ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00021835

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 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00028488-001	19/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00028492-001	19/05/2019

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 28 of the Safety , Health & Welfare at Work Act , 2005] 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.M.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 under the Safety , Health & Welfare at Work Act , 2005:

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

SAFETY HEALTH AND WELFARE AT WORK ACT, 2005:-

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.

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 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 28 of the Safety , Health & Welfare at Work Act , 2005 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the Act.

ADJ -00021835

CA-00028488-001

The claimant’s complaint was received by the WRC on the 19th.May 2019.

The claimant submitted that he was penalised for “ complying with or making a complaint” under the Safety , Health & Welfare at Work Act, 2005.

The respondent has argued that the claimant did not make a complaint such that “ triggers the provisions of Section 27 of the Safety , Health & Welfare at Work Act 2005 “ and that no less favourable treatment , penalisation or threatened penalisation as described by the Act occurred.

Section 27 of the Act provides :

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

		(2) Without prejudice to the generality of subsection (1), penalisation includes—
		(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,
		(b) demotion or loss of opportunity for promotion,
		(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,
		(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and
		(e) coercion or intimidation.
		(3) An employer shall not penalise or threaten penalisation against an employee for—
		(a) acting in compliance with the relevant statutory provisions,
		(b) performing any duty or exercising any right under the relevant statutory provisions,
		(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,
		(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,
		(e) being a safety representative or an employee designated under section 11or appointed under section 18to perform functions under this Act, or
		(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.
		(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).
		(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.
		(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.
		(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

I have considered the respondent’s assertion that the claimant did not make a complaint that triggers the provisions of Section 27 and note that the claimant did record a complaint of stress and detrimental effects at a meeting with Ms.D and Mr.L on the 21st.Nov. 2018 .I further note that the claimant complained to the respondent on the 7th.February 2019 that “ the company have failed , under their responsibility of duty of care to me as an employee.As a result , I have been extremely stressed during this period and it has had a very detrimental impact on myself and the wider family unit”.I am satisfied that in light of these complaints the claimant meets the test set out under subsection (3) (c) of Section 27 of the Act. However , having reviewed the entirety of the evidence presented at the hearing and taking account of the submissions of both parties, I find that no compelling evidence of detrimental treatment by the employer for having made these complaints has been presented. Accordingly , I find against the claimant and do not uphold the complaint.

CA-00028492-001

The claimant’s complaint was received by the WRC on the 19th.May 2019.

The claimant submitted that he was penalised for “ complying with or making a complaint” under the Safety , Health & Welfare at Work Act, 2005. The claimant’s complaint was received by the WRC on the 19th.May 2019.

The claimant submitted that he was penalised for “ complying with or making a complaint” under the Safety , Health & Welfare at Work Act, 2005.

Section 27 of the Act provides :

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

		(2) Without prejudice to the generality of subsection (1), penalisation includes—
		(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,
		(b) demotion or loss of opportunity for promotion,
		(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,
		(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and
		(e) coercion or intimidation.
		(3) An employer shall not penalise or threaten penalisation against an employee for—
		(a) acting in compliance with the relevant statutory provisions,
		(b) performing any duty or exercising any right under the relevant statutory provisions,
		(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,
		(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,
		(e) being a safety representative or an employee designated under section 11or appointed under section 18to perform functions under this Act, or
		(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.
		(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).
		(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.
		(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.
		(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

I have considered the respondent’s assertion that the claimant did not make a complaint that triggers the provisions of Section 27 and note that the claimant did record a complaint of stress and detrimental effects at a meeting with MsO’D and Mr.D.MCL on the 21st.Nov. 2018 .I further note that the claimant complained to the respondent on the 7th.February 2019 that “ the company have failed , under their responsibility of duty of care to me as an employee.As a result , I have been extremely stressed during this period and it has had a very detrimental impact on myself and the wider family unit”.I am satisfied that in light of these complaints the claimant meets the test set out under subsection (3) (c) of Section 27 of the Act. However , having considered the entirety of the evidence presented and the submissions made by both parties I find that no compelling evidence of detrimental treatment by the employer for having made these complaints has been presented. Accordingly , I find against the claimant and do not uphold the complaint.

Dated: 1st September 2020

Workplace Relations Commission Adjudication Officer: Emer O'Shea