ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021733
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | Information and Technology Enabled Health Service Provider |
Representatives | Self | McCann Fitzgerald Solicitors Mairead McKenna BL |
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-00028404-001 | 14/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00028404-002 | 14/05/2019 |
Date of Adjudication Hearing: 27/09/2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 77 of the Employment Equality Acts, 1998 - 2015,] 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).
Updated copies of the respondent’s policies on grievances , Part Time Working and Performance Management from the respondent were received by the WRC on the 1st.Oct. 2019.
Summary of Complainant’s Case:
The claimant has been employed as a claims examiner with the respondent since September 2013.In his complaint form which was received by the WRC on the 14.05.2019 , the claimant alleges that he was victimised for “ taking an action set out in Section 74 of the Employment Equality Acts”.He makes 2 specific complaints – the claimant contended that a new team was set up within the rework dept. in December 2016 .This involved the upgrading of 10 staff to grade 24 and the remaining 30 staff remaining on Grade 23.The claimant asserted that during the realignment phase which was to last for a few weeks everyone was asked to continue with the Grade 24 work to facilitate the training up of the new team.The claimant contended that after a year he refused to continue to do the work as he was not receiving the same rate of pay as his work colleagues.The claimant asserted that this is when the bullying started . The claimant further asserted that he applied for part time hours on the 26th.April 2018 as his child minder was diagnosed with breast cancer.He asserted that he exhausted the internal grievance process over a period of 6 months and was left with no choice but to refer the matter to the WRC.The claimant contended that he was subjected to extreme bullying as a result of his request for part time work.The claimant submitted that the company failed to adhere to their own policy “ stretching it out as long as possible to create as much stress as possible”. The claimant submitted the following written statement setting out a chronology of events relating to the complaints on the 25.09.2019 to the WRC: “ In December 2016 a new team was setup within the rework department. Please see email dated December 7th 2016 detailing this new team had been set up. I have sent it in with the correspondence I sent to the workplace relations commission. The new team was moved up a grade to grade 24, meaning 10 staff were upgraded to grade 24 and the other approximately 30 staff remained on grade 23. Initially per the email everybody in the department was to continue doing the grade 24 work in order to facilitate the training up of the new team. This was envisaged to last for a few weeks. I continued to do the work for a further 14 months. Everybody in the department continued to do the work even though everybody thought it was completely unfair. This issue was raised on numerous occasions with management at team meetings and was raised by the employee council at the forum meetings. After 14 months I advised my line manager that I would not continue doing the work unless I was paid the same as those on the new team. Unfortunately, this is when things changed dramatically. I was told in no uncertain terms that I would be managed out of the company by my then supervisor. On the 26th of April 2018 I submitted an application for part-time working hours as our childminder was diagnosed with breast cancer. At that time other members of my team had been working part-time hours. Unfortunately, I did not get a reply about my request until I had a meeting with my line manager on the 24th of May. At that meeting I was told that I would have to wait another two weeks before I would receive a decision. After this meeting my work came under intense scrutiny from my line manager. I was receiving multiple emails a day questioning my work which had not happened in the past. Two weeks later I had another meeting with my line manager on the 7th of June 2018. At the meeting I was told verbally that I would not be getting part-time hours. My part-time application was not returned to me as required per company policy. I just received an email stating that my application had been turned down due to my performance. As I was upset at this and with the issue now going on for 6 weeks I decided to email senior management to see if I could secure part-time hours. On the 13th of June I was requested to attend a meeting with a senior manager to discuss the matter. At that meeting I was told that I would get my hours reduced on compassionate grounds. The next day the 14th of June 2018 my supervisor advised me that I was being put on a PIP (Performance Improvement Plan). This is a form of disciplinary action. I was not given an informal caution as is required by company policy. I believe I was placed on this PIP as a form of retaliation for escalating my part-time request to senior management. I emailed HR and the Director who had granted my reduced hours to express my alarm at being placed on the PIP. I had never been on any form of disciplinary action in my previous 4 and a half years with the company. All of the above at the time was very stressful and my wife just couldn’t understand everything that had went before. People in the office had been granted part-time hours before without all the politics. I honestly believe my initial application for part-time hours was refused in response to me not doing the grade 24 work as I was a grade 23 examiner. I had another meeting on the 28th of June 2018 with the Director who had granted my reduced hours. At that meeting I advised that I was extremely upset at being placed on a PIP with no informal caution per company policy. At this meeting I was advised that my reduced hours were to be extended until the 28th of September 2018. At the meeting I asked for a decision to be made conclusively in relation to my request so that I didn’t have this hanging over my head for months on end. This had already being going for two months and was leading to a lot of stress for me. However, even though I expressed my alarm at being put on a PIP I received an email on the 5th of July 2018 from the director who had reduced my hours asking my then supervisor to formalize the PIP. On the 27th of July my PIP was formalized by my then supervisor. On the 30th of July 2018 my then supervisor was moved department and my team was placed under the supervision of another supervisor. During this time until my next meeting with management on the 27th of September 2018 I did not have any meetings or help or support or training as outlined on the company policy(PIP). At the meeting with the director that had authorized my reduced hours I was advised that I was to return to full time hours with immediate effect. At this point I emailed the director to advise that my PIP had not progressed/assessed and that I had not received any help or support or training in relation to the PIP. On the 28th of September 2018 the director advised me that she would have the matter investigated by the then rework manager. My reduced hours were then extended by another two weeks in order to allow an investigation to take place. I was advised in the email that the rework manager would meet with me to discuss the matter. No meeting took place. On the 17th of October 2018 my reduced hours got extended for additional one month due to personal circumstances. At the informal meeting extending my hours I had advised that my wife was not keeping well and was currently very stressed. Unfortunately, on the 24th of October my father-in- law suffered a heart attack. Before this time my wife’s parents had been looking after the children and doing the school run in the evening as they finished at three o clock. They looked after my daughters until either myself or my wife collected them. That evening on the 24th of October 2018 I rang the director out of works hours requesting my part-time hours be made permanent as I didn’t want any additional stress or worry for me and my wife in light of the fact that my father- in- law had just suffered a heart attack. On the 19th of November I was advised that I was to return to full time hours. I had a meeting on the 21st of November 2018 with two members of management. At the meeting I expressed a wish to remain on the reduced hours as it was working for the family and that my wife wasn’t keeping well at present. On the 3rd of December 2018 I was advised in writing that I was to return to full time hours with immediate effect. As my wife wasn’t keeping well I used up the remainder of my annual leave allowing me to leave early for the remainder of the year. So during December 2018 I used up the remainder of my annual leave so I could leave at the same time I had been leaving during the previous weeks. As this had now being going on for 8 months and was really starting to affect my own well being I submitted a formal grievance to HR on the 14th of December 2018. On the 24th of December 2018 my wife suffered a nervous breakdown. I had to take some time off work as she was heavily sedated. I obviously informed my line manager about this so she could understand that I could not give an exact date for my return to work. I returned to work in early January 2019 after some improvement in my wife’s condition. I had my first meeting in relation to the Grievance on the 11th of January 2019 with the appointed Director. At the meeting I discussed recent events and expressed a desire to be granted Part-time. I mentioned that I had been put on a PIP without an informal caution and that multiple people were allowed to work part-time hours. I also expressed that in light of wife’s current condition which was fragile, that hopefully the company would allow me to do reduced hours as my wife was still unwell. On the 28th of January 2019 the outcome of the grievance was communicated to me at a meeting with HR and the appointed director. Up until that point in January I had been using my annual leave so I could leave early as I was still very concerned about my wife. At the meeting I was told I would be going on fulltime hours and that I could reapply for part-time hours in June 2019. I expressed my concern at this and highlighted the fact that this mean the matter would be going on for some 14 months. I left the meeting and emailed HR and the director asking if I was allowed the right of appeal per stage three in the grievance procedure. During the meeting at no time was it communicated to me about my right of appeal. During the meeting and when the outcome decision was communicated to me in writing, it felt to me, that the matter was now closed. I went online and checked the internal HR direct grievance case I had raised. To my utter amazement the case had been closed even though I had advised HR that I intended to appeal the decision. As I believed the matter was so serious I emailed senior management to express my deep concern at discovering this. I sent this email on the 30th of January 2019. I raised two more cases with HR to try to determine who had closed my grievance case without offering me right of appeal. Once it had been communicated to me that I had the right of appeal I informed HR that I wished to appeal the decision communicated to me on the 28th of January 2019. On the 6th of February 2019 it was communicated to me that a new director had been appointed to hear the appeal. On that email I was advised that I could expect a decision on the week commencing the 18th of February 2019. Unfortunately, this did not happen and no face to face meeting occurred with the director appointed to hear the appeal. This dragged on the rest of the month of February and March with no communication made to me either verbally or in writing. On the 30th of April 2019 I was requested to attend a meeting with HR. At that meeting it was communicated to me that I would not be getting Part-time hours. I advised HR that I had no meeting or any correspondence with the director appointed to hear my appeal. The director appointed to hear the appeal emailed HR on the 11th of April 2019 advising of his decision without any meeting having occurred. On the email sent by the director to HR he claimed the matter had “fell off my radar”. Even though the director had communicated his decision on the 11th of April minus any meeting it was a further 19 days until the outcome was communicated to me by a member of the HR team. I was very upset about this and the fact that matter had now being going on for over a year. It took a considerable toll on my mental health and had been affecting my sleep for months. As the matter went on for so long I became increasingly isolated within the team and my colleagues were dismayed at how long it had been dragging on. At this point I decided to make a formal complaint to the workplace relations commission as I believed the way I was treated was completely wrong and unjustified”. In his direct evidence the claimant asserted that during the realignment period the same work was assigned to everyone and after 14 months he decided to stop doing the grade 24 work as he felt it was only fair that if he was doing that level of work he should be paid at that grade.He ceased doing the higher level work in Feb./March 2018 and raised the matter with his supervisor.The claimant set out a chronology of the exchanges that took place with the respondent with respect to his claim for part time work .He said he was struggling in production in 2017 – he did not make financial errors .He was put on a Performance Improvement Plan for administrative errors.The claimant submitted that he was put on a PIP as retaliation for going over the heads of supervisors to senior managers.The claimant asserted that the PIP was then used to prevent him getting part time work.He stated that he was put on a PIP the day after his hours were initially reduced.The claimant stated that he complained about equal pay at huddle meetings and town hall meetings and he was the only one who took this stance.The claimant contended that the outcome of the grievance procedure was final and he was not offered a right of appeal.Mr.N was then appointed to hear his appeal but his grievance was “closed “ before he was offered an appeal. The claimant’s father suffered a heart attack in April 2019 and he was off on sick leave since May 2019. |
Summary of Respondent’s Case:
The respondent asserted that the claimant had failed to identify a protected act that allowed him make a complaint of penalisation. The respondent’s representative asserted that it was clear that the claimant had made no complaint under the Employment Equality Act and that consequently , the ingredients to sustain a case of penalisation did not arise It was contended that the claims could not succeed on the basis of the claimant’s subjective view of events.It was submitted that performance issues had been signalled since April 2017 – it was asserted that PIP did not constitute disciplinary action and was a management tool to support performance.The claimant had been placed on a PIP in advance of his application for Part Timework. It was submitted that the creation of the Priorities Team dated back to Dec. 2016 and consequently was out of time and could not be considered. It was submitted that everyone was eligible to apply and were all treated similarly.The claimant did not apply – it was submitted that the “priorities “ work constituted only 10% of the claimant’s workload – the matter was dealt with at townhall meetings and was closed off in May 2017.The PIP process was ongoing and the claimant had not presented evidence of penalisation as a result of his application for part-time work.It was submitted that the claimant had been facilitated on a number of occasions with reduced hours on compassionate grounds and had been allowed sick leave in Dec. 2018.It was submitted that the claimant had been allowed take annual leave and the claimant had refused the offer of being accommodated by working from home. The respondent submitted the following written submission in response to the claimant’s complaints: 2. SUMMARY OF RESPONDENT’S POSITION: 2.1 The Respondent fully denies the claims maintained by the Complainant and indeed asserts that there is no cause of action properly before the Adjudication Officer and that the Respondent is not liable to the Complainant under any of the headings of claim advanced by him. The Respondent seeks for these claims to be dismissed entirely against it. The Respondent highlights the repeated references to ‘bullying’ which are made by the Complainant and while any allegation of bullying is fully denied, this illustrates the primary point made in this submission by the Respondent, namely that the Complainant has misdirected himself in maintaining these proceedings.
2.2 Strictly without prejudice to the foregoing, the Respondent makes the following submissions in response to the claims levelled against it by the Complainant. 3. THE CLAIMS: 3.1 The Complainant has maintained four separate claims before the WRC. The first two claims were submitted by the Complainant on the 14 May 2019 and are claims for alleged penalisation pursuant to the provisions of the Employment Equality Acts 1998-2015. The first claim (bearing reference number CA-00028404-001) is a claim in respect of the Complainant’s claim that he was not paid the same as his colleagues for work on a ’new team’ and in respect of alleged bullying. The second claim (bearing reference number CA-00028404-002) is also a claim in respect of alleged penalisation and concerns the Complainant’s claim in respect of his part time hours application.
3.2 The third claim maintained by the Complainant is dated 19 May 2019 and alleges penalisation (CA00028488) appears to be a repetition of claim number CA-00028404-001 and is maintained pursuant to the provisions of the Safety, Health and Welfare at Work Act, 2005 and the fourth claim (CA-00024892) is a duplicate of CA-00028488 and, by letter dated 31 May 2018 from the WRC, has been amalgamated with CA-00028488.
3.3 The Complainant has failed to provide any information whatever to suggest that he has a stateable cause of action under any of the claims lodged with the WRC.
3.4 Strictly without prejudice to the foregoing, whatever evidence may be advanced by the Complainant at the hearing of this action must accord with the applicable time limits associated with claims under the Employment Equality Acts and the Safety, Health and Welfare at Work Act, 2005. Accordingly the period of time ‘in scope’ in this hearing is between the 15th November 2018 and the 14 May 2019 in respect of the first two claims and between 20 November 2018 and the 19 May 2019 in respect of the remaining claims. Having regard to the total absence of detail provided by the Complainant to enable an efficient and focused response to his claims the Respondent will seek to ensure that the hearing of these matters does not transgress the statutorily designated time limits available to the Complainant. 4. Factual Background 4.1 The Respondent offers information and technology-enabled health services. 4.2 The Complainant, , is employed as a Claims Rep on the Rework Team, at Grade 23, with the respondent . The Complainant commenced employment on 2 September 2013 pursuant to a contract of employment dated 14 August 2013 (.
4.3 The Complainant works as a Claims Rep in the Rework Department and his role involves processing health insurance claims that have been submitted for ‘reconsideration’. Claims are returned for ‘reconsideration’ when the insurance provider considers that a claim has been processed incorrectly, e.g. following a contract update pricing figures may have varied and the claim requires rework in light of the new pricing figures. Claims are categorised into ‘rework’ queues/work baskets in the USA and the Rework Department then process such claims. Claim Reps are expected to achieve the agreed standard of the set volume per hour targets which are flexible and subject to change. 4.4 The initial claims maintained by the Complainant concern his allegation that the provisions of section 74 of the Employment Equality Act 1998 (as amended) have been breached. This claim cannot succeed. 4.5 Section 74(2) of the Employment Equality Act (the “Act”) defines victimisation as follows: “(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to— (a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant, (c) an employee having represented or otherwise supported a complainant, (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment, (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.” 4.6 The Complainant cannot rely on this section of the Act. He is not a person who has: (a) Made a complaint of discrimination; (b) Brought proceedings against the Respondent (c) represented or otherwise supported another employee who has brought a complaint; (d) had his work compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment, (f) opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or (g) he has not given notice of an intention to take any of the actions mentioned in the preceding paragraphs. AMCC\33697163.7
Part Time Work Request 4.7 The Complainant submitted a part-time work application form on 26 April 2018 seeking a reduction in his hours from 39 hours per week to 34 hours per week . Significantly in making this request the Complainant did not seek to designate himself as a person protected by any of the protected categories of persons covered by the Employment Equality legislation. He stated in his application under the heading ‘My reason for making a part time working request including family circumstances if applicable: “My family circumstances and our child minder not being able to look after my two children due to a change in her own personal circumstances”. 4.8 It is submitted, and must be acknowledged, that the reasons advanced by the Complainant do not qualify him for protected status under the Employment Equality Acts. The fact that the personal circumstances of an employee’s child minder have changed is a regular life occurrence and does not qualify an employee for special protection under the Act. As such, even if the Complainant had made a complaint that he was subjected to discrimination connected with the refusal of his application for part time work (which he did not) any such claim would not have been bona fide and is not protected by the Act.
4.9 By email dated 23 May 2018 to his supervisor, Ms .S the Complainant sought an update on the progress of his application. Ms S met with the Complainant on 24 May 2018 to discuss and advised the Complainant that the application was currently under review and that a response would issue within the next 2 weeks. An account of this meeting is outlined in an email from Ms S to the Complainant on 24 May 2019 . 4.10 By email dated 7 June 2018, Ms .S informed the Complainant that his application for part time hours had not been successful due to his performance . The Complainant appealed this decision by email dated 7 June 2018 . Ms .D was appointed to hear the Complainant’s appeal. Ms.D met with the Complainant on 13 June 2018 to discuss his appeal. In the course of this meeting, the Complainant advised Ms.D that he required part time hours in order to facilitate childcare as his usual childcare provider was unwell. Ms.D indicated that she would be on leave the next week and would meet the Complainant to formally review his appeal at that time. In the interim, Ms.D by email dated 13 June 2018 granted the Complainant reduced hours on compassionate grounds with immediate effect until 30 June 2018. Ms.D also discussed with the Complainant, and indicated that it was without predetermining any outcome, that during this interim period childcare options should be explored in the event that reduced working hours could not be supported in the longer term.
Part Time Work Request Appeal 4.11 Ms.D met with the Complainant on 28 June 2018 to hear his appeal. A copy of a note of this meeting is provided . The Complainant indicated in this meeting that the same childcare arrangements remained in place. The option of working at home was also discussed and the Complainant advised that he had been offered this in the past but had declined as he would miss his friends at work and enjoyed coming in and working with people. The Complainant also acknowledged that the Respondent had been very accommodating and flexible with his start time since he joined the Respondent Company. The Complainant also acknowledged at this meeting that he was not meeting the required production standards and that he had been placed on a performance improvement plan to address this. 4.12 By email dated 29 June 2018, Ms.D confirmed to the Complainant that on compassionate grounds, it was agreed that he could continue on his reduced hours until 28 September 2018 .By email dated 5 July 2018, Ms.D attached a copy of her appeal meeting notes and confirmed that she was upholding the decision to refuse the Complainant’s application for Part Time Working on the grounds of performance, namely failing to meet volume per hour (VPH) targets . This decision representing the culmination of this process is well outside the permissible time period in scope for this hearing. Indeed rather than being treated less favourably, the Complainant was treated more favourably as a result of his application as he was, on compassionate grounds, permitted to work flexible hours by Ms.D to facilitate his childcare situation.
4.13 Due to his performance, which had been consistently raised with the Complainant since April 2018, he was placed on a Performance Improvement Programme. This process was managed by Ms.S and Ms D. 4.14 On 27 September 2018, the Complainant emailed Ms.D stating that due to personal circumstances he was not in a position to revert back to 39 hours on 28 September 2018.
4.15 The Complainant was granted a further extension to his reduced hours on compassionate grounds until 17 November 2018, resuming full time hours on Monday 19 November 2018.
4.16 On 5 November 2018, the Complainant contacted Ms .D to inform her that his father in law was unwell. Ms.D followed up with the Complainant by email and was informed by the Complainant that the family member’s condition had improved . Ms .D emailed the Complainant on 9 November 2018 reminding him that he was expected to return to his normal contractual hours on 19 November 2018. The Complainant responded on 12 November 2018 outlining that he was not in a position to do so and indicating that he would make himself available for a meeting if Ms.D wished to discuss the matter. Copies of these emails are available .
4.17 The Complainant met with Ms.D and Mr.L on 21 November 2018 to discuss return to full time hours .
4.18 Ms.D issued a letter to the Complainant on 29 November 2018, following their meeting on 21 November 2018, outlining that he was expected to fulfil his contractual commitment of 39 hours per week effective 3 December 2018 . This letter further stated that the Respondent was happy to exercise flexibility in the pattern of hours between then and 30 June 2019 to assist with his family commitments in dropping his children to school but that the Complainant would be expected to discuss and agree this working pattern with his supervisor. 5. GRIEVANCE 5.1 The Complainant emailed Mr.M and Mr.S on 19 November 2018 stating “I am required by law to inform the Company of my intention to lodge a complaint to the WRC due to a daily breach in Employment legislation relating to the Employment Equality Act 1998-2011. The particular breach related to the equal pay section for ‘like work’. Mr.S replied to the Complainant requesting that he contact Employee Relations to support him in formally making a grievance. The Complainant responding stating that he had “absolutely no intention of raising a formal complaint with the workplace relations commission” . Rather than indicate an intention to maintain proceedings before the WRC for a breach of the Employment Equality Acts the Complainant confirmed in express terms that this was not his intention. 5.2 Moreover, even if it were accepted that the Complainant’s email exchange of 19 November 2018 amounted to notification of an intention to maintain proceedings under the Act the Complainant has advanced no less favourable treatment/adverse treatment he has been subjected to since that time. As the Labour Court has repeatedly made clear the alleged less favourable/adverse treatment must be in reaction to the protected act.
5.3 In Department of Defence v Tom Barrett EDA1017, the Labour Court held that “the definition of victimisation contained in that section contains essentially three ingredients. It requires that: - (i) The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act), (ii) The Complainant was subjected to adverse treatment by the Respondent, and, (iii) The adverse treatment was in reaction to the protected action having been taken by the Complainant.
5.4 What constitutes a protected act is defined, at s.74(2) (Paragraphs (a) to (g) inclusive, as set out above)”. The Complainant has not taken an action that could constitute a protected act. 5.5 The Complainant lodged a grievance concerning the refusal to provide him with part time hours.
5.6 On 27 November 2018, Ms.L emailed the Complainant to set up a time to meet to get a better understanding of the issues he had raised with Mr.M and Mr.S .
5.7 By email dated 30 November 2018, Ms.L.directed the Complainant to the grievance policy and how to make a complaint . The Complainant raised a formal complaint in relation to the refusal of his part time working request. Ms.D was appointed to hear his grievance . Due to the Christmas break and leave periods, Ms .D met the Complainant on 22 January 2019. Ms.D also met Ms.D and Ms.AD, the Complainant’s supervisor in order to better understand the processing and refusal of the Complainant’s part-time work request. The grievance was not upheld as it was acknowledged that temporary reductions in hours had been afforded to the Complainant and his performance was not of the standard required to allow part time working hours. A copy of the outcome issued to the Complainant is available .
6. APPEAL 6.1 The Complainant appealed this outcome and was requested to outline his grounds of appeal in accordance with the policy (Appendix 21). The Complainant appealed stating that “the outcome on the basis that the part time policy, the performance improvement plan policy and now the formal grievance policy have not been followed correctly”.
6.2 By email dated 6 February 2019, Ms.EL communicated to the Complainant that Mr.M.McN had been appointed to review the appeal. She indicated that “M will review the data in relation to the grievance raised: Part time working request denied” but the business and will also review Ms.B.D’s ’s outcome decision in detail. The Complainant was informed that if he had other separate grievance in relation to other policies and the implementation of those policies then he would need to raise those grievances separately .
6.3 In April 2019, it was communicated to the Complainant that his appeal was unsuccessful on the basis that he was not meeting the criteria to be eligible for part time working . 6.4 Between June 2018 and the commencement of his sick leave, the Complainant had worked reduced hours and had not returned to full time hours.
6.5 On 15 May 2019, the Complainant commenced sick leave and remains out of the office on sick leave.
6.6 It is entirely unclear what less favourable treatment/adverse treatment the Complainant contends he was subjected to. In his claim form he suggest he was ‘subject to very extreme bullying’ as a result of his part time work request however no complaint whatsoever has been received by the Company to this effect. Simply put, there is no evidence of any less favourable treatment/adverse treatment being imposed on the Complainant and his complaint under this heading must fail.
7. THE EQUAL PAY ARGUMENT 7.1 Turning to the claim levelled by the Complainant to the effect that he was paid less money than his colleagues for doing the same work. This allegation is levelled under a penalisation heading also.
7.2 The Complainant has no claim to advance under this heading. Again the Complainant has failed to provide any information confirmatory or even suggestive of how he fits into the provisions of Section 74 of the Act. As stated he is not a person who has: (a) Made a complaint of discrimination; (b) Brought proceedings against the Respondent (c) represented or otherwise supported another employee who has brought a complaint; (d) has his work compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment, (f) opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or (g) he has not given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”
7.3 The Complainant works on the Rework team. In December 2016, a new Priorities Team was established and 10 people were recruited to carry out this work. The roles on this team were at Grade 24 to reflect the more complex work that was involved and were remunerated at a higher level in respect of this work. These staff were promoted/recruited internally into these higher graded positions following their applications for promoted roles which were advertised. The Complainant did not apply for any of these positions. This new team was established in 2016 and there is no recorded complaint made by the Complainant concerning its establishment. Any such assertion of less favourable treatment (on grounds which are entirely unclear and lacking) is wholly denied.
7.4 The purpose of the Priorities Team, as the name suggests, was to carry out high priority work to consistently tight deadlines. This work mainly consisted of responding directly to external clients on claims that were high priority appeals/escalations within tight regulatory timeframes. The appeals were made up of 22 varying claims types across 8 different regions. Given the variety of claim types processed by the Priorities Team and the fact that members of the team could only work on claim types in respect of which they had received training, during the initial realignment of this new team, as outlined in email dated 7 December 2016, members of the Complainant’s team and two other teams within the Respondent Company, were asked to assist with claims types with which they were familiar and in respect of which they had received training . This assistance continued when some of the members of the Priorities Team went out on extended periods of leave and when the needs of the business required same. However unlike members of the Priorities Team who were required to devote all their time to this work, the Complainant’s team and the two other teams assisting, generally spent no more than 10% of their working hours on these tasks. In turn and when the need arose, members of the Priorities Team assisted the Complainant’s team and other similar teams. The Complainant did not wish to carry out tasks to assist the Priorities Team and stopped carrying out this work in February 2018. This is evidenced by emails between the Complainant and his supervisor dated 25 June 2018 in which the Complainant outlines that he had stopped doing escalations/priority rework in February 2018 and no longer had access to SharePoint, the facility where such claims could be accessed. A copy of this email is available . 7.5 Simply put, the Complainant does not have the necessary ingredients to succeed in this claim either.
8. SAFETY HEALTH AND WELFARE AT WORK ACT, 2005:- 8.1 The Complainant has alleged that he has been subjected to penalisation for making a complaint under the Safety, Health and Welfare at Work Act, 2005. As stated above, the Complainant did not make a complaint such that triggers the provisions of Section 27 of the Safety Health and Welfare at Work Act 2005. Furthermore, the Complainant’s complaint form in respect of this complaint makes no attempt to set out this complaint and simply refers to his complaints under references CA-00028404.
8.2 Furthermore, no less favourable treatment, penalisation or threatened penalisation as described by the Act occurred. 9. CONCLUSION: 9.1 The failure on the part of the Complainant to make any effort to provide a statement outlining the nature of his alleged claims is regrettable. However, the position of the Respondent, having assessed in detail the relevant employment history of the Complainant for the period of time in scope is that his claims are entirely misguided and misconceived. The Complainant has not been discriminated against on any ground (and his entitlement to rely on the protected grounds contained in the Act is denied) and furthermore he has not been subjected to any alleged unfair/adverse treatment connected with any alleged protected act (which is also denied). 9.2 These claims must be dismissed. |
Decision: [
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.
.ADJ -00021733 CA-00028404-001 The claimant’s complaint was received by the WRC on the 14th.May 2019. The claimant alleged that he was victimised for taking an action set out in Section 74 of the Employment Equality Acts.He asserts that arising from his refusal to cooperate with the ongoing “realignment” phase of the move to Priorities Work , he was the subject of bullying behaviour.He has argued that this originated from his having complained about not receiving equal pay with his work colleagues. The claimant is required to demonstrate that he took an action referred to in Section 74(2) of the Acts and that as a consequence of taking this action , the claimant was the subject of adverse treatment . The claimant has asserted that his email to the respondent of the 19th.Nov. 2018 advising that he was lodging a complaint with the WRC for “ daily breaches of Employment legislation relating to the Employment Equality Act 1998- 2011” constituted a protected act in the context of his complaint of victimisation. On the 21st.November 2018 , the claimant advised the respondent that he had “ absolutely no intention of raising a formal complaint with the WRC”. In his complaint form the claimant suggests that the bullying began a year after the setting of the Priorities Team – i.e. December 2017.This is approximately 11 months prior to his having made the alleged protected act which was subsequently withdrawn on the 21st.November 2018.In light of this chronology of events I am obliged to dismiss the complaint as the alleged adverse treatment predated what the claimant submitted as the protected act i.e. his email of the 19th.Nov. 2018 giving notice of his intention to make a complaint to the WRC. While I fully acknowledge that the claimant had a number of grievances with the respondent’s processing of his grievances and I acknowledge his distress with the number of personal challenges arising from family illnesses and the illness of his child minder , I find his complaint of victimisation is misconceived. CA-00028404-002 The claimant further alleged that he was victimised and the subject of extreme bullying as a result of his application for part-time work on the 26th.April 2018. The claimant is required to demonstrate that he took an action referred to in Section 74(2) of the Acts and that as a consequence of taking this action , the claimant was the subject of adverse treatment . The claimant has not advanced any compelling arguments in his own direct evidence or indeed in his submission to support his contention that his application for part time work consititutes a protected act as defined under Section 74(2).Additionally , the claimant has accepted in his own direct evidence that performance issues were raised with him as far back as April 2017 when he was struggling in production.This was 12 months before the claimant applied for part time work.Additionally the documentary evidence presented at the hearing demonstrates that further performance issues were raised with the claimant on the 23rd.March 2018 when he was put on notice from his manager that she was putting a “ plan in place for your production issues so we can work towards overcoming the problems and challenges you are having”.The claimant’s application for part time working was submitted to the respondent on the 26th.April 2018 .The respondent has comprehensively set out the ensuing exchanges between the claimant and his managers in relation to the matter of part time work and the evidence indicates that the respondent did endeavour to facilitate the claimant and did offer him an opportunity to work from home to assist him with child care- which he declined .While I fully acknowledge the claimants distress and his frustration with what he perceived as a lack of progress in facilitating his application for part timework , I cannot accept the claimant’s contention that his application for part time work constituted a protected act in the context of his complaint of victimisation. Furthermore , even if one were to accept the claimant’s contention that his application for part time work constituted a protected act , the evidence demonstrates that performance issues were raised with the claimant prior to his application for part time work .In these circumstances , I find the complaint of victimisation is misconceived and I dismiss the complaint. |
Dated: 1st September 2020
Workplace Relations Commission Adjudication Officer: Emer O'Shea