Complainant

Respondent

Anonymised Parties

A Floor Operative

A Retailer

Representatives

Gerard Kennedy SIPTU

Sinead Mullins IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00013977-001

15/09/2017

The Complainant is alleging penalisation because of representations made with reference to the provisions of the Safety Health and Welfare at Work Act and the actions of the Respondent contravene the protections afforded to the Complainant under Section 27 of the Act and in particular Section 27 (2) which defines coercion or intimidation as being a form of penalisation. It was further claimed that the prohibition against penalisation or threatened penalisation as set out in Section 27 (3) has been compromised by the actions of the Respondent.

The Respondent denies that the Complainant made any complaints concerning matters coming within the scope of the Act at Section 27 and if so there was no penalization resulting from the complaint.

The within complaint was made to Workplace Relations Commission on September 15th, 2017. Consequently, the cognisable period, under Section 28 (4) of the Act, for the complaint is 16th March 2017 to 15th September 2017.

The Complainant is employed since 2000 and has experienced a number of difficulties with his Line Manager, Ms. X including a meeting in June 2016 where it is alleged Ms. X accused the Complainant of being a liar and a follow up meeting threatened the Complainants continued employment. The Complainant subsequently met a HR Representative and went to see his Doctor who certified him unfit for work due to work related stress symptoms. The Complainant was asked to attend the company Occupational Health Consultant that concluded a speedy resolution to work issues be resolved in a formal manner. Despite this recommendation the Complainant had to request feedback on the issues he raised. He received a reply that stated a preliminary investigation had decided no further action was required. The Complainant then raised a formal grievance where he and his Representative raised issues regarding safety and that the workplace should be free of behaviour that might put the Complainant at risk under the Safety Health and Welfare Act. These representations were made in relation to the ill effects to the Complainant’s health. The investigation did not uphold the Complainants grievance but did suggest the General Manager hold a meeting between the Complainant and Ms. X “to ensure a constructive relationship between the parties”. The proposal was never fully implemented, and the Complainant did appeal the outcome. The Complainant was absent for seven weeks afterwards due to a non-work-related issue.

In September 2017 the Complainant was told to attend a meeting where it was alleged a complaint of him raising his voice towards a member of management was alleged by Ms. X. The member of Management denied the allegation and there was no formal complaint and the approach for Ms. X was not in line with company procedures. The Complainants Union Representative wrote to the Director of HR alleging that Ms. X had devised the meeting on the express intent of intimidating the Complainant and claimed that the actions of Ms. X were penalisation within the meaning of the Act. Subsequent to these events the Complainant was invited to a meeting to discuss his absence record and Ms. X refused to identity the sources of the absence allegations and threatened the Complainants continued absence.

The Complainants health was affected by his interactions with Ms. X and was diagnosed with work related stress.

The Respondent conducted a detailed review of complaints but did not find in favour of the Complainant and the parties entered mediation but without resolution and Ms. X continued to intimate the Complainant throughout the process of the investigation. The Investigation was conducted in such a manner as to not make any linkage between the initial health and safety grievance and the actions and behaviour of Ms. X.

It is accepted the situation has improved since Ms. X was transferred to another location.

In summary the Complainant was intimidated by Ms. X in breach of Section 27 of the Act and he seeks compensation as a result.

The matter was first heard in March 2018 and adjourned to allow the internal grievance process to be exhausted as an investigation was ongoing at the time. At the initial Hearing the Complainant raised a number of issues which were not part of the initial complaint.

On April 4th 2018 the Respondent wrote to the Complainant to set out all his grievances which he did by email on April 18th 2018 outlining 11 grievances.

Some of these issues are time barred as the claim was lodged on September 15th 2017 and items i. Ii. Iii. Iv. V. viii. Ix. and are time barred from adjudication by the Adjudication Officer in these proceedings as they were not submitted within 6 months on the date of the contravention (Section 28.4 of the Act).

The Respondent conducted an independent internal investigation into the allowable issues, from a time perspective, under the claim before the Adjudicator. It concluded that the issue of force majeure was over four years old and too much time had elapsed to investigate it thoroughly. With regard to the grievance raised n August 2016 the claim was not upheld and the Complainant did not exercise his right of appeal.

With regard to the issue to do with biscuits and best before dates the grievance was not upheld.

With regard to the issue of why the Complainant was called away from a customer to support tills the store was busy on the day and the Complainant was on a roster to support tills and he was not assigned specifically to the tills but as per the roster. This grievance was not upheld.

With regard to the complaint that Ms. X had manufactured a complaint about the Complainant raising his voice to Mr. Y the investigation concluded that there was a complaint by Mr. Y and the Complainant had raised his voice in an inappropriate tone. This complaint was not upheld.

With regard to the absence issue being investigated by Ms. X the investigation conclude that the Complainant had reached a trigger point in his absence, per company procedures, for a meeting with his Manager and this grievance was not upheld.

With regard to the taking of break times the investigation conclude that the Complainant was taking his breaks at the same time and the grievance was not upheld.

On the final issue of Ms. X directing an employee not to speak to the Complainant on a specific day that Ms. X had no recollection of this happening and is it did it was specific to the circumstances of that day.

The report concluded that the parties engage in externally facilitated mediation. The Complainant was advised of his right to appeal and he did lodge an appeal in September 2018. The appeal was conducted in a detailed fashion, with witness interviews and detailed and agreed note taking and none of the core allegations were upheld in favour of the Complainant.

The Respondent has significant Health and Safety practices in place.

The Complainant did not raise any particular concerns within the remit of the Act and he is precluded from alleging penalisation under the Act and even if so the Complainant has failed to establish what the form of penalisation was which in any case is denied by the Respondent.

The Respondent submitted significant case law on both the jurisdictional and substantive issues.

What is in issue in this case is whether the Appellant was penalised within the meaning of s.27 of the Act. This section, in relevant part, provides: -

• 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,

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• • • (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 undersection 11or appointed undersection 18to perform functions under this Act, or

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

As this Labour Court pointed out inO’Neill v Toni and Guy Blackrock LimitedE.L.R. 21,

• “it is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This 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.”

It is essential that a Complainant establish that he or she committed a protected act, within the meaning of Section 27(3) of the Act, before the other elements in this test come into play. The protected act upon which the Complainant appears to rely on in this case is the making of a complaint to the Respondent of a type envisaged by Section 27(3)(c) of the Act. That is to say a complaint relating to health, safety and welfare at work. The Respondent denies that any such complaint was made.

I have examined this matter as a matter preliminary to considering whether detriments within the meaning of the Act had occurred during the cognisable period for the within complaint and whether any such detriment occurred because the Appellant had committed the protected act. The cognisable period for the complaint is 16th March 2017 to 15th September 2017 as per Section 28 of the Act which limits consideration of claims to six months of the date of the claim submitted to the WRC.

In the Complainants claim form he stated “I believe that I have been penalized by my employer in contravention of Section 27 (2) by being subjected to intimidation as a result of making representations pursuant to the provisions of the Health and Safety at Work Act 2005 “. Therefore no specific act of grievance or penalizition was identified in the claim form.

The Complainants evidenced at the Hearing an incident which occurred on August 8th, 2016. This is outside the cognizable period and therefore falls outside the jurisdiction of the Adjudicator.

The Complainat raised a formal grievance on October 20th, 2016 by letter. This is outside the cognizable period and therefore falls outside the jurisdiction of the Adjudicator.

On September 14th, 2017 the Complainat attended a meeting with Ms. X regarding his absence record and claimed this meeting was expressly intended to intimidate him and claimed this action amounted to penalization. This incident was within the cognizable period. There was a further meeting regarding the Complainants absenteeism on October 24th, 2017 arising out of the initial meeting on September an as this is a continuation of the alleged penalization on September 14th, 2017 this comes within the scope of the cognizable period.

The Complainants case is that he was being intimidated by Ms. X at work in a number of ways. He submitted a list on April 11th, 2018 of 11 ways he was penalized or intimated by Ms. X and these were investigated by the Respondnet and none were found to be upheld. Only three of the issues raised were within the cognizable period, items 6, 7 and 11 were within the cognizable period. 6 and 7 of these issues were not specifically a safety, health or welfare at work issue but the number 11 issue concerned “Ms. Xs general negative attitude and micro management of the Complainant on an ongoing basis”.

In effect the Complainant raised a number of issues concerning how he was being managed by Ms. X, that he was being intimidated by her and that his continued employment was being threatened.

It appears from the submissions that there was an ongoing operational or management/employee relationship “issues” between the Complainant and Ms. X.

On the basis of the evidence submitted the Adjudicator finds, as a matter of probability, that issues relating to health, safety or welfare at work within the meaning of the Act were not raised by the Complainant within the cognizable period. I find therefore that the Complainant did not, in the cognizable period, engage in a protected act as described by the Act at Section 27 and he has therefore not satisfied the essential criteria to maintain a complaint under the Act. Even if this were the case, the Complainant admitted in the Hearing that he had not been subject to any disciplinary action by Ms. X arising from the issues between them and nor had he lost any income arising from the incidents and therefore the matter of penalization would be mute. In summary, none of the acts of penalization as defined in Section 27.2 occurred. There was no evidence to support a claim of intimidation as per Section 27.2.e of the Act and the evidence supported either a conflictual issue between the parties or no justification at all for some of the claims made by the Complainant.

Accordingly, for the reasons set out above, I find that the claim is not well founded.