ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020821
Parties:
| Complainant | Respondent |
Anonymised Parties | Executive Officer | Government Department |
Representatives | Robert O’Reilly, B.L., instructed by Peter Boyle & Co. Solicitors | HR Manager |
Complaint(s):
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-00027437-001 | 27/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00027543-001 | 05/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00027543-002 | 05/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00028084-001 | 16/04/2019 |
Date of Adjudication Hearing: 08/10/2019
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant is an Executive Officer in the Public Service who first commenced employment in 2003. There was a break in his service from 2007 until 2013 when he re-commenced employment. The complaints are in relation to the complainant’s assertion that he had reported a disability to management in March 2018 and that this was subsequently denied by management causing him to suffer a detriment, that he was prevented from contacting his solicitor in regard to work-related concerns that he had, that as a result of requesting assistance from his union in respect of his workload and resultant stress he was subjected to a Performance Improvement Plan (PIP) process and that that process was in breach of the the written policy in this regard. |
Summary of Complainant’s Case:
The complainant reported a serious medical condition to his line manager on 28 March 2018. No record of the meeting was kept and management subsequently denied that the complainant had reported his disability. Management invoked the GDPR to prevent the complainant from contacting his solicitor. Management in an act of retaliation as a result of the complainant contacting his union in relation to health and safety concerns instituted the PIP process. These actions were in breach of the policy governing the process. |
Summary of Respondent’s Case:
The complaints are out of time as they were not lodged with the WRC within the time permitted under legislation. Without prejudice to the above the respondent rejects the allegation that the complainant suffered any detriment in this matter. The respondent refutes the allegation that any disclosure was made within the context of the Protected Disclosure legislation. The imposition of a PIP was not related to the fact that the complainant contacted his union but was because of the complainant’s low levels of productivity at that time. |
Findings and Conclusions:
Complaint No. CA-00027543-001 which is a complaint under the Protected Disclosures Act, 2014, was withdrawn at hearing. Preliminary Issue: The respondent raised the issue of the complaints being out of time due to the fact that the complainant lodged these complaints with the WRC in excess of the time limit of 6 months provided for in the legislation. Section 41(6) of the Workplace Relations Act, 2015, states: Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. Section 41(8) of the Act states: An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the comlaint or dispute within that period is due to reasonable cause. Complaint No. CA-00027437-001 was lodged with the WRC on 27 March 2019. In this complaint under the Safety, Health and Welfare at Work Act, 2005, the complainant alleges that he informed his line manager on 28 March 2018 that he was suffering from a serious medical condition but that no record was made of this fact. The complainant then went on to state that subsequent to that the respondent invoked the Civil Service Management of Underperformance Policy in his respect and instituted a Performance Improvement Plan (PIP) for the complainant in this regard. This PIP was put in place on 17 April 2018. The complainant believed that if management had accepted that he had reported a disability on 28 March then his case against the imposition of a PIP would have been strengthened. Management, however, did not accept that he had in fact reported a disability at that time. The formal PIP was subsequently withdrawn by management following consultations with the HR Dept. It would appear to me therefore that the date of the alleged detriment was the date that the PIP became operative, i.e. 17 April 2018. In his initial submission in respect of this complaint the complainant accepted that the complaint was lodged in excess of the 6 month period provided for under Section 41(6) of the Act. The complainant in that submission stated that the delay was due to the fact that he had lodged another claim over an issue at that time and had hoped that through negotitions matters would be resolved. It was only when it became clear that this would not happen that he decided to proceed with these complaints. At the hearing, however, the complainant stated that he went on a period of sick-leave that lasted from 14 August 2018 until 13 December 2018 and could not deal with issues during that time. I note in this regard a report, dated 11 December 2018, from a medical practioner that refers to having a number of consultations with the complainant and which states that the complainant had suffered stress, anxiety and depression. The respondent in answer to the original reason put forward by the complainant argued that delaying a claim on the basis of awaiting the outcome of a separate claim did not represent reasonable cause. As regards the position put forward at the hearing the respondent stated that the complainant had waited for almost 5 months after his return to work before lodging his complaint. The Labour Court has examined the issue of ‘reasonable cause’ in Cementation Skanska v Carroll, DWT38/2003 in which it stated: “It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons that both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that isto say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and cicumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant must satisfy the Court, as a matter of probability,that had those circumstances not been present he would have initiated the claim in time. The Court also considered the issue in QFF Distribution Ltd. v O’Reilly, PDD171 as follows: “While the established test imposes a relatively low level of reasonableness on an applicant, there is some limitation on what can be taken into account. In particular, as pointed out by Costello J in Donall O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation (1991)ILRM30, ….a court should not extend a time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings. The complainant submits that in the period since his resignation he has been suffering from stress and anxiety (for which he was receiving medical attention) as a consequence of the manner in which he was treated whilst an employee of the respondent. He further submits that this affords him reasonable cause for delaying in initiating proceedings under the 2015 Act in respect of the alleged penalisation he experienced.” In that case the Court also noted that the complainant in that case had instituted proceedings against the respondent under different legislation during this period. The Court concluded as follows: “The Court has considered the submissions of both parties and determines that the complainant has failed to establish to the Court’s satisfaction that the reason he relies on provides a justifiable excuse for his delay in commencing proceedings under the 2015 Act, particularly in circumstances where the complainant was sufficiently well enough to commence proceedings against the respondent under the 1991 Act and did so.” I note that in the proceedings before me the complainant lodged the other complaint mentioned in his original submission with the WRC on 22 August 2018 whilst he was out on sick leave. Having regard to all of the above I am not satisfied that the reasons relied upon by the complainant constitute a reasonable cause for the delay in instituting this complaint and I consequently cannot extend the period beyond the 6 months allowed for in Section 41(6) of the Act. I therefore do not have jurisdiction to hear this complaint. Complaint No. CA-00027543-002 is a complaint under the Safety, Health and Welfare at Work Act, 2005, in relation to a further allegation that the imposition of the PIP was not carried out in accordance with the procedures laid down for the policy, was the cause of ongoing stress for the complainant and was a consequence of the complainant having contacted his union and informed management about his condition. The complaint was received in the WRC on 5 April 2019. As noted above the PIP was formally initiated on 17 April 2018 and again the complainant acknowledges that the claim is outside the 6 month time period and requests an extension as provided for in Section 41(8) of the 2015 Act. Regrettably, and for the same reasons as outlined in the previous complaint, I cannot extend the period as requested as I do not find that reasonable cause has been established and I therefore do not have jurisdiction to hear the complaint. Complaint No. CA-00028084-001 is a complaint under theSafety, Health and Welfare at Work Act, 2005, and is also a claim of penalisation based on the imposition of the PIP. This complaint was lodged with the WRC on 16 April 2019 and again the complainant seeks extension of the time limit as per Section 41(8) of the 2015 Act. In line with my previous decisions and for the same reasons I cannot agree to this extension of the time limit and I therefore do not have jurisdiction to hear the complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint No. CA-00027437-001: This is a complaint under the Safety, Health and Welfare at Work Act, 2005. For the reasons outlined above I find that this complaint was submitted outside of the time limit provided for in legislation and that consequently I do not have jurisdiction to hear the complaint. Complaint No. CA-00027543-001: This is a complaint under the Protected Disclosures Act, 2014. It was withdrawn at hearing. Complaint No. CA-00027543-002: This is a complaint under the Safety, Health and Welfare at Work Act 2005. For the reasons outlined above I find that this complaint was submitted outside of the time limit provided for in legislation and that consequently I do not have jurisdiction to hear the complaint. Complaint No. CA-00028084-001: This is a complaint underthe Safety, Health and Welfare at Work Act, 2005. For the reasons outlined above I find that this complaint was submitted outside of the time limit provided for in legislation and that consequently I do not have jurisdiction to hear the complaint. |
Dated: 18/11/19
Workplace Relations Commission Adjudication Officer: Joe Donnelly
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