HSD184

This matter comes before the Court as a complaint by Ms Ulrike Cronje (the Appellant) against a decision of an Adjudication Officer in her complaint that she had been penalised contrary to Section 27(3) of the Safety, Health and Welfare at Work Act of 2005 (the Act) by her former employer, Noonan Services Group Limited (the Respondent).

The Adjudication Officer decided that the complaint was not well founded.

Background

The Appellant was employed by the Respondent as a manager from 2006 until June 2016. She contends that she engaged in three protected Acts between September 2015 and May 2016. The Complainant submits that her period of sick leave arising from a cancer diagnosis, her complaint regarding a potential return to work at the Pfizer Client site and her refusal to agree to return to work at that location are ‘protected acts’ as defined by subsection 27(3)(a) and (b) and (c) and 27(3)(f) of the 2005 Act. She maintains that the Respondent penalised her because of those protected acts.

The Respondent contends that no penalisation of the Appellant took place as alleged.

In October 2015 the Appellant availed of sick leave following a diagnosis of cancer and was certified fit to return to work from the 14^thMarch 2016.

In March 2016, she was advised by the Respondent that she would return to work at the Pfizer Client site, rather than the Biomarin Client site where she had worked prior to her absence on sick leave.

The Appellant had expected to return to a posting at the Biomarin Client site. She had worked at the Pfizer Client site some years before and had sought a transfer away from that site.

On the 30 March 2016 the Appellant’s solicitors wrote to the Respondent advising that the Appellant did not agree to any changes to her terms and conditions of employment and was willing and capable of returning to work at the Biomarin Client site.

On 4 April 2016 the Respondent wrote to the Appellant’s solicitors to advise that the Biomarin Client site role was no longer available and that the Appellant was always aware that her position at that site was a temporary role. The Respondent also advised that a meeting had been arranged with Appellant for 29^thMarch 2016 but she had failed to attend.

On the 7 April 2016, the Appellant’s solicitors wrote to the Respondent advising that the Appellant was forced to take sick leave in September 2015 and was now being penalised for taking sick leave and had a legitimate expectation to return to work at the Biomarin Client site.

On 13 April 2016 the Appellant’s solicitors wrote to the Respondent disputing that the Appellant was aware that her role at the Biomarin Client site was temporary and stating that the Appellant’s illness appeared to be the only reason for attempting to change her terms and conditions of employment.

On the 28 April 2016 the Respondent wrote to the Appellant’s solicitors inviting the Appellant to meet at a suitable time and place to discuss if a resolution could be reached.

On the 12th May 2016 the Appellant’s solicitors wrote to the Respondent enclosing a copy of a medical report from the Appellant’s General Practitioner (GP), dated the 6^thMay 2016, which stated that she was fit to return to work but that the positions on offer involving night work and shift work were physically too demanding for her at that time. The GP also stated that she understood from the Appellant that she had previously found the role at the Pfizer Client site to be a highly stressful job.

On the 25^thMay the Respondent replied to the Appellant’s solicitor seeking clarification on how the GP came to the conclusion that the Appellant was not fit to work at the Pfizer Client site given that an Occupational Health Assessment had determined that she was fit to return to work and had not recommended any accommodation. The Respondent enclosed details of an administrative role at the Pfizer Client site which was available to the Appellant.

On the 31^stMay the Appellant’s solicitors wrote to the Respondent to say that it was entirely inappropriate to question the legitimacy or expertise of the Appellant’s doctor and that on the basis of medical evidence the Appellant could not and would not accept a role on the Pfizer Client site.

On the 3^rdJune 2016 the Respondent wrote to the Appellant’s solicitors advising that it did not understand on what basis the Pfizer Client site role was unacceptable or on what basis this had been determined. The Respondent advised that a second opinion would be sought from the Occupational Health Assessor who had previously met with the Appellant.

On the 9^thJune 2016, the Appellant’s solicitors wrote to the Respondent to advise that it had amended a complaint form submitted to the Workplace Relations Commission to include a complaint of constructive dismissal, with the date of dismissal at the 7^thJune 2016.

Summary position of the Appellant

The Appellant availed of sick leave from the Respondent in September 2015 following a diagnosis of cancer. During her period of sick leave she underwent courses of chemotherapy and radiation therapy. The periods of sick leave availed of by the Complainant amounted to a protected act within the meaning of the legislation at Section 27(3)(a), (b), (c) and (f).

The Appellant was medically certified as fit to return to work on 14^thMarch 2016 and the Respondent advised her that she would be returning to work in the Pfizer Client site in Ringaskiddy. She had been working on the Biomarin Client site in Ringaskiddy prior to her availing of sick leave. The Appellant had previously worked on the Pfizer Client site in 2013 and had availed of sick leave arising from stress for a period in February 2013. She complained to the Respondent that returning to work on the Pfizer Client site would have a deleterious effect on her health. This complaint amounted to a protected act within the meaning of the legislation at Section 27(3)(a), (b), (c) and (f).

The Appellant continued to refuse to return to work on the Pfizer Client site from March 2016 until she felt it necessary to terminate her employment in June 2016. Her continued refusal to return to work in the Pfizer Client site amounted to a protected act within the meaning of the legislation at Section 27(3)(a), (b), (c) and (f).

The Appellant submitted that she had suffered stress while employed on the Pfizer Client site in February 2013. Her General Practitioner provided her with a letter in May 2016 advising that, notwithstanding that she had certified the Appellant fit for work on 14^thMarch 2016, the doctor considered the positions being offered to the Appellant by the Respondent were physically too demanding for her at that time and that the Appellant had advised the doctor that she found the role on the Pfizer Client site stressful.

She submitted that the Respondent refused to allow her to return to work on any site other than the Pfizer Client site and that there could not be a legitimate business reason for doing so. The Respondent failed to consider any reasonable accommodation efforts or offers with regard to the Appellant’s proposed return to the Pfizer Client site. This failure amounted to an omission by the Respondent to carry out its contractual duty to provide reasonable accommodation and its statutory duty arising from the Act at Section8(2)(a) to ensure the safety, health and wellbeing of its employees.

The Appellant submitted that the actions of the Respondent in

• 
  (A) Transferring the Appellant to a different place of work,

  (B) Refusing to countenance her working at any other location

  (C) Refusing to consider or offer any method of reasonable accommodation in respect of the Pfizer Client site

  (D) Not paying wages during the ‘stand-off’ between March 2016 and June 2016

The Appellant submitted that all of the acts identified occurred because of her having committed protected acts.

Summary position of the Respondent

The Respondent submitted that the Appellant was employed under a contract of employment which provided that the Appellant‘will be based at the Cork Office. However, owing to the nature of its business, the Company reserves the right to transfer you to other locations in Ireland in accordance with business requirements’.

In September 2015 the Appellant was on temporary assignment on the Biomarin Client site as a site manager. The Appellant was absent from work through illness from 19^thOctober 2015 and remained absent until 14^thMarch 2016. On receipt of her notification that she was fit to return to work she was referred to the Respondent’s occupational health doctor for a return to work examination. A report was subsequently issued to the Respondent on 24^thMarch 2016 confirming that the Appellant was medically fit for work and that no accommodation in the workplace or restriction of her duties was necessary.

The temporary position the Appellant had occupied in the Biomarin Client site was no longer available, but the Appellant was offered a number of alternative positions. She did not take up any of the positions offered to her as she believed that they were not equivalent to the position she had occupied at the Biomarin Client site. She was represented by her Trade Union at meetings at this time.

At that time a position became available on the Pfizer Client site which would ensure that the Appellant remained on similar hours and the same rate of pay as she had enjoyed on the Biomarin Client site. The Biomarin Client site and the Pfizer Client site are at the same location.

A meeting was arranged between the Appellant and the manager who had responsibility for the Pfizer Client site for 29^thMarch 2016 which was intended to discuss the role and to facilitate discussion between the Appellant and the site manager including as regards any concerns the Appellant might have had. The Appellant cancelled that meeting and the Respondent received a letter dated 29^thApril from the Appellant’s solicitors requiring the Respondent to confirm that the Appellant could return to the Biomarin Client site.

The Respondent, in a letter dated 28^thApril, advised the Appellant’s solicitor that it had agreed that the Appellant would be paid for two weeks after being certified fit for work on the 14^thMarch 2016 but advised her solicitor that she would not be paid for longer than that if she was not making herself available for work as offered to her.

The Respondent received correspondence from the Appellant’s doctor dated 6^thMay 2016 which outlined that the doctor had formed the view based on the Appellant’s information that returning to the Pfizer Client site would be too stressful for her.

The Respondent submitted that whereas the Appellant had previously been absent from the Pfizer Client site through illness for one week in February 2013, her illness had not been identified as stress related to the Appellant’s work.

The Respondent offered the Appellant an alternative role as administrative support which would facilitate building up her hours over a period of weeks if she wished.

Further correspondence issued between the Respondent and the Appellant’s solicitor on 31^stMay 2016 and 3^rdJune 2016 wherein the Respondent sought clarification as to how the Appellant’s doctor had determined that the roles offered to the Appellant or the site had been deemed as stressful and therefore unacceptable.

The Appellant’s solicitor ultimately confirmed by letter that the Appellant regarded herself as constructively dismissed with effect from 7^thJune 2016. Subsequent correspondence between the Respondent and the Appellant’s solicitor including a request for the Appellant to attend the Company’s Occupational doctor resulted in a confirmation from her solicitor that the Appellant was no longer an employee.

The Respondent submitted that the Appellant never had an exclusive right to work in the Biomarin Client site and that the Respondent had the right to move management staff and that the Appellant had been assigned to sites other than the Biomarin Client site previously.

The Respondent submitted that it undertook no penalisation of the Appellant within the meaning of the Act at Section 27. It contended that the fact of the Appellant being absent through illness does not constitute a protected act. The Appellant, on her return to fitness for work, was, in accordance with her contract offered employment in the same location on the same hours and rates of pay as she had enjoyed prior to her absence. She was invited to engage with the Respondent management on the Pfizer Client site but refused to do so. The Respondent did cease payment of wages to the Appellant but only after she refused to engage with management or to make herself available for work at the location where she was being assigned.

The Law

Penalisation is defined by s. 27 of the Act as follows: -

• 27.— (1) In this section “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.
  • (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.

(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 11 or appointed under section 18 to 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.

  (4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred o in subsection (2)(a).

  (5) If penalisation of an employee, in contravention of subsection (3) , constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

  (6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

  (7) Where the reason (or, if more than one, the principal reason)for the dismissal of an employee is that specified in subsection (3)(f),the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

In order for the Complainant to avail of the protections available in Section 27(3) it is essential that any detriment complained of be causally connected to one or more of the matters referred to in that subsection. The Complainant must show that ‘but for’ having committed a protected act as defined in Section 27(3) of the Act the detriment would not have happened.

The Court in considering the within complaint must address three questions. In the first instance the Court must be satisfied that a protected act or acts has or have taken place as described in the Act at Section 27. Secondly the Court must be satisfied that the Appellant had suffered a detriment as described in the Act at Section 27. Finally, the Court must decide whether the detriment was suffered because of her commission of a protected act.

In the within matter the Appellant maintains that the fact of her being absent through her illness of cancer is a protected act within the meaning of the Act at section 27(3)(a), (b), (c) and (f). The Court understands the Appellant to contend that, by virtue of her being certified as unfit for work, she was, by reference to what appear to the Court to be the relevant subsections of Section 27(3) of the Act,

• (a) acting in compliance with the relevant statutory provisions, or
  • (b) performing any duty or exercising any right under the relevant statutory provisions, or
    (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, 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.

• 
  ‘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 suggests that where there is more than one causal 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 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 detriment.’