ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010174
Parties:
| Complainant | Respondent |
Anonymised Parties | A Childcare Assistant | A Creche & Childcare Provider |
Representatives |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00013215-001 | ||
CA-00013215-002 | ||
CA-00013215-003 | ||
CA-00013215-004 | ||
CA-00013215-005 | ||
CA-00013215-006 | ||
CA-00013215-007 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 13 of the Industrial Relations Acts 1969 andfollowing 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, as a Childcare Assistance, with the Respondent, who runs a Crèche, on 10 December 2015. The Complainant was initially employed on an ad hoc basis until 1 February 2016, when she was provided with a full-time contract. The Complainant’s employment ceased on 12 June 2017 following her resignation.
The Complainant originally submitted seven complaints to the WRC on 21 August 2017, as follows:
(a) CA-00013215-001: Employment Equality Act, 1998 (including Discriminatory Dismissal) (b) CA-00013215-002: Industrial Relations Act, 1969 (c) CA-00013215-003: Unfair Dismissal Act, 1977 (Constructive Dismissal) (d) CA-00013215-004: Safety, Health & Welfare and Work Act, 2005 (Penalisation) (e) CA-00013215-005: Terms of Employment (Information) Act, 1994 (f) CA-00013215-006: Industrial Relations Act, 1969 (g) CA-00013215-007: Protected Disclosures Act, 2004 (Penalisation)
Three of those complaints - CA-00013215-002 and CA-00013215-006under the Industrial Relations Act, 1969 and CA-00013215-007 under the Protected Disclosures Act, 2014, were withdrawn and were, therefore, not heard or considered.
In addition, the Complainant elected not to proceed with the Discriminatory Dismissal element of her equality complaint - CA-00013215-001, choosing instead to pursue her complaint for constructive dismissal under the Unfair Dismissal of Act.
Consequently, this left the following four complaints to be heard and considered:
(1) CA-00013215-001 under Employment Equality Act, 1998, (2) CA-00013215-003 underUnfair Dismissal of Act, 1977, (3) CA-00013215-004underSafety, Health and Welfare at Work Act, 2005, and (4) CA-00013215-005under Terms of Employment (Information) Act, 1994. |
Summary of Complainant’s Case:
With regard to the individual elements of the Complainant’s complaints, the following submission submissions were made:
(1) CA-00013215-001 under Employment Equality Act, 1998,
The Complainant stated that, as early as November 2016, she made management aware of the fact that she was suffering from anxiety. According to the Complainant, this occurred during a review meeting with the crèche manager, Ms A, when the latter mimicked actions that she (the Complainant) made with her hands when she spoke. The Complainant stated that she informed Ms A that she was making fun of her and that it was not a nice thing to do, seeing as she (the Complainant) suffered with anxiety.
According to the Complainant, advising Ms A that she was suffering from anxiety was of little consequence and no apology was forthcoming. In addition, the Complainant stated that she felt any actions she may make with her hands had no consequence on her working ability. The Complainant further submitted that Ms A had not brought the matter (i.e. the hand gestures) to her (the Complainant’s) attention out of concern for her well-being. The Complainant stated that she felt the matter was raised by Ms A because she had a personal issue with this behaviour and wanted her to stop it.
The Complainant submitted that she also told Ms A that she was attending counselling for mental health reasons. In addition, the Complainant submitted that she sought time off to attend a counselling course for her depression in March 2017. Consequently, the Complainant submitted that it was untrue for management to say that they were not aware of her mental illness.
According to the Complainant’s evidence, during the course of her employment with the Respondent, she had many issues with the Manager, Ms A. The Complainant submitted that this contributed to and exasperated her anxiety during her time there. She stated that Ms A’s behaviour towards her, in relation to a number of incidents, caused her stress and upset.
The Complainant submitted that, despite having advised Ms A of her anxiety and subsequent depression, no efforts were made to accommodate her or support her in her employment. The Complainant stated that she felt rejected and unsupported in her workplace.
In addition, the Complainant stated that she would be left stressed and anxious when management would take the Senior Care Assistant out of the room, in which she was working, during periods when the crèche would be short staffed. The Complainant submitted that on such occasions she was left with 10, sometimes 11 children to be cared for and that this was in breach of regulations. According to the Complainant, this caused her unnecessary additional stress. The Complainant submitted that looking after children is a stressful enough job without feeling unsupported by both management and colleagues.
The Complainant made particular reference to the events which led to her resignation. She submitted that the Respondent’s Chairman (Mr G) became cross and shouted at her to get off the premises. The Complainant further stated that she was not allowed to work out her notice or say goodbye to the children she had been caring for. According to the Complainant’s evidence, one parent, who saw her crying in her car after the meeting with Mr G, got into the car to check if she was okay. The Complainant stated that all the parents were aware that she suffered with depression and was attending counselling at that stage.
According to the Complainant’s evidence, she was targeted because she was weak and management, particularly Ms A, would often make fun of her anxiety. In this regard, the Complainant referred to an occasion when Ms A rudely suggested to her that she looked like a “deer in headlights”, while at the same time mimicking the Complainant’s anxious mannerisms. The Complainant further submitted that making Ms A aware that she suffered with anxiety seemed to make little difference and in fact her (Ms A’s) behaviour only heightened the anxiety and added to the ultimate depression.
(2) CA-00013215-003 underUnfair Dismissal of Act, 1977,
In support of her claim for constructive dismissal, the Complainant submitted that, during the course of her employment with the Respondent, she had many issues with the crèche manager, Ms A. According to the Complainant’s evidence, she raised the issue of Ms A’s behaviour towards her with the Respondent’s Regional Manager (Ms F) and with the Assistant Manager (Ms D) in January 2017.
According to the Complainant’s evidence, she raised issues dating back to August/December 2016. However, the Complainant submitted that the response from management was not good enough and made her feel even worse, as it had taken all her strength and energy to confront the matter only to be told that nothing would be done, as it was her word against Ms A’s. The Complainant further submitted that confronting Ms A in January 2017 did not lead to a change in her (Ms A’s) behaviour and that she (the Complainant) felt constantly under scrutiny.
The Complainant then referred to an incident where a child was left outside on 30 May 2017. According to the Complainant it was both her and her colleague’s responsibility to ensure all children were inside after playing outside. According to the Complainant’s evidence she was accused of leaving children outside when such was not the case. According to the Complainant, when she was returning to the play area to get a child, whom she knew to be still outside, she met Ms A who was holding the child. According to the Complainant, Ms A asked if she had forgotten someone.
According to the Complainant’s submission, despite the fact that other employees, including Ms A should have seen a second child, whom she (the Complainant) was unaware was still outside, she was the only one reprimanded above this. The Complainant further submitted that while she accepted the incident should not have happened, she should not have been the only one reprimanded.
The Complainant submitted that she was handed a letter on 2 June 2017 requesting her to attend a disciplinary meeting on 7 June 2017, as a decision had been made that she would be given a verbal warning. According to the Complainant, her solicitor wrote to the Respondent in advance of the meeting requesting that the meeting not be held as their own grievance policy had not been followed and there was a lack of fair procedure.
According to the Complainant’s evidence, this request from her solicitor was ignored and she was called to the office on 7 June 2017 and handed a written verbal warning by Ms A. The Complainant further stated that she had no witness at this meeting. The Complainant submitted that she was shocked, intimidated and humiliated by these events, which she found extremely stressful and which exacerbated her anxiety. The Complainant stated that she was so upset by this behaviour, she went home that evening in tears and had to call in sick the following day.
The Complainant further stated that when she attended her doctor, the following day, she was certified unfit for work due to work-related stress. According to the Complainant’s evidence, her doctor also advised that she should not continue to work with the Respondent for the sake of her health. In addition, the Complainant stated that her counsellor also advised her to seek alternative employment.
According to the Complainant’s evidence, she felt that, after the incident on 7 June 2017, when she was ambushed with the disciplinary meeting and on the advice of her doctors, she felt she had no other option but hand in her notice. Consequently, she tendered her resignation to her manager, Ms A, who just accepted it and made no effort to ask her to stay or if there was anything they could do for her. According to the Complainant’s evidence, she was told she could leave early, at 4:30 PM, that day, allegedly on the basis that she was stressed. However, the Complainant submitted that she believed she was sent home early to allow her notice of resignation to be considered.
The Complainant submitted that, on 12 June 2017, she attended for work as normal. She further submitted that she was called into the office by the Manager (Ms A) and by the owner (Mr G). The Complainant stated, in evidence, that she immediately asked if she could call an independent witness. The Complainant stated that she had intended her mother to be this witness, as it would take just five minutes to get there. However, the Complainant stated that she was told she could not have her mother attend but could get work colleague to attend with her.
According to the Complainant’s evidence, she was extremely upset and emotional during this meeting. She stated that she asked to be allowed to work out her notice and say goodbye to the children. However, the Complainant submitted that Mr G began to get irate and told her to get off his property. The Complainant stated that she was completely taken aback by this and told him she was there to work her notice. The Complainant further submitted that Mr G told her he could do this and to ring his solicitor. The Complainant stated that Mr G again told her to get off the premises and instructed Ms A to escort her out of the building. The Complainant submitted that Mr G was so aggressive, Ms A had to tell him to stop.
The Complainant submitted that she found the incident extremely upsetting and humiliating. She stated that she went to her car in shock and could hardly breathe. She further stated that she waited in her car for her parents to collector her, as she was too upset to drive.
According to the Complainant’s evidence, after the incident on 7 June 2017, she felt like everything she did or said was watched and reported to management. She claimed that the work environment was toxic and that no one supported each other. The Complainant reiterated that, on the advices of her doctor and counsellor, she handed in her notice as she felt she was left with no other option.
(3) CA-00013215-004underSafety, Health and Welfare at Work Act, 2005,
According to the Complainant’s evidence, the Respondent was required to have two childcare assistants for every 10 children in a room. The Complainant submitted that she was often left on her own with 10 or more children. The Complainant submitted that she mentioned this to the Room Leader as being a breach of the regulations, which was both stressful for her as a staff member and also dangerous for the children. The Complainant further stated that despite there being approximately 26 incidents of this nature nothing was done about it.
The Complainant made reference to the incident on 30 May 2017, when a child was left outside. Again, the Complainant reiterated that while it was both her and the senior care assistant’s job to ensure all children were brought back inside the room, she was given a verbal warning, and, to her understanding, her colleague did not receive the same treatment. According to the Complainant’s evidence, she believes she was treated differently because of noting the issue with the overcrowding and the lack of supervision and also because she had previously raised issues/grievances with staff members/management over bullying and harassment. In addition, the Complainant stated that it is her belief that the fact that she had raised issues with both Ms A and Ms B led to the penalisation she experienced.
In summary, under this element of her complaint, the Complainant submitted that when she raised issues there were not appropriately dealt with and the Respondent did not follow their own procedures to have matters investigated fully. In addition, the Complainant stated that she was penalised and victimised for airing her concerns to management. She further stated that, in her view, management were willing her to make a mistake and they used the incident of 30 May 2017 as the chance to get rid of her. In support of this she submitted that if she had stayed in her employment things would only have become worse, as she never felt supported during her employment.
(4) CA-00013215-005under Terms of Employment (Information) Act, 1994.
The Complainant submitted, in evidence, that, when she started work on 10 December 2015, she was not given a contract of employment and that she did not receive one until 29 July 2016, some seven months later. |
Summary of Respondent’s Case:
Background: The Respondent submitted that prior to commencing her employment, the Complainant signed a medical questionnaire, which stated that she was fully fit to work.
It was stated that, on 19 January 2016, the Crèche Manager (Ms A) informed the Complainant that she would be working in the Toddler Room with the Room Leader (Ms B). It was further stated that Ms A counselled the Complainant about being more aware of the body language when dealing with the children, as she was noticed her folding her arms frequently.
According the Respondent’s evidence, Ms A was informed by the Complainant in April 2016 that she had several issues working with Ms B in the Toddler Room. One of her main complaints was an alleged lack of support by Ms B. It was further stated that Ms A put a plan in place and arranged six meetings over the following days between Ms B and the Complainant to address the issues raised. The Respondent stated that, on 25 April 2016, the Complainant, following those meetings, noted she was much happier in her interaction with Ms B and no further complaints were raised.
It was stated by the Respondent that, on 1 June 2016, the Complainant asked Ms A to text a parent to see if she could give one of the children a snack. It was submitted that the Complainant stated she had previously asked the parents to bring a snack in for the child. However, the Respondent stated that, when Ms A contacted the parent, they denied having been so informed by the Complainant. The Respondent stated that this represented a difference of opinion between the account of the Complainant and that of the child’s parent in relation to the incident.
According to the Respondent’s evidence, the Complainant’s contractual position in the Toddler Room concluded in June 2016 due to summer vacation. As a result, it was submitted that the Complainant was engaged in relief work in other areas of the business during the summer months.
It was submitted by the Respondent that, on 11 July 2016, Ms A had a meeting with the Complainant during which she highlighted that she was progressing well in work. It was submitted that Ms A also provided tips to the Complainant on how to handle disruptive children by using positive body language. It was further submitted that, on 14 July 2016, the Complainant’s annual appraisal took place, during which she was notified that if she had any concerns or issues within the workplace they should be brought to management’s attention so that they could be addressed. It was further submitted that the Complainant was also praised for her work performance to date.
The Respondent stated that, on Friday, 5 August 2016, the Complainant requested an annual leave day for 11 August 2016 to attend a college interview. It was submitted that the Respondent refutes the Complainant’s contention, as set out in her complaint form, that she had requested this leave “weeks in advance”. Notwithstanding this, it is submitted that Ms A approved the day’s leave and arrange cover for same. However, the Respondent submitted that the Complainant subsequently did not attend her interview and showed up for work instead, despite the fact that prior arrangements in relation to cover had been made.
According to the Respondent’s evidence, the Complainant started work in the Wobbler Room, where the Room Leader was Ms C, on 2 September 2016. In early December, the Complainant requested a days annual leave for 16 December 2016. This request was refused as another employee had, on 6 September 2016, requested and been approved to days leave for the same date (i.e. 16 December 2016) The Respondent submitted that, as it was unable to give both staff members the day off, priority was given to the employee whose request was submitted first.
The Respondent submitted that, on 10 December 2016 an incident occurred at the office Christmas party, between the Complainant and Ms A, when both parties were sharing a room in a B&B. It was submitted that the Complainant had left the party early and had returned to the B&B later with a gentleman who had walked home. It was further submitted that due to the amount of alcohol the Complainant had consumed she was unable to open the door of the B&B. As a result, Miss A and another manager (Ms D) opened the door to let the Complainant in.
According to the Respondent’s evidence, before returning to work following the party, the Complainant sent a message to Ms A’s personal phone, requesting to meet, before returning to work to discuss the incident at the Christmas party. It was further submitted that Ms A had never given permission to the Complainant contact her on her personal phone. It was submitted that Ms A replied indicating that she couldn’t meet before or after work due to other commitments. It was further submitted that the Complainant met Ms D and another Room Leader (Ms E) to apologise for her behaviour during after the party the Respondent submitted that both staff members accepted the apology.
According to the Respondent’s evidence, in December 2016, the Complainant applied for a Room Leader position which was advertised. It was submitted that the Complainant was informed by the Respondent’s Manager (Ms F) and Ms A that she was unsuccessful regarding her application. However, it was further submitted that the Complainant was encouraged to apply for other positions that may arise in the future.
The Respondent stated that an incident took place on 21 December 2016. Following this, Ms A held a meeting between the Complainant and the Room Leader, Ms E, to clarify the matter. It was submitted that the purpose of the meeting was to try and clarify whether or not the Complainant was present in the room during the child handover at the end of the day. It was submitted that both individuals provided conflicting stories regarding the Complainant’s presence in the room at the time.
According to the Respondent’s evidence, the Complainant denied that she was present in the room and insisted that she was, in fact, finishing lock-up at the time. However, the Respondent submitted that Ms E claimed the Complainant was speaking to a parent in the room. The Respondent stated that on checking CCTV cameras, Ms A was in a position to confirm Ms E’s version of events. The Respondent submitted that Ms A reminded both members of staff regarding the importance of open and honest communication at all times and further informed them that “lies” would result in disciplinary action.
The Respondent submitted that on the following day, 22 December 2016, the Complainant informed Ms A that she had certain issues with her; most particularly comments that she (Ms A) had made regarding her (the Complainant’s) body language on 11 July 2016. It was submitted that the Complainant requested a meeting to address these matters. It was further submitted that, in response, a meeting between the Complainant and Ms A, which was chaired by the Regional Manager (Ms F), was held on 22 December 2016.
According to the Respondent’s evidence, Ms A apologised to the Complainant for upsetting her and informed her that she did not mean for the Complainant to take the body language advice personally, as it was intended to assist in her personal development when dealing with children. It is further submitted that, at this meeting, the Complainant also asserted that Ms A had called her a liar the previous day. In response to this contention, it is submitted that Ms F determined that it was one person’s word against the other and the matter couldn’t accurately be clarified by the cameras. However, it was finally submitted, in relation to this meeting, that both parties agreed to move on and put the issues behind them.
The Respondent submitted that, on 16 March 2017, the Complainant had a meeting with Ms A, whereby she (the Complainant) was offered support and advice regarding the management of children. It was further submitted that the purpose of this advice was so that the Complainant would be in a position to pass this information onto the children’s parents, due to one particular parent having trouble in this regard. The meeting, which the Respondent contends was not negative in nature, was signed off by both parties.
According to the Respondent’s evidence, they informed, on 10 April 2017, that a cousin of the Complainant’s father had died. It was further submitted that the Complainant requested time off to attend the funeral. The Respondent confirmed that the Complainant was given the paid time off to attend the funeral and that the days were not deducted from her Christmas holidays that year, as alleged by the Complainant.
The Respondent submitted that, on 28 April 2017, Ms A had a meeting with one of the parents who made a complaint about how their children were going home with nappies that were incorrectly applied. It was submitted that, as this was the third time a complaint of this nature had been made, Ms A felt obliged to speak with both members of staff (i.e. Ms E and the Complainant). It was submitted on behalf of the Respondent, that Ms A demonstrated to all staff members how the parent would prefer the nappy to be applied and that no further complaint was received in this regard.
According to the Respondent, on 9 May 2017, the Complainant went on sick leave. It was submitted that, on her return to work, she attended a back to work interview where she stated that she was fully fit to work and was not suffering from any underlying issues.
It was further submitted by the Respondent that, on 16 May 2017, the Complainant requested a half-day off to attend a medical appointment. It was submitted that Ms A, to whom the request had been submitted, informed the Complainant that despite all her holidays had been used, she would pass the request on to the Respondent Chairman (Mr G). It was submitted that, later that day, Ms A informed the Complainant that this half-day request would be accommodated, however, it would be unpaid leave. It was further submitted that Ms A also requested the Complainant to provide proof of the medical appointment and indicated that all she needed to see was the time and date of the appointment and didn’t require any further information in that regard.
According to the Respondent’s evidence, an incident took place on 23 May 2017, involving a child who was under the Complainant’s supervision at the time. The Respondent submitted that when Ms A queried with the Complainant what had happened to the child, she (the Complainant) stated that the child “scraped” herself.
However, the Respondent further submitted that, after lunch, Ms A was approached by Ms D, who informed her that the Complainant had asked her (Ms D) to fill out an accident report that the child in question had “marked her face”. It was submitted that, subsequent to this, Ms A approached the Complainant again regarding the matter to seek further clarification. It is submitted that the Complainant explained that she never actually saw the incident, despite initially alleging to know what had happened to the child.
According to the Respondent, the Complainant was unsure if the child had scraped herself or not. It was submitted that Ms A indicated to the Complainant that she should not have lied. It was submitted that the Complainant indicated to Ms A that she was watching the child waving her arms around and presumed she scraped herself. It was further stated that Ms A concluded the meeting with the Complainant and stated that “lies cannot be told”, pointing out that such actions would warrant disciplinary action due to the severity of the situations.
The Respondent referred to a further incident which took place on 30 May 2017. According to the Respondent, a complaint was made to Ms A by a Childcare Assistant (Ms H) regarding three children being in the changing room at one time, contrary to the Respondent’s policy. It was stated that, following this parents of two of the children arrived and assisted the Complainant in changing the children. It was further submitted that the Complainant then left the parents to change the children, when she went to talk with another parent.
According to the Respondent’s evidence, on the same date (i.e. 30 May 2017) Ms A walked into the garden to find a child from the Wobbler room on their own. It is submitted that the Respondent’s policy is that no child can be left unattended at any time. According to the Respondent, Ms A brought the child inside and handed her back to the Complainant. It is further submitted that the Complainant admitted that she knew the child was outside and that she was on her way to collect her. It was further submitted that, following this, the Complainant and Ms E had a meeting with Ms A at which they were both informed that an investigation would have to take place into the incident.
The Respondent submitted that, as part of the investigation, all staff members were asked to give written statements to management. It was further submitted that it was highlighted, as per procedure, that this investigation was purely a fact-finding exercise. It was stated that, as part of this, the Complainant admitted to leaving children outside unsupervised. In this regard, the Respondent submitted a handwritten statement from the Complainant, dated 1 June 2017.
According to the Respondent, arising out of the fact-finding investigation, the Complainant was invited, by way of letter dated 2 June 2017, to a disciplinary hearing on 7 June 2017. It was further submitted on behalf of the Respondent that, on 7 June 2017, the Complainant did not attend for the scheduled disciplinary meeting and instead her mother handed in a letter from the Complainant’s solicitor, which stated, inter alia, that she would not be attending the meeting due to a lack of procedure by the Respondent. It was further submitted that the Complainant alleged she was being disciplined despite the issue not having been investigated.
The Respondent further submitted that, later that day (i.e. 7 June 2017), the Complainant was called into the office to discuss the matter. It was submitted that the meeting was attended by both Ms A and Ms B. According to the Respondent, the Complainant alleged this meeting to be an ambush by two people she had previous grievances with and that both Ms A and Ms B were good friends, often using one another as witnesses. In response to this allegation, the Respondent noted that Ms B was only involved twice (on 7 June and 12 June 2017) and the reason for her attendance at those meetings was because she was the designated person in charge, as per protocol, when Assistant Manager, Ms D, was absent.
According to the Respondent’s evidence, the Complainant attended her doctor on 8 June 2017 and was issued with a sick certificate which stated that she was suffering from work-related stress. It was further submitted that, on 12 June 2017, a back to work meeting was held with the Complainant. It was stated that during this meeting, Ms A offered support and informed the Complainant that it was great to have her back at work.
It was further submitted by the Respondent, that, subsequent to the back to work discussion, the Complainant handed her written resignation to Ms A. The Respondent stated that there was no reason given on the resignation letter as to why the Complainant was leaving her job.
The Respondent stated that Ms A was then informed by staff member (Ms E) that the Complainant intended to tell the parents that evening exactly why she was leaving and that this would include a statement to the effect that “this crèche is a negative place to work and that she was not happy here”. According to the Respondent’s evidence, this information was passed on to the Respondent’s Chairman (Mr G). It was further stated that, in order to counteract any statement been made by the Complainant, she was told that she could leave early as there were enough staff on to finish out the work.
According to the Respondent’s evidence, on 13 June 2017, the Chairman (Mr G) asked for a meeting with the Complainant. It was stated that at this meeting Mr G was accompanied by Ms A and that the Complainant brought a witness, Ms E. It is submitted that Mr G informed the Complainant that they were saddened to hear she was leaving. It was also stated that he then informed her that he was made aware of the intention to inform parents of her opinion of the crèche (that it was a negative place to work). It was stated that Mr G made it clear to the Complainant that he would not allow this to happen and, as a result, he accepted the Complainant’s resignation and asked you to finish work immediately.
The Respondent submitted that, following this meeting, the Complainant pleaded with Mr G to stay and work her notice and that she would not say anything to the parents. According to the Respondent’s evidence, Mr G repeated his request for her to leave. However, despite this the Complainant refused to leave and alleged that Mr G had no right to pay her in lieu of notice per solicitors advice.
According to the Respondent’s evidence, Ms A spoke calmly to the Complainant and reiterated Mr G’s previous statements, pleading with the Complainant not to make this harder on all parties. It was further stated that Ms A then walked the Complainant to the door, thanked her and wished her well. In this regard, the Respondent submitted statements by Ms A and Ms E to the effect that Mr G did not raise his voice during the meeting with the Complainant. It was further submitted that the Complainant had been obstructive and refused to leave on several occasions.
The Respondent submitted that, following this interaction, the Complainant went to her car and sat there for several minutes. In response to the Complainant’s allegation that Mr G knew that she suffered from depression and anxiety, the Respondent noted that, at no stage, did the Complainant notify the Respondent that she suffered from depression or anxiety and as far as the Respondent was concerned, as confirmed by the evidence, the Complainant was fit to the work.
Respondent’s arguments in response to the Complainant’s claims:
1) CA-00013215-001: Employment Equality Act, 1998
The Respondent submitted that, while they refute all allegations of discrimination, they do not, in fact, accept that the Complainant has a disability in the first place.
It was submitted that the Complainant had relatively short service with the Respondent and that, while there were a few minor issues with the Complainant, most of these were not serious and were dealt with informally. It was also submitted that the parties generally got on well.
According to the Respondent, there was only one issue of note with the Complainant and this occurred on 30 May 2017 when a child was left unattended. The Respondent submitted that this incident was investigated and the Complainant was called to a disciplinary meeting on 7 June 2070. However, it was further submitted that the Complainant did not attend this meeting and was on sick leave until her resignation on 12 June 2017.
Consequently, the Respondent stated that, as the Complainant was only at the premises for five working days between the date of the incident, on 30 May and her resignation on 12 June, it was somewhat fantastic for her to argue that she was discriminated against and/or constructively dismissed within such a short timeframe.
With regard to the Complainant’s claim of discrimination on the grounds of disability, the Respondent contends that, at all times up to 8 June 2017, the Complainant was certified as fully fit to work. It was further submitted that she was not, therefore, under disability and consequently could not have been discriminated against, victimised or harassed as contended in her complaint. The Respondent also submitted that the issue of reasonable accommodation, equally, did not arise.
Further, in this regard, the Respondent submitted that as per Section 85 (A) of the Employment Equality Act 2004, the Complainant must establish facts from which it may be presumed that discrimination has occurred. The Respondent made specific reference to the case law which has expanded on the tests set out in the aforementioned section of the Act. In summary, the Respondent submitted that it is a prerequisite, therefore, that there are some primary facts upon which the Complainant must rely to ground her allegation of discrimination. It was further submitted that these cannot be mere speculation or an assertion, unsupported by evidence.
According to the Respondent, the Complainant has failed to assert the basis on which she is entitled to pursue a claim under the Acts and/or on which primary facts she is relying in alleging discrimination.
Without prejudice to and not notwithstanding the above position, the Respondent also submitted that they were, at no stage prior to the Complainant’s resignation, put on notice of the alleged disability, nor were they given any indication as to the existence of a disability throughout the Complainant’s entire period of employment. In support of this point, the Respondent stated that, by the date of her resignation, 12 June 2017, despite handing in her notice following her return from sick leave, the Complainant submitted sick certificates which provided she should suffered from work-related stress and was unable to work. However, the Respondent submitted that upon her return to work, the Complainant stated she was fully fit to work.
The Respondent further submitted that for an employer to be able to respond to a disability, it is essential that they are made aware of the fact that there is a disability in existence and that there is a problem with work as a consequence. The Respondent referenced the cases A Company v A Worker [ED/04/13 - 051] and A Worker v Food Manufacturer [Dec-E2010-140] in support of this point.
According to the Respondent’s evidence, the Complainant did not, at any stage, provide any medical evidence to notify them as to the existence of a disability. The Respondent refuted the Complainant’s contention that Ms A and Ms D were aware of her depression, as early as November 2016. In this regard, the Respondent submitted that although the Complainant mentioned she was at times “anxious”, the Respondent had no reason to suspect anything more.
In addition, the Respondent pointed to the Complainant’s “Back to Work” meetings whenever returned from periods of sick leave. It was submitted that the Complainant was asked to note any issues she may have had and, rather than utilise this opportunity, she consistently stated she was fully fit to work. The Respondent further stated in this regard that, following the Complainant’s grievance on 22 December 2016, they (the Respondent) followed procedure to actively see if the Complainant had any underlying issues that they needed to be made aware of such as depression or anxiety. However, it was submitted that, again, the Complainant denied any existence in this regard.
Consequently, given that the Complainant declared herself fit to work on 10 May 2017, which was several days ahead of her medical appointment on 25 May 2017, the Complainant submitted that Ms A did not consider the need to investigate the matter further. Consequently, the Respondent submits that, at no stage, were they made aware of the Complainant’s disability. It was further submitted by the Respondent that, although there were aware of the Complainant’s issues with Ms A and Ms D, these were considered minor workplace disagreements and were not considered sufficient to raise any issue regarding disability.
Based on the above, the Respondent submitted that any act of discrimination alleged to have happened prior to 12 June 2017, the date of the Complainant’s resignation, could not have occurred because the Respondent was wholly unaware of any disability prior to that date.
It was also submitted that, notwithstanding the fact that the Respondent could not have discriminated against the Complainant, as they had no knowledge of disability, the Complainant failed to provide a comparator in line with Section 6 (1) (a) of the Employment Equality Acts. In this regard, the Respondent submitted that in order for an individual with a disability to establish that they were subjected to direct discrimination by their employers, they must demonstrate that they were treated less favourably than another person is, has been or will be treated in a comparable situation on the grounds of the disability and that the person in the comparable situation has no disability or has a different disability than they. It was also submitted that the Complainant needs to show a causal link or connection between disability and the alleged discrimination.
According to the Respondent’s submission, the Complainant failed to identify an appropriate comparator. In addition, the Respondent submitted that the manner in which the Complainant was treated was based on objective and fair procedure. It was further submitted that this was entirely unrelated to any underlying disability she alleged she may have had.
With regard to the matter of establishing a causal link between her alleged disability and the discriminatory act, the Respondent submitted that it appears the Complainant is alleging that she was discriminated against by virtue of raising complaints in the past against other co-workers and been singled out for the incident which occurred on 30 May 2017. In response, the Respondent submitted that the Complainant was not singled out for various issues in the past and given that the matter of 30 May 2017 was never finalised, she simply could not have been discriminated against for that issue either. In addition, the Respondent submitted that the Complainant’s colleague also received a sanction in relation to the incident of 30 May 2017.
The Respondent also provided a response to the Complainant’s allegation that they failed to give her reasonable accommodation for disability. In this regard, the Respondent referred to Section 16 (3a) of the Act, which provides that an employer must provide “appropriate measures” to allow the person access to employment, to participate or advance in employment, provided it does not place a disproportionate burden on the employer. The Respondent contends that the definition contained in the above mentioned section, places a positive obligation on employers to take appropriate measures requiring them to remove barriers or make adjustments to enable a person suffering from a disability to be placed in a similar position as able-bodied persons.
The Respondent submitted that it must be the case that an employee is not fully competent and/or capable of undertaking their duties before an obligation to provide appropriate measures or reasonable accommodation arises. The Respondent further contends that, as the Complainant was at all times fully fit to carry out duties, the issue of reasonable accommodation does not arise. In addition, the Respondent submitted that even if it was the case that the Complainant was suffering from a disability she never sought or identified the accommodations that she contends should have been put in place.
In this regard, the Respondent submitted that when the Complainant returned to work after a period of illness spanning the period June 8 to June 12, 2017, she presented herself as fully fit and further requested that she be allowed to work out her notice period. The Respondent contends that the Complainant’s presenting herself as fully fit to work her notice period is entirely inconsistent with either being discriminated against or a failure to appropriately accommodate.
The Respondent refuted all allegations of discrimination made by the Complainant in relation to her conditions of employment. The Respondent contends that the Complainant was treated equally throughout her employment.
With regard to the Complainant’s allegation that she had been discriminated against by her employer by means of harassment, the Respondent submitted that harassment can only arise if the person is disabled and the employer has knowledge of same. It was further submitted that given the absence of these critical factors, harassment could not have occurred.
The Respondent also refutes the numerous scenarios contained in the Complainant’s submission whereby she felt undermined while working for the respondent. In this regard, the Respondent submits that they treated the Complainant’s fairly and reasonably at all times.
2) CA-00013215-003: Unfair Dismissal Act, 1977 (Constructive Dismissal)
The Respondent rejects the Complainant’s claim under Section 8 of the Unfair Dismissal Act 1977 for constructive dismissal.
In support of their position in this regard, the Respondent submitted that the onus of proof lies with the Complainant and, therefore, it is critical that she adduce evidence to the fact that, prior to her resignation, she tried to resolve matters internally first. In this regard, the Respondent submitted that any issue raised by the Complainant throughout her employment had been handled promptly and as per procedure.
In this regard, the Respondent referred to issues raised by the Complainant within the workplace which were handled and addressed in a timely manner. The Respondent referred to the incident with Ms B on 16 April 2016 and to the incident with Ms A on 22 December 2016. According to the Respondent, both of these issues were signed off by the parties involved and were, therefore, considered to have been resolved, with no further issues arising.
According to the Respondent’s submission, subsequent to the above meetings, the Complainant completed both the medical questionnaire and the staff confidentiality form. It was submitted that the Complainant answered “no” to suffering from depression or anxiety and confirmed that she had no underlying health issues and was not on any medication at the time.
The Respondent, in conclusion, submitted that the Complainant did not at any stage throughout her employment, with the Respondent, avail of the internal procedures available to her if she had any issues to raise.
In response to the Complainant’s claim for constructive dismissal, the Respondent submitted that it seemed from her claim form that the Complainant was relying on the so-called “reasonable test” to support her claim. The Respondent submitted that it is well established that in order for an employee to be successful in a claim for constructive dismissal, they must meet this test. According to the Respondent’s submission, the Complainant has failed to meet the requisite burden of proof in this regard.
According to the Respondent’s submission, as the Complainant was treated in a fair and reasonable manner at all times throughout her employment, it was not possible for her to establish that the Respondent had acted in such an unreasonable manner that she had no alternative but to terminate her contract of employment.
In response to the Complainant’s allegation that she was overwhelmed with work as a result of the pressure and the lack of support provided, the Respondent submitted in evidence that there were 28 recorded meetings or discussions with the Complainant, offering support and praise throughout and that this included putting plans in place to address any difficulties or concerns of the Complainant. It was further submitted by the Respondent that the notes of all of these meetings were signed off by the Complainant.
In addition to the above meetings with the Complainant, the Respondent’s submitted in evidence that Ms A held a further seven meetings with Room Leaders regarding working with the Complainant, highlighting the support which needed to be given to her. It was further submitted that, throughout these meetings, the Complainant was praised. In reply to the Complainant’s allegation that she was only praised three times in 18 months, the Respondent provided evidence of over 13 recorded occasions when praise was provided. However, the Respondent further submitted that even if the Complainant had only been praised on three occasions this could not constitute unreasonable behaviour on the Respondent’s part , sufficient to ground the claim of constructive dismissal.
3) CA-00013215-004: Safety, Health & Welfare and Work Act, 2005 (Penalisation)
In response to the Complainant’s claim under the Safety, Health & Welfare Act 2005 , the Respondent made specific reference to the case of O’Neill v Toni and Guy Blackrock Ltd [ELR 21].
In this regard, the Respondent submitted that any issue raised by the Complainant was dealt with, as per procedure, and that she was, in no way, penalised for raising such issues. The Respondent made specific reference, in this regard to the Complainant’s voicing concerns in relation to two co-workers (Ms B in April 2016 and Ms A in December 2016). The Respondent submitted that at no stage, after raising such grievances, was the Complainant penalised. The Respondent further submitted, in this regard, that, any further incident with Ms A was as a direct result of the Complainant’s conduct, irrespective of past complaints. In support of this, the Respondent made references to incidents on 23 May 2017 and 30 May 2017 as being directly related to the Complainant either lying or being irresponsible, to which she admitted guilt.
With specific reference to the incident on 30 May 2017, the Respondent submitted that the Complainant was invited to a disciplinary meeting on 7 June 2017 . It was further stated that the Complainant later submitted a solicitors letter whereby she refused to attend the meeting on the basis she was not being afforded proper procedure. The Respondent submitted that it seems that the Complainant suggests that, because she raises the issue of the Respondent not following procedure (i.e. moving to discipline her) and because the meeting still went ahead , that she was in fact penalised for raising the complaint about procedure. However, the Respondent submitted that, at no stage, despite what the Complainant alleges, was she going to be disciplined at this meeting, meaning the issue of proper procedure does not arise and therefore the Respondent simply could not have penalised her.
According to the Respondent’s submission, in the application of the “but for” test, the Complainant is required to show that the detriments would not have occurred “but for” her initial complaints. The Respondent submitted that it is abundantly clear that any loss/detriment the Complainant alleges to have suffered whilst employed is as a result of her own folly and completely unrelated to any previous issues she may have raised in the past with the Respondent.
In conclusion, on this element of the complaint, the Respondent stated that the Complainant had not established any causal link between having submitted complaints under or falling within the ambit of the 2005 Act and suffering a detriment.
4) CA-00013215-005: Terms of Employment (Information) Act, 1994
In response to this element of the Complainant’s complaint, the Respondent referred to the Terms of Employment (Information) Acts, 1994 – 2014, where it provides that an employer is obliged to provide an employee with a written statement of terms of employment within the first two months following commencement of the employment. However, the Respondent pointed out that this requirement does not apply to an employee who has been employed for less than one month.
According to the Respondent’s submission, the Complainant alleges in her claim that she was not issued with terms of employment until 9 July 2016. The Respondent submitted that the Complainant began working on an ad hoc basis on 10 December 2015. It was further submitted that the Complainant later began working on a full-time basis from 1 February 2016 and that she was then furnished with the terms and conditions of employment on 11 February 2016.
Based on the above, the Respondent refuted any allegation that they have failed to provide terms of employment within the required time period, as set out in the Act. |
Findings and Conclusions:
1 CA-00013215-001: Employment Equality Act, 1998
Section 85 A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
This means that
(1) the Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.
(2) the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent.
Based on the above, when evaluating the evidence in this case, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85 (a) (1) of the Employment Equality Acts 1998 to 2008.
The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.
The Labour Court elaborated on the interpretation of section 85 (a) (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
In support of her complaint, the Complainant, in the within case, is inferring that she was discriminated against by reason of her disability, which she identified as anxiety and depression. The Complainant initially claimed that she had been dismissed for the said discriminatory reason, however, this claim was subsequently withdrawn.
The Complainant also inferred that she had been victimised, harassed, treated unlawfully in Conditions of Employment and was not afforded “reasonable accommodation”, all of which related to her disability.
Section 2 ( 1) of the Employment Equality Acts , 1998 – 2015 defines “disability” as follows:
“Disability means –
(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”
As can be seen from the above, the Acts set out the broad nature of conditions or impairments which could give rise to disability for the purposes of the Acts. I am satisfied that anxiety and depression could reasonably be taken to constitute a disability as described under the Acts, with particular reference to paragraph (e) above.
Based on the above conclusion, I then proceeded to consider other facts that might support the establishment of a prima facie case of discrimination.
The first aspect I considered, in this regard, was whether or not the Respondent was aware of the Complainant’s condition and if they had been requested to provide any reasonable accommodation to assist the Complainant in carrying out her role. In her evidence supporting her complaint, the Complainant contended that she informed several members of management and also some co-workers that she suffered from anxiety. The Complainant also submitted that she told her Manager , Ms A, that she was attending counselling for mental health reasons.
In response, the Respondent stated that the first time they became aware that the Complainant may have been suffering from anxiety/stress was when they received the medical certificate on 8 June 2017. Evidence presented by the Respondent suggested that while they were aware that the Complainant was anxious with regard to certain issues at work, they were never informed that she was suffering from anxiety or depression.
Having carefully reviewed the medical evidence presented in support of the Complainant’s claim in this regard, I note that she first attended her local GP Clinic in September 2016. The records suggest that she was diagnosed with “mild-to-moderate depression” and commenced medication for same on 26 September 2016. I also note from that report that while reference was made to her work situation it was stated that this “did not appear to be an issue”. The records show that the Complainant attended her doctor on six further occasions prior to her resigning from her employment. Throughout this period, the Complainant continued to be prescribed medication for her condition.
While I accept that the Complainant may well have spoken about her anxiety at work, I can find no evidence to suggest that she formally advised her employer as to her condition and/or to the fact that she was on medication. In addition, I note from the evidence presented by the Respondent in relation to this aspect of the complaint, that on at least four occasions the Respondent’s Manager, Ms A, conducted Return to Work interviews with the Complainant following various periods of absence due to illness. On each of these occasions, the Complainant, in addition to confirming that she was fit to work, also indicated that she did not require any assistance or support to be put in place on her return to work.
Against a background where the Complainant was on medication for depression it is somewhat puzzling to understand why she did not formally advise her employer of the situation. In addition, I note that, in her direct evidence at the oral Hearing, the Complainant confirmed that she had not requested any specific accommodation with regard to her condition/disability.
Consequently, having carefully considered all of the evidence adduced in this regard, I am satisfied that the Respondent was not advised by the Complainant of her condition and/or that she required specific accommodation in that regard.
The next aspect considered was whether or not the Complainant had provided comparators in furtherance of her claim of discrimination. In order to establish that an act of discrimination has taken place, the Complainant is required to demonstrate that she was treated less favourably as compared to another person in a similar position.
Section 61 of the Acts states that:
“ For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection ( 2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated “.
With regard to discrimination on the grounds of disability, Section 6(2)(g) states that: “As between any two persons, the discriminatory grounds (and the description of those grounds for the purpose of this Act) are - that one is a person with a disability and the other either is not or is a person with different disability “.
Having carefully considered all the evidence presented by the Complainant, I find none to suggest that she identified a comparator who was treated more favourably than she in the circumstances.
Finally, I considered the Complainant’s contention that the discriminatory act(s) being complained of related to victimisation and harassment with regard to conditions of employment. It appears on the evidence adduced that the Complainant’s contention in this regard relates to inappropriate or bullying behaviour exhibited to her by some of her colleagues, with particular reference to her relationship with her Manager, Ms A.
Having carefully considered all the evidence presented in this regard I am satisfied that there were issues and tensions in the Complainant’s working relationship with some of her colleagues. However, it is also evident that some, if not many, of these issues/tensions may have been influenced by aspects of the Complainant’s own behaviour and/or work performance. This view is based on a comprehensive review of the notes of the many meetings, both team and individual, involving the Complainant, which were conducted primarily by Ms A, but also by other members of the management team.
In particular, I noted from this evidence that the issues raised, whether by the Complainant in relation to colleagues’ behaviour towards her or by management in relation to her performance/behaviour, appear to have been dealt with in a comprehensive and appropriate fashion. I am satisfied that the focus of these meetings was primarily supportive and developmental as opposed to being punitive or negative in nature. There is also ample evidence of praise and encouragement for the Complainant.
Consequently, taking all of the above into consideration, I find no evidence to suggest that acts of discrimination, as contended, took place. Therefore, I can only conclude that the Complainant has failed to establish a prima facie case of discrimination on the grounds of disability.
2. CA-00013215-003: Unfair Dismissal Act, 1977 (Constructive Dismissal)
The Complainant is claiming constructive dismissal on the basis that she claims she was left with no option but to tender her resignation, which she delivered by hand on 8 June 2017. Constructive dismissal relates to a situation where an employee terminates their contract of employment, as was the situation in the case at hand. Section 1 of the Unfair Dismissal of Act, 1977, defines such a dismissal as follows: “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,” Significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it has to satisfy the dual tests of (1) Breach of Contract and (2) Reasonableness. The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign. However, it is now also generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee. All other reasonable options including grievance procedures must be explored. The reasonableness test requires that the Complainant must satisfactorily demonstrate that the Respondent behaved or acted in a manner, which was so unreasonable as to make it impossible for them to continue in the employment and which fundamentally breached their trust and confidence in the bona fides of the other party. In so doing, the Complainant must also show that their own action/behaviour in resigning was reasonable in all the circumstances. This is regularly referred to as the mirror image concept.
Unlike a complaint of unfair dismissal, where the burden of proof rests with the employer to show that the dismissal was not unfair, in a constructive dismissal claim the burden of proof rests with the employee, who must prove that their decision to resign was both justified and reasonable. In effect, the employee must demonstrate that they had no option but to resign based on their employer’s conduct.
As already stated significant case law exists which underpins the above concepts. For example, with regard to the burden of proof, the Employment Appeals Tribunal (EAT) held, in UD 1146/2011, that “in such cases [constructive dismissal] a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.
This was further confirmed in the case of Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84), where it is stated that: “the onus is on the claimant to prove his case” and that “the test for the claimant is whether it was reasonable for him to terminate his contract”.
It is also well established that a Complainant is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal. This concept is clearly set out in Reid v Oracle EMEA Ltd [UD1350/2014] where the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”
The behaviour of the employer in such scenarios is referred to by the EAT in Donnegan Vs County Limerick VEC [UD828/2011] where it is stated: “In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace” and also in McCormack v Dunnes Stores [UD 1421/2008], where it is stated: “The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”. Having carefully and thoroughly reviewed all of the evidence submitted in relation to the entirety of the Complainant’s complaint, I’m satisfied that the tendering of her resignation on 12 June 2017 arose from the series of events that followed on an incident which took place on 30 May 2017 at her place of employment. The review of the evidence established that on 30 May 2017 the Complainant and her co-worker had the children from their room in an outdoor play area. At the conclusion of the playtime, the two staff members proceeded to bring the children back into the room. It appears that two children under the supervision of the Complainant and her colleague were left outside. The Complainant submits that she was aware that one of the children was outside and she was on her way back out to bring the child in. However, on her way to do this, the Complainant met the Crèche Manager, Ms A, who at that stage was bringing the child, the Complainant knew to be outside, back in. It subsequently transpired that a second child, which the Complainant admitted she was unaware was outside, was found and returned to the Complainant and her colleague, by a staff member from another room. This incident was brought to the attention of Ms A, who immediately spoke with the Complainant and her co-worker, advising them of the seriousness of the incident and that she was proceeding to investigate the matter fully. Over the next two days (31 May/1 June) Ms A took statements from all three staff members involved in the incident. In her written statement (dated 1 June 2017), the Complainant admitted that she did not know that the second child had been left outside and she also confirmed that she could not recall counting the children as they returned to the room. Based on the information collected as a result of the above process, Ms A held a meeting with the Complainant on 2 June 2017. At this meeting, Ms A handed the Complainant a letter, which, inter alia, advised that the incident of 30 May 2017 had been investigated. It was also stated that, following consideration of the evidence provided to that investigation, including the Complainant’s own statements, a decision had been made that the action of leaving children unsupervised in the outdoor play area represented “misconduct of an unacceptable manner” and therefore warranted a verbal warning. The letter invited the Complainant to attend a “disciplinary meeting” on 7 June 2017. On 7 June 2017, the Respondent received a letter from the Complainant’s solicitor stating, inter alia, that she would not be attending the meeting due to the lack a of procedure, which saw her being disciplined despite the fact that the issue had not been investigated. It was further alleged, in this correspondence, that the “arranged disciplinary has been predetermined”. Although the Complainant did not attend the Disciplinary Meeting as scheduled for the morning of 7 June 2017, she was called to a meeting with Ms A later that afternoon, at which she was provided with a letter confirming the verbal warning. The Complainant was on sick leave from 8 June to 12 June 2017. The evidence shows that on her return to work on 12 June 2017, the Complainant tendered her resignation by way of letter. The Complainant’s letter of resignation as tendered on 20 June 2017 is, in my view, key to the consideration of whether or not her contention that she had “no choice but to resign” is reasonable or sustainable in the circumstances. I firstly noted that the copy of the resignation letter provided in evidence by the Complainant was unsigned and dated 8 June 2017. The copy of the letter provided by the Respondent is dated 12 June 2017 and is signed by the Complainant. An examination of both letters shows that the content is identical and, therefore, I am satisfied that nothing turns on this discrepancy. In a letter of resignation, the Complainant sets out three reasons for concluding that she had no choice but to resign from the Respondent’s employment. The first of those reasons referred to a “fundamental breach of contract” as a result of being subjected to “undue and harsh treatment by members of management”. In this regard, the Complainant alleged that grievances of bullying and harassment which have been reported to Ms A and Ms F were not investigated in line with employment procedures and are those outlined in the Respondent’s employee handbook. The Complainant contends that she was informed that it was “her word against another’s”. The Complainant further contended that after “reporting and addressing the bullying and harassment”, the treatment continued and she was further victimised as a result of reporting the matter. Having carefully considered all of the evidence adduced in this regard, I am not satisfied that the situation represents a “fundamental breach of contract”. There were clearly many issues in the Complainant’s working relationship not just with the Respondent, what with some of her colleagues as well. Having reviewed the comprehensive and detailed accounts of the many meetings conducted by the Respondent’s management team with the Complainant both on a one-to-one basis and with some of her colleagues, I am satisfied that the Respondent dealt with these matters in a reasoned and reasonable manner which I do not accept can be construed as harassment or victimisation. The Complainant’s contention that the Respondent’s approach was that of “one person’s word against another” is, in my view, following a review of the evidence, a misrepresentation of the facts. The issue of “one person’s word against another” refers to one specific incident, among the many that took place during the Complainant’s employment. I am satisfied that on that occasion the facts of the situation did not provide for a more definitive conclusion. However, I do not accept that such an approach is representative of the overall handling of the situation by the Respondent over the extended period of the Complainant’s employment. The second reason put forward by the Complainant for her resignation was that she was “subjected to bullying, harassment, pestering, inclusion, intimidation, humiliation and was undermined continuously during my employment by senior members of staff”. In addition, the Complainant contended that she had been “treated less favourably than any other employees”. Under this heading, the Complainant also made reference to the issuing of the disciplinary sanction on 7 June 2017, the imposition of which, she alleged did not provide her with fair procedure. With regard to the allegation that she was subjected to a series of inappropriate behaviour, I find that the evidence submitted by the Complainant does not support allegations in this regard. As already stated, it is clear from the evidence that, quite clearly many issues arose in the course of the her employment with the Respondent, a considerable number of related to the Complainant’s own performance and behaviour. Again, as already stated I find that the detailed and comprehensive evidence of management interaction with the Complainant in dealing with these issues does not support the latter’s allegations. With regard to the handling of the disciplinary issue arising out of the incident on 30 May 2017, I do not accept the Complainant’s contention that she was not afforded fair procedures. It appears to me that this contention is primarily based on the wording of the letter issued to her on 2 June 2017 which both invited her to a Disciplinary Meeting and advised her that a decision had been made to the extent that her actions constituted misconduct for which a verbal warning was warranted. Clearly, this letter gives rise to significant confusion. In particular, I am somewhat at a loss as to understand the purpose of the “disciplinary meeting”, which had been scheduled for 7 June 2017. If the decision had already been made that a verbal warning was to be applied, it would be reasonable to conclude that the next meeting in the process might be that of hearing an appeal against that section. If the intention of the proposed meeting 7 June was to be an opportunity for the Complainant to make representation to the Disciplining Officer with regard to any proposed sanction, then the wording of the letter of 2 June 2017 did not clearly set this out. However, notwithstanding the inadequacies of the letter of 2 June 2017 and the subsequent confusion it give rise to, I do not accept the contention that the decision to implement a sanction was prejudicial or predetermined. Having carefully considered all of the evidence adduced in relation to the incident of 30 May 2017, I am satisfied that the Respondent carried out an investigation into the incident, which included interviewing and taking written statements from the three staff members involved. In this regard, I note the Complainant’s own evidence to the investigation, wherein she stated that she didn’t “recall counting the children as they entered the Wobbler room” and that she was “not aware” that the particular child “was still outside”. In the context where an employee has admitted to an action which the employer considers to represent misconduct, then it is both understandable and reasonable that they might conclude that the imposition of a disciplinary sanction might be appropriate. However, in relation to the sanction imposed by the Respondent, the principles to be applied in cases of misconduct have been clearly established over time and the role of the Adjudication Officer, in this regard, is clearly set out in Looney & Company Ltd v Looney [UD 843/1984], “It is not for the Tribunal to seek to establish the guilt or innocence of the Claimant nor is it for the Tribunal to indicate or consider whether the Tribunal in the employer’s position would have acted as the employer did in the investigation or concluded as he did or decided as he did as to so would substitute our mind and decision for that of the employer. The responsibility of the Tribunal is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up against the standard against which the employer’s actions and decisions be judged”. Having carefully considered all of the evidence presented in this regard, I am of the view that a reasonable employer in the same position and confronted with the same set of circumstances, whereby the safety of the child was potentially put at risk, would also have concluded that the Complainant’s actions warranted sanction. In that context, I am further of the view that the sanction of a verbal warning sits at the lower end of the range of sanctions open to the Respondent. In addition, I note that the Complainant decided not to avail of the opportunity, presented in the Respondent’s letter of 7 June 2017, to exercise her right to appeal the verbal warning which had been imposed. In addition, I am satisfied that the appeal stage of the process also offered the Complainant the opportunity to address any procedural issues she may have had with the process up to that point and to seek clarity with regard to the confusion created by the letter of 2 June 2017. Consequently, I am satisfied that the Complainant’s failure to exercise the appeal option, which was advised to her in advance of her tendering her resignation, is inconsistent with and undermines her contention that she had no option but to resign. Finally, in relation to the incident of 30 May 2017, I note the Respondent’s evidence to the effect that the Complainant’s co-worker in the room was also subjected to the disciplinary procedures. This undermines the Complainant’s contention that she was the only employee reprimanded or sanctioned for this incident. The third reason proffered by the Complainant in support of her contention that she had no choice but to resign related to her allegation that she had been “discriminated against on the grounds of disability under equality legislation”. As has already been set out, when dealing with the Complainant’s specific complaint under the Employment Equality Acts, I found that she failed to establish a prima facie case of discrimination on the grounds of disability. Taking all of the above into consideration I find no grounds which support the Complainant’s contention that the termination of her employment with the Respondent was the only reasonable option open to her in the circumstances. Consequently, the Complainant’s complaint of constructive dismissal is not upheld. 3. CA-00013215-004: Safety, Health & Welfare and Work Act, 2005 (Penalisation)
With regard to a complaint of penalisation under this Act, the initial burden of proof is on the Complainant to establish both a protected act and a detriment. It is only when both have been established that the burden shifts to the Respondent to put forward evidence that the detriment suffered was not due to the protected act being an operative cause. The case of Toni & Guy Blackrock v. Paul O’Neill [2010] 21 E.L.R. 1 clearly establishes that the burden of proof is on a complainant to establish that, on the balance of probabilities, (a) she committed a protected act, and (b) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed. The Labour Court held that if both elements were satisfied, the burden shifted to the employer to show, on credible evidence, on the balance of probabilities, that the protected act did not influence the detriment imposed.
Section 27 the Safety, Health and Welfare at Work Act, 2005, states as follows:
(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.
The acts protected from penalisation are set out in Section 27(3) of the Act as follows:
“ 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.”
With regards to the within the case, the evidence would suggest that the Complainant’s protected act related to breaches in the regulations applying to the ratio of the number of childcare assistants in relation to the number of children in their care. The Complainant refers, in her complaint document, to approximately 26 breaches of the regulations in this regard. The Complainant also alleges that she mentioned this to the Room Leader.
According to the Complainant, the detriment she suffered was because it was noted that she had an issue with overcrowding and a lack of supervision in the room. I carefully reviewed all the evidence adduced and, in particular, the file notes of the various meetings with and conducted by management, including one-to-one meetings with the Complainant, meetings involving the Complainant and her co-worker in the room and team/staff meetings. Having done so, I can find in no evidence to suggest that the Complainant raised issues in relation to overcrowding and/or lack of supervision with management, either formally or informally. Consequently, I find the Complainant has failed to identify an action by her which could be construed as a protected act for the purposes of seeking the protection of the legislation.
The Complainant further identified the detriment which she suffered as the verbal warning which was imposed, on 7 June 2017. The detail in relation to this incident has been clearly set out in the consideration of the Complainant’s claim for constructive dismissal of the Unfair Dismisses Act. This clearly shows that the imposition of a verbal warning was directly related to the Complainant’s actions in relation to a specific incident which took place on 30 May 2017. Based on the evidence in this regard, I am satisfied that the Respondent’s decision to impose a disciplinary sanction related solely to the incident in question and was not influenced by any other factors pertaining to the Complainant.
Consequently, taking all of the above into consideration I find the Complainant has failed to establish that she committed a protected act or that the detriment she claims she suffered was in any way related to anything other than the specific incident for which she was disciplined. On that basis, I find that the Complainant’s complaint in this regard is not well founded and is, therefore, rejected.
4. CA-00013215-005: Terms of Employment (Information) Act, 1994
The Complainant contends that, having started work with the Respondent on 10 December 2015, she was not provided with a contract of employment until 29 July 2016, some seven months after the commencement of her employment.
In response, the Respondent submitted that the Complainant began working for them on an ad hoc basis on 10 December 2016. It was further submitted that the Complainant began working full time hours from 1 February 2016 and was subsequently furnished with her Terms of Employment on 11 February 2016.
In support of their position in this regard, the Respondent presented in evidence a contract of employment between them and the Complainant which was signed by both parties on 11 February 2016. The Contract states that the Complainant’s employment was for a fixed term commencing 1 February 2016 and terminating on 24 June 2016. This evidence clearly undermines the Complainant’s contention that she was not provided with the contract of employment until 29 July 2016.
Consequently, based on the above, I find that the Complainant’s complaint in this regard is not well founded and is, therefore, rejected. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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.
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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I make the following decisions in relation to the individual elements of the Complainant’s complaints presented for adjudication:
1) CA-00013215-001: Employment Equality Act, 1998
I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of disability and, therefore, her claim in this regard is rejected.
2) CA-00013215-003: Unfair Dismissal Act, 1977 (Constructive Dismissal)
I find that the Complainant’s complaint of constructive dismissal is not well founded and is, therefore, not upheld
3) CA-00013215-004: Safety, Health & Welfare and Work Act, 2005 (Penalisation)
I find that the Complainant’s complaint in this regard is not well founded and is, therefore, rejected.
4) CA-00013215-005: Terms of Employment (Information) Act, 1994
I find that the Complainant’s complaint in this regard is not well founded and is, therefore, rejected.
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Dated: June 10th 2019
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Key Words:
Employment Equality Acts Disability Reasonable Accommodation Unfair Dismissal Act Constructive Dismissal Health, Safety and Welfare at Work Act Penalisation Terms of Employment (Information) Act Industrial Relations Act |