Complainant

Respondent

Anonymised Parties

Community Work Placement Employee

Local Development Company

Representatives

Padge Reck

Clare Ryan, Programmes Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00023351-001

19/11/2018

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

CA-00023351-002

19/11/2018

The complainant was employed by a Local Development Company as part of a Community Work Placement Initiative programme commencing in June 2018. The complainant experienced difficulties with an individual and made complaints in this regard. There was also an altercation with another employee which resulted in an investigation and a decision to transfer the complainant to another location. The complainant also had issues regarding toilet facilities in the working area.

The complainant accepted the location of the initial placement as it was local to her and she had not got personal transport.

Initially everything was fine but the complainant then experienced harassment and criticism from a particular individual.

The complainant brought her concerns to the attention of management, but nothing was done.

There was an incident involving another employee and the complainant which resulted in the complainant being suspended and then told that she would be transferred to another location which is a further distance from her home and involves heavier duties.

There was a lack of toilet facilities in the location of the initial placement.

The complainant informed her supervisor on 28 August 2018 of an incident with an individual which had caused her distress.

The supervisor requested that this person, who was not an employee, be spoken to and suggested to the complainant that, if necessary, she could absent herself from the work location while that individual was present.

On 28 September a work colleague of the complainant reported that an argument had occurred between him and the complainant.

It was decided that statements be taken from both parties and that the complainant be suspended pending a full investigation.

Following this the complainant was invited to a disciplinary hearing. The decision was that the complainant be transferred to another location.

There are arrangements regarding toilet facilities in place at the work location and the respondent denies that any penalisation of the complainant occurred.

Complaint No. CA-00023351-001:

This is a dispute under the Industrial Relations Act, 1969.

The Community Work Placement Initiative involves the provision of short-term work opportunities for unemployed persons to be involved in services for the benefit of local communities. It is managed at local level by Local Integrated Development Companies.   Positions on the Initiatives are offered to persons who have been unemployed for at least 12 months.   Failure to take up a work offer can lead to the reduction or loss of social welfare benefits.

In the dispute before me the worker commenced employment with the Local Development Company on 11 June 2018 and worked mornings. The work location was a community garden close to her home. The worker worked in an outdoor environment which was open to the public and she was mainly engaged in horticultural and related activities on behalf of a local committee. There were other work-placement employees working on the same project. A supervisor from the Local Development Company visited these workers once a week but there was also day to day contact with the local committee. According to all accounts the worker had no issues at first.

As time went by, however, incidents occurred whereby the worker was approached by an individual who appeared to take issue with the manner in which the worker was doing things and criticised her on a number of occasions. The complainant stated that she had spoken to a member of the local committee about this individual’s behaviour but to no avail. In September the worker brought the matter to the attention of her supervisor. The worker in her submission states that the supervisor advised her to leave the area temporarily if the presence of the individual caused her upset but that he did little to solve the problem. The supervisor’s position was that he asked the committee member to speak to the individual (who was a local resident but not a member of the committee) and inform that person that he was upsetting the worker.   He then spoke by phone to the worker advising her that she could remove herself from the area if she felt threatened or she could change her working pattern to the afternoon when other employees on the project were present. The worker preferred to continue working mornings. Over the course of the next month the supervisor spoke with the worker on his weekly visits who advised that she had left the area on a couple of occasions because of the presence of the individual.

On 28 September the employer received a complaint from another employee in regard to an altercation that had occurred between the worker and himself. The employer deemed the issue to be serious and decided to seek statements from the parties and to suspend the worker while the matter was being investigated. The investigation led to the worker being asked to attend a disciplinary hearing which resulted in a finding that the worker’s behaviour was unacceptable and inappropriate and that she should be transferred to another work site. This site was further from the worker’s home and the worker felt that the duties were more onerous than those which she had previously performed.

The worker’s specific issues are that her complaints of harassment were not dealt with and that following disciplinary action she was transferred to a different location where the duties involved heavy cleaning which aggravated a shoulder injury. In relation to the first matter it is accepted that the worker lodged a complaint about the behaviour of an individual. Initially this complaint appears to have been made to the member of the local committee who liaised with the employer and then some weeks later the complaint was made to the employer. The difficulty that the employer faced is that the worker’s workplace was an area open to the public and the transgressor was a member of the public.   Thus, the option of imposing sanctions on the individual concerned or banning him from the area was not in the power of the employer. The course taken by the supervisor of advising the worker to leave the area if she felt uncomfortable in the presence of the individual, requesting the local committee member to speak to the individual about his behaviour and monitoring the situation on a weekly basis, although not an ideal solution, was probably the best available option. Obviously, the employer has a duty of care to the employees and any escalation of the harassment would have required stronger action from the employer.

The decision to transfer the worker arose from a disciplinary process. The worker did not have sight of the other employee’s statement prior to the disciplinary hearing.   There was a right of appeal, but the worker was not advised of same. In fact, the worker at the disciplinary hearing had to sign a letter to the effect that her behaviour was unacceptable and that she accepted the transfer. A copy of this letter was then placed on her file. Some weeks later the worker did write a letter in respect of what the worker regarded to be “my unfair suspension and disciplinary action”. The supervisor stated that he had spoken to the worker regarding this letter and was told by the worker to put it on file. The worker could not recall that conversation.   There is a Staff Handbook which can be consulted but it was accepted at the hearing that the handbook is in fact aimed at and more appropriate to permanent staff employed by the local development company.

Having considered the matter I believe that, having regard to all factors, the employer endeavoured to deal with the complaints of harassment when it was brought to their attention. I accept that the worker had previously spoken to the local committee member and that her preferred option was of banning the individual concerned from the work area. This was not within the power of the employer. As regards the disciplinary process which led to the worker’s transfer, I have concerns about some of the process. I am particularly concerned at the fact that, as part of that process, the worker was obliged to sign a document accepting that her behaviour was unacceptable and that she accepted the transfer as this would appear to impinge on the appeal process. Furthermore, the worker was not informed of her right of appeal.  It is also apparent that there is no Staff Handbook relevant to employees on Work Placement schemes that is readily available for consultation or that is issued to them on appointment. If there was, then employees would have better guidance on how to deal with issues of harassment / bullying and with the disciplinary procedures.

Finally, I note that the duties in the new location, which is a sports clubhouse, consist of those associated with cleaning and general housekeeping. I also note that the worker recently returned to the garden and found the atmosphere there unwelcoming.

Complaint No. CA-00023551-002:

This is a complaint under Section 28 of the Safety, Health and Welfare at Work Act, 2005. In the complaint form the complainant ticked the box stating that she was penalised for complying with or making a complaint under the Act.

Section 27(3) of the Act states:

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.

Penalisation includes the imposition of any discipline, reprimand or other penalty and the change of location of place of work.

The complainant had issues with regard to toilet facilities available for employees in the area where she worked. The work area was a public green space in a village. She stated that employees wishing to avail of these facilities had to go to a public house or obtain a key from a chemist shop for a toilet in a near-by reading room. The complainant further stated that she had made a complaint in this regard to the Health and Safety Authority (HSA).

The respondent stated that they had received a letter from the HSA to the effect that a complaint had been received by the Authority in relation to toilet facilities on 16 October 2018 and that they had responded to this on 30 October 2018 detailing the location of facilities available to employees at the site.

It is settled in case law that an employee must establish not only that he or she had suffered a detriment, but that the detriment was imposed because of, or was in retaliation for, the employee having made a health and safety related complaint.   In the case before me I note that the disciplinary hearing took place on 5 October 2018 at which the decision to transfer the complainant was taken. The actual transfer took place shortly afterwards and before the complainant made her complaint to the HSA. In those circumstances no causal link can exist between the complaint being made to the Authority and the decision to impose a disciplinary sanction of transferring the complainant as the sanction was imposed before the making of the complaint. I therefore find that the complainant was not penalised for making a complaint to the HSA.

Complaint No. CA-00023551-001:

This is a dispute under the Industrial Relations Act, 1969. As set out above, I do not believe that the actions taken by the employer when advised by the worker of the harassment she was suffering as a result of the actions of an individual were unreasonable. I am not satisfied as to the manner in which the disciplinary procedures were applied. There is also the lack of a staff handbook specific to employees on Community Work Placement schemes. I do not, however, see any benefit for either party in the worker transferring back to the garden.

I recommend therefore that a staff handbook specifically targeted at participants in such schemes be introduced and that these handbooks be readily accessible in the various locations where the schemes are based. I also recommend that the letter signed by the worker at her disciplinary hearing be now removed from her file and that this is confirmed in writing to the worker.

Complaint No. CA-00023551-002:

This is a complaint under the Safety, Health and Welfare at Work Act, 2005. For the reasons set out above I find this complaint not to be well founded.