ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00035088

Parties:

	Complainant	Respondent
Parties	Connie Gerety	North Leinster Citizens Information Service Floor 2

	Complainant	Respondent
Parties	Connie Gerety	North Leinster Citizens Information Centre

Representatives

Self

Mr Mark Curran BL; Mr Cormac Grimes HR Consultant

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00045847-001	26/08/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00045847-002	26/08/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00045922-001	01/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00045922-002	01/09/2021

Date of Adjudication Hearing: 22/04/2022

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Any submissions made after the hearing have not been considered in this determination as such submissions could not be challenged and cross examined as the hearing of evidence had concluded

Background:

The complainant works as a manager with the Citizen Information Service and has long service and experience. This compliant is brought alleging further victimisation arising from the fact that she brought a complaint against her manager and Chair of the board. This is a second complaint and relates back to the original complaint and reference number Adj-00028557

Summary of Complainant’s Case:

CA-00045847-002/ CA-00045922-002 complaint under Section 28 of the Safety, Health and Welfare at Work Act, 2005:

In her complaint form and repeated at the hearing the complainant stated:

I submitted a formal complaint of "further" Bullying, Harassment, Victimization, Dignity at Work to my employer against my line manager on 9th February 2021 and despite an already pending penalization complaint at that time to the WRC (heard on 1st April 2021 and now 21 weeks today is re-scheduled for 28th September2021) my line manager continues to penalise me. He has embarked on a mission to break me down and humiliate me in front of my direct reports. I have on file evidence of his cutting me off as soon as I spoke on a Zoom meeting; just days after a scheduled Labour Court Hearing (postponed pending the outcome of the WRC Penalization case) he submitted a totally baseless and groundless complaint that I breached COVID Compliance in the workplace; been grooming my direct reports to make complaints against me; grooming the Board Of Management to pursue complaints against me etc. No pen or email can describe the magnitude of his attempts to have me removed from the workplace which has reached such a degree of extremity that it is above exaggeration and misrepresentation. While on leave for WRS he sent me an email reprimanding me and penalizing me for contacting my office to obtain a number from a client who had sent me a gift of flowers for advocating for him in a Labour Court Case - despite being asked to refrain from contacting me by email, bullying and harassing me while out on WRS. He renders himself the voice of the Company and is permitted to proceed with penalization tactics without impunity.

The complainant views these behaviours as further examples of detriment arising from making a complaint against her line manager alleging that he bullied her.

CA-00045847-001/CA-00045922-002 Terms of Employment (Information) Act, 1994

In addition, it is claimed that the frequency of salary payments was changed contrary to the complainant’s contract of employment.

Summary of Respondent’s Case:

CA-00045847-002/ CA-00045922-002 complaint under Section 28 of the Safety, Health and Welfare at Work Act, 2005:

The complainant has failed to show any causation between what the complainant sees as oppressive behaviour that stems from the fact that she made a bullying complaint against her line manager.

The Complainant alleges that her complaint of 9th of February 2021 against the Regional Manager amounts to further bullying. Further it is contended as affirmed in St Johns National School v Akduman HSC/07/3 that where the alleged conduct began before the H&S complaint is made, and it is alleged to continue, it cannot reasonably be said that the conduct was because of the H&S complaint or that but for the H&S complaint, it would have stopped.

A face to face meeting took place organised by the Complainant during level 5 restrictions. The Regional Manager when he became aware of the matter escalated his concerns to the Board and recommended an independent investigation because he could be seen to be biased.

The Regional Manager has never groomed or persuaded others to make complaints against the Complainant.

The Zoom meeting incident where the Complainant was disconnected arose due to perceived hostile and aggressive interactions by the Complainant and arose solely as a response to her conduct.

The Complainant was on sick leave and no reprimand was given to the Complainant by the Regional Manager, concerning contact she made with the office when on sick leave seeking contact details of a client, on or about the 23rd July 2021.

No detriment has arisen concerning any of the matters raised by the Complainant.

CA-00045847-001/CA-00045922-002 Terms of Employment (Information) Act, 1994:

This relates to a collective pay frequency dispute that is before the Labour Court and is a joint referral between SIPTU and the Citizen Information Service (CIS), Employer Group. This Group engages in collective bargaining for 8 CIS Regional Companies. This matter was referred to the Court prior to the submission of this complaint.

Findings and Conclusions:

CA-00045847-001 /CA00045922-001:Terms of Employment( Information) Act, 1994:

These two complaints duplicate the same facts and I am treating as one.

I note the reference to parallel claims in the Arthur Cox Yearbook 2017:

Hogan J therefore allowed the appeal insofar as Kearns P held that the personal injuries claim must automatically fail in limine as an abuse of process by the plaintiff’s failure to prevail before the Equality Tribunal. However, he again cautioned that it would also be open to the trial court to determine that the personal injuries claim—or, at least, parts of the claim—should fail on the ground that it amounted in substance to a collateral attack on the decision of the Equality Tribunal.

I note that the Labour Court in Sorenson v Teagasc EDA 1723, refused to allow facts which were argued in a claim pursuant to the Employment Equality Acts in circumstances where they had been put before the WRC and Labour Court in a claim under the Protection of Employees (Fixed-Term Work) Act 2003.

Having regard to the fact that an agreed Collective process is underway which will address the same facts now before me and the Complainant will benefit from the process, and that matter was firstly before the Court, to determine the matter when it has been referred under the Industrial Relations Acts, could lead to double compensation and undermine the Collective process now before the Court. At this point I will suspend making any decision until the Court issues a recommendation.

CA-00045847-002/ CA-00045922-002 complaint under Section 28 of the Safety, Health and Welfare at Work Act, 2005:

These two complaints duplicate the same facts and I am treating as one.

On the 26th of August 2021 the complainant lodged a second complaint of victimisation pursuant to section 28 of the Safety, Health and Welfare at Work Act, 2005 as amended( Act).

The factual matrix relevant to this claim is a perception by the complainant’s direct manager that the complainant resists and resents legitimate management direction and control.

The complainant believes that she is being bullied by her manager and up to his appointment she had an unblemished record and was a highly valued member of staff.

Both the complainant and respondent manager under oath gave evidence detailing their perspective on the nature of the working relationship between them; the facts show a working relationship characterised by mutual distrust and ongoing disputes.

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.”

The complainant alleges that following on from making a bullying complaint against her immediate manager on the 9th of February 2021 to the Board that the following occurred:

All these matters were extensively examined and cross examined during oral evidence given by the complainant and followed by the manager. Every allegation is countered by a reason and context justifying the conduct.

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

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 between the manager and the complainant 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 that where there are competing explanations for the perceived hostile actions that they arise because of the complaint made against the line manager. However, there are many explanations. A work colleague who provides training support concerning the implementation of the strategic plan in sworn oral evidence supported the manager’s explanation of an alternative perspective concerning the source of the conflict. In turn that evidence was attacked by the complainant as not credible as that employee had made groundless complaints against her.

This is a hearing that in a way reflects the dynamic of the interactions between the two protagonists. Each perceived example of detriment can also be explained as an example of overreaction and resistance to change and lack of support for the new strategic direction approved by the Board. In this situation ,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 a determinant operating cause linked to making a complaint of bullying in turn has given rise to detriment and penalisation as defined in the Act.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00045847-001 /CA00045922-001:Terns of Employment( Information) Act, 1994:

These two complaints duplicate the same facts and I am treating as one.

I note the reference to parallel claims in the Arthur Cox Yearbook 2017:

Hogan J therefore allowed the appeal insofar as Kearns P held that the personal injuries claim must automatically fail in limine as an abuse of process by virtue of the plaintiff’s failure to prevail before the Equality Tribunal. However, he again cautioned that it would also be open to the trial court to determine that the personal injuries claim—or, at least, parts of the claim—should fail on the ground that it amounted in substance to a collateral attack on the decision of the Equality Tribunal.

CA-00045847-002/ CA-00045922-002 complaint under Section 28 of the Safety, Health and Welfare at Work Act, 2005:

These two complaints duplicate the same facts and I am treating as one.

The Complainant has not established a causal linked between what is alleged to be continuing and ongoing bullying as detailed at the hearing and a complaint alleging that she has been bullied by her direct manager:

As no causal link has been made out I must determine that the complaint of continuing and further penalisation is not well founded.

Dated: 28th July 2022

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words:

Penalisation-Consultation-Change to Terms