ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00023794
Parties:
| Complainant | Respondent |
Anonymised Parties | A Childcare Assistant | A Creche |
Representatives | Philip Treacy Coleman Legal Partners | Peninsula |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00030455-001 | 23/08/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00030455-002 | 23/08/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00030455-003 | 23/08/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00030455-004 | 23/08/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00030455-005 | 23/08/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00030455-006 | 23/08/2019 |
Date of Adjudication Hearing: 21/01/2020
Workplace Relations Commission Adjudication Officer: Patricia Owens
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, and/or Section 13 of the Industrial Relations Acts 1969,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
At the hearing the parties’ representatives asked for an adjournment to discuss matters with their respective clients. This was granted. Following the adjournment, the Respondent’s representative advised that he was conflicted and so would no longer be in a position to attend at the hearing. Following his departure, the Respondent sought an adjournment to another date.
I took a recess to consider this request and in arriving at my decision I took account of the fact that the Respondent had representation for the preparation of her submission, for presenting her submission at hearing and for the cross examination of the Respondent by the Complainant’s representative at the hearing. Her representative had also been present for the presentation of the Complainant’s submission.
In the interests of fairness to both parties and in those circumstances, I did not agree an adjournment and the full case was heard on the day.
Background:
The Complainant was employed as a Childcare Assistant with the Respondent from 11th April 2019 up until the termination of her employment on 19th June 2019. She submitted a number of complainants to the Respondent arising from an incident on the 11th June 2019 which she contended resulted in her being discriminated against, penalised for raising serious health, safety and welfare at work concerns and penalised for making a protected disclosure to the Respondent, its servants or agents. Consequent to those events and the termination of the Complainant’s employment she submitted complaints to the Workplace Relations Commission seeking adjudication under section 77 of the Employment Equality Act, 1998, under section 6 of the Payment of Wages Act, 1991, under section 7 of the Terms of Employment (Information) Act, 1994, under the Industrial Relations Acts, under section 28 of the Safety, Health & Welfare at Work Act, 2005 and under Schedule 2 of the Protected Disclosures Act, 2014. The Respondent is a creche, providing childcare services to children from infancy up to age 12. The Respondent denied the complainants made. |
Summary of Complainant’s Case:
General By way of context to the complaints the Complainant submitted that from the commencement of her employment up and until the 11th June 2019 she was a wholly committed employee who had never been sanctioned by her employer and enjoyed working with young children. She submitted that on the afternoon of the 11th June 2019 she was at her place of work and specifically in the ECCE room (Winter garden) in the creche. She submitted that she was standing in the room with a one- year old child in her arms and that four other members of staff were present. She submitted that another member of staff (hereinafter referred to by me as Employee 1) was also holding an infant and attempting to open a door which was blocked by chairs. The Complainant contends that while still holding the infant Employee 1 “pulled the door in an aggressive manner so as to move the obstructing chairs.” The Complainant described that Employee 1 then left the room, and soon after returned, having left the infant in another room. She also described that Employee 1 then began stacking chairs in an aggressive manner, kicking chairs around the room and being generally disruptive. The Complainant noted that there were other staff and infant children in the room at that time and opined that Employee 1 “created a toxic environment within the room.” The Complainant submitted that she expressed concern to Employee 1 about this behaviour and in a clear and calm manner asked her to “calm down, you are frightening the children”. The Complainant submitted that this “drew a crazed response” from Employee 1 who approached her in an extremely aggressive and hostile manner shouting, “don’t tell me what to do, don’t tell me what to fucking do, come on outside, I will kill you, don’t be telling me what to do.” The Complainant submitted that she advised Employee 1 that “what you are doing over there is frightening the children” and that to her surprise Employee 1 physically pushed the Complainant’s arm saying, “don’t put your arm near me” in an extremely aggressive and intimidating manner. The Complainant submitted that, despite the fact that she was holding a one-year old child, Employee 1 got extremely close to her face and was screaming at her. The Complainant submitted that she tried to calm Employee 1 down but that she continued to scream into the Complainant’s face and was pointing in an aggressive manner at the Complainant ‘s face. The Complainant submitted that another member of staff called for someone to run to the office to let a member of the management team know what was going on. The Complainant submitted that a member of the management team (hereinafter referred to by me as Manager 1) arrived in the ECCE room and observed Employee 1 still screaming and pointing her finger in the Complainant’s face. The Complainant advised that she attempted to talk to Manager 1 about the incident, but that Employee 1 continued to scream over her and then left the room, leaving her with a sense of shock and fear. The Complainant advised that she brought the child she had been holding throughout the episode to another room and left him in the care of another staff member. She described the child as visibly distressed. The Complainant submitted that she returned to her normal duties soon after and that as she was leaving work that evening the Creche Manger called her aside and asked what had happened earlier. The Complainant submitted that she outlined what had occurred, expressed serious concern about the incident and that she was embarrassed by the incident. The Complainant submitted that the Creche Manager had absolutely no regard for the issues that were being explicitly brought to her attention and responded to the Complainant by advising her “in the future don’t say anything to (Employee 1), if you have a problem you have to go and get a manager because (Employee1) has gone home upset and I don’t want anyone to be upset.” CA-00030455-001 Complaint under Section 77 of the Employment Equality Act, 1998 The Complainant submitted that the above incident was the first example of discrimination against the Complainant based on her age. She submitted that she was a younger woman than Employee 1 and was blatantly being treated in a less favourable manner based on her age. The Complainant submitted that Employee 1 was being treated as the more experienced employee and was being given extra protections. The Complainant submitted that she was given no support in the immediate aftermath of the attack and that this demonstrated less favourable treatment and the less favourable treatment continued when the Creche Manager advised her that in future she was to get a manager, that Employee 1 had gone home upset and that she didn’t want anyone upset. In this instance the Complainant submitted that the Creche Manager was taking Employee 1’s upset over the Complainant’s earlier upsetting experience. The Complainant submitted that on 12th June 2019 she attended work but that she felt she had no support from management and so she requested a copy of her contract so as to enable her to make a formal complainant in line with the grievance procedure. The Complainant submitted that she was then called to a meeting with Manager 1 and the Creche Manager at which she was issued with a warning for: “Failure to follow a reasonable management instruction on 11th June 2019 Unprofessional behaviour in the workplace, namely on 11th June 2019. Your behaviour in the office was unacceptable and unprofessional.” The Complainant submitted that this was yet another example of less favourable treatment of her, as a younger woman than Employee 1 who was not sanctioned. The Complainant submitted that the clearest example of less favourable treatment was the way by which the Respondent dealt with Employee 1 for her attack on the Complainant. The Complainant stated that the Respondent did absolutely nothing to reprimand Employee 1, or indeed, to protect the Complainant from future attack, yet the Respondent dismissed the Complainant for what the Complainant described as “some ludicrous allegation that simply holds no water.” The Complainant further submitted that the treatment of employees who are on probation with the Respondent represents discrimination based on age. She submitted that by the very nature of a probationer within the childcare industry, it is a reasonable assumption to make that the probationer will be a young person. The Complainant submitted that it is a matter of fact that the newer employees of the Respondent are younger than more established employees. The Complainant further submitted that where a policy is practiced within a workplace, and that policy places a group (which is covered by the grounds of discrimination, such as age) at a particular disadvantage, that policy is discriminatory. The Complainant submitted that in the instant case the policy that clearly places younger employees at a particular disadvantage is the policy to penalise younger employees, in effect, to appease the older employees. In this case the Complainant submitted that this policy resulted in the Respondent supporting the attacker over the Complainant on the basis that the attacker was a permanent employee and the Complainant was a young employee on probation. In these circumstances the Complainant requested the Adjudication Officer to make an appropriate award for the discrimination suffered by the Complainant at the hands of the Respondent, its servants or agents CA-00030455-002 Complaint under section 6 of the Payment of Wages Act, 1991 The Complainant submitted that by email of 24thApril 2019 she wrote to the Respondent informing them that she was being paid an hourly rate of €9.80, despite the fact that her hourly rate should have been €10. The Respondent replied by way of email dated 7th May 2019 stating that this issue would be rectified. The Complainant submitted that despite her hourly rate being clarified as €10, she did not receive her backdated pay for the incorrect hourly rate being applied to her wages. The Complainant submitted that the shortfall amounted to €32.00 and requested the Adjudication Officer to make an award in terms of the shortfall in the Complainant’s wages. CA-00030455-003 Complaint under Section 7 of the terms of Employment (Information) Act, 1994 In her submission the Complainant outlined the fact that she did not receive written terms of employment. She sought a copy of these at the time of the incident of 11th June but submitted that they were never issued to her. In these circumstances the Complainant requested that the Adjudication Officer make the appropriate financial compensation award. CA-00030455-004 Complaint under the Industrial Relations Acts The Complainant submitted that she was unfairly dismissed in circumstances whereby she was summarily dismissed without a “scintilla of fair procedures or due process”. She submitted that she was informed by way of letter dated 19th June 2019 of her summary dismissal and highlighted the significance of the reason for the dismissal which was that “I have decided that your employment should be terminated due to the fact that you failed to carry out your duty to the standard required. The Complainant provided a copy of the letter of that date in her submission. In these circumstances the Complainant requested that the Adjudication Officer should make an appropriate recommendation with respect to the Complainant’s unfair dismissal. CA-00030455-005 Complaint under section 28 of the Safety, Health & Welfare at Work Act, 2005 The Adjudicator’s attention was drawn to the provisions of section 27(3) of the 2005 act which provides that an employer shall not penalise or threaten penalisation against an employee for “(b)making a complaint, relating to safety health or welfare at work, to their employer, their safety representative or the Health & Safety Authority.” The Complainant submitted that the protected act with respect to the 2005 Act was when she spoke to Manager 1 during and after the attack on 11th June and again when she spoke to the Creche Manager later that same day. During these interactions with the management of the Respondent, the Complainant contended that she made clear complaints relating to the safety, health and welfare of herself, her colleagues and, most importantly, the children who were being cared for. The Complainant submitted that she raised her concerns regarding health, safety and welfare at work issues with both managers of the Respondent on 11th June and that she was penalised the following day by way of sanction and an informal warning. The Complainant further submitted that, without prejudice to the foregoing, and the submission made that the penalisation for the purpose of the 2005 act was the imposition of the informal disciplinary process held on 12th June 2019, that it is open to the Adjudication Officer to hold that the penalisation of the Complainant, as a result of raising serious issues relating to health, safety and welfare at work continued up to the date she was forced to take sick leave from her place of employment and subsequent unfair dismissal. In these circumstances the Complainant requested that the Adjudication Officer make an appropriate award for the penalisation suffered by the Complainant. CA-00030455-006 Complaint under Schedule 2 of the Protected Disclosures Act, 2014 The Adjudication Officer’s attention was drawn to S.I. No. 464 of 2015, The Industrial Relations Act 1990 (Code of Practice on Protected Disclosure Act 2014) (Declaration) Order 2015 which provides clarity on protected disclosures in the workplace. The Complainant submitted that this code sets out at paragraph 8, that whistleblowing is the term used when a worker raises a concern about a relevant wrongdoing such as possible fraud, crime, danger or failure to comply with any legal obligations which came to the workers attention in connection with the workers employment. The Code also notes that the Act provides that if a disclosure is made by a worker ….” a worker is protected from penalisation by the employer.” The Complainant drew attention to Section 3 of the principal Act and submitted that the relevant wrongdoings in the within case relate to Section 3 (a) “that an offence has been, is being, or is likely to be committed” and Section 3(d) “that the health and safety of any individual has been, is being, or is likely to be endangered.” The Complainant submitted that the email sent by her dated 16th June 2019 and entitled Formal Complaint has several concerns based around the belief that an offence has been, is being, or is likely to be committed and that the health and safety of the Complainant and the children in the creche has been and is likely to be endangered. The concerns raised by the Complainant included: · An employee of the Respondent was acting in an aggressive manner while holding a child in her arms · An employee of the Respondent was clearly acting in a manner which was unsafe and causing upset and/or harm and/or damage to the children in the creche · Children who were witnessing the aggression were watching the aggressive behaviour and overtly becoming nervous · An employee of the Respondent had made open threats to kill a fellow employee · An employee of the Respondent had verbally attacked a fellow employee who was holding a one-year old child in her arms and was acting in such a manner that led to a fellow employee believing she was about to be assaulted · Raising serious concern that management of the Respondent were expressly on notice of the very serious concerns but failed/refused or neglected to take any or any appropriate action to protect staff and the children. The Complainant submitted further that within a matter of hours of raising these concerns she was penalised by the manner in which the Respondent, it’s servants or agents treated her. The Complainant submitted that she was spoken to in an aggressive manner and had her ordinary place of work changed as a direct result of her raising the protected disclosure. As such, the Complainant requested that the Adjudication Officer make an appropriate award of compensation and further make an order requiring the Respondent to take a specified course of action and proposed that that course of action might be the imposition of a protected disclosure policy, appropriate training and a method for making confidential protected disclosures. The Complainant also submitted, that without prejudice to the generality of the foregoing the Adjudication Officer can take into account the letter inviting the Complainant to the disciplinary hearing (dated 18th June 2019), the proposed disciplinary procedure and the nature by which the agents or servants of the Respondent communicated with the Complainant up to her dismissal. |
Summary of Respondent’s Case:
General By way of context to the complaints the Respondent submitted that following are the facts of the case: · That the Complainant was employed as a childcare assistant on the 8th April 2019 and that her employment was terminated on the 19th June 2019, a total employment of 10 weeks and 3 days. The Respondent confirmed that the Complainant’s hourly rate was €10 per hour and that on average she worked a 40-hour week. · On the 22nd May 2019 the Complainant attended staff training where she received details of her duties and a copy of her contract, which she signed, and which was witnessed by Manager 1. The Complainant was provided with a copy of her contract at that time along with a copy of the company handbook. A copy of the handbook was also always available in the staff room and the Complainant was made aware of this. · Prior to the issue on the 11th June 2019 there had been several issues in relation to the Complainant’s performance and behaviour. · On 11th June the Complainant was working with Employee 1 and 2 other employees (hereinafter referred to by me as Employee 2 and 3) Employee 1 is a supervisor in the creche. The age range of the children in the room was from approximately 2 to 12 years. · As the event was coming to an end Employee 1 began to clean up and asked the Complainant and Employees 2 and 3 to assist. The Complainant challenged Employee 1 to stay quiet as she was making noise in front of the children and this was scaring the children. There was a confrontation between the Complainant and Employee 1 which resulted in Employee 1 stating to the Complainant to “not tell her what to do.” The Complainant made allegations that Employee 1 threatened to kill her, but this is vociferously denied by the Respondent. · A member of staff called Manager 1 to come to the room and she listened to both sides of the story. She then reported the matter to the Creche Manager. · The following day there was a meeting involving the 2 parties, Manager 1 and the Creche Manager. Employee 1 apologised for her behaviour to the Complainant, but the Complainant was not satisfied with that and refused to accept the apology. · The Complainant continued to work in the creche and on the 14th June 2019 the Respondent stated that she was “supposed to be supervising a room of 18 children” along with Employees 2 and 3. A child fell and sustained damage to their teeth. After reviewing the cctv footage of the room it was apparent that all three staff members were talking at the time of the incident and not supervising the children correctly. All 3 staff were spoken to by the Creche Manager who reminded them of their duty to supervise the children to ensure that such accidents do not happen. · On the 17th June 2019 the Respondent sent a message on WhatsApp to the Complainant asking her to work at another creche due to staff shortages. The Complainant had previously worked at that premises. This is normal practice within the business and is part of the contract. · The Complainant refused to do so but initially did not indicate that she was sick. · The Respondent replied that it was part of her contract and that other staff had covered the previous week and it was at this stage that the Complainant indicated that she was ill. · As a result of what was deemed as a failure to follow a reasonable instruction the Complainant was issued with a disciplinary hearing letter. The Complainant did not attend this hearing and as a consequence the Respondent dismissed the Complainant by letter of 19th June 2019. CA-00030455-001 Complaint under Section 77 of the Employment Equality Act, 1998 The Respondent submitted that Employee 1 (the named comparator) was working for the Respondent for approximately 5 years at the time of the incident on 11th June 2019 and she had assumed a supervisory role within the group due to working there longer. As a consequence, she had the authority to request other staff, irrespective of their age, to carry out certain tasks, including tidying up around the creche. The Respondent submitted that on the 11th June Employee 1 had made a reasonable request for the Complainant to carry out a task which was refused, and this caused an escalation of feelings between the parties. The Respondent submitted that the nature of the childcare industry is such that there is a large amount of the staff within the 18-25-year age group and submitted that the age profile of the Respondent’s employees was no different. The Respondent submitted that this results in quite young staff being promoted to supervisory position. The Respondent further submitted that the age difference between the Complainant and Employee 1 was insufficient to meet any reasonable conclusion that the Complainant was being discriminated against by way of her age. CA-00030455-002 Complaint under section 6 of the Payment of Wages Act, 1991 The Respondent conceded that the Complainant’s correct hourly rate of pay was €10, that as a consequence she was underpaid by €32.00 and that the incorrect rate was set up due to human error. The Respondent submitted that the Complainant did not bring this matter to the attention of the Respondent during the time of her employment. CA-00030455-003 Complaint under Section 7 of the terms of Employment (Information) Act, 1994 The Respondent submitted that the Complainant attended a training programme on the 22nd May 2019 with Manager 1 and on that day was provided with a copy of a contract to sign. The Respondent submitted that the Complainant did sign that contract on the day and that after signing the contract she was provided with a copy of same, together with the Employee Handbook. The Respondent provided a copy of the signed contract. CA-00030455-004 Complaint under the Industrial Relations Acts The Respondent did not provide a specific response to this claim of unfair dismissal under the Industrial Relations Act as part of their submission. However, at hearing the Respondent outlined the following position: · That there was an incident between the Complainant and Employee 1 on 11th June 2019 · That the matter was addressed at a meeting involving both parties, the Creche Manager and Manager 1 on 12th June 2019 · That at that meeting Employee 1 apologised for her behaviour the previous day but that this was not accepted by the Complainant · That on 17th June the Creche Manager made contact with the Complainant to advise her to attend an alternative work location due to absences of staff in that location · That the Complainant objected to attending and asked that other staff be deployed · That the Creche Manager advised the Complainant that other staff had covered the previous week and that cover was included as a term of her contract · That the Complainant refused to attend and later made contact to say she would be absent due to illness · That in light of the foregoing the Respondent sent an email on 17th June inviting the Complainant to attend a disciplinary hearing on 18th June 2019 for her alleged failure to follow a reasonable management instruction and for alleged breach of contractual terms · That the Complainant did not attend the disciplinary hearing at the appointed time and so the Respondent issued a letter by email on 19th June 2019 terminating her employment. The Respondent considered that their actions were reasonable and warranted given the Complainant’s failure to attend the alternative work location as per the terms of her contract and due to her non-attendance at the disciplinary hearing. CA-00030455-005 Complaint under section 28 of the Safety, Health & Welfare at Work Act, 2005 The Respondent drew the Adjudication officer’s attention to the Complainant’s submission that there was an imposition of an informal disciplinary process on 12th June 2019. The Respondent submitted that there was no informal or formal disciplinary process imposed on the Complainant at this point. The Respondent further submitted that there had been an incident between the Complainant and Employee 1 which was investigated by the Creche Manager and that a meeting had been called involving the Creche Manager, the Complainant and Employee 1 to discuss the incident. The Respondent submitted that during that meeting Employee 1 admitted that she had acted inappropriately and apologised but that the Complainant did not accept the apology. The Respondent provided a signed statement from Employee 1 in relation to that meeting. CA-00030455-006 Complaint under Schedule 2 of the Protected Disclosures Act, 2014 The Respondent drew attention to the fact that the Complainant relied upon the email she claimed she sent on 16th June 2019 entitled Formal Complaint. The Respondent submitted that this email was never received and put the Complainant on strict proof of the existence of this email. The Respondent further submitted that if it was sent and received it was done so out of hours late on Sunday night and the Respondent would not have had access to it until she attended work the next day. The Respondent submitted that she sent a reasonable management request at 6.35 am to the complainant to attend a different location for her working day and that this was normal practice and a contractual obligation. The Respondent provided copies of the WhatsApp messages to demonstrate that there was no aggressive language and that it was a reasonable management request. |
Findings and Conclusions:
CA-00030455-001 Complaint under Section 77 of the Employment Equality Act, 1998 From the submissions made by both parties and from the evidence adduced at hearing there is no doubt in my mind that the Complainant was treated differently than Employee 1 by the Respondent in relation to and after 11th June incident and that in each instance the Complainant was treated less favourably. I noted that the Complainant cited a number of instances of less favourable treatment on the protected ground of age as follows: · On 11th June 2019 Employee 1 was shown greater protection than the Complainant · On the same day when the Complainant spoke to the Creche Manager about the incident the Creche Manager showed concern for the fact that Employee 1 had gone home upset but did not show any concern or empathy towards the Complainant nor was the Complainant offered any support. · The Complainant was issued with a disciplinary letter on 12th June for “Failure to follow reasonable management instruction on 11th June” and “unprofessional behaviour in the workplace, namely on 11th June 2019. Your behaviour in the office was unacceptable and unprofessional.” · No reprimand was ever issued to Employee 1 for her behaviour on 11th June. · That the instant case demonstrated a policy /practice whereby younger staff (probationers) were penalised in order to appease older staff and that such practice/policy constituted indirect discrimination. I also noted the Respondent position as follows: · That Employee 1 had assumed a supervisory role due to her length of service (5 years) and had the authority to assign tasks to other staff. · On 11th June she assigned a task to a number of employees including the Complainant who refused to carry out the duty, leading to an escalation of feelings between the parties · That it is the nature of the industry that younger people are often put into supervisory positions and that as a result the age difference between Employee 1 and the Complainant was insufficient to meet any reasonable conclusion of discrimination on the grounds of age. At the hearing I enquired as to the age difference; the Complainant confirmed that she was 19 years old at the time of the incident and the Respondent confirmed that Employee 1 was 26 years old. These ages were accepted by both the Complainant and the Respondent as being correct. I also enquired of the Respondent as to why greater weight was given to the account of Employee 1 and the Respondent confirmed that this was due to longer service and the fact that Employee 1 was a more experienced childcare worker. In considering this matter I noted that the Respondent did not address the matter of the disciplinary letter dated 12th June in their submission in the section directly related to the equality matter but did provide an explanation elsewhere in that submission. I noted that at paragraph 18 of the submission the Respondent referred to 12th June and stated that there was “no informal or formal disciplinary process imposed on the Complainant at this point.” The Respondent submitted that an investigation meeting had taken place on 12th June and that at that meeting Employee 1 had offered an apology which was not accepted by the Complainant. I noted the content of the letter of 12th June to the Complainant which states that “on this particular occasion we have decided not to proceed with formal disciplinary action. As a consequence, therefore you are now being issued with an informal warning.” In these circumstances I do not accept the position of the Respondent that no informal or formal disciplinary process was imposed at that time. I noted the determination of the Labour Court in the case of St. James’s Hospital v Eng (EDA023) where the Court recognised that subconscious bias may occur. The Court stated that “sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware”. The Court went on to state that “the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of corroboration, must be approached with caution.” Having considered the matters outlined above it is evident that the Complainant was treated less favourably than Employee 1 in relation to: · The level of concern shown for Employee 1 by the Creche Manager on 11th June because she left the workplace upset and by contrast the lack of concern shown towards the Complainant following the altercation. · The failure of the management of the Respondent to reprimand Employee 1 while at the same time issuing a letter imposing an informal warning on the Complainant. I noted that the age difference between the Complainant and Employee 1 (the named Comparator) is 7 years. I noted also that the Act does not specify an age gap that must exist before discrimination can occur. Rather the Act sets out at section 6(2)(f) that in relation to the person alleging discrimination and the comparator “that they are of different ages.” In these circumstances, I consider that the Complainant has established a prima facie case and so it rests with the Respondent to justify their actions in order to demonstrate that those actions did not constitute discrimination. I noted that the Respondent offered an explanation to the effect that Employee 1 had more service and was a more experienced childcare worker, but I do not consider that this explanation is adequate to either clarify or justify their actions. I therefore, find that the Respondent did discriminate against the Complainant of the grounds of age. CA-00030455-002 Complaint under section 6 of the Payment of Wages Act, 1991 I noted that the Complainant submitted that she was underpaid her hourly rate and that although she brought the matter to the attention of the Respondent the error was not rectified. I noted that the Respondent submitted that this matter was not brought to their attention during the employment of the Complainant. In this regard I noted the content of an email of 24th April where the Complainant alerted the Respondent to the underpayment and I also noted the content of an email of 7th May from the Respondent to the Complainant advising that the error would be corrected in the current weeks’ payroll. In these circumstances I do not accept the Respondent’s account of events. Notwithstanding the above, both parties accepted that the Complainants’ wages were underpaid by the amount of €32.00 and so I find that this underpayment constitutes an unlawful deduction under the Payment of Wages Act. CA-00030455-003 Complaint under Section 7 of the Terms of Employment (Information) Act, 1994 I noted that the Complainant submitted that she was never given written terms of employment. I noted that the Respondent denied this and submitted that a contract was provided to the Complainant at staff training on 22nd May 2019. I reviewed the copy of the contract appended to the Respondent submission and noted that it was signed by the Complainant and Manager 1 on that date. I also noted the attendance sheet signed by the Complainant on the same date. At the hearing the Complainant re-iterated that she had not received a contract and drew the Adjudication Officer’s attention to correspondence between her and the Respondent seeking same. She advised that despite that correspondence she never received a contract. I reviewed the relevant email correspondence and noted that the Complainant advised the Respondent on 12th June that she had not received a copy of the handbook when she commenced employment and that she had double checked her emails as requested. I noted that the Respondent replied to that email on 13th June and confirmed that the Complainant should find the “attached as requested.” I also noted email correspondence from the Complainant dated 17th June, asking for a copy of her contract and stating that she had never received a copy of same and I noted the reply from the Creche Manager advising that there was a copy on file and that it had been placed on the file after another member of staff had found it in “the toddler room.” That letter also confirmed that a copy of the contract would be provided to the Complainant the next day. It is clear that a contract of employment was prepared by the Respondent and signed by both parties and that it was intended to be copied so that both parties could retain a copy for their own records. Thereafter it is not possible to determine what occurred. However, when it was brought to attention on 17th June that the Complainant had not received a copy of the contract the Respondent undertook to provide the Complainant with a copy the following day as she noted that the contract had been placed back on the Respondent’s file having been found by another staff member. In these circumstances the respondent was clear that a copy of the contract would be provided the following day but this did not happen. In those circumstances I find that the Respondent did not meet their obligations under Section 3 of the Terms of Employment (Information) Acts, 1994-2014 CA-00030455-004 Complaint under the Industrial Relations Acts · I noted the incident of 11th June and the subsequent reporting of those events by the Complainant, verbally on 11th June to Manager 1 and later that day to the Creche Manger and · In writing by way of a Formal Complainant sent by email on 16th June 2019 I noted that, despite the fact that those complaints included serious concerns for the health and safety of the complainant, her colleagues and the children in the care of the creche, no real investigation was held into those matters. I noted further that the Complainant was issued with an informal warning for not obeying a reasonable management instruction and for inappropriate behaviour in the office, both of 11th June and I noted that no sanction or reprimand was ever issued to Employee 1, despite her acknowledging in her written statement that she had apologised for both incidents. I noted that one of those incidents was described as an assault on the Complainant. I noted that the Creche Manager did contact the Complainant on the morning of 17th June and asked her to attend an alternative work location due to staff shortages and I noted that the tone of that message was appropriate. I also reviewed the subsequent exchange of messages and noted that the Complainant said, “no sorry can you ask another member of staff.” I noted that the Respondent then replied that other staff had covered the previous week and that it was part of the Complainant’s contract. I noted that the Respondent then offered to collect the Complainant and drop her to that place of work. I noted that the Respondent did not provide copies of the remaining WhatsApp messages in this conversation. At the hearing the Complainant advised that she was put under considerable pressure to attend the new work location. The Complainant confirmed that after the phone call she became extremely anxious and had a panic attack. She advised that she called the Respondent back later at 7.38 am and advised her that she was unable to attend work as she was ill. I noted that later that day, at 11.12 am, the Complainant received a letter from the Creche Manager inviting her to a disciplinary meeting scheduled for 18th June 2019 and that the alleged misconduct referred to was: · “Alleged failure to follow reasonable management instructions; namely you refused to work in the X creche on 17th June 2019. · Alleged breach of contractual terms and conditions; namely your contract requires you to work in other creches when needed.” I noted that the Complainant submitted that she attended her GP on 18th June 2020 and that she was certified unfit to attend work for a period of 2 weeks. At the hearing the Complainant advised that she had contacted the Respondent to advise that she would not be attending the disciplinary hearing due to illness and that she would arrange to deliver the medical certificate the following day. The Complainant confirmed that she provided the medical certificate to the Respondent on the morning of 19th June 2019. I noted the Respondent position that she was not aware of any contact in relation to sickness absence, nor was she aware of the medical certificate at that time. I noted the Complainant position that as a direct result of having submitted her protected disclosure on 16th June 2019 she received an email from the Respondent on 19 June 2019 informing her that she had been summarily dismissed from her employment. I noted, also the Respondent position that when the Complainant did not attend the disciplinary meeting she made the decision in her absence, to proceed with a dismissal due to the Complainant’s failure to attend the alternative place of work, as requested and as provided for in her contract of employment. The Respondent advised that she never received the email of 16th June outlining the Formal Complaint, she was never informed of the contact made by the Complainant regarding her illness and consequential non-attendance at the disciplinary hearing on 18th June, nor was she aware that the Complainant had provided a medical certificate on the morning of 19th June. In these circumstances the Respondent advised that she dismissed the Complainant for not following a reasonable management instruction. I do not find this account of events to be credible. It is not credible that the Respondent did not receive a copy of an email which was shown in evidence to have been sent, and it is highly improbable that messages left with colleagues by the Complainant relating to her illness and her inability to attend the disciplinary hearing as a result, would not be passed on to the Creche Manager. It is also clear that the Complainant spoke directly to the Respondent when she called back on the morning of 12th June to say she was ill. Notwithstanding any matter of concern to be dealt with, a reasonable employer, in possession of a serious complaint containing serious issues of health and safety, and who was also aware of the fact that the Complainant was ill, would have deferred all processes pending confirmation of that Complainants fitness to return to work and/or fitness to participate in investigation and disciplinary processes. Instead the Respondent moved, with all due haste to invite the Complainant to a disciplinary hearing on 18th June and to issue a letter of dismissal to the Complainant on 19th June when the Complainant did not attend the disciplinary hearing. It is worth noting that by the time the dismissal letter issued, the medical certificate had been hand delivered to the Respondents place of business. In considering this matter I was also gravely concerned about the failure of the Respondent to show any concern or empathy for a new employee to the workforce who was subjected to a physical and verbal altercation with a colleague. The actions of the Respondent in “taking sides” and the failure to support the Complainant or to take any real steps to investigate the concerns raised or to put in place any risk mitigating measures displayed a scant regard for the safety of staff and service users alike. In my view, even if there were no issues regarding altercations at play, the refusal of the Complainant to attend the alternative work location could not be described as serious misconduct sufficient to warrant a dismissal. The Respondent submitted that there had been previous issues of concern but failed to provide any evidence that this was the case.
In these circumstances I find that the Respondent failed to apply fair procedure or due process when they summarily dismissed the Complainant. CA-00030455-005 Complaint under section 28 of the Safety, Health & Welfare at Work Act, 2005 I noted that the Complainant submitted that the protected act under the 2005 Act was when the Complainant spoke to Manager 1 during and after what she referred to as “the attack” on 11th June and when she spoke to the Creche Manager later that day. The Complainant submitted that during both those conversations she made clear complaints relating to the safety, health and welfare of herself, colleagues and the children being cared for in the creche. I noted that the Complainant submitted that she was then penalised the following day by way of sanction and an informal warning as per the letter of 12th June. I noted that the Respondent’s position wasthat there was no informal or formal disciplinary process imposed on the Complainant at this point. The Respondent further submitted that there had been an incident between the Complainant and Employee 1 which was investigated by the Creche Manager and that a meeting had been called involving the Creche Manager, the Complainant and Employee 1 to discuss the incident. The Respondent submitted that during that meeting Employee 1 admitted that she had acted inappropriately and apologised but that the Complainant did not accept the apology. The Respondent provided a signed statement from Employee 1 in relation to that meeting. I reviewed the letter of 12th June appended to the Complainant submission and noted the content of that letter to the Complainant which states that “on this particular occasion we have decided not to proceed with formal disciplinary action. As a consequence, therefore you are now being issued with an informal warning.” I noted also that the informal warning was issued for “Failure to follow reasonable management instruction on 11th June” and “unprofessional behaviour in the workplace, namely on 11th June 2019. Your behaviour in the office was unacceptable and unprofessional.” When I queried this with the Respondent at hearing she clarified that there had been an incident involving the Complainant and a member of the administration staff (hereinafter referred to by me as Employee 2). The Respondent advised that the Complainant had been in the office seeking documentation/information, had refused to leave and had been abusive towards Employee 2 and she advised that this was the purpose of issuing the disciplinary sanction. The Complainant denied this and drew attention to the fact that the Respondent had advised in their submission that the meeting on 12th June was held to discuss the incident of 11th June. I asked the Respondent to clarify this matter and the Respondent advised that there had been 2 separate incidents on 11th June and 2 separate disciplinary meetings were held on 12th June. The Complainant emphatically denied that this was the case. She confirmed that there had been 2 incidents but only one disciplinary hearing. I asked the Respondent if there was any documentation to demonstrate that 2 meetings were held e.g. letters of invitation to 2 separate meetings. The Respondent advised that she did not have them with her. I asked the Respondent who was present at the meeting in relation to the alleged incident with Employee 2 and to clarify their role in the meeting. The Respondent advised that the Creche Manager, Manager 1, Employee 2 and the Complainant were present. She confirmed that her role as Creche Manager and that of Manager 1 was as decision maker and that the role of Employee 2 was as a notetaker. I asked if a copy of the notes of that meeting could be made available to the hearing and the Respondent advised that no note was taken at the meeting. When I reminded the Respondent that she had confirmed the role of Employee 2 as notetaker she denied that she had said this. I read from my notes what had been said and asked the Respondent again for the notes of the meeting. The Respondent then advised that the note of the meeting had been destroyed. I asked the Respondent to provide details of the times of those meetings and she was unable to do so, she advised that it had been a very busy day with a “graduation” type event taking place. I asked her to go through the sequence of events on the day, she described the preparation for the graduation ceremony in the morning on 12th June, that the Complainant objected to not being included in the graduation ceremony, that the Complainant was asked to look after children in another area and that the meeting to discuss matters relating to 11th June took place soon after the graduation ceremony was over, circa 11.00 am. The Respondent could not provide any more details on the events of the day. In considering this matter I paid particular attention to the letter of 12th June which very clearly stated that an informal warning was being issued. I noted the many inconsistencies and variations in the evidence provided by the Respondent and as a result of those inconsistencies and variations I found the Respondent to not be credible. Having given this matter careful consideration I have concluded that the Respondent did issue an informal warning to the Complainant on 12th June and that this warning was issued directly relating to the following two issues outlined in the correspondence of that date: · “The failure to follow a reasonable management instruction on 11th June 2019 · Unprofessional Behaviour in the workplace, namely on 11th June 2019. Your behaviour in the office was unacceptable and unprofessional.”
I noted that the Complainant acknowledged the altercation between her and Employee 2 and accepted her role in that altercation. On the basis that she was prepared to do so, even in circumstances where the evidence did not show her in a positive light, and as that evidence was consistent with the documentation of 12th June, I considered the Complainant to be credible. Based on the above I believe that · there were two incidents on 11th June, one in the office relating to Employee 2 and one which happened in the afternoon relating to Employee 1 · that both of these incidents were dealt with at a meeting held on the morning of 12th June · That as a result an informal warning was issued to the Complainant · That the warning related to both incidents
I noted that although the Respondent described the meeting as an investigation meeting no real investigation took place. There was no evidence that either incident was investigated, no witness statements, no records of meetings with any of the employees directly involved. The only statement provided and relied upon by the Respondent was dated 18th September 2019 and by the Respondent’s own admission was sought when notice was received from the WRC that the Complainant had lodged her complaints. I reviewed that statement and noted that Employee 1 described 2 altercations between herself and the Complainant on 11th June, one in the morning and one in the afternoon. I noted that in relation to the first altercation the Complainant had accepted Employee 1’s apology and I noted that the Complainant did not accept the apology for the second incident. It is evident from this statement that Employee 1 accepted responsibility for wrongdoing in relation to both incidents and that both incidents fell with the scope of the Health, Safety & Welfare at Work Act. It is also evident that the Complainant reported the second incident to the Respondent in the person of Manger 1 and later to the Creche Manager on 11th June and as such acted appropriately in raising those concerns for the health, and safety of herself, her colleagues and the children in the care of the creche. I can find no logical explanation for the Respondent issuing an informal warning to the Complainant in relation to not following a management instruction and for poor behaviour while at the same time ignoring and failing to reprimand Employee 1 who had, by her own admission, twice in the course of 11th June, verbally and physically assaulted the Complainant. I must conclude therefore, that the Respondent ‘s use of the informal warning represented penalisation of the Complainant. CA-00030455-006 Complaint under Schedule 2 of the Protected Disclosures Act, 2014 In her submission the Complainant drew attention to Section 12(1) of the Act which states that “An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure” and also drew attention to Section 3 of the Health, Safety & Welfare at Work Act which clarifies what are relevant wrongdoings. i.e. (a) that an offence has been, is being or is likely to be committed, and (d) that the health and safety of any individual has been, is being or is likely to be endangered” I noted that the Complainant submitted that the email sent by her dated 16th June 2019 and entitled Formal Complaint contained several concerns based around the belief that an offence “has been, is being or is likely to be committed” and that “the health and safety of the Complainant and the children in the creche has been and is likely to be endangered”. I noted the Complainant’s summary of those concerns. I noted that the Complainant submitted that within a matter of hours of raising those concerns she was penalised by the manner in which the Respondent spoke to her in an aggressive manner and that she had her ordinary place of work changed as a direct result of her raising the protected disclosure. I noted the Respondent’s submission which clarified that the Respondent denied receiving the email and asked that it be produced at the hearing. I noted the Respondent’s submission that even if it was sent and received it was done so out of hours late on a Sunday night and that the Respondent would not have had access to it until she attended work on the next day. I noted that the Respondent submitted that she sent a reasonable management request at 6.35 am to the Complainant to attend work at a different location and that this was normal practice and a contractual obligation. I noted that the Respondent highlighted that there was no aggressive language in the WhatsApp message and that it was a reasonable management request in circumstances where there were staff absent due to illness from the other creche. At the hearing the Complainant showed the Adjudicator and the Respondent a copy of the email from her mobile phone. That copy showed that the email was sent on 16th June 2019 at 20.51 and was sent to the workplace email address. I reviewed the content of that email, I accept the serious nature of the concerns raised therein and I accept that they fall within the scope of the definition of a protected disclosure. I reviewed the copies of the WhatsApp messages provided by the Respondent and noted that at 6.35 am the Respondent asked the Complainant to attend work in another creche. In that message she outlined the reason for the change of work location, the address of that location, as well as details of public transport available and the required start time. I also reviewed the subsequent exchange of messages and noted that the Complainant said, “no sorry can you ask another member of staff.” I noted that the Respondent then replied that other staff had covered the previous week and that it was part of the Complainant’s contract. I noted that the Respondent then offered to collect the Complainant and drop her to that place of work. I noted that the Respondent did not provide copies of the remaining WhatsApp messages in this conversation. At the hearing the Complainant advised that she was put under considerable pressure to attend the new work location. The Complainant confirmed that after the phone call she became extremely anxious and had a panic attack. She advised that she called the Respondent back later at 7.38 am and advised her that she was unable to attend work as she was ill. I noted that later that day, at 11.12 am, the Complainant received a letter from the Creche Manager inviting her to a disciplinary meeting scheduled for 18th June 2019 and that the alleged misconduct referred to was: · “Alleged failure to follow reasonable management instructions; namely you refused to work in the X creche on 17th June 2019. · Alleged breach of contractual terms and conditions; namely your contract requires you to work in other creches when needed.” The Complainant sought a copy of her contract by email, received a response to indicate it would be provided the following day but never received a contract. I noted that the Complainant submitted that she attended her GP on 18th June 2020 and that she was certified unfit to attend work for a period of 2 weeks. At the hearing the Complainant advised that she had contacted the Respondent to advise that she would not be attending the disciplinary hearing due to illness and that she would arrange to deliver the medical certificate the following day. The Complainant confirmed that she provided the medical certificate to the Respondent on the morning of 19th June 2019. I noted the Respondent position that she was not aware of any contact in relation to sickness absence, nor was she aware of the medical certificate at that time. I noted the Complainant position that as a direct result of having submitted her protected disclosure on 16th June 2019 she received an email from the Respondent on 19 June 2019 informing her that she had been summarily dismissed from her employment. I noted, also the Respondent position that when the Complainant did not attend the disciplinary meeting she made the decision in her absence, to proceed with a dismissal due to the Complainant’s failure to attend the alternative place of work, as requested and as provided for in her contract of employment. In considering this matter I reviewed the letter of 17th June, inviting the Complainant to the disciplinary hearing. I noted that, in Appendix 3 to the Respondent submission (i.e. copy of the relevant letter), there was a note handwritten onto that document, stating that it had been issued to the Complainant by email at 12.26 on 17th June 2019. I accept the Respondent position that she may not have been aware of the existence of the letter of 16th June, which was emailed to the workplace email address at 20.51 on Sunday 15th June when she made contact with the Complainant asking her to attend another creche on 16th June 2019. I also accept that the tone of the messages provided was appropriate to the employer/employee relationship. Neither party submitted details of the totality of that conversation, but I do accept that as a result of the interactions since 11th June the Complainant became greatly distressed and was ultimately certified unfit for work due to work related stress for a period of two weeks. It is very evident to me that while the Respondent might not have been in possession of the complaint on the morning of the 16th June when she first asked the Complainant to attend an alternative work location she certainly was in receipt of same by the time she issued an invitation at 12.26 that day to the Complainant to attend a disciplinary hearing scheduled for 18th June. Furthermore, she had been informed by the Complainant at 7.38 am that the Complainant was absent due to illness and yet she proceeded with the invitation to the disciplinary hearing despite being in receipt of the complaint, despite the Complainant’s absence due to illness and despite being aware of the two incidents of 11th June in which the Complainant could be described as the victim. This pattern continued until it ultimately led to the dismissal of the Complainant by email of 19th June 2019. The only explanation provided by the Respondent was that she never received the email of 16th June outlining the Formal Complaint, she was never informed of the contact made by the Complainant regarding her illness and consequential non-attendance at the disciplinary hearing on 18th June, nor was she aware that the Complainant had provided a medical certificate on the morning of 19th June. In these circumstances the Respondent would have me believe that she dismissed the Complainant for not following a reasonable management instruction. I find this account of events to be without credibility. It is not credible that the Respondent did not receive a copy of an email which was shown in evidence to have been sent, and it is highly improbable that messages left with colleagues by the Complainant relating to her illness and inability to attend at the disciplinary hearing would not be passed on to the Creche Manager. In all these circumstances I find that the Respondents actions following receipt of the complaint dated 16th June and up to her dismissal on 19th June 2019 constitute penalisation under Schedule 2 of the Protected Disclosures Act, 2014 |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
CA-00030455-001 Complaint under Section 77 of the Employment Equality Act, 1998 I found that the Respondent did discriminate against the Complainant of the grounds of age and so it is my decision that this complainant is well founded. It is also my decision that the Respondent should pay the Complainant the amount of €2,000 by way of compensation for the discrimination
CA-00030455-002 Complaint under section 6 of the Payment of Wages Act, 1991 I found that the Complainants’ wages were underpaid by the amount of €32.00 and that this underpayment constituted an unlawful deduction under the Payment of Wages Act. It is, therefore my decision that this Complainant is well founded, and it is also my decision that the Respondent should now make payment to the Complainant of the amount of €32.00 in wages due. CA-00030455-003 Complaint under Section 7 of the terms of Employment (Information) Act, 1994 I found that the Respondent did not meet their obligations under Section 3 of the Terms of Employment (Information) Acts, 1994-2014. Therefore, it is my decision that this complaint is well founded. It is also my decision that the Respondent should pay the Complainant the amount of €800 as compensation for this breach of the act.
CA-00030455-004 Complaint under the Industrial Relations Acts I found that the Respondent failed to apply fair procedure or due process when they summarily dismissed the Complainant. In these circumstances I recommend that the Respondent pay the Complainant the amount of €4,000 CA-00030455-005 Complaint under section 28 of the Safety, Health & Welfare at Work Act, 2005 I found that the Respondent ‘s use of the informal warning represented penalisation of the Complainant under the Safety, health & Welfare at Work Act and so it is my decision that this complaint is well founded. It is also my decision that the respondent should pay the Complainant the sum of €2,000 as compensation for the penalisation. CA-00030455-006 Complaint under Schedule 2 of the Protected Disclosures Act, 2014 I found that the Respondents actions following receipt of the complaint dated 16th June and up to the termination of her employment on 19th June 2019 constituted penalisation under Schedule 2 of the Protected Disclosures Act, 2014 and so it is my decision that this complaint is well founded. It is also my decision that the respondent should pay the Complainant the amount of €4,000 as compensation for the penalisation.
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Dated: 19th October 2020
Workplace Relations Commission Adjudication Officer: Patricia Owens
Key Words:
Unfair dismissal, discrimination on the grounds of age, victimisation, penalisation, health, safety and welfare at work, protected disclosure, payment of wages, terms of employment |