainant was raised in response to the notification of her probationary review meeting, and as it had not yet been investigated it could not be considered relevant to the outcome of the meeting, which was based solely on documented repeated issues with the claimants behaviour and performance in her role. As the claimant has not demonstrated, on the balance of probabilities, that she had made complaints concerning health and safety, and that these contributed in any way to her dismissal then this complaint must fail as it is not well founded.

In relation to CA – 00018020–002 they assert that the complainant was given one months’ notice of termination with effect from the 20th of September 2017. They say that this was in accordance with the terms of her contract of employment. This allows for one month’s notice in the event that the employee is still within their probationary period. The three- month notice claimed would have applied only in circumstances where she had completed her probation.

I find, on the balance of probabilities, that the sudden dismissal of the complainant at the meeting with the MD and HR on the 20th of September 2017 arose from her complaints and was Penalisation of the Complainant. These complaints arose from:

(a) the fact of the non-acceptance by the complainant of the decision in relation to the extension of the probation period, when the end date of her probation had passed, 3 weeks earlier.

(b) complaints to HR about bullying by her manager. Examples given included cutting short her presentation to visiting executives and not recognizing her work on the rollout of the company ethics program, which she had written and presented.

I find that the decision on the extension of the probation period gave the Complainant substantially less protection and support by way of access to the disciplinary and grievance procedures and right to adequate legal or trade union representation. Such representation and access to grievance procedures in the event of appeal would be normal in these circumstances.

I find that the complainant formalised her complaint under the Health, Safety and Welfare at Work Act, 2005, on the 19th of September 2017, when she realised that making the complaint was likely to lead to serious disciplinary sanction. She concluded this when she was advised by her manager that she could consider bringing an internal representative with her to the meeting. There is a record in the minutes of the meeting of The 20th of September 2017 where the complainant says to the MD that it “seems more like a disciplinary meeting “. Her manager advised that it was not a disciplinary meeting, it was a probation meeting. I find no provision for probation meetings within the contract of employment nor for disciplinary action to be taken in the context of such meetings. The contract of employment provides, in paragraph 13, that “the Disciplinary Procedure will be used for any perceived issues of misconduct and/or underperformance”. This was not used, and if it was it provides for other sanctions that could have been imposed, short of dismissal. It also provided for appeal against sanctions. The issue now about the probation extension beyond the 15th March 2017 deadline is vital to the Complainant’s case and the access to appeal and representation.

I find that the fact that a “non- disciplinary” meeting on the 20th September 2017, so suddenly turned disciplinary, was, on the balance of probabilities, penalisation for the raising of the formal bullying claim on the previous evening by the Complainant. The dismissal was most sudden and I believe was preconceived insofar as the removal of the Complainant from the premises, the confirmation of pay in lieu of notice and the return of the ‘phone etc. flowed immediately after the dismissal was announced.

In relation to CA- 18020 - 002:

I find that the notice given should have been 3 months, based on the transfer to permanency on completion of probation by the Complainant.

In relation to CA - 18020 - 003:

I find that I have dealt with these issues of contractual terms not afforded to the Complainant                 in my decision on the penalisation claim:

(a) representation appropriate to the nature of the meeting, I believe, was denied and

(b) there was no opportunity to appeal the decision.

They are procedural entitlements under S.I. 146, 2000.

Under CA - 00018020 – 001 (under the terms of S. 28 of the Safety, Health and Welfare Act, 2005), I award the Complainant €20,000.

Under CA - 00018020 – 002 (under the terms of the Minimum Notice and Terms of Employment Act 1973) I award the Complainant €10,000.

Under CA – 00018020 – OO3, I have considered this in my decisions above and make no further award.