ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | A Limited Company |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00026459-001 | ||
CA-00026459-002 | ||
CA-00026459-003 | ||
CA-00026459-004 | ||
CA-00026459-005 | ||
CA-00026459-006 | ||
CA-00026459-007 | ||
CA-00026459-008 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 79 of the Employment Equality Acts, 1998 – 2015 and Section 13 of the Industrial Relations Acts 1969, following 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
Summary of Complainant’s Case:
The complainant started employment with the respondent on the 16th of September 2018. She worked until the 18th of September 2018. Prior to commencing her employment the complainant was interviewed by the respondent’s manager on Friday the 14th. During the interview the complainant explained to the respondent’s manager Ms. VA that she could not work in a heated or poorly ventilated environment because it affects her health and she gets very sick. The left side of her body gets very numb and she loses all feeling and sensation in the limbs on the left side of her body. The complainant was offered a trial, which she did on Saturday 15th of September. The respondent manager told the complainant that she must serve as the hot counter. The complainant informed the respondent that the windows must be left open at all times, to ensure good ventilation. Many years ago when the complainant was 19 years old and again when she was 26 years old, she experienced health difficulties due to poor ventilation and heat. In Latvia she was diagnosed with heart failure due to slow blood flow and her cells and tissues suffered from oxygen starvation. The complainant also believes that as a result of her going into heart failure she also has gone into renal and liver failure. The complainant is not on the heart transplant list or the kidney transplant list. She takes over the counter medication which she gets in Latvia. On the 18th of September the complaint states that she was not feeling very well. She was feeling very hot and had a strange sensation in her limbs. She went home and had a shower but her limbs were very numb. The following morning, she went to work and explained her situation to the respondent, who told her to go to the doctor. She attended at the Mater hospital later that day and had a CT and MRI scan done together with several blood tests. She was admitted for a number of days. Whilst in hospital she complains that the ventilation in her room was very poor and as a result she was suffering from nose bleeds and shortness of breath. Whilst in hospital the complainant was not given any treatment or any medication. She was diagnosed as having a migraine however the complainant states that this diagnosis is incorrect she is in heart, liver and kidney failure. On the 18th of September the complainant was working however she was feeling very hot. Somebody had closed the windows. The complainant noticed EG, the old guy with glasses and grey hair doing something behind her back and then he started singing and dancing. The complainant now knows that he closed the window on purpose and that's why he found it so amusing. The complainant noticed that EG himself who was working from 9 a.m. to 3 p.m. was very red in the face he looked like a boiled lobster. She observed that EG asked her very suspiciously on several occasions during that day how she was feeling. The complainant believes that EG closed the window on purpose in an attempt to murder her. The complainant was unaware that the window had been closed because it was to her back and she was too busy working to notice. It wasn't until she went home that she realised the window must have been closed and that is why she got so ill. Furthermore, there was an incident on the 18th of September when the complainant was kneeling down to fix her shoe a small thin gay guy who walked past her put his hand on her back where her bra strap is. The complainant accepts that she does not know whether he did it intentionally or not but either way she deems what he did to be a sexual assault. She has been the victim of many sexual assaults over the years in this country and has a zero tolerance for such things. The complainant reported both matters to the respondent. The respondent requested that she put her complaint in writing and that she give specifics in relation to who it was that allegedly sexually assaulted her together with dates times etc. The complainant did not lodge a formal complaint as she went into hospital later that day. The complainant accepts that she was given an opportunity when she was discharged from hospital to file a formal complaint however she failed to do so because she said she was medically unfit to write the complaint. The respondent asked the complainant to get a fitness to work certificate from her doctor. The complainant states that the hospital refuse to give her the letter and lied to her when they told her that they don't give out such letters. The complainant was dismissed from her employment by letter dated 25th of September 2019. The complainant believes that she was sexually assaulted by an employee of the respondent and that the respondent discriminated against her because of her illness and penalised her because she filed the complaint in relation to the sexual assault and the alleged attempted murder allegation. The complainant stated that she wants to be compensated by the respondent because she needs the money to get treatment for her illness. |
Summary of Respondent’s Case:
Findings and Conclusions:
CA 00026459-002 is identical to claim CA 00026459 -001. On that basis I am dismissing CA 00026459- 002 and will deal with the complaint under CA 00026459-001. CA 26459-001 The complainant made several complaints against the respondent. She was asked to put those complaints in writing. The reason she was asked to put them in writing was because of the lack of consistency in her story and the due to the lack of detail. The complainant obviously could not do so when she was in hospital. That is why she was offered another opportunity to do so after she was discharged. She failed to so and failed to disclose to the respondent why she did not or could not do so. When the complainant’s probationary period was terminated on the 29th September, 2018 she was offered an opportunity to appeal that decision and she failed to avail of that opportunity. There is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008: “The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.” The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011: “Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair” The complainant was asked to put her complaint in writing. She did not. The complaint was asked to get a ‘fitness to work’ certificate. She did not. She was offered an opportunity to appeal the decision to terminate her probationary period, she did not appeal. In all of the circumstances I find that the complaint is not well founded and accordingly I am not making any recommendation. CA 00026459-003 The complainant alleges that she was sexually assaulted by an employee of the respondent in circumstances where a man placed her hand on her back as he passed her in the corridor. This was the only incident. The complainant was asked to provide details of the man who allegedly assaulted her. She failed to do so. I find that placing of a hand on someone’s back whilst brushing past them, whilst it might be slightly inappropriate in some circumstances does not amount to a sexual assault. The respondent took the complaint very seriously and in line with their ‘Dignity at Work’ policy asked the complainant to set out the specifics of her complaint in writing. She failed to so do. In all of the circumstances of the dispute I find that the complaint is not well founded and I am not making a recommendation CA 00026459-004. This claim was a repeat of 003 above. I am not making a recommendation. CA 000 26459-005 No evidence was adduced. The complaint fails CA 00026459 -006. ( Penalisation) The initial burden of proof is on the complainant to establish a protected act and a detriment. If and only if the complainant established a protected act and a detriment does the burden shifts to the respondent to put forward evidence that the detriment suffered was not due to the protected act being an operative cause. Toni & Guy Blackrock v. Paul O’Neill [2010] 21 E.L.R. 1 established that the burden of proof is on a complainant to establish that on the balance of probabilities (a) she committed a protected act, and (b) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed. The Labour Court held that if both limbs were satisfied, the burden shifted to the employer to show, on credible evidence, on the balance of probabilities, that the protected act did not influence the detriment imposed. Section 27. (1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. (2) Without prejudice to the generality of subsection (1), penalisation includes— a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, 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. The acts protected from penalisation are set out in s. 27(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. The scope of what can be a protected act is broad. The mere request for a copy of a bullying and harassment policy was sufficient for the Labour Court in In Board of Management of St. David’s CBS Secondary School Artane v. Siobhan McVeigh (HSD 118, 8th July 2011), to find that it a protected act. the It is also well establish that an employee does not have to use the respondent’s grievance procedure for their act to amount to a protected act. In Stobart Ireland Driver Services v. Carroll [2013] IEHC 581, a truck driver asked that he not to be rostered due to his fatigue. This act was held to be a protected act by the Labour Court and the High Court, on appeal. Kearns P. spoke to the broadness of the Act of 2005 by stating, at paragraph 26:- “There is no requirement in the Act to report any complaint via a grievance procedure. The Act specifically states "report…as soon as practicable". Thus the respondent in this case can be deemed to have made his complaint when he reported that he was too tired to drive. It is clear that the subject matter of a protected complaint or representation is not relevant to determination of claims pursuant to s. 27. In St. John's National School v Jacinta Akduman [2010] 21 E.L.R. 301, the Labour Court held that it was making no finding in relation to the veracity of the complaint of bullying, in making its determination pursuant to s. 27. On the morning of the 18th September the complainant came to her manager’s office to make two complaints. She stated that she did not want anyone asking her personal questions. Secondly, she stated that a staff member accidentally brushed off her in the corridor. She was of the belief at that juncture that it was accidental. She did make it known that she did not like it. Both complaints were vague and lacked content. Later that day she was asked for some details in relation to the complaint. non were forthcoming. On the 19th the complainant asked for a copy of the cctv so that she could establish who had closed the window behind her the previous day. The complainant was again asked to submit her complaint in writing setting out some details. The respondent extended the time for the complainant to submit her complaint. She failed to do so. I am satisfied that the complainant did make complaints to the respondent on the 18th and 19th of September and the complaints were of the nature envisaged by Section 27(3) (c ). I must now establish if there is a link between the protected act and the detriment. In a case stated above, Toni & Guy Blackrock v. Paul O’Neill [2010] 21 E.L.R. 1 it also sets out the “but for” test. ‘But for’ the complainant having committed the protected act she would not have suffered the detriment. The accepted method of analysing a situation where there is a protected act, but some other reason proffered by the employer for the detrimental act, is to require both a deviation from fair procedures and proximity in time to the protected act. I am satisfied that the reason the complainant’s probationary period was terminated was because she failed to give the respondent a fitness to work certificate. She was asked to submit it on the 24th September and when the respondent still had not received it by the 28th September they terminated her employment. The complaint fails. CA 00026459 -007 No evidence was adduced. The complaint fails. CA 00026459 -008 No Evidence was adduced. The complaint is not well founded. I am not making a recommendation. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA 000 26459-005 The complaint fails
CA 00026459 -006 the complaint fails.
CA 00026459 -007 the complaint fails.
CA 00026459 -008 the complaint fails.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA 00026459-002 the complaint fails.
CA 00026459-001 The complaint fails.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
CA 00026459-004 I am not making a recommendation
CA 00026459-005 I am not making a recommendation.
Dated: 18th September 2019
Workplace Relations Commission Adjudication Officer:
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