Complainant

Respondent

Anonymised Parties

Multi-Task Attendant

A Hospital

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-00016105-001

01/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00016105-002

01/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00016105-003

01/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016105-004

01/12/2017

The complainant has been employed with the respondent since 1997 in the role of a Multi-Task Attendant. His claims are that he was penalised by being moved when he raised a formal complaint of bullying, that he is owed pay in relation to Sunday working and that he has a dispute with his employer in relation to their failure to investigate his complaint of bullying and their breach of procedures when handling his bullying complaint.

The complainant has been employed in the hospital since 1997 where he works as a Multi Task Assistant.

He experienced what he regarded as hostile behaviour from another employee, Ms A, in 2015 and informal arrangements were put in place whereby they would not have to work the same shift. He made a formal complaint on 29th July 2015 to his supervisor Ms B regarding the behaviour of Ms A. He outlined this was not the first time he had experienced difficulties with Ms A. His complaint was screened by HR and it was deemed appropriate by the Head of Employee Relations, Mr C, for his complaint to be admissible under Dignity at Work policy. It appears that Mr C made efforts to appoint an outside investigator and eventually Mr D (Investigator 1) was selected with terms of reference signed in October 2015.

Prior to the complainant lodging his complaint, there had been informal arrangements in place, whereby he did not work on the same shift as Ms A. However, once he raised a formal complaint, he was moved to a different area without any consultation. He felt upset that it was him to who was moved and not Ms A.   He believed that he was singled out to be moved because he had made a formal complaint and that by being moved it suggested to him and others that he had done something wrong. This caused him much upset and he has been under his doctor’s care in relation to this work-related stress and not knowing where he is working on a regular basis. This has impacted on him, his family life and his mental health.

It was detailed that this was in breach of Section 27 of the legislation whereby an employee should not be penalised for raising concerns regarding their employment which included “transfer of duties, change of location of place of work, reduction in wages or change in working hours” and all incidents of penalisation occurred following his formal complaint.

When Mr D commenced his investigation, the complainant felt that Mr D was pushing him into mediation despite the complainant having been very clear that he did not want mediation. He had previously engaged informally with Ms A to resolve the issues but to no avail and did not believe that mediation would be successful.   By March 2016 it appeared that there was no progress with the investigation by Mr D and the terms of reference which provided for the investigation to be completed within 6-8 weeks did not happen and no report was ever issued. Furthermore, no witness statements or copies of same were provided to the complainant as per the terms of reference.

It was detailed that the respondent continued to push for the complainant to engage in mediation when it was clear that he had no wish to do so. Around February/April 2017 a new investigation team was appointed when it appeared Mr D was unable to continue with the investigation. It was rejected by the complainant that either him or his representative rejected 9 dates offered to proceed with the investigation. Thereafter, the respondent failed to do anything and when the current complainant’s representative engaged with the respondent to progress things on 9th November the respondent issued a letter dated 7th November but posted on the 10th November “dismissing his complaints”.

His complaint remains unresolved and his position at work remained undermined. As his complaints were dismissed, he was returned to work in the same area where he had been moved from.

It was detailed that at the end of July 2015 the complainant lodged a Dignity at Work complaint against Ms A.

There had been on-going efforts prior to this to try and resolve the issues since they were first raised.

When the formal complaint was put forward in July 2015, investigators were put in place mid October and in February 2016 the investigator, Mr D, thought there was merit with mediation and he confirmed by email that all parties had agreed to mediation.

It was not until July 2016 that a mediator was appointed and following the appointment of the mediator, the complainant declined to have the issues resolved by mediation.

In September 2016 the investigator Mr D announced that he was stepping down and there were efforts made to establish a new investigation team. However, one member of the team became ill and had to be replaced and this took a considerable amount of time until eventually an investigation team was put in place on 10th March 2017. Dates were proposed to meet with the complainant and his representative, but 9 separate days were refused. The investigation team recommended that the complaint be dismissed, and the investigation team stood down. This is outlined to the complainant in a letter dated 7th November 2017, posted 10th November 2018.

Management refute the claim that any penalisation occurred.   Following receipt of the complaint, the complainant was reassigned to work in a different area to the alleged bully as per the complainant’s request. As the claim was dismissed, the complainant was rostered back to his original place of work. It was deemed appropriate to move the complainant and not the alleged bully as her area of expertise was in short supply. However, it was confirmed that no efforts were made to relocate the alleged bully.

Evidence of Ms B – Complainant’s Supervisor:

She detailed that efforts had been made to resolve issues between the complainant and Ms A in the past. The reason she was given for the complainant’s move was that he had made a formal complaint and she said that it is not her job, to question why he was asked to move, but to follow instructions.

Evidence of Ms E - HR Manager

Ms E had not been involved in much of the history of the complaint as she had only joined as HR Manager near the end of 2017. Her first involvement with the complainant was when his representative wrote on 21st December 2017. She responded the following day detailing that the position remained as had been communicated, namely that the complaint was dismissed.   She confirmed that she had looked through the paper work associated with the complaint but did not interview any individuals in relation to the case.

As detailed earlier there has been substantial exchange of correspondence between the parties regarding the events detailed and whilst I will not be referring to every email, incident, witness or event, I have taken into account all the submissions including oral and written made to me in the course of my investigation as well as the evidence presented at the hearing relevant to this instant complaint.

The specific complaint in front of me, namely under Section 28 of the Safety, Health & Welfare at Work Act, 2005 is that the complainant was penalised by being redeployed from the ward where he normally worked, when he made a formal bullying complaint against Ms A on 29th July 2015.   It was detailed that prior to making this complaint there was an informal arrangement in place whereby Ms A and the complainant were rostered on different shifts to reduce and/or eliminate their interaction. It was outlined that “but for” the formal complaint, this informal arrangement would have continued.

The complainant submitted his claim to the Workplace Relations Commission on 1st December 2017 and section 41(6) of the Workplace Relations Act 2015 provides a six-month time-limit within which a complaint in respect of an alleged penalisation can be made. This is the six-month period from 30th May 2017 to 1st December 2017. It was put forward that the complainant has continued to suffer the detriment of a different work location during the cognisable period and this was not disputed by the respondent.

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

includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

( a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

( b) demotion or loss of opportunity for promotion,

( c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

( d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

( e) coercion or intimidation.

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

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

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

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

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

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

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

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

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

“It is clear, however, that in the absence of any contrary statutory provision, the legal burden of proof lies on the person who asserts that a particular fact in issue is true (see Joseph Constantine Steamship Line v Imperial Sheltering Corporation [1942] A.C. 154, where this rule of evidence was described by Maugham V.-C. as ‘an ancient rule found on considerations of good sense and it should not be departed from without strong reasons’).”

The provision for “penalisation” under the Act must be a matter connected with safety, health and welfare at work. Furthermore, the act of penalisation must arise from a retaliation to an employee who has made a complaint to his employer. The Labour Court has stated that the concept of penalisation should, similar to victimisation, be construed as widely and literally as can be fairly done (Panuta v Watters Garden World Ltd [2010] E.L.R. 86.). The impugned conduct must be of a type referred to in subs.(2) “or involve other punitive or detrimental conduct similar in nature to that referred to in subsection (2)”. Section 27(3) provides that the employee must suffer detriment. The court has also regarded in Shamoon v Chief Constable of the Royal Ulster Constabulary ([2003] UKHL 11 per Lord Hope at para.33; [2003] I.C.R. 337; [2003] I.R.L.R. 285; [2003] 2 All E.R. 26.) that “the test for what constitutes a detriment is an objective one and the Court should consider if a reasonable worker would or might take the view that the treatment complained of was, in all the circumstance, to his or her detriment”. The Labour Court stated that there is a requirement “to show a chain of causation between the impugned detriment and the protected act or omission” Óglaigh Náisiúnta na hÉireann v McCormack (HSD/115).

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

It is noteworthy that in evidence, the complainant’s supervisor Ms B advised that once the complainant submitted the formal complaint, she was advised that he was to be moved from the ward.   When questioned as to whether she thought it unusual that the employee making the complaint was asked to move, she detailed that it was her job to follow instructions without question. I find this an extraordinary admittance. If there had been operational reasons why it was not possible to continue with the current arrangement, this was never outlined to her and it is a great pity that she did not question why. It is also noteworthy that at the hearing, when the respondent was asked what the specific qualifications/expertise of Ms A were such that she should remain where she was; the respondent was uncertain what these actually were and had to revert with the details. It was also put forward by the respondent that the move was something which the complainant requested. I do not find any evidence to supports this view as it is clear that the complainant’s request was not to be rostered with Ms   A. 

This leads me to find the complainant’s evidence more credible that it was because he proceeded with a formal complaint that he was moved and not because of any other business or operational reason. Even if there were operational reasons why it might have been necessary that Ms A remain, this had been overcome before by allowing the parties to work different shifts and nothing was put forward as to why this was now a difficulty.

Section 27(3) prescribes the circumstances in which penalisation is rendered unlawful and include (c) transfer of duties, change of location of place of work. The complainant put forward that he was moved because he made a formal complaint, and based on my findings above, he has met the burden of proof required.  He would not have been moved if he had not made a formal complaint as an informal arrangement had been facilitated up to that point and there was nothing put forward by the respondent as to why this informal arrangement could not continue.   I find that a reasonable person would find that the move was a detriment and one which suggested that he was not believed and was a move which impacted negatively on him.

I find that this complaint is well founded and I require the respondent to pay to the complainant compensation of €10,000 which I find just and equitable in all the circumstances.

The worker raised a formal complaint of bullying. His dispute is that his July 2015 complaints have not been investigated todate.

The employer details that efforts were made to investigate the complaint but that the worker did not make himself available and that it was reasonable in the circumstances to dismiss his complaints. Ms A has been advised that the complaints have been dismissed and therefore it is not possible to re-open these historical complaints.

I have reviewed the lengthy details of the dispute referenced in CA-0001615-001 above and the manner in which it was investigated. I find that the employer should not have dismissed the complaint in the manner it was dismissed. While some dates offered to the worker and his representative were not suitable, the employer did not afford sufficient notice to the worker and his representative on many occasions.

I recommend the following:

that the employer pays €750 compensation to the worker for the manner in which they dismissed his complaint.

that the worker should be accommodated with returning to the area that worked prior to making his formal complaint and that efforts should be made to ensure that he does not have to work alongside Ms A, if he does not wish to do so.

Any issues that may arise in the future between Ms A and the worker, should be dealt with, through the employer’s applicable policies, with appropriate urgency.

The worker raised a dispute over the employer’s breaches of procedures including the lengthy delays involved.

The employer detailed that any breaches in procedures were unavoidable and were on occasion the. fault of the worker.

I have reviewed the lengthy details of the dispute referenced in CA-0001615-001 above and the manner in which it was investigated. I find that the employer’s Dignity at Work Policy was breached by the employer on a number of occasions including:

Failing to ensure “that adequate resources are made available to …deal effectively with complaints”. The employer had significant difficulties in finding people to investigate the complaint.

Failing to recognise that “mediation requires the VOLUNTARY (my emphasis) participation and co-operation of both parties”. There are many benefits to engaging in mediation, however, despite formally advising on at least 3 occasions that the worker did not want mediation, he was pressurised to engage in same.

Failing to comply with time limits provided within the policy in which to deal with the complaint and or follow up with the worker:

I recommend that the employer:

Comply with their Dignity at Work Policy by ensuring “adequate resources are made available to deal… effectively with complaints of bullying”.

Comply with their Dignity at Work Policy by ensuring that while mediation might be the “preferred method to resolve complaints of bullying”; due respect should be given to the “voluntary participation and co-operation of both parties” of mediation.

Comply with the time limits provided for in their Dignity at Work Policy.

Pay compensation to the amount of €1,000 to the worker for the employer’s failure to comply with their Dignity at Work Policy.

The complainant detailed that he is at the loss of Sunday pay twice per month as a result of being relocated within the hospital following his formal complaint.

The respondent denied that the complainant is at the loss of earnings as a result of the move.

Section 1(1) of the Act defines wages as meaning “any sums payable to the employee by the employer in connection with his employment, including—

( a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,

Section 5(1) of the Act provides:

“(1) An employer shall not make a deduction from the wages of an employee   (or receive any payment from an employee) unless—  (a) the deduction (or payment) is required or authorised to be made by virtue   of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or   authorised to be made by virtue of a term of the employee’s contract of   employment included in the contract before, and in force at the time of, the   deduction or payment, or

(c) in the case of a deduction, the employee has   given his prior consent in writing to it.”

Section 5(6) details

( a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

( b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

I do not find evidence to support the claim that the complainant is owed for Sunday premiums. His claim fails.

CA-00016105-001

I find that this complaint is well founded and I require the respondent to pay to the complainant compensation of €10,000 which I find just and equitable in all the circumstances.

CA-00016105-002

I recommend the following:

that the employer pays €750 compensation to the worker for the manner in which they dismissed his complaint.

that the worker should be accommodated with returning to the area that worked prior to making his formal complaint and that efforts should be made to ensure that he does not have to work alongside Ms A, if he does not wish to do so.

Any issues that may arise in the future between Ms A and the worker, should be dealt with, through the employer’s applicable policies, with appropriate urgency.

CA-00016105-003

I recommend that the employer:

Comply with their Dignity at Work Policy by ensuring “adequate resources are made available to deal… effectively with complaints of bullying”.

Comply with their Dignity at Work Policy by ensuring that while mediation might be the “preferred method to resolve complaints of bullying”; due respect should be given to the “voluntary participation and co-operation of both parties” of mediation.

Comply with the time limits provided for in their Dignity at Work Policy.

Pay compensation to the amount of €1,000 to the worker for the employer’s failure to comply with their Dignity at Work Policy.

CA-00016105-004

I do not find evidence to support the claim that the complainant is owed for Sunday premiums. His claim fails.

Penalisation, safety, health and welfare at work, payment of wages act, industrial relations act