Complainant

Respondent

Anonymised Parties

A legal counsel

A manufacturer

Representatives

None

IBEC

Act

Complaint 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-00009751-002

16/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00009751-003

16/02/2017

The respondent raised a preliminary point. The complainant verbally informed the respondent of her resignation on the 11th May 2016. She later confirmed this by email and served three months’ notice. Her date of resignation was the 16th August 2016. The complainant had taken sick leave from the 1st June 2016 and returned to work on the 19th and 20th July 2017. She took annual leave and her final handover took place on the 26th July 2016.

The respondent submitted that the complaint is out-of-time as section 41(6) of the Workplace Relations Act requires the complaint to be submitted within six months beginning on the date of contravention. The respondent submits that the final date for such a complaint was the 15th February 2017. The respondent submits that the complainant has not demonstrated reasonable cause and that she has not provides an explanation that explains and excuses the delay. It pointed to the complainant’s grievance of October 2016 and the fact she commenced other employment on the 1st September 2016.

The complainant said that she did not advise in the area of employment law. On reading the statute, she took the natural meaning of the word “six months” to mean six calendar months. She submitted that the 16th February 2017 was the last day within the six-month period. If it is the 15th February 2017, she submitted that she was less than 24 hours late. She had only received the outcome of her grievance relating to the bonus on the 10th February 2017 and she had hoped that the appeal would resolve the issue.

In respect of the outcome letter of the 10th February 2017, the complainant said that a bonus of 0.6 was worth about €17 or €18,000. She received a bonus of 0.8 in 2015, while the respondent had initially offered a bonus of 0.2 for 2016. She commented that there were pages missing from her 2016 ‘P4G’ document. She did not receive any interim comments and no examples had been given of the criticism that she was unable to prioritise. Her line manager had asked her to prioritise two items but did not say which two.

The complainant said that she handed in her notice in May. She was asked why and she explained that she had been told that she had no future in the respondent and would not be promoted. She broke her wrist on the 31st May 2016 and needed hand surgery. Her line manager became nasty after this. She described that while on sick leave, her manager kept contacting her and criticised her in emails to colleagues. She felt that he was going to penalise her in setting her bonus. She attended occupational health on two occasions and they advised that it was too early for her to return to work. She suggested going back to work with shorter hours and with breaks to visit the physio. Her line manager told her that she should not come back. He told her to work from home on the 19th and 20th July. Occupational health put her on sick leave again on the 20th July. She had designated this as annual leave and also worked a few hours. The respondent did not physically place her on sick leave and she raised this in her email of the 29th July, which the line manager did not accept. She did not know if a named person in occupational health said she could go back on sick leave from the 22nd July or whether she would take annual leave. The complainant outlined that she completed the handover on the 26th July 2016. Her line manager praised her work. She held onto the laptop until the 29th July in order to finish an expenses document.

The complainant outlined that bonus letters were sent to everyone else at the end of August and she emailed her line manager on the 5th September regarding her annual leave and bonus. The respondent emailed on the 12th October stating that the bonus would be 0.2. It did not address the annual leave issue. She commented that the investigation in the bonus issue took four months and this was too long. The complainant outlined that the other issues in her grievance were not addressed. While they said they had no evidence for a 0.2 bonus, they also had no evidence for an 0.6. No issue was raised or specified regarding her performance. Her line manager had not followed the P4G process and concluded that her performance was below 80%. She was flabbergasted at the 0.2 and there was no basis for this negative appraisal. The complainant outlined that she had to prepare a role profile at the request of her line manager for the next phase of the role.

In reply to the respondent, the complainant said that the conversation with the line manager about her not getting promoted took place in late March or April 2016. The conversation relating to her personal life took place on the 28th January 2016.

She had agreed to travel to the UK but then faced personal issues and this was also the day of the respondent’s Irish conference.

The letter from occupational health said she should work from home. She was not allowed go back to work. She said that she asked to extend her leaving date to the 30th August to allow her recover and complete the handover. She commented that in 2015, they were informed that the bonus would be 100%. She said that she would be happy to withdraw the unfair dismissal claim as she did not submit a grievance.

The respondent referred to the job specification of the complainant’s role, prepared by the previous line manager. The complainant had been paid sick pay in full. She had not provided a sick certificate for the period after the 20th July. Her letter of the 19th July shows that she intended to take annual leave. The complainant’s last pay slip includes the four days’ annual leave. It did not have a letter from occupational health certifying the complainant as unable to work after the 22nd July. It outlined that the complainant was contractually obliged to attend occupational health. In respect of the bonus, the respondent submitted that it was discretionary and the complainant’s grievance was only made on the 24th October 2016. The respondent submitted that anyone who resigns mid-year does not get a bonus. The bonus was not mandatory and was at the respondent’s discretion.

CA-00009751-002

This is a complaint of penalisation made pursuant to the Safety, Health and Welfare at Work Act. The complainant asserts that the respondent penalised her for complaints she made, including in relation to bullying and harassment by her line manager. As instances of penalisation, she refers to the non-payment of her bonus, having to attend work while on sick leave and the content of emails sent by the line manager. The respondent denies that penalisation took place.

The first issue to address is whether the complaint is within time. Section 41(6) and (8) of the Workplace Relations Act apply to complaints made pursuant to section 28 of the Safety, Health and Welfare at Work Act. Section 41(6) prevents an adjudication officer from hearing a complaint referred “after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

The respondent is correct in its interpretation that any contravention on or before the 16th August 2016 is outside the scope of this complaint. The period of six months expired on the 15th February 2016. Applying the Cementation Skanska decision referred to by the respondent, I note that the date of complaint is the first day after the end of the limitation period and consequently, the day the threshold for reasonable cause is at its lowest. Nevertheless, the complainant has not shown sufficient grounds for a reason that explains and excuses the delay. The Oireachtas has determined that complaints pursuant to section 41 must be referred before the expiration of six months from the date of contravention. Once this limitation period passes, something must ground an application for reasonable cause.

Certain elements of the complaint fall within the limitation period. They relate to the complainant’s grievance relating to her bonus, which commenced in October 2016 and finished on the 10th February 2017. The definition of “employee” in the Act specifically includes a reference to a former employee. The grievance relates to a bonus or “Annual Incentive Plan” set out in the contract of employment. The grievance relates to how her bonus was calculated for the time she was an employee of the respondent, and is, therefore, tied up with the employment relationship. Even though the complainant was no longer an employee at the time of a grievance, it is within jurisdiction to determine whether the calculation of her bonus and the conduct of the grievance were acts of penalisation within the ambit of section 27.

In considering whether this complaint is well founded, I note the documentary evidence submitted by the complainant and the respondent. I note the complainant challenged the rating assigned to her of 0.2. This was referred to investigation. The investigators spoke to five employees and reviewed documentation. The outcome letter of the 10th February 2017 concluded that the process and documentation did not support the rating of 0.2. The investigators took the further step of recommending a rate of 0.6 and this would represent “full and final settlement” of all claims against the respondent. Having considered the evidence, there is no evidence of any act of penalisation by the respondent. The complainant succeeded, to a large extent, in her challenge to a low rating assigned to her by management. I, therefore, find that the complaint is not well founded.

CA-00009751-003

This is a complaint made pursuant to the Unfair Dismissals Act. Section 8(1)(b) provides that the time limits set out in section 41 of the Workplace Relations Act apply to claims of redress for unfair dismissal. The date of contravention in the instant case is the last day of the complainant’s employment, the 16th August 2016. The complaint was referred on the 16th February 2017 and was not made before the expiration of six months. The complainant has not shown reasonable cause that explains and excuses the delay, even a delay of one day. I do not have jurisdiction to hear the complaint of unfair dismissal and I deem it not well founded.

CA-00009751-002

I find that the complaint of penalisation made pursuant to the Safety, Health and Welfare at Work Act is not well founded.

CA-00009751-003

For the reasons set out above, I find that the complaint of unfair dismissal is not well founded as it was made outside of the limitation period applicable to the complaint and the complainant has not been able to show reasonable cause for its late referral.

Safety, Health and Welfare at Work Act

Acts of penalisation / former employee

Calculation of limitation period / reasonable cause

Unfair Dismissals Act