Complainant

Respondent

Anonymised Parties

A cleaning operative

A facilities company

Representatives

Derry Condon Hallissey and Partners Solicitors

Hugh Hegarty Management Support Services (Ireland) Ltd

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-00027920-001

23/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00027920-002

23/04/2019

On 23 April 2019, the complainant submitted two complaints of Penalisation against his current employer.

The claims were refuted by the respondent, a Facilities Company.

Both parties were represented, the complainant by his Solicitor and the respondent by Management Support Services ltd. Both parties made oral and written presentations.

The hearing was reconvened on November 6 to accommodate a witness for the respondent who was on leave during the first hearing in September.

The complainant’s representative outlined the facts of the case on his behalf. The complainant commenced work in the cleaning division of a large shopping centre in July 2017. He worked a 48-hour week and initially received €11.40. He currently receives €10.80 per hour in his present Pharma setting.

Preliminary Issue:

In response to the respondent contention that two parallel claims on the same set of facts were barred, the complainant’s representative submitted that he was entitled to be heard on two claims arising under different pieces of employment law. Safety health and welfare at work and Organisation of working time act.

He contended that the complainant was a gentle and modest person not given to altercations who had lost a significant portion of his income. He had never wanted to matter to go this far.

CA-00027920-001 Penalisation, Safety Health and Welfare at Work Act, 2005

The complainant began to experience interpersonal difficulties with his immediate supervisor, Mr. A, early on in his employment. He contended that he had been bullied for over a year. He was the sole Irish national on the cleaning team and his Supervisor did not was not use English in team communication. The complainant began to feel isolated and excluded.

He first raised the issue by way of email to a member of the shopping centre staff on 3 October 2018 at 20.18 hrs

“I am writing to query if there is some issue with my work that I am unaware of. I do my work well I am never late a never off on sick leave, but I feel disrespected and bullied daily by my supervisor. Can you please advise how this situation can be addressed? “

This document was passed to the area manager and the complainant met with Ms. A, Operations Manager during October 2018 and he began to see an improvement, which was short lived. He followed up progress on November 12 as he found that Mr A “had changed back to his normal ways again. He has started bullying me and being disrespectful towards me again…….”

On 15 November, Ms A confirmed that she had met with Mr A and had established that a “personality clash “existed between both which would be best remedied by the complainant moving to the Food court area. The complainant was admonished for raising the issue with the wrong contacts who were external to the company. the complainant understood that the relocation to the Food Court was non-negotiable.

The complainant contacted his Solicitor and began representations in that vein. The complainant was unwilling to relocate as it would result in a pay deduction and reduced number of hours. A copy of the contract, grievance and bullying procedures were requested. Mediation was suggested before the complainant commenced a period of work-related stress sick leave from 20 November 2018 to 26 November 2018.

The respondent engaged in further correspondence dated 27 November. The complainant was advised to raise any concerns through the company procedures and could be represented by a colleague of trade union official.

The complainant returned to work on November 26 only to have another altercation with Mr A regarding the proposed relocation, which he refused to undertake. the complainant resumed work related stress  leave 26 November -10 December 2018.

On 5 December 2018, the complainant, through his Solicitor informed the respondent of his wish to invoke the formal procedure in the grievance and dignity at Work policies and sought the appointment of an impartial investigator.

The complainant appended a personal statement where he submitted “all I want is to remain in my current role and to be treated by my supervisor with the respect and dignity I am entitled to “He went on to contend that he had been penalised for raising a grievance.

The complainant’s representative sought clarification when the complainant was advised by text from Mr A to forward his sick certs to his new manager at the Food court.

The respondent announced that they were proceeding to investigation and findings would be submitted to senior management. Mr B, Operations Manager, was to undertake the investigation.

The next day, Ms A confirmed that the complainant was noted as wanting to return to his prior role and “once he is fit to do so we will seek to re-instate him there and take reasonable steps to ensure that he is comfortable in same “

The complainant’s supervisor made a limited response but referred to a complaint he had made about the complainant on 26 November 2018. The complainant’s representative argued that this had not been put to the complainant prior to March 29.

The complainant participated in the investigation.

He met with Ms A for a back to work meeting on 10 January 2019 and was she suggested that he relocate to the food court pending the outcome of the ongoing investigation.

On 16 January 2019, the respondent indicated that another job had come up for his consideration. he explored this hospital-based position and ultimately deemed it unsuitable. the complainant continued sick leave.

The investigation report issued on 23 January 2019 and the complainants’ grievances were found to be “largely unfounded “.

On 29 January 2019, the complainant queried the reasoning adopted by the investigator, Mr B and he reserved his right to lodge an appeal. He asked for an alternative role “commensurate with my previous role “

On 13 February 2019, the investigator wrote to the complainant and expanded on his reasoning for the earlier findings.

“I have interpreted the findings of the investigation meetings to point to a clash of personalities between x and you and that you have misinterpreted your supervisors attempt to improve the standards on site. it appears that you have taken exception to this and taken criticism personally which I don’t believe was the intention of your supervisor on site ….

The complainant was requested to comply with the mobility clause in his contract without loss of terms and conditions. The complainant was first placed on paid suspension until a suitable position became available. The complainant sought payment for his entire period of leave.

On 14 February 2019, the respondent told the complainant that the “prior letter was a mistake “and     withdrew the offer of paid suspension as he had not accepted the alternative roles offered by the company.

The complainant submitted that by then he had suffered a significant reduction in income and he had been penalised as a result. The complainant submitted that he had pronounced mental health issues as a result.

Ms A wrote to the complainant on February 26 and offered 3 potential work placements with a response time of close of business March 1. On February 28, he accepted the permanent post offered and sought payment of legal fees.

The respondent indicated that the first position had been given to someone else and gave details of two other positions for consideration. The complainant was flabbergasted when he was also informed that he had been subject of a “site ban” from his erstwhile base at the shopping centre. He submitted that this had not been raised previously with him.

The complainant’s solicitor contended that the complainant contract was breached and that by ignoring hi chosen representatives correspondence, the complainants mental anguish intensified

The complainant accepted an offer of placement at a Pharma company on April 1, 2019 without prejudice to his intention to refer his experience to WRC.   He remains there.

In addressing loss, the complainant’s representative submitted that all offers made to the complainant had reduced terms and conditions at their core and the complainant had sustained a substantial loss following his statement of concern and subsequent grievance. He was the sole earner in his home.

20-week sick leave (unpaid as not a member of ERO scheme)

plus

Weekly shortfall of €200 since April 2019 (past and prospective loss)

Plus

Legal fees

The complainant’s representative in referencing WRC decision, Ad 4808 sought the maximum compensation permitted under the Act i.e. 2 years remuneration.

Evidence of the Complainant:

The complainant told the hearing that he “had got on great “at this job at the shopping centre. He experienced some difficulty with his supervisor who was aggressive towards him. He raised his voice to him and he had difficulty understanding him. The complainant submitted that he felt constrained in his work by the supervisor, Mr A and he developed stress related psoriasis. His life went downhill. The complainant felt compelled to raise the matter and decided to make a complaint, he did not want Mr A to lose his job and understood from Ms A that they would all meet around a table to resolve matters.

He observed that things had improved but the negative behaviour soon began again. Mr A was dismissive towards him.

The complainant stated that he had literacy problems and he secured assistance in complaint formulation from a family relative.

He did not anticipate that he would be asked to relocate to the food court and this prompted him to take legal advice. he felt low and became further stressed. His family picked up that he had changed, and his work began to affect his personal life. He commenced medication for his anxiety.

He resumed work on 26 November 26 only to have a further altercation with Mr A who directed him to start working at the Food Court the following week. The complainant pleaded to be allowed to see his Doctor.

He was further disappointed when Ms A told him that he was relocating to the Food Court without giving any reasons. The complainant submitted that he was humiliated as the offer meant less pay.

The complainant had sought to engage in the offers of alternative work, He had a new car and was willing to drive to the location he accepted only to be gazumped before the closing date.

The complainant submitted that he had worked successfully for 40 years as a machine Operator and had pronounced reading and writing difficulties. He realised that he may not have been perfect, but he believed that he had been repeatedly disrespected by Mr A and he understood that Ms A was to convene a collective discussion in trying to put things right.

In response to the respondent questions, the complainant clarified that he had first raised his dissatisfaction with the shopping centre manager when she came to the hut where he was based. He confirmed that he understood he was permitted to go to the client as she had told him he could seek her out. He did not appreciate that she represented the client and was not his employer.

He confirmed that he had not addressed the Food court offer directly with his employer until he discussed it in the meeting with Mr B in January. He re-affirmed that he was unable to write and believed that he was to be accommodated by a return to his job. He was informed that the rate for the Food Court was “non-negotiable “

The complainant engaged in the investigation into his grievance but contended that Mr B had taken Mr as side. He confirmed that he had not appealed the outcome. Hid Doctor had not made specific recommendation for his return to work.

In summary the complainants representative advanced that the complainant had acted to challenge inappropriate treatment and to protect his welfare at work. References to mediation had not yielded an appropriate forum to resolve difficulties. This resulted in a legitimate grievance being inadequately addressed and an extended period of medically advised sick leave, where the complainant experienced a substantial loss of income and a high level of avoidable stress.

He had lost trust in his employer as undertakings given to him had been repeatedly ignored. The complainant was due to transfer to a new employer on December 1, 2019.

CA -00027920-002 Penalisation Organisation of Working Time Act

The complainant submitted that he had been penalised when he raised the issue that he had not been afforded breaks under the Act.

The Respondent operates a large facilities business and accepts the complainant’s chronological details on employment tenure.

Preliminary Issue:

The respondent representative raised a preliminary issue on the two co -existent claims outlined on the complaint form and submitted that the complainant was seeking the same set of facts applied to two separate pieces of legislation. The complainant cannot have his case heard multiple times.

The respondent sought that the complainant must elect prior to the hearing as to which claim he is pursuing and withdraw the remaining claim. He also submitted that the Adjudicator did not have the jurisdiction to make an award for both claims based on the same complaint.

CA-00027920-001 Penalisation

The complainant was employed as a full-time cleaning operative from August 2017.He received and agreed his terms of employment inclusive of a mobility clause in the company handbook.

The company reserves the right to relocate you to other sites as and when required and it is a condition of your employment with the company that you are willing to do so.

The handbook also provides that in relation to a removal of Client approval, the company will seek alternative location for the employee or have recourse to “lay off”.

The respondent representative outlined the background to the case, where the complainant had first raised issues of disrespect and bullying on 3 October 2018. He elected to have the matter dealt with informally.

The complainant raised the matter again on 12 November and Ms A in her capacity as Area Manager indicated that having heard both sides of the issue, she determined that “a personality clash” lay at the root of the problem and that “there was a pair of them in it “.

Ms A proposed relocating the complainant to another working area in line with the mobility clause. He was also advised of the correct hierarchical contact structure within the respondent business and advised against veering outside that to contacting the client.

The respondent was informed that the complainant had commenced sick leave and commenced a process of legal representation which sought to return the complainant to “his old duties “

The complainant disregarded this instruction and on his return to work post sick leave engaged in a screaming match with his supervisor a left again without informing anyone. he recommenced sick leave

The respondent outlined that around this time, the respondent had received two complaints from the client on 26 and 28 November in relation to the complainant’s behaviour. Both were investigated.

The respondent received a formal complaint from the complainant’s solicitor which prompted an investigation conducted by Mr B on 3 January 2019. The complainant signed agreement to the meeting.

The respondent sought to get the complainant back to work and met with him on January 10, 2019. The complainant was offered a return to work pending the outcome of the investigation but refused to return to work.

The respondent was offered another option, this time in a physical setting, but he refused this offer at first, then relented.

The investigation concluded that the grievance raised was unfounded and the complainant was offered work on 3 named sites to work on.

The respondent disputed that the complainant had been penalised in any way. The company was well disposed to unions and the complainant was not moved because of his complaint. The relationship with his supervisor was deemed “beyond repair “

The respondent disputed any liability for the complainant’s legal fees as the company understood the complainant was a union member and therefore not compelled to resort to legal advice. The complainant had not availed of the sick pay scheme.

The offer of the Food court was a reasonable offer within the terms of the complainant’s employment relationship. the company did not cause the complainants illness

Evidence of Mr B, investigator:

Mr B worked as an Operations Manager who was charged with investigating a grievance raised by the complainant in December 2018. He was not the complainant’s manager and was not aware of the complainant’s literacy problems

He noted that both Mr A and the complainant had opposite positions and the complainant took offence when he probed the duties of a supervisor with him. He found mutual; agreement that voices had been raised between them. HE had asked around the site whatever rows had occurred between both men? And while he learned that there had been some incidents between them, there was no corroboration for this.

The complainant seemed to have a different view that what was contained in the body of his grievance.

Mr B confirmed in cross examination that he was not aware that the complainant had been informed of the site ban.

The complainant had subsequently informed him that he would not be comfortable working with Mr A when they met on February 13, 2019

Evidence of Ms A, Operations Manager

Ms A has responsibility for several sites and conducted monthly visits to these locations.   During a site visit in August/September 2018, she spoke with the complainant who indicated that he had an issue with his supervisor as they were not getting on. Ms A offered to speak to Mr A.

On speaking to Mr, A, she determined a contradictory position from him but understood the matter had been resolved.

The issue was raised again when the client came to see her. She was not happy being contacted on this issue. Ms A offered the complainant the avenues of informal of formal resolution as they were just contradicting each other. Mr a told her that the complainant took offence in the face of ordinary instructions and she told them both “to cop on “.

She tried to move the complainant to the Food Hall as it was easier to move a general operator rather than a supervisor. She did not recall a discussion on rate of pay. The client had nothing to do with the complainants pay determination, that remained the sole preserve of the respondent.

The complainant then commenced a period of sick leave and she continued to try to seek to find a position for him. She was unable to meet with him   during his sick leave but endeavoured to get him back to work by providing him with a wide choice of options, one position was added “just to get him back” He did try this hospital work, but only lasted a day as it was too hard for him.

During cross examination, Ms A confirmed that she met with the complainant in early January 2019. The complainant stated that he did not want to take the Food Court and there was no mention of rate of pay. At that point, January 2019, the company had deemed the complainant as “site banned “as the client had communicate verbally that they would not be allowing him back to the shopping centre site.

Ms A confirmed that she had tried to match the complainant with work. She was unaware of any issues with the complainants pay. She did not recall any mention of mediation.

When requested to clarify her letter of December 13, Ms A confirmed that she understood that the complainant would return to the site but not necessarily to his prior role. Ms A confirmed that she did not have control over the allocation of the positions incorporated in the complainants offer, which she believed were fairly made.

When the complainant did accept his current role, he was offered 30 hours which was subsequently increased by the site. she denied that he had been punished through an income reduction and compulsory relocation. The situation between two employees had not resolved and a relocation was decided in the case of the complainant.

In response to the respondent representative, Ms A confirmed that she believed the mobility clause was applied fairly in the complainant’s case.

The possibility of red circling of salary had not been explored

In summary, the respondent submitted that the complainant was bound by the mobility clause in his contract which had been exercised reasonably. The respondent was not aware that the complainant could not read, and they had acted on their knowledge at that time.

The respondent was willing to engage with the complainant on both the investigation, which was not appealed by the complainant, and the proposal of the food Court, which constituted a reasonable offer of a return to work for him.

By not appealing the investigation outcome, the complainant accepted that he had not been bullied. In denying penalisation, the respondent re-affirmed that the complainant had not lost his job and had not suffered detriment or financial loss. The complainant had not explored the potential for relocating to the Food court on a red circled arrangement which may have preserved his pay.

CA -00027920-002 Penalisation under Organisation of Working Time Act

The respondent refuted the claim. The respondent submitted that the complainant was instructed to go on break but refused, preferring to self-manage his breaks.

The responded concluded that the respondent was unfairly met with this claim and the complainant had not raised the issue during his employment.

Preliminary Issue of two claims based on same facts:

I have given some consideration to the Respondent submissions on this point. I note that the complainant’s representative mentioned that the same text used for the body of the complaint under Safety Health and Welfare at Work was to be applied to his complaint under Organisation of Working Time Act. I can understand why the respondent expressed a sense of grievance and dissatisfaction at that syntax as while the first complaint was loaded with chronological detail, the second claim was not treated in the same manner and lacked concerning the claim. This is very far short of best practice and should be avoided.

However, I do not believe that I am prevented from hearing both cases and as stated at the hearing, I intend to issue two decisions on the complaints raised.

CA-00027920-001 Penalisation Safety Health and Welfare at Work Act 2005

I have taken some time to reflect on the parties extensive oral and written submissions. I have also considered the contract of employment the staff handbook and the provisions of the applicable legislation and case law.

I requested some further documentation from the respondent which was received. This had been copied to the complainant. It did not illicit a further response.

This is a claim for penalisation under the above Act. The Safety Health and Welfare at Work Act, 2005 gives effect to Directive 89/391. It outlines the broad general duties in respect of employer and employee.

Section 8 sets out the duties of an Employer to preside over safe systems of work, without risk to health  

In this case, Sections 9 and 11 take on a special reference as they provide that an employer is to communicate information for safety health and welfare purposes in a form and manner reasonably likely to be understood.

During the hearing, the complainant shared his long-term literacy difficulties and his consequent reliance on others to communicate his position in print. He submitted that he had successfully previously completed a 40-year employment tenure and had struggled but triumphed over this disadvantage.

I must accept the respondent replying submission that there was no organisational awareness of this situation and they sought to manage the complainant on the knowledge they had at the time.

I inquired whether literacy was assessed on recruitment documentation and I learned that it was not assessed at that time or subsequently. The complainant had not imparted this information to his employer.

On a careful reading of Ss.9-11 of the Act, I was struck by the extra challenge this places on an employer in the face of a literacy issue.

Section 13 of the Act places a responsibility on an employee to comply with the statutory provisions of the Act. Section 13(h) outlines that complaints are to be raised as soon as practicable .

Section 19 of the act obligates the employer to identify hazards and to assess risk .

Section 23 addresses the topic of medical fitness and obligations which flow from medical certification or advice .

Protection against dismissal and penalisation.

Section 27 outlines the provisions regarding penalisation which is defined as :

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,

……

The burden of proof on penalisation rests with the complainant to establish the chain of causation between the impugned detriment and the protected act or omission

Oglaigh naisiunta na hOireann v Mc Cormack HSD/115 , labour court .

In the case of Paul O Neill v Toni and Guy Blackrock ltd HSD 095, the Labour Court, on appeal considered a complaint of penalisation which led to dismissal on a case surrounding latex gloves used to protect hands in a hair dressing business. in finding for the complainant, the Court determined that in order to make out a complaint of penalisation, it is necessary to establish the detriment complained of was imposed “for “having committed one of the acts protected by S 27(3) The detriment must have occurred because of, or in retaliation to the claimant having committed a protected act.

The court held that the complaints were an operative reason for his dismissal.

In Stobart Ireland driver services ltd and Keith Carroll [2013] IEHC 581, the High Court on appeal held that the complainant in the case had reported fatigue in accordance with s13, which led to a next day dismissal. The High Court upheld the decision of the labour court to re-instate the complainant.

I have looked carefully at the chain of events presented by both parties in this case. The complainant had worked without incident for over a year by the time he raised the issue of interpersonal conflict with his supervisor to a client representative on October 3, 2018. This was channelled through to the Respondent Management team and both parties accepted that things improved for a little while.

I accept the complainant evidence that he understood that an informal mediation was to be arranged to address the discord with his manager. I found Ms A to be very vague on this point. In addition, I was not satisfied that the respondent had not maintained records of contact time in this case.

Both parties accepted that things had deteriorated and by November 12 the complainant expressed a recidivism from his supervisor and sought help. The respondent determined that a personality clash lay at the root of the issue and sought to relocate the complainant based on his junior status and in accordance with the company mobility clause. the proposed position was not comparable in terms or conditions and the complainant rejected the proposal and availed of a week unpaid sick leave. He sought to resume his position and was directed to the Food Court. This prompted a further period of sick leave during which a formal complaint of bullying was lodged on December 5.

I have considered the Respondent evidence in relation to this time and find it undermined by a copy of an email exchanged in late November 2018 which referred to the complainants habit of wandering into outlets at the shopping centre and addressing store workers on his unease at work .The respondent referred to this “ as a saga “ and for me at least, it demonstrated a reduced motivation to resolve the issue on an early intervention basis .In reviewing the respondent policies procedures and mission statement, I found a profound variance in how the company intended to deal with interpersonal conflict and how they actually dealt with it in this regard .

I have considered the complainants complaints of October 3, November 12 and December 5, 2018 as a continuum and find that together they constitute a complaint under Section 13(h) of the Act.

I must now examine the actions of the Respondent in this case.

I found the early management of the complaint of bullying to be unusual. The respondent did not follow the allocation of a contact person or mediation as provided in the Policy. Instead, Ms A appeared to adjudicate on the matter which resulted in a plan to relocate the complainant. As the complainant had worked continuously in that position from July 2017 without a previous proposal to move him, it is reasonable for me to conclude that the proposed relocation to the food hall arose because of November 12 communication which as we know now was written by a family relative.

I have difficulty accepting the Respondent submission that the company mobility clause applied in this case as a natural next step. The complainant was employed as a full-time worker under the ERO for the Contract Cleaning. The offer of the Food court did not mirror those terms and while I appreciate that a red circled arrangement may have been available, it was not discussed by either party.

However, I have most difficulty in this case with the Investigation which followed the December 5 complaint. The complainant was not provided with a response from Mr A within 7 days. He was not provided with witness statements and the outcome was not managed by a senior Manager as provided for in the company policy.

On listening to Mr B, I formed the view that he did not investigate the alleged complaints from store workers regarding the complainants expressed dissatisfaction. I could not find reference to it in the handwritten notes or in the investigation outcome. Yet, the company went forward to communicate a site ban without recourse to “its statutory obligations before taking such action “

The outcome placed the complainant on paid suspension which was immediately reversed as a mistake. Mr B told me that he was not aware that the complainant was in a no pay zone.

I take the respondents point that the complainant did not avail of the appeal allowed. I note the statement of dissatisfaction issued in response to the document.

I was struck that the complainant had been deemed medically fit from early January 2019 and the respondent had not sought to challenge this by referring him to a company Doctor.

However, I noted that the respondent acted in an inconsistent manner in the face of offering the alternative positions and effectively pulling up the ladder on the complainants first choice as he had delayed by seeking advice. I found this a harsh and unjust pronouncement and again contrary to the respondents’ policies. This caused a further delay in obtaining a back to work date.

I appreciate that the Respondent is not obliged to host a Solicitor at workplace discussions, but S.I 146/2000 permits an individual to have representation. I believe the parties should have engaged in the case at a much earlier juncture than the WRC hearing.

I appreciate that the complainant was not a member of the ERO sick scheme and he subsisted on social welfare for a protracted period in this case. I also understand that his health failed, and he ran into financial difficulty.

I was disappointed to observe that Mr A had lodged a statement of concern regarding the complainant in late November 2018. I could not establish who solicited this, but I did establish that it was not shared with the complainant.

Section 27(3)(a) prohibits penalisation or threatened penalisation for acting in compliance with relevant statutory provisions Section 27(3) (c) prohibits penalisation for making a complaint relating to safety health or welfare at work.

I am satisfied that the complainant made a complaint in accordance with S 13 of the Act.

The respondent argued very forcibly that the complainant was subject to the contractual clause of mobility and the respondent response in the face of a failed employment relationship and a disaffected client was justified. The complainant had delayed in taking a reasonable offer.

I have reflected on this core submission and have difficulty with it as it was not accompanied by a procedural fairness and a correct application of company procedures.

On balance, while I accept the sensitivity experienced by the complainant in terms of his literacy issues and the enormous challenge he faced in conflict resolution without the benefit of literacy, he ought to have explained his difficulty to his employer as it just may have prompted a more considered engagement at an earlier juncture. I appreciate that we will never know that.

In applying S. 27 to the facts of the case, I am satisfied that but for the continuum of complaints raised by the complainant in accordance with S13(h) of the Act, he would not have been treated in the manner he experienced. I found that the respondent was hostile to his representation and a resolution of return to work only followed a tenacious and focussed representation by the complainant’s representative.

Given the failure to at least explore mediation to seek to restore the working relationship, the complainant was plunged into “no mans land “of a period of suspension, lay off, transfer of duties, change of location, reduction of wages and hours. This constitutes a pronounced detriment.

During this time, a risk assessment was not undertaken, yet the respondent was in possession of many medical certs citing workplace stress. It seems to me that the terms of S23 of the Act ought to have prompted a more measured approach from the respondent in accordance with duties outlined in section 8 of the Act.

On balance, I noted that the complainant’s medical officer did not advocate a course of action in his case.

I find myself looking at the analogies in O Neill and find that a sub plot of client concern was in the respondent’s mind during aspects of this case. However, I must find that the complainant has reached the burden of proof for penalisation in respect of his complaints. It is a testament to the respondent that the complainant successfully returned to work and the employment relationship remained intact and was due to transfer in December 2019.

I find his complaint to be well founded.

CA -00027920-002 Penalisation Organisation of Working Time Act 1997.

I have considered the complainants submission and the respondent response. The cognisable period of this claim is 24 October 2018 to 23 April 2019.

Section 26 outlines penalisation under the Act.

26. Protection against penalisation

(1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

(2) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

The complainant has not advanced particulars for this claim during the cognisable period. I am mindful that he did not work during most of this time and his presiding issue was one of interpersonal conflict, already addressed.

I find the claim not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00027920-001 Penalisation, Safety Health and Welfare at Work Act 2005

Section 28 of the safety Health and Welfare at Work act, 2005 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found the complaint to be well founded

Considering the centrality of literacy to safe navigation of company procedures in an employment relationship, I urge the respondent to incorporate an inquiry into candidate literacy in the recruitment process and to offer whatever accommodation is needed as a result.

I also order the respondent to pay the complainant €16,000 in compensation as just and equitable in the circumstances.

CA -00027920-002 Penalisation, Organisation of Working Time Act 1997

Section 27 of the Organisation of Working Time Act, 1997 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 26 of the Act.

I have found the claim is not well founded.

Penalisation