Complainant

Respondent

Anonymised Parties

Director of Internal Audit

Property Management Company

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-00020462-001

10/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00020463-001

10/07/2018

The Complainant commenced employment with the Respondent in 2009. Prior to going on maternity leave in October 2016, the Complainant was employed as Director of Lettings & Residential Property. On her return from maternity leave in April 2017, the Complainant was appointed to the role of Director of Internal Audit. The Complainant asserts that she had no alternative but to accept this position. The Complainant contends that she suffered poor treatment and job uncertainty after returning from maternity leave and taking on the role of Director of Internal Audit.

The Complainant raised a grievance with the Respondent in a letter from her solicitor dated 25 April 2018. The Complainant lodged a complaint of discrimination under the Employment Equality Acts with the WRC on 30 April 2018. That complaint is the subject of a related Adjudication Officer Decision – ADJ-00014424.

Under the herein referral to the WRC, the Complainant has lodged two complaints – one alleging penalisation pursuant to the Safety, Health and Welfare at Work Act, 2005 and the other alleging victimisation pursuant to the Employment Equality Act, 1998.   Both complaints are underpinned by the same set of facts.

The Complainant submits as follows:

The Complainant raised a grievance with the Respondent in a letter from her solicitor dated 25 April 2018. The Complainant raised issues of bullying and harassment contrary to the Safety Health and Welfare at Work Act, 2005. The adverse treatment in response to this was penalisation.

The adverse treatment after 25 April 2018 included:

·         Pursuant to a letter from the employer of 26 July 2018, the Complainant was not paid a bonus in 2018. The Complainant is not aware of an employee at her level who did not receive a bonus. She was never refused a bonus in previous years. The Adjudicator is entitled to decide that the decision not to pay a bonus related to the grievance letter of 25 April 2018 from the Complainant’s solicitor.

·         The CEO first mentioned a Performance Improvement Plan (PIP) on 5 April 2018. On 26 July 2018 the Respondent resurrected the PIP in correspondence. There is no provision for a PIP in the company documentation. It was unreasonable to push ahead with the PIP when the Complainant had made a complaint on 25 April 2018 and it was not yet investigated, and part of the complaint was the unreasonableness of having a PIP. The Complainant is not aware of a PIP process being used for any other employee.

·         There was considerable delay in investigating the Complainant’s grievance submitted on 25 April 2018. By the time the Complainant resigned, it had still had not been investigated. While some delays were excusable such as a failed mediation process, the delays were largely due to the Respondent not knowing what policies existed and not getting terms of reference prepared swiftly. For instance, the Respondent notified the Complainant of the appointment of an investigator on 14 June 2018 but the Complainant was not furnished with terms of reference until 4 July 2018.

The Respondent submits as follows:

The Complainant is seeking compensation for the same alleged wrong under two separate pieces of legislation. The Complainant is estopped from being compensated for the same alleged wrong twice and it is submitted that she must make an election in relation to same.

The Complainant appears to suggest that being placed on a PIP was an act of penalisation. The Complainant’s own submissions accept that the PIP was first mentioned on 5 April 2018. This was a number of weeks before the Complainant raised any grievance under either piece of legislation. Therefore, the placing of the Complainant on a PIP cannot be seen as a reaction to the raising of a grievance by the Complainant on 25 of April 2018.

The Complainant also appears to argue that the alleged delays in dealing with the grievance was an act of penalisation. There were no undue delays. The Complainant herself ultimately failed to engage in the investigation process.

Finally, there is a suggestion that the failure to pay the Complainant a bonus in July 2018 was an act of penalisation. The bonus was at all times discretionary. It is entirely reasonable for an employer not to pay an employee a bonus when they are on a PIP. This is not an act of penalisation and/or victimisation.  

Direct evidence of the CEO

On 9 April 2018, the CEO sent a detailed email to the Complainant in which the CEO detailed her understanding of the interactions between the parties up to that date, the Complainant’s current projects and responsibilities and the next steps she believed were necessary which included a proposal to place the Complainant on a PIP. The Head of HR had explained the options available to the CEO.   It was the CEO’s understanding that a PIP was meant to be positive.

According to the CEO, the Complainant promised a response to the comprehensive email of 9 April 2018 but no response was ever received from the Complainant to that email.

In June 2018, at the end of the Respondent’s financial year, the CEO conducted an annual review of all staff. She had not heard back from the Complainant in relation to her long email of 9 April 2018 in which she raised concerns about the Complainant’s performance and, therefore, was hesitant about having a one-to-one annual review meeting with her.  

The CEO asserted that there was no bonus policy in the Respondent company. The CEO confirmed that all bonuses were discretionary, not contractual. The CEO strongly refuted the Complainant’s allegation that the Respondent did not pay the Complainant a bonus in 2018 to get back at her.

Direct evidence of the Head of HR

The Head of HR said that she spoke to the CEO in April 2018 about the options available to the CEO to address the Complainant’s performance issues.   The Head of HR indicated that she had made use of PIPs in the past to help underperforming employees get back on track. The Head of HR confirmed that the PIP process never commenced in relation to the Complainant.

What is in issue in this case is whether the Complainant was penalised within the meaning of section 27 of the Safety, Health and Welfare at Work Act, 2005. This section, in relevant part, provides: -

“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.

(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.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).”

As the Labour Court pointed out in O’Neill v Toni and Guy Blackrock Limited (ELR 21):

“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 suggests 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 detriment.”

In the instant case, the protected act relied upon is the raising of a formal grievance under the Safety, Health and Welfare at Work Act, 2005 on 25 April 2018. The detriment complained of is the non-payment by the Respondent of a bonus to the Complainant in 2018, the Respondent’s reactivation of its decision to put the Complainant on a PIP and the delay on the part of the Respondent in investigating the Complainant’s grievance

I must now decide if the Complainant was penalised during the cognisable period for having committed an act that was protected by subsection 3 of section 27 of the Act. I will examine each alleged penalisation in turn.

Non-payment of a bonus in 2018

I note the divergent positions of the parties in relation to the non-payment of a bonus in 2018. On one hand the Complainant is of the view that it was a retaliatory gesture in reaction to the formal grievance which she submitted on 25 April 2018. The Respondent, on the other hand, is of the view that an employee for whom a PIP had been proposed would not be paid a bonus.

I note that a PIP had been proposed on 5 April 2018, and the CEO had detailed her concerns about the Complainant’s performance in an email of 9 April 2018.   I further note that the Complainant, despite indicating her intention to do so, never responded to the CEO’s email of 9 April 2018 and, therefore, the issues which the CEO had with the Complainant’s performance were not addressed prior to the Complainant’s resignation in August 2018.

Discretionary bonuses are usually paid as a recognition of the both a company’s and an individual employee’s performance in the preceding financial year. Given that the Respondent had serious concerns about the Complainant’s performance which had not been resolved when the annual review and bonus process took place in June 2018, I am of the view that it was understandable that the Complainant did not receive a bonus in 2018.

I find, therefore, that this element of the complaint is not well founded.

Reactivation of the Respondent’s decision to place the Complainant on a PIP

It is common case that the proposed PIP was first mentioned on 5 April 2018, prior to the Complainant raising a grievance with the Respondent. I find, therefore, that there cannot be a causal connection between the proposal to place the Complainant on a PIP and the raising of a grievance by the Complainant.

In this regard I am guided by the Labour Court’s determination in St. John's National School v Jacinta Akduman (HSD102) where the Court was of the view that “if the alleged conduct was initiated before the complaint was made and continued thereafter, it could hardly be said that the conduct was because of the complaint or that but for the complaint it would have ceased.”

I find, therefore, that this element of the complaint is not well founded.

Delay in investigating the Complainant’s grievance

In a related Adjudication Officer Decision (ADJ-00016777), I have found that there was no undue delay by the Respondent in investigating the Complainant’s grievance.

I find, therefore, that this element of the complaint is not well founded.

Having regard to the totality of the evidence adduced, I find that this complaint is not well founded.

The Complainant raised a grievance in a letter from her solicitor on 25 April 2018. In it she raised issues of discrimination on the gender ground. The adverse treatment in response to this was victimisation.

The adverse treatment after 25 April 2018 included:

·         Pursuant to a letter from the employer of 26 July 2018, the Complainant was not paid a bonus in 2018. The Complainant is not aware of an employee at her level who did not receive a bonus. She was never refused a bonus in previous years. The Adjudicator is entitled to decide that the decision not to pay a bonus related to the grievance letter of 25 April 2018 from the Complainant’s solicitor.

·         The CEO first mentioned a Performance Improvement Plan (PIP) on 5 April 2018. On 26 July 2018 the Respondent resurrected the PIP in correspondence. There is no provision for a PIP in the company documentation. It was unreasonable to push ahead with the PIP when the Complainant had made a complaint on 25 April 2018 and it was not yet investigated, and part of the complaint was the unreasonableness of having a PIP. The Complainant is not aware of a PIP process being used for any other employee.

·         There was considerable delay in investigating the Complainant’s grievance submitted on 25 April 2018. By the time the Complainant resigned, it had still had not been investigated. While some delays were excusable such as a failed mediation process, the delays were largely due to the Respondent not knowing what policies existed and not getting terms of reference prepared swiftly. For instance, the Respondent notified the Complainant of the appointment of an investigator on 14 June 2018 but the Complainant was not furnished with terms of reference until 4 July 2018.

Section 74 of the Employment Equality Acts preclude an employer from retaliating against an employee for making complaints of discrimination, and such acts of victimisation are envisioned to take many forms; all that is required by Section 74 is that the detrimental conduct has occurred in reaction to the employee’s reliance on their rights. The Labour Court in Department of Foreign Affairs v. Patricia Cullen EDA116 found that “This definition is expressed in terms of there being both a cause and an effect in the sense that there must be a detrimental effect on the Complainant which is caused by him or her having undertaken a protected act of a type referred to at paragraphs (a) to (g) of subsection (2)”.

The Complainant lodged a complaint of discrimination with the WRC on 30 April 2018.

The Respondent submits as follows:

The Complainant is seeking compensation for the same alleged wrong under two separate pieces of legislation. The Complainant is estopped from being compensated for the same alleged wrong twice and it is submitted that she must make an election in relation to same.

The Complainant appears to suggest that being placed on a PIP was an act of victimisation. The Complainant’s own submissions accept that the PIP was first mentioned on 5 April 2018. This was a number of weeks before the Complainant raised any grievance under either piece of legislation. Therefore, the placing of the Complainant on a PIP cannot be seen as a reaction to the raising of a grievance by the Complainant on the 25th April 2018.

The Complainant also appear to argue that the alleged delays in dealing with the grievance was an act of victimisation. There were no undue delays. The Complainant herself ultimately failed to engage in the investigation process.

Finally, there is a suggestion that the failure to pay the Complainant a bonus in July 2018 was an act of victimisation. The bonus was at all times discretionary. It is entirely reasonable for an employer not to pay an employee a bonus when they are on a PIP. This is not an act of victimisation.  

Direct evidence of the CEO

On 9 April 2018, the CEO sent a detailed email to the Complainant in which the CEO detailed her understanding of the interactions between the parties up to that date, the Complainant’s current projects and responsibilities and the next steps she believed were necessary which included a proposal to place the Complainant on a PIP. The HR Director had explained the options available to the CEO.   It was the CEO’s understanding that a PIP was meant to be positive.

According to the CEO, the Complainant promised a response to the comprehensive email of 9th April 2018 but no response was received from the Complainant to that email.

In June 2018, at the end of the Respondent’s financial year, the CEO conducted an annual review of all staff. She had not heard back from the Complainant in relation to her long email of 9 April 2018 in which she raised concerns about the Complainant’s performance and, therefore, was hesitant about having a one-to-one annual review meeting with her.  

The CEO asserted that there was no bonus policy in the Respondent company. The CEO confirmed that all bonuses were discretionary, not contractual. The CEO strongly refuted the Complainant’s allegation that the Respondent did not pay the Complainant a bonus in 2018 to get back at her.

Direct evidence of the Head of HR

The Head of HR said that she spoke to the CEO in April 2018 about the options available to the CEO to address the Complainant’s performance issues.   The Head of HR indicated that she had made use of PIPs in the past to help underperforming employees get back on track. The Head of HR confirmed that the PIP process never commenced in relation to the Complainant.

In light of my finding that the Complainant’s complaint relating to penalisation pursuant to the Safety, Health and Welfare at Work Act, 2005 is not well founded, I will now examine whether the Complainant was victimised within the meaning of section 74 of the Employment Equality Acts, 1998-2011.

Section 74(2) of the Employment Equality Acts, 1998-2011 defines victimisation as follows:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –

(a)      a complaint of discrimination made by the employee to the employer………….

(f)       an employee having opposed by lawful means and act which is unlawful under this Act…….

(g)       an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”

In Tom Barrett v Department of Defence, the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out.   It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.

In the instant case, the action relied upon is the raising of a formal grievance on 25 April 2018 and the submission of a complaint of discrimination to the WRC on 30 April 2018. The adverse treatment complained of is the non-payment by the Respondent of a bonus to the Complainant in 2018, the Respondent’s reactivation of its decision to put the Complainant on a PIP and the delay on the part of the Respondent in investigating the Complainant’s grievance which the Complainant alleges all occurred in reaction to her raising a formal grievance and submitting a complaint of discrimination to the WRC

I must now decide if the Complainant was victimised during the cognisable period for having committed an act that was protected by section 74(2) of the Employment Equality Acts. I will examine each alleged incident of victimisation in turn.

Non-payment of a bonus in 2018

I note the divergent positions of the parties in relation to the non-payment of a bonus in 2018. On one hand the Complainant is of the view that it was a retaliatory gesture in reaction to the formal grievance which she submitted on 25 April 2018. The Respondent, on the other hand, is of the view that an employee for whom a PIP had been proposed would not be paid a bonus.

I note that a PIP had been proposed on 5 April 2018, and the CEO had detailed her concerns about the Complainant’s performance in an email of 9 April 2018.   I further note that the Complainant, despite indicating her intention to do so, never responded to the CEO’s email of 9 April 2018 and, therefore, the issues which the CEO had with the Complainant’s performance were not addressed prior to the Complainant’s resignation in August 2018.

Discretionary bonuses are usually paid as a recognition of the both a company’s and an individual employee’s performance in the preceding financial year. Given that the Respondent had serious concerns about the Complainant’s performance which had not been resolved when the annual review and bonus process took place in June 2018, I am of the view that it was understandable that the Complainant did not receive a bonus in 2018.

I find, therefore, that this element of the complaint is not well founded.

Reactivation of the Respondent’s decision to place the Complainant on a PIP

It is common case that the proposed PIP was first mentioned on 5 April 2018, prior to the Complainant raising a grievance with the Respondent and submitting a complaint to the WRC. I find, therefore, that there cannot be a causal connection between the proposal to place the Complainant on a PIP and the raising of a grievance and the lodging of a complaint to the WRC by the Complainant.

In this regard I am guided by the Labour Court’s determination in St. John's National School v Jacinta Akduman (HSD102) where the Court was of the view that “if the alleged conduct was initiated before the complaint was made and continued thereafter, it could hardly be said that the conduct was because of the complaint or that but for the complaint it would have ceased.”

I find, therefore, that this element of the complaint is not well founded.

Delay in investigating the Complainant’s grievance

In a related Adjudication Officer Decision (ADJ-00016777), I have found that there was no undue delay by the Respondent in investigating the Complainant’s grievance.

I find, therefore, that this element of the complaint is not well founded.

Having regard to the totality of the evidence adduced, I find that this complaint is not well founded.

Safety, Health and Welfare at Work Act – penalisation; Employment Equality – victimisation