Complainant

Respondent

Parties

Connie  Gerety

North Leinster Citizens Information Service

Complainant

Respondent

Parties

Connie Gerety

North Leinster Citizens Information Centre

Representatives

  Self

Mr Mark Curran BL; Mr Cormac Grimes HR Consultant

Act

Complaint 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-00037141-003

16/06/2020

The complainant is a long serving manager with the company. Her record has been unblemished and without incident until recently. However, it is alleged that since 2018 she has been subjected to malicious and vexatious complaints contrary to the policies and procedures of the organisation.

The complainant believes that there is a sustained attack on her reputation and professionalism. It is alleged that arising from making a complaint of bullying against her line manager and the Chair of the board; a sustained and intentional campaign has taken place to remove her from her post.

The Complainant stated that she has been the subject of  abusive behaviour from two colleagues who submitted vicious and vexatious complaints against her in 2018 - none of which were upheld and she was not supported by her employer during this difficult time.

The Complainant stated that her employer ignored their own Company policy as set out in their Staff Handbook which should have deemed these complaints to be vicious and vexatious.

The  company had failed to apply the Code of Practice of the Health & Safety Authority about those who have been vindicated of complaints made against them. When she submitted a complaint against her line manager and the Chairperson of the Board of NLCIS in April 2019 this complaint was ignored and instead the Employer presided over a process of undermining her in the workplace allowing her to be bullied, harassed, victimised, treated less favourably and disrespected by peers and other direct reports.

 The employer engaged external consultants to further undermine her authority and  to discredit her by stripping her of her dignity, respect and confidence.

 It is alleged that senior management have colluded in attempting to have the complainant deemed unfit for work, sending her for multiple Occupational Examinations and entering inappropriate and unnecessary information into the documentation. All throughout this time she was required to report to the same line manager that she had complained about and so all reports from the Occupational Physician were referred to him.

The relationship between the parties has been difficult. The Regional Manager has experienced difficulties with the complainant; however, he denies that he has run a campaign to undermine her. He has attempted to implement the Board’s strategy and to improve the organisation’s culture. That has proven to be difficult. There have been numerous complaints between work colleagues and made against the Regional Manager and the Chair. They have been investigated as required under the HR policies. However, the company has also attempted to move the process forward by using a consultant to build a shared vision of what the future could be and what is required so that clients’ needs can be met. The Regional Manager and Chair deny that they have with malice attempted to undermine the complainant. They do state they have exercised management prerogatives to address people and organisation issues as they both attempt to implement a Strategy approved by the Board.

At the hearing evidence under oath was given by the Chair and the board member Ms Deery. The complainant and line manager also gave evidence under oath.

At the heart of this complaint is the complainant’s belief that she has been targeted by her manager and the intent is to push her out of the organisation. In that regard several allegations and complaints made against the complainant have been used, it is alleged, to commence workplace investigations to put pressure and strain on the complainant. It is alleged that these complaints were manufactured and contrived by the Regional Manager and have proven to be groundless and without substance. It is also alleged that both the Chair and Ms Deery participated and supported the Regional Manager in his campaign to move her on by supporting investigations and processes that they should have absented themselves from, having regard to their governance role as board directors.

While the complainant called two witnesses they did not support her claim that she was victimised. The Chair stated that he participated in a strategic review process that was underpinned by a mediation process that hoped to improve the working relationship between the Regional Manager and the Complainant. However, that process was wrongly perceived as an attempt to harass and harangue the complainant when she fainted at a meeting held in a hotel meeting room to discuss recommendations for moving the organisation forward.

Ms Deery had participated in a HR review that upheld a complaint, which was later overturned when internally appealed. On the facts  she stated she acted in good faith and without animus.

In her complaint form dated the 16h of June 2020 it states:

I was issued with a notice of intent to issue me with a sanction on Christmas Eve 24th December 2019 by my Employer despite no formal complaint being made against me and no procedures followed as set out in the Company Staff Handbook. It was signed by the Chairperson of the Board of North Leinster Citizens Information Service against whom I had lodged a formal complaint the previous April but which had remained unaddressed at the time. This person had put me through a process of unfair and unjust treatment which I believe was in an effort to bring me to the point of resignation from my position which I had held for 20 years without being the subject of any disciplinary action in all that time.

And

In April 2019 I submitted a formal complaint against my line manager and the Chairperson of the Board of NLCIS for presiding over the breach of the bullying and harassment policy of the Company and also the Dignity at Work policy. Following this I suffered a process of victimisation whereby jointly these persons embarked on a mission to discredit me, to raise complaints against me, to have me assessed for my fitness to work, and brought me to a point of issuing a sanction against me without following any procedure, involving themselves only in the process and finally bringing me to a point whereby I was lured to a meeting during which I became unwell and where a GP and Ambulance was called.

This claim is brought under section 28 of the Act and at section 27 of the Act penalisation is defined as:

(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,

Penalisation in case law has been described to have occurred where there is a direct causal link between making a complaint and a detriment that followed because of that complaint [Murphy and Regan Employment Law 2nd edition  Bloomsbury 2017]:

[5.54]

The Labour Court has made it clear that there is a distinction between a detriment suffered by an employee because of an employer’s failure to fulfil a duty under the 2005 Act, and a detriment amounting to penalisation under the 2005 Act, as set out above. In the case of Patrick Kelly t/a Western Insulation v Girdsius 107 the employee’s claim for penalisation failed as he was unable to show that the detriment that he suffered was a result of, or was in retaliation for, his having made a complaint under the 2005 Act. He was a Lithuanian employee who was injured when he fell off a ladder at work that was not properly secured. He claimed that he had limited English and that he did not receive any health and safety training at work in a language that he could understand. He took a penalisation claim against his employer on the basis that this failure operated to his detriment. The Labour Court dismissed his claim due to the complete absence of a causal connection between the alleged shortcoming on the part of the employer and any act on the part of the employee. Similarly, the Labour Court, in the case of Margaret Bailey t/a Finesse Beauty Salon v Farrell, 108 found that the circumstances in which liability will be imposed are ‘very limited and circumscribed’ and that the 2005 Act ‘only applies where an employer penalises or threatens penalisation against an employee for making a complaint or representation to their employer as regards any matter relating to safety, health and welfare at work. Penalisation of an employee for other reasons does not come within the scope of the [Act]’.

[5.55]

In contrast, in the Labour Court case of Toni & Guy Blackrock Ltd v Paul O’Neill, 109 the claimant successfully appealed a previous decision that he had not been unfairly dismissed by reason of penalisation under s 27 of the 2005 Act. Mr O’Neill alleged that he had made complaints about the poor-quality gloves that had been provided by his employer for use when handling colouring agents and that his complaints were ignored. He also brought the matter to the attention of the HSA and informed his employer that he had done so. He ultimately purchased his own gloves for use at work. He claimed that his employer’s attitude towards him changed after these complaints had been made. He was then dismissed for alleged poor time keeping and theft. The Labour Court found in his favour, referencing the causal link between his complaints under the 2005 Act and the treatment that he was then subjected to, which was absent in the two cases cited above. He was awarded €20,000 by way of compensation.

In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test:

“The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he, or she, would not have suffered the detriment. This involves the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment.”

On the facts several complaints made against the complainant have not been upheld when appealed.

The facts show a working relationship that has broken down and possibly irreparably.

The facts show an organisation where complaints made against colleagues have absorbed a huge amount of resources arising from appeal processes; investigations;  attempted facilitation; third party referrals and  court litigation.

Both the manager and the complainant have given evidence about the stress and pressure  experienced and continues based on what they both see as a very challenging working relationship.

The complainant attributes the breakdown to bullying and undermining behaviour and believes that behaviour has intensified since making a complaint about bullying.

The manager believes that the subordinate constantly attempts to undermine strategic priorities set by the board and that he is  also tasked to achieve.

Having regard to the factual matrix I see a  relatively small organisation consumed by internal conflict.

The question that must be asked based on the complaint made, is there a causal link between the various hostile interactions that the complainant alleged occurred with the Chair and her line manager arising from making a complaint of bullying having regard to the legal test set out in Tony & Guy?

On the facts there is no predominant pattern that establishes a causal link between the matters complained of and the complaint made to the Board alleging bullying. The complainant carries the burden to provide evidence  for the perceived hostile actions and that they arise because of the complaint made against her line manager and the Chair. However, there are many  competing explanations in this case.

This is a hearing that in a way reflects the  dynamic of the interactions between the two protagonists. Each perceived example of detriment has also been rebutted and explained as an example of overreaction and resistance to change and lack of support for the new strategic direction approved by the Board. Arising from the competing explanations it cannot be shown that there is a causal link between making the complaint and the ongoing disputes and grievances in the workplace, as there are many competing reasons and credible explanations that override  the argument that the investigation and meetings held with the complaint are a punishment and reaction to  her making a complaint of bullying.

The respondent employer denies that the complaint made in April 2019 pertained to matters of Health and Safety. It is denied that any complaint was made against the Chair. It is a fact that the complainant made a complaint under the grievance process. However, that must be distinguished from a complaint pertaining to matters of Health and Safety:

“I wish to inform you today(18 April 2019) that I have a formal grievance which involves Mr Noel O’Connor my line manager. Consistent with the policy of the staff handbook I respectfully request that my grievance will be addressed in line with Company policy and procedures for dealing with such matters as set out therein.”

The complainant believed that her line manager was not supportive when employees made a complaint against her and these complaints should have been dismissed as being vexatious. It was alleged by the complainant that her line manager mishandled the investigation of these complaints.

The respondent employer stated that no detriment has occurred and referencing An Garda Siochana v Delahunt HSC/13/10 and the Court’s citing of relevant UK authorities regarding what is meant by detriment. In Ministry of Defence v Jermiah [1979] 3 All ER 833 at 841, QB 87 at 104 Brightman LJ said that a “detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment. The Court in Delahunt stated that it seems clear from the language of s. 27(1) of the Act that the act or omission on which a claim of penalisation is grounded must amount to a detriment in the Claimant’s terms or conditions of employment and something that merely had the potential to lead to such a result is not enough. The Court went on to say that a detriment in respect to a term or condition of employment arising from disciplinary action was calculated to destroy or seriously damage the relationship of trust and confidence between the parties:

“It would also be necessary to show that the investigation was undertaken without proper justification and cause.”

“Except in circumstances in which it is alleged that the initiation of enquiries of this nature was actuated by malice or calculated to undermine the relationship of mutual trust and confidence between the parties ( which is not alleged) the Court cannot see how they can be regarded, as a matter of law, as amounting to a detriment in respect to a term or condition of employment within the meaning of s.27 of the Act.”

The respondent stated that referrals to Occupational Health were made arising from their duty of care to the manager and that this referral was consistent with the employer’s medical examination policy. A referral to  Occupational Health arose as the complainant submitted a medical certificate stating that she was not able to return to work as she was suffering from stress.

On or about the 24th of October 2019 the Complainant emailed her line manager and four Development Managers stating that she was unhappy that case reviews could be conducted without the development manager being involved/present. That in turn led to a response from the Regional Manager stating that he viewed her email as defensive and that her concerns were not accurate. In turn this exchange set up a series of emails between them and her manager asking how she had arrived at her view and who had she spoken to as the policy change was suggested at a staff workshop.

 The Regional Manager believed that the failure of the Complainant to answer his queries amounted to insubordination. The Complainant had made allegations against her line manager on the 7th of November 2019 where she alleged that his request repeatedly for the same information amounted to unwanted conduct that violated her dignity at work. On the 12th of November 2019 her line manager rejected her allegation and referred her to the staff handbook and to the grievance procedure. On the 5th December 2019 the Regional Manager stated that he wished to meet with the complainant about:

·       A recent report on the Longford CIS

·       Managerial Expectations

·       Address your recent refusal to provide information regarding your contact with the ADG following the NLCIS case exchange day.

Based on Union representation the Regional Manager was requested to step aside from that meeting and the Chair took the meeting instead.

The complaint of insubordination became a  formal disciplinary investigation and on the 19th of December 2019 a disciplinary meeting was held  and the Chairperson was accompanied by Ms Mary Deery Board member.

On the 23rd December 2019 the outcome of the disciplinary meeting was issued and that upheld that the Complainant failed to provide her manager with information that was properly and reasonably requested. On the 17th of January 2019 the Chairperson and Ms Deery met the complainant with her Union Representative and she was given a verbal warning. In turn that sanction was appealed and reversed as the company failed to follow its procedures.

On the 6th of February 2020 the complainant was requested to attend a meeting to discuss a report of an independent consultant, a HR mater, working relationships and feedback from the Staff Conference. At that meeting the Complainant fainted and arising from an alleged panic attack. While the Complainant’s partner was not at the meeting, he stated that the conversations he overheard were hostile. This was denied by the Regional Manager and the Chair.

The Complainant viewed that meeting as a set up where she was being scapegoated by the Regional Manager and the Chair.

The Complainant had emailed on the 5th of February 2020 that she would be attending with an open mind and seeking her Regional Manager’s support in her role as Development Manager. The meeting was based on the work of an external consultant that attempted to look to the future. However, the Respondent alleged that the Complainant only wanted to refer to the past and why she was not to blame for the current state of poor working relations.

Having regard to the factual matrix of this complaint there is no one operating cause that  can be identified that meets the but for test which would support the complainant that the matters complained of stemmed from her making a complaint against her manager and Chairperson. It is not clear that there was malice in any of the investigations and in fact they show an organisation that created distance between the complainant and her line manager when investigating complaints. The practice also shows that the respondent employer responsibly had checks and balances so that any perceived sense of unfairness could be addressed such as setting aside the verbal warning. The complainant has not met the detriment test that shows that a condition or term of employment had in fact been undermined.

The complaint is not well founded as the complainant has  not made out a case that she suffered detriment arising from making a complaint of bullying against her line manager and the Chairperson of the Board.

At the time of the hearing there had been significant delay in completing the investigation of a grievance made by the complainant against her line manager and the Chairperson. Several reasons have been given for that delay such as the requirement to tender; Covid and the fact that the organisation has significantly changed over this period including a change in Board membership, all contributing to delay. The failure to expedite this investigation maybe justified or not; however, again based on the legal test regarding victimisation, it does not demonstrate that the Complainant has been discriminated against and penalised concerning  a term and condition of employment.

The complainant continues to report directly to her Regional Manager; although, he is the subject of her complaint. This is a small organisation. The complainant does not work in the same office. The complaint is also made against the Chair. In these circumstances  while it is hard to see who the complainant could report to pending the outcome of the bullying investigation; as both the Chair and Regional Manager are the subjects of her complaint; another board member or appropriate manager could pending the review act as an intermediary. However, that observation does not equate to a conclusion that this omission meets the threshold of undermining the trust and confidence of the relationship between the employee and her employer.

In the Arthur Cox Yearbook 2017 at 6.04 a relevant analysis concerning disciplinary procedures as a tool of punishment or bullying is detailed with reference to the leading case in this area which is Ruffley v The Board of Management of Saint Anne’s School [2017] IESC:

O’Donnell J considered the issue of ‘dignity at work’ to be perhaps the most important aspect of the definition, and considered it insufficient to simply assume the undermining of the individual’s dignity as an outcome of repeated and inappropriate behaviour, as opposed to a distinct component of bullying:

In my view, the manner in which the plaintiff’s argument approaches this limb of the test drains it of much of its meaning. The conduct is said to be repeated because more than one event is relied upon. It is inappropriate because it is in breach of fair procedures, and accordingly, it must be undermining of dignity at work ...In my view for the reasons already set out, it seems to me that the requirement of conduct undermining dignity at work is a separate, distinct and important component of the definition of bullying which identifies the interests sought to be protected by the law, and just as importantly limits the claims which may be made to those which can be described as outrageous, unacceptable, and exceeding all bounds tolerated by decent society.

The word dignity, carries a considerable charge with a distinct moral component. ... The denial of fair procedures is never a trivial matter but I do not think it can be comfortably said in this case, to be undermining of human dignity, particularly when it is the same breach of procedures which is also contended to be inappropriate. More importantly I consider that the requirement that the procedure be repeated inappropriate and undermining of dignity is a test which uses language deliberately intended to indicate that the conduct which will breach it is both severe and normally offensive at a human level.

I accept that the “singling out” or “targeting” of an individual for disciplinary purposes is capable of being a component of bullying. However, the use of the verb in these formulations is important. It is not enough in my view that after the fact it is possible to say that a person has objectively been treated differently and worse than others in a similar situation, even if that in certain circumstances may give rise to a different claim. I accept for example as set out at paragraph 43 above that in the context of dismissal proceedings, an apparent deviation from prior practice may itself be evidence of unfairness. But in many cases in which it can be said a person has been ‘targeted’ or ‘singled out’ for disciplinary sanction and which constitutes at least part of a finding of bullying, the fact of a general practice will have been known to the superior prior to the initiation of any disciplinary process, and in such circumstances may give rise to the inference that the disciplinary proceedings are not being pursued bona fide because of a concern about the practice or behaviour, but rather as a form of punishing and perhaps humiliating the individual concerned.

In my view that is not what occurred here.

The facts of a verbal warning, an appeal that removes that warning and a subsequent meeting to discuss working relationships and how to move the culture and strategy implementation forward, does not meet the threshold of malice where such procedures could be said to be used to punish the complainant and cross a threshold that make them clearly offensive. The referral of the complainant to Occupational Health based on a medical certificate  stating she was suffering from stress does not meet that threshold; the request to attend a meeting based on an external consultant’s report, the disciplinary investigation that gave a verbal warning, do not cumulatively amount to an attack on the dignity of the person as described in Ruffley. That does not mean that such behaviours and actions were always correct; however, a normative judgement must be made to determine if they cumulatively meet an objective threshold where the reasonable person would view these actions as seriously undermining and outside of normal working relations and interactions.

CA-00037141-003 Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

Having regard to the factual matrix of this complaint there is no one operating cause or causal link that can be identified that meets the but for test which would support the complainant; that the matters complained of regarding an intentional undermining of her position through contrived workplace investigations, stemmed from her making a complaint against her manager and Chairperson. It is not clear that there was malice in any of the investigations and in fact they show an organisation that created distance between the complainant and her line manager. The practice also shows that the respondent employer responsibly had checks and balances so that any perceived sense of unfairness could be addressed such as setting aside the verbal warning. The complainant has not met the detriment test that shows that a condition or term of employment had in fact been undermined or eroded  in a significant way based on her making a complaint.

The complaint of penalisation is not well founded as the complainant has not made out a case that she suffered detriment arising from making a complaint of bullying against her line manager and the Chairperson of the Board.

Penalisation