Complainant

Respondent

Parties

Niamh  Kennedy

Ebay Europe Services Irl Ltd

Representatives

  Self represented

Avril Daly, Mason Hayes & Curran

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-00038403-001

28/06/2020

The complaint is that the Respondent penalised the Complainant for having made complaints and raising concerns about her health and safety in the workplace.

The Complainant stated at the outset that she was aware that the complaint was not submitted within the six month time period outlined in the Workplace Relations Act 2015.  She requested an extension of time.  She submitted that the reasons she did not submit the complaint in the time period were that a) she had experienced a significant delay in receiving her data following her request to the employer and when she did receive the data it contained a data breach under GDPR, b) she had suffered anxiety disorder and had to undergo months of counselling and medication to cope with the stress she experienced as a result of the treatment she received in the employment and c) the Covid-19 pandemic delayed matters.

In relation to the issues concerned in her complaint, the Complainant stated that she lodged a grievance against her team leader on 20 June 2019.   She had experienced a lack of support from him and an unprofessional manner in his dealings with her.  She was on stress related sick leave for a period of six weeks.  The Complainant stated that when she returned to work on 18 June 2019, her Team Leader acted in a most unprofessional manner which she found distressing.  He stated that he was hungover.   He then raised the issue of alleged call avoidance and that as there was an investigation, she would not be paid for sick leave.  She then submitted a grievance against him and his treatment of her on 20 June 2019.  She stated that her grievance, having been submitted on 20 June 2019, still was not resolved or closed in September 2019.   She had no option but to resign her job and she informed HR by email on 11 September 2019.  She was asked to reconsider but on 16 September 2019 she confirmed her decision to resign.  The Complainant stated that the treatment she had received, including misleading information from her Team Leader about sick leave entitlements and the long drawn out process in the handling of her grievance left her feeling that she was badly mistreated by the Respondent and effectively penalised for having raised a matter of concern for her own health and safety.  

The Respondent argues that the complaint is out of time as the alleged protected act and penalisation occurred more than twelve months before the Complainant submitted her complaint form.   The Complainant submitted a grievance on 20 June 2019 and her complaint form was submitted to the WRC on 28 June 2020.   Even if, though it is firmly disputed, the date of the Claimant’s resignation is taken as the relevant date of contravention, this is still well outside the six month time limit in the 2015 Act, and the Claimant has failed to show any reasonable cause for the delay in bringing her complaint.  The Respondent cites the established test for deciding if an extension should be granted for reasonable cause shown is that formulated by the Labour Court in Labour Court Determination DWT0338, Cementation Skanska v Carroll.

While the Respondent respectfully acknowledges that there was a delay in providing

the Claimant’s personal data, it respectfully submits that this is not a valid reason for

the significant delay in lodging the complaint. Put simply, the submission of a data

access request does not pause or impact upon the statutory time limits set out in

employment legislation, to include the 2005 Act.  Moreover, the Claimant made it clear on 16 September 2019 that she would be consulting with a legal advisor as she felt she was entitled to her sick pay. While she did not have access to all of her data until 28 February 2020, she evidently believed, as far back as September 2019, that there was a possibility of bringing a claim in some

shape or form. Notwithstanding that, the Claimant’s complaint form was not lodged until four months after she received the data.

Notwithstanding this, should this claim proceed, the Claimant has failed to show any causal connection between a protected act and subsequent detriment as required under section 27. In fact, the Respondent submits that the Claimant has failed to point to any protected act and/or penalisation at all within the meaning of section 27.

In relation to the Complainant’s complaint that she had been misled regarding her sick leave entitlements, it is submitted that the Claimant was well aware, from the beginning

of her employment, of the terms that applied to the payment of sick pay.  The Company does not usually pay discretionary sick pay to employees if the Company has commenced any Performance Improvement or Disciplinary process or have notified the employee of their intention to do so.  The Complainant would be aware of this from the Employee Handbook.     On 5 May 2019 the Claimant went on certified sick leave, initially for a period of two weeks, later extended to six weeks.

As part of an internal review in May 2019 the Respondent became aware that a

number of employees were tampering with consumer contact numbers, in order to

avoid having to complete customer calls. The review concluded that in total, twenty

employees were involved - the Claimant was identified as one of them. During the

month of May and early June 2019 all employees involved were subject to disciplinary

proceedings under the Respondent’s disciplinary procedure. The outcome of these

proceedings ranged from a verbal warning to dismissal. Because the Claimant was on

sick leave at this time, she was not yet invited to a disciplinary hearing. However,

before going on sick leave, she was aware that other employees had been spoken to in

relation to the Respondent’s concerns regarding the customer calls.                                                       The Claimant was assessed by the Respondent’s occupational health specialist on 13 June 2019 and deemed fit to return to work on 18 June 2019. On her return to work on 18 June 2019 the Claimant’s team leader informed her of the internal review and findings and explained that the

Respondent would be commencing a formal disciplinary process to examine the

findings. There is no dispute as to the fact that this conversation took place.  For the avoidance of doubt, the Team Leader denies telling the Claimant that she was only entitled to 3-4 weeks’

sick pay and submits that the Claimant was simply confused about social welfare

payments. In any event, the Claimant once again went on sick leave on 18 June 2019.   On 19 June 2019, the Team Leader  sent an email to the Claimant to check in with her and to explain the support available to her.

On 20 June 2019 the Claimant filed a grievance under the grievance procedure. The grievance was against her team leader in respect of his alleged lack of support and the cessation of her sick pay. The grievance was investigated by the Operations Manager. As the Team Leader and Operations Manager were themselves out on sick leave, and the Claimant was away for a period, the grievance was delayed. However, as is clear from the correspondence, the investigator and HR kept in regular contact with the Claimant to keep her abreast of developments.   Prior to the outcome of the grievance the Claimant resigned on 8 August 2019 by email. The Respondent asked that she reconsider her resignation which she did. The Claimant received the outcome of the grievance on 12

September 2019 and resigned later that day after once again being asked to reconsider. The grievance outcome found that the Claimant’s sick pay had been correctly ceased in line with Company policy. It also recommended that the Claimant be moved to a new team leader, in a different building, with a structured support plan and that the call avoidance allegations should be progressed through the Respondent’s procedures on her return. In fact, the proposed new team leader tried to make an introductory telephone call to the Claimant to discuss a return to work plan but the Claimant refused the call. On 16 September 2019 she confirmed her resignation

with immediate effect by email.

The Respondent accepted and acknowledged the Claimant’s resignation by email at

on 16 September 2019. The email stated that the Respondent would pay her four weeks’ pay in lieu of notice as well as any outstanding accrued annual leave.

It is submitted that in order for the Complainant to succeed in her claim, she must have i) acted in accordance with one of the protected acts set out in Section 27(3), ii)suffered a detriment within the meaning of Section 27(1) or Section 27(2) of the 2005 Act and iii) there must be a clear causal link must be established between the protected acts and the penalisation. 

The Claimant has failed to articulate what exactly she believes amounts to a protected

act. The Claimant makes reference to raising informal concerns with her team leader in

relation to workload and his lack of support. This is denied by the Team Leader, who, as part

of the grievance investigation, was asked to respond to the allegations in writing.

Although it is not entirely clear what detriment the Claimant claims she has suffered, it is

assumed she is concerned with the cessation of her sick pay. The fact that the

Claimant’s sick pay ceased does not, in itself, amount to a detriment within the meaning

of the 2005 Act. The Claimant must be able to point to a specific, independent,

detriment, and not simply a failure by the Respondent to fulfil its duties under the 2005

Act. The wording of Section 27 of the 2005 Act is very specific.

It defines penalisation

as:

“any act, or omission, by an employer, or a person acting on behalf of an employer, that

affects to his detriment an employee with respect to any term, or condition, of his employment.”

In the case of An Garda Siochana v Hazel Delahunt [2014] ELR 130 the Labour Court held that the simple fact that Ms Delahunt has been invited to attend a disciplinary investigation did not in itself amount to a detriment.

In the current claim, the cessation of the Claimant’s sick pay was solely the result of the

instigation of the disciplinary process which is clearly permitted as part of the

Respondent’s Attendance and Timekeeping Policy. The Claimant cannot dispute this

clear contractual provision and therefore the cessation of her sick pay does not amount

to a detriment within the meaning of Section 27(1) or Section 27(2) of the 2005 Act.

Complaint out of time.