Complainant

Respondent

Anonymised Parties

A Quartz Technician

A Manufacturing Company

Representatives

Reidy Stafford Solicitors

Peninsula Group Limited

Act

Complaint 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-00024163-001

14/12/2018

The Complainant was employed by Company A as a Quartz Technician from 2006 until it was taken over by the Respondent in February, 2011. The Complainant claims that she was subjected to penalisation by the Respondent contrary to Section 27 of the Safety, Health & Welfare at Work Act, 2015. The Complainant’s partner is also employed by the Respondent as a Glass Blower and he has referred a separate complaint to the WRC claiming penalisation contrary to the Act of 2015. Both complaints were heard at the same hearing and the decision in relation to the complaint by the Complainant’s partner has been dealt with under Reference No. ADJ-00018723. The Respondent disputes the claim of penalisation under the Act of 2015.

The Complainant submits that she is an experienced Quartz Technician and had not encountered any performance related difficulties in her employment with the Respondent prior to the appointment of a new Manager (Mr. A) in November, 2016.

The Complainant submits that her workplace is a highly dangerous environment on the basis that she is required to work with hydrogen and oxygen gas which is highly flammable; she works with ovens that reach a temperature of 1170 degrees Celsius; she works with hot glass which is liable to break suddenly and parts are transported at dangerously hot temperatures. The Complainant works in an area called the hotfab and is required to wear protective clothing and safety glasses whilst carrying out her duties.

The Complainant submits that the new Manager, Mr. A, had a very poor regard for health and safety, and in particular the Complainant’s health and safety, from the beginning of her tenure. The Complainant states that from December, 2016 to May, 2017 the fire escape in the hotfab was locked and she expressed serious concerns to her Manager, Mr. A who failed to take any action to address the matter and responded that “it’s easily opened and stop over reacting”. The Complainant’s partner reported this matter to the Production Manager, Mr. B, and the slide bolts were subsequently removed from every fire escape in the factory at that time.

The Complainant submits that from 2017 to the present day, her fire escape route in the hotfab has been blocked many times with hydrogen multi cylinder tanks and other materials. The Complainant’s partner has brought this matter to the attention of her Manager and the Production Manager on several occasions. Whenever a complaint was made the materials blocking the fire escape would be removed. However, despite the Complainant and her partner asking for the fire escape route not to be blocked it was a continuous problem and would reoccur frequently. The Complainant’s partner raised this matter again in December, 2018 and the fire escape route has not been blocked since.

The Complainant and her partner had a meeting with the General Manager and HR Manager in April, 2017 and impressed upon both of them verbally and by way of a subsequent e-mail their continued concerns regarding health and safety within their dangerous working environment. They expressed their grave concern for the risk of serious injury if the unsafe practices from the Manager, Mr. A, continued. They highlighted to the General Manager and the HR Manager some very close calls regarding the installation of inadequate hosing for the lathe machine. This hose should not have been fitted to the lathe without confirmation that it met the required specifications. The Complainant’s partner expressed concerns about this matter to Mr. A but was instructed “to push on with the job” and was assured the safety specification was matching. The Complainant’s partner proceeded with the job, but the hosing transpired to be defective and began to melt as he proceeded with the job.

The Complainant contends that this melting hose would have caused an explosion which almost certainly would have resulted in a serious accident with a risk to her and her partner’s lives. The Complainant states that Mr. A appeared to show no concern and another hose was fitted after the incident without a data sheet, which would have shown the detailed specification. Mr. A assured the Complainant and her partner that the hose was safe, but they were sceptical and given his cavalier attitude, they researched the new hose only to find that it was for domestic use and did not meet with requirements needed. The Complainant and her partner insisted that an appropriate hose would be purchased meeting the specifications required.

The Complainant states that a further issue occurred in April, 2017 about the safety of using damaged stools in the hotfab. The Complainant and her partner explained to Mr. A that it was dangerous to keep using these stools and asked for replacements over a number of weeks. They were informed by Mr. A that new stools “could not be got” and that there could be some surplus chairs which they could use. The Complainant thought that this was a good idea to use these surplus chairs until such time as replacements could be obtained. However, the Complainant was shocked to find out that these surplus chairs were subsequently thrown into a skip by their Manager, Mr. A as he allowed them to continue using the dangerous ones. The Complainant found this behaviour bordering on irrational and felt that she was being deliberately punished for raising a health and safety issue. The Complainant and her partner raised this issue both verbally and by e-mail with the General Manager and the HR Manager on 27 April, 2017.

By the end of April, 2017 both the Complainant and her partner had serious concerns about their own health and safety and began to raise the issue with Management.

The Complainant’s partner raised a further health and safety concern with Mr. A in or about April, 2017 while maintenance work was being carried out on a high voltage oven within the hotfab. The Complainant’s partner was told by Mr. A not to concern himself by it but just to continue doing his work. The Complainant’s partner was accused by Mr. A of trying to make excuses to avoid doing his work. Once again, the Complainant’s partner reported this matter to the General Manager and the HR Manager.

The Complainant states that two further incidents of a health and safety nature occurred in or about May, 2017. The first incident occurred when Mr. A instructed a Maintenance Technician to carry out maintenance work on hydrogen gas lines as the Complainant and her partner worked with naked flames in close proximity to them. The Complainant states that this incident could easily have resulted in a fireball which could have killed all present in the hotfab had the gas ignited. The second incident occurred when the Manager, Mr. A, and the Production Manager, Mr. B attempted to carry out some maintenance work using a powered pallet truck while the Complainant and her partner were working in the hotfab. The Complainant states that this incident had the potential to cause a major accident which could have seriously injured or killed all in close proximity to the over stretched hydrogen and oxygen gas lines, quite apart from the risk of the risk of the machine falling on her or her partner.

The Complainant and her partner were shocked in relation to both incidents and brought their occurrence to the attention of the General Manager and the HR Manager. There was an investigation into the latter incident by Mr. A (who was the subject matter of the complaint) and no report was produced in relation to the matter. The Complainant was extremely concerned about the cavalier attitude of Mr. A and in particular to health and safety matters and the fact that her life had been put in danger on several occasions. The Complainant and her partner decided that there were seriously unsafe practices that needed to be formalised and reported to Senior Management. The Complainant and her partner completed a Safety Report Form on 9 May, 2017 in relation to the unsafe practices but nothing was ever done about the complaint.

The chronology of events that occurred thereafter in relation to the Complainant and her partner’s interaction with management are summarised hereunder:

·         15 June, 2017 – the Complainant’s partner had a meeting with their Manager, Mr. A, where a number of safety issues were highlighted, and he requested that these matters be addressed as soon as possible.

·         24 October, 2017 – the Complainant’s partner slipped on a wet surface against a glass door, sustaining a back and ankle injury. It was reported to Mr. A who laughed uncontrollably at his misfortune.

·         7 November, 2017 – There was a serious incident when Mr. A was very aggressive and intimidating towards the Complainant’s partner and this matter was brought to the attention of the General Manager and the HR Manager. Subsequently in October/November the workplace became very difficult for both the Complainant and her partner as they felt that they were being constantly harassed and interrupted.

·         22 November, 2017 – The Complainant’s partner contacted Senior Management to complain that this matter was being brushed under the carpet and he was assured that “this awful uncomfortable situation would be dealt with swiftly”. The Complainant’s partner asked the HR Manager for this issue to be resolved as quickly as possible.

·         30 November, 2017 – the Complainant’s partner received a copy of the minutes and conclusions in relation to the investigation of his bullying complaint against Mr. A. The complaint of bullying was not upheld. The Complainant and her partner tried his best to get on with their work thereafter and did their work. However, Mr. A kept trying to intimidate and harass them by shouting and invading their space and the situation regressed in the early months of 2018.

·         5 May, 2018 – the Complainant and her partner attended a meeting with the General Manager, the HR Manager and the Production Manager, both were asked what did they expect management to do, to which they replied “we just want to be left alone to do our work”. They were told that was not going to happen, that Mr. A was their Manager and that they would have to deal with him. The Complainant and her partner replied that they didn’t mind dealing with him but that he had to respect them. They reiterated that they were happy to continue working. The meeting was closed by the General Manager saying: “There is the door, I won’t stand in your way”. Shortly after that the Complainant and her partner were offered a financial inducement by the Respondent to resign from their position with the company.

·         15 May, 2018 – the Complainant’s partner informed the Respondent that he did not wish to accepted the proposed termination agreement as it wasn’t in his or the Complainant’s best interests.

·         28 May, 2018 – the Complainant and her partner attended a meeting with the General Manager and the Production Manager and were informed that senior management had put together some guidelines in respect of the manner in which they and Mr. A should communicate with each other. The Complainant accepted this initiative and agreed to do her best to cooperate in the circumstances. Over the summer in 2018, the Complainant, her partner and Mr. A were on holidays and there were some improvements. The Complainant and her partner were due a pay review in February, 2018 and on twenty occasions over the summer, Mr. A was asked to carry out the review but they were fobbed off by saying it would be done shortly or next week. When the Complainant and her partner returned from holidays the premises had been changed and the manner in which they had laid out their tools in the hotfab to deal with safety issues had been changed without any discussion. The Complainant and her partner engaged with Mr. A in relation to this matter but there was no give from him whatsoever.

·         19 November, 2018 – the Complainant’s partner sent an e-mail to the HR Manager raising a formal grievance against Mr. A and set out details of the treatment in respect of which they both had been subjected to by him.

·         26 November, 2018 – the Complainant commenced certified sick absence from work due stress and anxiety and has not returned to work to date.

·         30 November, 2018 – the Complainant e-mailed the HR Manager to state that “I have been down money this month can you explain why please. Also, I have been docked wages for being out sick. I am having a difficult time at the moment and finding all this very stressful”. The HR Manager emailed the Complainant to say that she had been docked 27 hours for two sick days, personal medical appointment, not showing up for work and that she had to arrange an appointment with the company’s occupational health physician.

·         1 December, 2018 – the Complainant e-mailed the HR Manager to say: “it seems company discretion has changed as we have always been paid before. I always just text in and let the company know I’m sick. In fairness I have not looked at my contract since I signed it. It seems that there has been many changes, it is hard to know what to do. As I am out with stress having this is adding to it”. The Complainant e-mailed the HR Manager on this date to ask why she had been docked sick pay for two different months.

·         3 December, 2018 – the HR Manager replies that the Time Management System works a week behind and for November’s payroll the dates were 22 October, 2018 to 25 November, 2018 and that it was the Department’s supervisor who advises employees what they are getting paid.

·         17 December, 2018 – the HR Manager e-mails the Complainant to say that due to her extended absence (16 days) they had arranged a doctor’s appointment with the company’s occupational health advisors for 8 January, 2019. The Complainant confirms to the HR Manager that she would attend.

·         20 December, 2018 – the Complainant’s partner was informed that the grievance against Mr. A had not been upheld. The Complainant’s partner did not accept the findings in relation to his grievance and submitted an appeal to the HR Manager.

The Complainant submits that she was subjected to penalisation by the Respondent in relation to the following matters as a result of having made numerous complaints and representations relating to health and safety issues:

·         Despite sending a number of emails expressing her concern to her Manager (Mr. A) he has ignored all of her emails since the day he commenced. The Complainant never received a response to even one regarding health and safety.

·         The Complainant has been out sick since November, 2018 as a result of work related stress. While she has been referred to the Company’s medical advisor, no one from the Respondent has been in contact with her.

·         In May 2017 as a result of making representations to their Manager concerning health and safety issues, the Complainant and her partner asked management to “do something” to stop their lives being put at risk. In response, the Respondent offered a termination package to the Complainant and her partner.

·         The Complainant was socially excluded in that the Manager, Mr. A, invited the entire team out to dinner but excluded both her and her partner.

·         Everyone else in the factory got a performance and pay review in 2018 securing minimum increases of 5%. The Complainant and her partner were the only two who were denied either a performance review or a salary increase.

·         The Company’s accountant attempted to coerce the Complainant into resigning her position by offering her financial inducements.

·         There has been no contact whatsoever from the company while the Complainant has been absent on sick leave.

In summary, the Complainant claims that she has been subjected to penalisation by the Respondent as a result of having made a number of complaints in relation to health and safety matters in the workplace.

The Complainant is currently employed by the Respondent as a Quartz Technician. Mr. A commenced employment as the Complainant’s supervisor/manager in early November, 2016 and prior to this the Complainant was self-managed.

In November, 2016, the Complainant’s partner requested a pay rise for himself and the Complainant, a meeting was held where the Complainant raised concerns regarding health and safety. The Complainant was advised that once the Quartz Department was “in the black for 6 months” pay increases would be considered. It is believed that the Complainant entered into a relationship with her partner (who is also employed by the Respondent as a Glass Blower) in or about December, 2016. In January, 2017, the Complainant and her partner accused Mr. A of bullying them, the matter was dealt with informally and was resolved. The Complainant complained to the HR Manager about the incidents and an Incident Report was compiled.

On 26 April, 2017, the Complainant and her partner retrieved two chairs from the skip location that had been removed from the Boardroom and brought them to the “hot area” where they worked. Mr. A advised them that the chairs were not suitable for the work area as they were office executive chairs with a wood structure which is a contaminant in the area and the chairs were damaged. Soon after this the stools were fixed.

On the same day the Complainant’s partner sent an e-mail to the General Manager alleging that: the incorrect hosing being put on the lathe on a previous date; having a Manager (i.e. Mr. A) in place who had no experience whatsoever in the industry; and the lack of a salary review for the previous 7 years. The General Manager replied explaining that the issue with the hosing pipe was a result of a mistake made by the suppliers and detailed over €46,000 that had been spent on the Quartz area in the previous six months since the parties’ last meeting in November, 2016. He further explained that Mr. A had over 20 years’ experience in the industry with a leading manufacturer in the world. In relation to salary, the General Manager explained that since the Complainant and her partner joined in 2011, they received a small increase in salary and that the Complainant’s partner was the third highest paid worker in the factory.

The Complainant’s partner replied again and signed off the e-mail using both his and the Complainant’s names. He complained that:

·         They had not been consulted in the upgrades and money was being spent inefficiently;

·         Alleging that Mr. A locked the fire escapes. However, as soon as the Complainant’s partner raised this issue the locks were removed – the locks had been put on because the fire escapes were not secure at closing hours;

·         Alleging that the “CNC machines were ideal for the Asher Jars’ but instead unsafe practice continues while doing a job inefficiently and causing unnecessary rework after work”.

·         Ovens did not have safety guards on.

·         They had been using the same polishing PPE for the previous 5 years. The Respondent submits that the PPE for the polishing equipment is not used every day and is intended to last for over 5 years, however after the Complainant’s partner raised this issue the PPE was replaced as a cost of €2,000 per suit.

·         Work was being done on equipment while they worked and this represented a danger and the previous week a hydrogen leak occurred while work was being done on equipment.

The Respondent submits it is noteworthy that the Complainant was not cc’d in on these e-mails despite the fact that she had an e-mail address that she used to correspond with the Respondent.

In August, 2017, the Complainant and her partner received a 5% pay increase backdated to 1 July, 2017 and a €500 voucher and they requested a reduction in their working week to a 3 day week on a trial basis. In September, 2017, the Complainant complained that she couldn’t leave early on a Thursday like another employee could. It was explained to the Complainant that each employee is on different terms and conditions and the company had accommodated her request for a 32 hour working week over four days per week.

On 7 November, the Complainant’s partner accused Mr. A of bullying him. However, no health and safety issues were reported. The Complainant was interviewed as part of the investigation into her partner’s bullying complaint, she disclosed that she felt there was a lot of tension and that she found Mr. A’s approach belittling. The Complainant’s partner was provided with a three-page summary of the investigation.

In or around the 17 November, 2017, the Complainant’s partner contacted the HR Manager regarding a number of issues. The matter was investigated and a meeting took place on 23 November, 2017 with the General Manager to discuss the outcome of the investigation. The allegations of bullying were not upheld. The Complainant attended this meeting but the minutes show that she participated very little. In December, 2017 the Complainant and her partner requested to revert to a five day working week and this request was granted by the Respondent.

In or about 19 October, 2018, the Complainant’s partner approached the Production Manager and asked a number of questions regarding his pay entitlement. On 8 November, 2018 the Complainant’s partner complained about not getting paid sick pay entitlements. The Complainant did not raise any issue regarding sick pay.

On 16 November, 2018, the Complainant’s partner raised concerns in relation to an oven door being left open while maintenance work was being carried out on it. Due to the concerns raised by the Complainant’s partner, an incident investigation form and an incident report were completed in relation to the opening of the door. Following this incident, the senior specialist QSL completed an investigation and found that the sensors were 3 years old and still within warranty. It was decided to replace and upgrade all sensors an advice was sought from the senior specialist QSL regarding leaving the oven doors open in the workshop. They advised that the chances of a reaction occurring after the alarm had sounded was zero. The Complainant and her partner were provided with a copy of the said report on 19 December, 2018. On 20 November, 2018, the Complainant’s partner e-mailed the HR Manager regarding the reporting of the incident of 16 November, the Complainant did not raise any issue regarding the incident.

On 19 November, 2018, the Complainant’s partner emailed the HR Manager setting out his grievance in relation to the terms and conditions of employment and conflict with Mr. A. There was no reference to the Complainant being a party to the grievance. There was no health and safety issues outlined in the grievance.

The Complainant’s partner attended a meeting on 17 December, 2018 in relation to the grievance. The Complainant was not in attendance and her partner raised a number of issues specific to him including that he had not been allowed 8 days sick leave and that he had been deducted 24 hours in 2016. No issues specific to the Complainant were raised. The investigator (Mr. X) advised the Complainant’s partner that the Complainant was not included in the investigation and that any issues the Complainant had would be dealt with on a separate basis. A further “Findings” meeting was held on 20 December, 2018 with the Complainant’s partner and Mr. X. Again, at that meeting Mr. X advised the Complainant’s partner that he was only dealing with him as the complaint of 19 November, 2018 came from him, not the Complainant.

By e-mail dated 18 December, 2018, the Complainant’s partner lodged a further grievance against Mr. A. The allegations were investigation and were not upheld. The Complainant was not a party to that grievance.

Mr. X did not uphold the grievance submitted by the Complainant’s partner on 19 November, 2018 and by e-mail dated 4 January, 2019 the Complainant’ partner outlined his dissatisfaction in relation to Mr. X’s findings. In the said e-mail the Complainant’s partner referred to himself 9 times and not once did he use the Complainant’s name, although he did sign the e-mail using both his and the Complainant’s names. This was despite the fact that the Complainant’s name was not referred to in the initial grievance e-mail and did not attend meetings. In a further e-mail on 4 January, 2019, the Complainant’s partner stated “I wish to appeal Mr. X’s findings”. In that e-mail the Complainant’s partner referred to himself 5 times and again he didn’t mention the Complainant’s name once. The second e-mail was signed off using the name of the Complainant’s partner only.

In December, 2018, the Quartz Department took on a new product from a different fab, this increased workload to the extent that overtime was required. Mr. A offered this overtime to the Complainant’s partner on four separate dates. The Complainant has been on sick leave since 23 November, 2018 so this offer was not made to her.

The Complainant’s partner availed of his right to appeal the outcome of his grievance. By e-mail of 18 January, 2019, the Complainant’s partner stated “I wish to appeal” and he availed of this opportunity. The appeal was heard by a member of the Board of Directors and was not upheld.

In summary, the Respondent submits that the Complainant and her partner raised an allegation of bullying against Mr. A In January, 2017 and this was resolved informally. The Complainant did not raise any further grievances or highlight any health and safety issues and the correspondence shows that her partner was the driving force in relation to the instant complaint under the Act.

The Respondent submits that the Complainant has failed to specify what protected act she performed to result in the alleged penalisation. The Respondent further submits that in order for the Complainant to avail of the protections available in Section 27(3) of the Act it is essential that the detriment complained of be causally connected to one or more of the matters referred to in subsection 3 of Section 27 of the Act. The Complainant must show that “but for” having made a protected act under the subsection the detriment would not have happened. The Respondent submits that the Complainant has failed to satisfy this test.

The Complainant relied upon the case of Paul O’Neill -v- Toni & Guy Blackrock Limited [2010] ELR 21 in support of its position on this matter.

Section 27 of the Safety, Health and Welfare at Work Act, 2005, states:

“(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

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

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

(b) demotion or loss of opportunity for promotion,

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

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

(e) coercion or intimidation.

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

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

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

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

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

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

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

In the instant case, the Complainant claims that she was subjected to penalisation by the Respondent in relation to her conditions of employment contrary to Section 27(2) of the Act for having made a series of complaints to management in relation to matters concerning health and safety issues in the workplace.

The Respondent disputes the Complainant’s claim that she was subjected to any act of penalisation contrary to the Act. The Respondent contends that the Complainant’s partner was the driving force in relation to the instant proceedings under the Act and that he included the Complainant’s name on a number of e-mails which were sent to the Respondent in relation to matters concerning health and safety. The Respondent further contends that the Complainant did not raise any issues directly with the Respondent in relation to health and safety matters and that she is in effect attempting to “piggy back” on the complaint raised by her partner. The Respondent submits that the Complainant did not commit an act protected by subsection (3) of Section 27 and that it did not impose a detriment on her because of, or in retaliation for having committed a protected act.

Therefore, the issue of whether or not the Complainant committed a protected act within the meaning of Section 27(3) of the Act was in dispute between the parties. It is clear from the evidence adduced that there was a significant amount of interaction, primarily by way of e-mail correspondence, between the Complainant’s partner and management in relation to matters pertaining to health and safety in the workplace. I am satisfied that it was clearly indicated by the Complainant’s partner in a number of these e-mails that the concerns raised therein relating to health and safety were applicable to both himself and the Complainant. I am also satisfied, having considered a number of the replies which were sent in response to these e-mails, that management was fully aware that the matters being raised applied to both the Complainant and her partner.

In this regard, I have taken cognisance in particular of an exchange of e-mails between the Complainant’s partner and the General Manager dated 26 April, 2017 which clearly relates to concerns which had been previously raised relating to health and safety matters. I note that the General Manager’s response on this date addresses both the Complainant and her partner and it outlines in significant detail the measures and initiatives which the Respondent had put in place to address these concerns since the meeting between the parties some six months previously.

Having considered the evidence adduced by both parties on this matter, I find that, in the course of events submitted to have occurred between November, 2016 and the date of referral of the instant complaint, the Complainant did, in accordance the provisions of Section 27(3) of the Act make a number of complaints and representations to her employer as regard matters relating to safety, health or welfare at work. Accordingly, I find that the Complainant’s actions in this regard constitute a protected act within the meaning of Section 27(3) of the Act.

The Labour Court has held in the case of Toni & Guy case that: “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 suggested 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 determent.”

Therefore, in order to make out a complaint of penalisation contrary to the Act, it is necessary for the Complainant to establish not only that she suffered a detriment of a type referred to at subsection (1) but that the detriment complained of was imposed because of, or was in retaliation for, having committed a protected act.

The Complainant referred the instant complaint to the Workplace Relations Commission on 14 December, 2018. By application of the time limits provided for at Section 41(6) of the Workplace Relations Act, 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 15 June, 2018 to 14 December, 2018. Accordingly, I only have jurisdiction to consider the alleged acts of penalisation that occurred during this period.

The Complainant contends that having made a protected act that she was subjected to a number of different detriments which constitute acts of penalisation within the meaning of Section 27(3) of the Act. I have considered the alleged detriments which occurred during the cognisable period under the following categories:

a)       Failure by her Manager, Mr. A, to acknowledge or respond to her e-mails regarding safety issues.

b)      Attempt to coerce her into resigning her position.

c)       Denial of performance review, salary increase and social exclusion.

d)      Respondent has failed to contact her during absence on sick leave.

I have examined each of these complaints in turn and make the following findings.

Failure by her Manager to acknowledge or respond to her e-mails regarding safety issues

The Complainant contends that despite sending a number of emails expressing her concern to her Manager (Mr. A) he has ignored all of her e-mails since the day he commenced employment with the Respondent and that she has never received a response to even one regarding a safety issue. The Respondent disputes that the Complainant raised any issues with management in relation to health and safety of her own volition and contends that it was her partner who raised any such issues on her behalf.

In considering this issue, I note that I have not been presented with any documentary evidence to corroborate the Complainant’s contention that she sent a number of e-mails to her Manager, Mr. A, either during or before the cognisable period concerning matters relating to health and safety. Having regard to the evidence adduced, it would appear that any issues concerning health and safety matters pertaining to the Complainant were raised on her behalf by her partner during the course of his interaction with management in relation to such matters. I have been presented with several e-mails which were issued by management to the Complainant’s partner in response to matters which had been raised concerning health and safety in the workplace. In the circumstances, I am satisfied that management engaged with the Complainant’s partner in a proactive manner in relation to any such matters which were raised on behalf of the Complainant.

In the circumstances, I am unable to find a causal connection between the alleged detriment in relation to this matter and the fact that the Complainant had committed a protected act within the meaning of the Act. Accordingly, I find that the Complainant has not established that she suffered any detriment that constitutes penalisation within the meaning of Section 27 of the Act in relation to this matter.

Attempt to coerce her into resigning his position

The Complainant claims that the Respondent attempted to coerce her into resigning her position by offering her a termination package and financial inducements to leave the company. She argues that the Respondent’s attempts to force her out of her position occurred in response to her having raised concerns in relation to health and safety matters in the workplace. The Respondent did not dispute that the Complainant and her partner were offered a severance package in May, 2018 but denies that there was any attempt to coerce her into resigning her position. The Respondent contends that this issue arose in the context of the Complainant and her partner having sought a redundancy package during the course of discussions between the parties in relation to attempts to seek a resolution to the workplace conflict between the Complainant’s partner and Mr. A.

In considering this matter, I have taken cognisance of the evidence of the Respondent’s Production Manager that the Complainant was a highly valued and experienced employee and that the company could ill afford to lose her services at the material time in question given the highly skilled job that she performed. I have found the Production Manager’s evidence on this matter to be very compelling, and on balance, I accept the Respondent’s evidence in relation to the context that the discussions occurred between the parties regarding the offer of a severance package.

Having considered the totality of the evidence adduced on this matter, I cannot conclude that there was an attempt by the Respondent to coerce the Complainant into resigning her position or that the interaction which took place between the parties in relation to the offer of a severance agreement was in any way related to the protected act that had been undertaken by her. Accordingly, I find that the Complainant has not established that she suffered any detriment that constitutes penalisation within the meaning of Section 27 of the Act in relation to this matter.

Denial of performance review, salary increase and social exclusion

The Complainant has also claimed that she suffered a detriment in relation to the Respondent’s failure to failure to carry out her performance review and the denial of a salary increase. The Complainant contends that the alleged detriments in relation to these matters occurred as a result of her having made complaints in relation to health and safety matters in the workplace.

Having regard to the totality of the evidence adduced, I cannot accept the Complainant’s position in relation to these matters or that has established that she suffered any detriment that constitutes penalisation within the meaning of Section 27 of the Act in relation to such matters.

In relation to the alleged denial of a pay rise, I accept the Respondent’s uncontested evidence that the Complainant received a 5% pay rise in August, 2017 which was backdated to 1 July, 2017 and a €500 One-for-All voucher.

In relation to the issue of the performance review, I note that the Respondent did not dispute that the Complainant’s performance review for 2018 was overdue and had not been carried out within the stipulated timeframes. I heard evidence from Mr. A on this matter and he accepts that the Complainant’s performance review was overdue but stated that the Complainant was absent on sick leave in December, 2018 when he carried out the reviews of other staff members in the Quartz Department. In the circumstances, I am satisfied that the operative cause for the failure by Mr. A to carry out the Complainant’s performance review in a timely manner, was not in any way attributable to concerns which she had raised in relation to health and safety matters.

In relation to the issues concerning social exclusion, the Complainant contends that her Manager, Mr. A invited the entire team out for a dinner but excluded both her and her partner. I note that the Respondent did not dispute that the Complainant and her partner were not invited to attend this dinner but contends that this fact was not in any way connected to her having made a complaint in relation to health and safety matters. Mr. A adduced evidence that this dinner was a business-related event and invitations were extended to staff members from the team that were participating in a training course. Mr. A stated that the Complainant, her partner and another member of the team did not participate in the training and that was the reason why they were not invited to attend the dinner. On balance, I have found the Respondent’s evidence more compelling in relation to this matter, and I find that the reason the Complainant was not invited to the dinner was not in any way attributable to concerns which she had raised in relation to health and safety matters.

Having regard to the foregoing, I am unable to find a causal connection between the alleged detriment in relation to the denial of a performance review and salary increase and social exclusion and the fact that the Complainant had committed a protected act within the meaning of the Act. Accordingly, I find that the Complainant has not established that she suffered any detriment that constitutes penalisation within the meaning of Section 27 of the Act in relation to this matter.

Respondent has failed to contact her during absence on sick leave

The Complainant has been absent from work since November, 2018 as a result of work related stress. The Complainant acknowledges that she has been referred to the Company’s Medical Advisor during her absence but states that no one from the Respondent has been in contact with her in the interim period. The Complainant contends that the failure by the Respondent to initiate contact with her during this period constitutes a detriment which has been imposed as a result of her having made complaints in relation to health and safety matters in the workplace.

In considering this matter, I take the view that the Complainant’s contention that she has not had any contact from the Respondent since she went absent on sick leave in November, 2018 is not entirely accurate. In this regard, I have been presented with copies of e-mails exchanged between the Complainant and the Respondent’s HR Manager from the end November/December, 2018 in relation to queries which arose concerning the Complainant’s sick pay entitlements. Notwithstanding the foregoing, I also note it was common case that the Complainant has been absent from work on certified sick leave during the material period in question, and therefore, continues to be certified medically unfit for work. It was not in dispute that the Complainant’s position remains available to her when she is certified medically fit to return to work. I am satisfied that the Complainant has failed to specify the precise nature of the detriment within the meaning of Section 27 of the Act which she claims to have suffered in relation to this matter.

Having regard to the totality of the evidence adduced, I find that the Complainant has not established that she suffered any detriment that constitutes penalisation within the meaning of Section 27 of the Act in relation to this matter.

I find that the Complainant did undertake a protected act but that the alleged detriments suffered by the Complainant do not constitute penalisation within the meaning of Section 27 of the Act. Accordingly, I find that the complaint is not well founded.

Safety, Health and Welfare at Work Act 2015 – Section 27 – Protected Act – Penalisation – Detriment – Conditions of Employment - Bullying and Harassment – Complaint not well founded