ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013087

Parties:

	Complainant	Respondent
Anonymised Parties	A Legal Secretary/Legal Executive	Solicitors

Representatives

Solicitors

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014	CA-00017304-002	06/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00017304-003	06/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00017304-004	06/02/2018

Date of Adjudication Hearing: 23/8/2018 and 12/10/2018

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 8 of the Unfair Dismissals Acts, 1977 - 2015following 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 commenced employment on 2nd May 2017 and her employment ended on 6th September 2017. The complainant claims that her employment was terminated owing to a protected disclosure, that she was penalised owing to raising health and safety issues, that she did not receive her terms and conditions of employment and that she was unfairly dismissed.

This decision should be read in conjunction with decision Adj 00014885.

Summary of Complainant’s Case: CA-00017304-002

Preliminary Issue 1

At the start of the hearing, the complainant advised she wished to amend the name of the respondent. She expressed that she had difficulty determining the correct name of the respondent and had concerns that that there could be various versions of it.

Preliminary Issue 2

When the complainant submitted her claims, she had been allocated the reference number Adj 13807 (herein) and also Adj 14885. The complainant confirmed that some of the complaints within both Adj’s Reference Numbers had been duplicated in error and she was satisfied that CA-17304-002 should be the only reference number utilised for her complaint under Schedule 2 of the Protected Disclosures Act, 2014.

Substantive Issue:

The complainant commenced employment on 2nd May 2017 working at Location X. The complainant detailed that her background was that of legal executive and expressed her concerns that she was hired as a legal secretary. It was outlined that the respondent wished to hire her as she had a qualification in Irish translation and the complainant detailed that some of the difficulties that arose during her employment related to concerns the complainant had that her salary would not reflect this additional Irish translation work.

Prior to commencement employment, on April 27th, 2017 the complainant requested a copy of a full contract of employment but Mr A, a solicitor at the firm, replied that they provide this in the first 4 weeks of employment and she never received it during her employment.

Around 22nd August 2017 she was asked to translate letters into the Irish language, but she refused to do so unless she was given a pay rise as she saw this beyond the role of a secretary. She detailed that she completed the translation a few days later.

A short time later the respondent relocated to Location Y.

On September 1st the complainant advised Mr A, that if he wanted any work completed through Irish “it would be desirable if not essential to have uninterrupted focus” and that she believed it was difficult to complete secretarial work in addition to the translation work.

On September 4th, 2017 the complainant emailed both Mr A and Ms B, another solicitor at the respondent, outlining her concerns with “unprecedented headaches, shortness of breath and fatigue” which she claimed came from the “inordinate amount of shredding” when they had moved office. She detailed that she had been “exposed to toner particles and ozone from paper particles” and that there was excessive noise from the shredder, the photocopier and a colleague’s “apparent need to insistently talk to herself”. The complainant requested a copy of written records of health and safety. She detailed that she had to leave work as she felt so unwell and advised in her email that she was going to her gp to get a medical certificate. The complainant confirmed at the hearing that she did not go to the gp.

On September 5th she received a reply from Ms B which referenced her health and safety concerns and detailed that the complainant’s complaints were unfounded. It was also referenced in this letter that there had been performance issues with the complainant including refusal to type a letter for Mr A unless the complainant received more money and incorrect recording, receipting and drawing of funds. The respondent denied the complainant’s allegations in this letter. The complainant was advised that as the respondent had just moved to new premises the health and safety statement would be available in due course and that the complainant’s input would be welcome.

The complainant responded on September 5th, 2017 and referred to articles on the dangers of shredding and photocopiers and advised that she did not know when she would be in a position to return to work. She did return to work the following day and was escorted into a meeting where she was given the option to resign or her employment would be terminated. She would not resign, and her employment was terminated.

The complainant detailed that she had made protected disclosures around health and safety in the workplace and that her employment had been terminated which was a breach of the legislation

Various case law was cited included Moorehouse v The Governor Wheatfied Prison & Ors IESC 21(2015), Comcast Int Holidings v Minister for Public Enterprise & Ors [2012] IESC50, Board of management of St David’s CPS Secondary School Artane v McVeigh HSD118, Geraldine McCarthy v ISS Ireland Ltd and Another [2018] IECA287, Duffy v Hugh McAvoy t/a Talk To me UD 1048/2009.

Summary of Respondent’s Case: CA-00017304-002

Preliminary Issue 1:

The respondent outlined that there had been changes within the Solicitor firm and detailed the correct name of the respondent. In response to the submission by the complainant for a change in the name of the respondent they advised of no objection if the complainant wished to amend the name of the respondent on the claim form.

Preliminary Issue 2:

The respondent outlined their confusion with the number of claims submitted by the respondent, some of which appeared to be duplicated.

Substantive Issue:

The respondent denied the allegations that had been made.

It was detailed that the work the complainant was assigned was commensurate with the role that she accepted. There was nothing out of the ordinary or unusual in the volume of work or the types of work undertaken.

The respondent outlined that it was the duty of the complainant to provide credible information with regard to the alleged symptoms and establishing a link between the symptoms and the workplace. If this had been provided the employer would have undertaken an investigation but the complainant did not provide any credible information and did not attend her doctor and did not provide any medical information from her doctor in relation to her allegations.

The respondent outlined that the complainant was a smoker and that maybe this was the cause of her alleged symptoms.

It was outlined that it was the wilful failure of the complainant to process documents given to her unless she was paid a higher salary amounted to gross misconduct.

It was put forward that she had alleged that she had fluent Irish and that was one of the reasons that she had been hired. However, although she accepted the role under those circumstances she then wanted more money to translate. Mr A was unhappy that the complainant looked for more money from the respondent and was also unhappy with a number of performance issues that arose including that the complainant corrected Mr A’s use of the English language in letters and that he found her difficult to deal with.

It was denied she had done much shredding as the respondent had engaged a shredding company and it was denied that she had completed much photo copying. It was also outlined that the complainant had wanted to be paid for the shredding in her own time.

The respondent outlined that the complainant had detailed that she liked the new premises when she stated in an email to Mr A on 1st September “your home makes for a lovely work space” but then claimed she had issues with these same premises.

The complainant was advised at the meeting on 6th September that there were performance issues and because the respondent had lost faith in her she was offered the opportunity to resign as an alternative to dismissal. The complainant did not avail of this offer and they were left with no alternative but to terminate her employment.

It was denied that she had been dismissed for making protected disclosures.

Findings and Conclusions: CA-00017304-002

Preliminary Issue 1:

Much time was taken up with the complainant’s requests to change the name of the respondent. The complainant was advised of the importance of having the correct legal name of the respondent. The complainant insisted that her version was the correct legal name of the respondent. The respondent did not object to same. As the respondent were not prejudiced by this request and owing to the circumstances, the complainant was facilitated with the change in the name.

Preliminary Issue 2:

As it was accepted that the complainant had just one complaint in relation to Schedule 2 of the Protected Disclosures Act 2014, a decision in relation to this complaint is contained herein in CA-00017304-002.

Substantive Issue:

The complainant details that she has been penalised, namely dismissed, for making a protective disclosure. The Complainant has sought redress under the provisions of Schedule 2 of the Protected Disclosures Act 2014 in respect of alleged penalisation contrary to Section 12(1) of that Act for having made a protected disclosure.

Section 12(2) of the Protected Disclosures Act 2014 provides that:

“(2) Subsection (1) does not apply to the dismissal of an employee to whom section 6(2)(ba) of the Unfair Dismissals Act 1977 applies.”

Section 6 of the Unfair Dismissals Acts provides that:

“6. — (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(ba) the employee having made a protected disclosure”.

Section 8 of the Unfair Dismissals Acts provides that:

“8.— (1)(a) A claim by an employee against an employer for redress under this Act for unfair dismissal may be referred by the employee to the Director General and, where such a claim is so referred, the Director General shall, subject to section 39 of the Act of 2015, refer the claim to an adjudication officer for adjudication by that officer.”

As is evident from the above, an employee seeking redress relating to an alleged unfair dismissal arising wholly of mainly from having made a protected disclosure is obliged to refer such complaints under the provisions of Section 8 of the Unfair Dismissals Acts and therefore, such a claim does not fall within the scope of Section 12(1) of the Protected Disclosures Act, 2014.

Accordingly, I find that I do not have jurisdiction to inquire into the Complainant’s claim relating to unfair dismissal for having made a protected disclosure under the provisions of the Protected Disclosures Act, 2014.

Summary of Complainant’s Case: CA-00017304-003

Preliminary Issue 1

Preliminary Issue 2

When the complainant submitted her claims, she had been allocated the reference number Adj 13807 (herein) and also Adj 14885. The complainant confirmed that some of the complaints within both Adj’s Reference Numbers had been duplicated in error and she was satisfied that CA-17304-003 should be the only reference number utilised for her complaint under Section 8 of the Unfair Dismissals Act, 1977.

Substantive Issue:

A short time later the respondent relocated to Location Y.

On September 4th, 2017 the complainant emailed both Mr A and Ms B, another solicitor at the respondent, outlining her concerns with “unprecedented headaches, shortness of breath and fatigue” which she claimed came from the “inordinate amount of shredding” when they had moved office. She detailed that she had been “exposed to toner particles and ozone from paper particles” and that there was excessive noise from the shredder, the photocopier and a colleague’s “apparent need to insistently talk to herself”. The complainant requested a copy of written records of health and safety. She detailed that she had to leave work as she felt so unwell and advised in her email that she was going to her GP to get a medical certificate. The complainant confirmed at the hearing that she did not go to the GP.

The complainant detailed that she had made protected disclosures around health and safety in the workplace and that her employment had been terminated which was a breach of the legislation

Summary of Respondent’s Case: CA-00017304-003

Preliminary Issue 1:

The respondent outlined that there had been changes within the Solicitor firm and detailed the correct name of the respondent. In response to the submission by the complainant for a change in the name of the respondent they advised they had no objection if the complainant wished to amend the name of the respondent on the claim form.

Preliminary Issue 2:

The respondent outlined their confusion with the number of claims submitted by the respondent, some of which appeared to be duplicated Section 8 of the Unfair Dismissals Act, 1977.

Substantive Issue:

The respondent denied the allegations that had been made.

The respondent outlined that the complainant was a smoker and that maybe this was the cause of her alleged symptoms.

It was outlined that it was the wilful failure of the complainant to process documents given to her unless she was paid a higher salary amounted to gross misconduct.

It was denied that she had been dismissed for making protected disclosures.

Findings and Conclusions: CA-00017304-003

Preliminary Issue 1:

Preliminary Issue 2:

As it was accepted that the complainant had just one complaint in relation to Section 8 of the Unfair Dismissals Act, 1977, a decision in relation to this complaint is contained herein in CA-00017304-003.

Substantive Issue:

The complainant claims that she made a protected disclosure and that her employment was terminated as a result of making this disclosure and seeks redress under the Unfair Dismissals Acts.

Section 6 of the Unfair Dismissals Acts provides that:

(ba) the employee having made a protected disclosure”.

Section 8 of the Unfair Dismissals Acts provides that:

I have carefully considered all the evidence in this regard and it would appear that the relationship began to break down when the complainant looked for additional payment for the translation work. While unhappy with this additional work for which she would not be paid I note that the complainant complimented the respondent on the new working location that they had moved to. This compliment regarding her work location would appear at odds with her allegations a few days later that the office was unsuitable for the office equipment which she claims was the cause of her alleged health issues. I note that the complainant confirmed that she did not attend a doctor in relation to same and her concerns around particles omitted from the office equipment.

Section (3) of the Act details that the following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

The respondent outlines that the termination of her employment was owing to other reasons, which included the complainant looking for additional money for translation work and her general attitude. Such “alternative reasons” by way of dismissal has been discussed in detail by the Labour Court in Southside Traveller Action Group and Imelda O Keffee UDD 1828 /2018. While I note that there was a remarkable absence of any expected procedure by the respondent in relation to the dismissal of the complainant, I find that the complainant was dismissed not owing to any protected disclosure but owing to an alternative reason. This alternative reason was dissatisfaction by the respondent with the performance of the complainant including her response to their request that she complete translation work. I have found the complainant’s claim to be not well founded.

Summary of Complainant’s Case: CA-00017304-004

Preliminary Issue 1

Preliminary Issue 2

When the complainant submitted her claims, she had been allocated the reference number Adj 13807 (herein) and also Adj 14885. The complainant confirmed that some of the complaints within both Adj’s Reference Numbers had been duplicated in error and she was satisfied that CA-17304-004 should be the only reference number utilised for her complaint under Section 28 of the Safety, Health & Welfare at Work Act, 2005.

Substantive Issue:

A short time later the respondent relocated to Location Y.

Summary of Respondent’s Case: CA-00017304-004

Preliminary Issue 1:

The respondent outlined that there had been changes within the Solicitor firm and detailed the correct name of the respondent. In response to the submission by the complainant for a change in the name of the respondent they advised they had no objection if the complainant wished to amend the name of the respondent on the claim form.

Preliminary Issue 2:

The respondent outlined their confusion with the number of claims submitted by the respondent, some of which appeared to be duplicated.

Substantive Issue:

The respondent denied the allegations that had been made.

The respondent outlined that the complainant was a smoker and that maybe this was the cause of her alleged symptoms.

It was outlined that it was the wilful failure of the complainant to process documents given to her unless she was paid a higher salary amounted to gross misconduct.

It was denied that she had been penalised for making health and safety complaints.

Findings and Conclusions: CA-00017304-004

Preliminary Issue 1:

Preliminary Issue 2:

As it was accepted that the complainant had just one complaint in relation to Section 8 of the Section 28 of the Safety, Health & Welfare at Work Act, 2005, a decision in relation to this complaint is contained herein in CA-00017304-004

Substantive Issue:

The Complainant maintains that she raised issues under the Safety, Health & Welfare at Work Act, 2005 and accordingly, she was dismissed and deems that this was an act of penalisation under the Act.

Section 27 of the Act details penalisation as. — (1)

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.

(2) Without prejudice to the generality of subsection (1), 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.

Subsection 3 of Section 27 prescribes the circumstances in which penalisation is rendered unlawful under the Act. It provides: -

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

( e) being a safety representative or an employee designated under section 11or appointed under section 18to perform functions under this Act, or

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

While the Act is silent on the question of to whom the burden of proof rests with, the court in Department of Justice, Equality and Law Reform v Kirwan, (HSD/082) held:

“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 in issue is true (see Joseph Constantine Steamship Line v Imperial Sheltering Corporation [1942] A.C. 154, where this rule of evidence was described by Maugham V.-C. as ‘an ancient rule found on considerations of good sense and it should not be departed from without strong reasons’).”

The provision for “penalisation” under the Act must be a matter connected with safety, health and welfare at work. Furthermore, the act of penalisation must arise from a retaliation to an employee who has made a complaint to his employer. The Labour Court has stated that the concept of penalisation should, similar to victimisation, be construed as widely and literally as can be fairly done (Panuta v Watters Garden World Ltd [2010] E.L.R. 86.). The impugned conduct must be of a type referred to in subs. (2) “or involve other punitive or detrimental conduct similar in nature to that referred to in subsection (2)”.

As detailed in O'Neill v Toni & Guy Blackrock LtdPaul O'Neill v Toni & Guy Blackrock Limited [2010] ELR 1, “the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.” The Complainant must show that ‘but for’ having made a protected act under the subsection the detriment would not have happened.

The complainant made complaints in relation to health and safety and the respondent outlined that the termination of her employment was owing to other reasons, which included the complainant looking for additional money for translation work and her attitude around same. Having considered all the circumstances I do not find that her complaints were an operative consideration leading to dismissal. The Complainant has not established any causal link between the alleged protected acts and the alleged penalisation. Her claim is, therefore, not well founded and is therefore, dismissed.

Decision:

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.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00017304-002

I do not have jurisdiction to inquire into complaint, therefore, I must conclude therefore that the complaint is therefore, not well founded and is dismissed.

CA-00017304-003

The complaint is not well founded and is therefore, dismissed

CA-00017304-004

The complaint is not well founded and is therefore, dismissed.

Dated: 29 April 2019

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Protected dislosure, unfair dismissal, penalisation, health and safety