ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00037219

Parties:

Complaint(s):

Date of Adjudication Hearing:  01/11/2022

Workplace Relations Commission Adjudication Officer:  Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the hearing as well as any written submissions disclosed in advance of the hearing.

The Complainant herein has submitted a complaint under Section 26(3) of the Employment Permits Act of 2006 (as allowed for in schedule 5 (part 5)) which protects employees from being penalised. Section 26(3) of the Employment Permits Act states that the Employer shall not penalise or threaten penalisation against an employee for making a complaint to the Gardai or the Minister (or even expressing an intention to make a complaint) that a provision of either the 2003 or 2006 Act is not being complied with. An Employer cannot penalise an employee for giving evidence in proceedings brought under the Employment permit Acts.

“Penalisation” in the context of s. 26 of the Employment Permits Act 2006 would include (but is not limited to) dismissal, suspension, lay-off, demotion, transfer of duty, reprimand, imposition of discipline or penalty, and either coercion or intimidation. The penalisation will usually be an identifiable act or omission on the part of the employer which affects, to his or her detriment, the employee. The word “detriment” is given its ordinary and natural meaning of causing harm or damage (Per Hyland J. in the case of Conway -v- Department of Agriculture 2020 IEHC665)

Section 26(5) of the Employment Permits Act provides that penalisation may include Dismissal and further specifies that if the penalisation constitutes dismissal the employee may not be granted relief in respect of the penalisation both under schedule 2 of the Employment Permits Acts and the Unfair Dismissal Acts.

It is noted that Schedule 2 of the Employment Permits Act 2006 provides that a decision of an adjudication officer under section 41 of the Workplace Relations Act in relation to a complaint of a contravention of Section 26 of the Employment Permits  Act shall do one or more of the following –

i Declare the complaint was well founded.

ii Require the Employer to take a specific course of Action.

iii Require the Employer to pay to the Employee compensation of such an amount that the Adjudicator considers just and equitable in the circumstances.

The initial burden of proof is on the complainant to establish the existence of a protected act and then demonstrate a detriment. If and only if the complainant establishes a protected act and a detriment does the burden of proof shift to the respondent to put forward evidence that the detriment suffered was not due to the protected act being the operative cause. Paul O’Neill -v- Toni & Guy Blackrock [2010] 21 E.L.R. 1 established that the burden of proof is on a complainant to establish that on the balance of probabilities (a) she/he committed a protected act, and (b) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed. The Labour Court held that if both limbs were satisfied, the burden shifted to the employer to show, on credible evidence, on the balance of probabilities, that the protected act did not influence the detriment imposed.

The Toni and Guy case establishes the “but for” test in penalisation cases where it states :-

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Section 27(3) of the Safety Health and Welfare at Work Act 2005. Thus, 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 suggestion that where there is more than one causal factor in the chain of events leading to the detriment complained of, then the commission of the protected act must be the 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 a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment”

Background:

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

I have carefully considered the evidence adduced by both parties in the course of this one-day hearing.

The Complainant commenced her employment with the Respondent catering company in and around January of 2020. The Complainant was moved from the Respondent operation at Portiuncula Hospital to their operation in Galway Hospital on a temporary basis in June of 2020 and nearly a year later was asked to stay on in Galway full time. I note that when working the temporary role, the Complainant was expected to do her 39-hour week across four days and I understand that this agreement (reached with the area Manager) changed when the Complainant agreed to work her 39-hour week over five days, albeit one of these days (Monday) she was being allowed to stay at home to prepare payroll. The Complainant organised her homelife around being at home on a Monday.

In and around March or April 2021, the Complainant moved into the permanent role of Campus Administration Manager at Galway Hospital. I note that the Contract entered into, specifies a 39-hour week - but is silent on working from home. This is important to note as this was to be a point of conflict later on, and no precedent of what a full working week would look like had been set, either way, as Covid had meant employees were regularly being asked to work from home where possible.

The General Manager gave compelling evidence concerning the pressures being experienced in this workplace. To operate at an optimum level the Respondent, he says, requires up to 120 staff to be available to rotate through the wards for the three mealtime shifts in a given 7-day week. In and around August, September and October of 2021 the numbers available had dipped down to circa 90 to 95. Employees were difficult to retain where there was such demand across every sector. The GM stated he (and other Managers) were interviewing prospective employees on an almost daily basis with an expectation that successful candidates would literally start the next day. There can be no doubt that a lot of the candidates were non-nationals or “foreign nationals” (per the Act) seeking to combine work with study.

It is noted that all potential employees need to be Garda vetted to work in any HSE premises. For many of the employees – those not citizens of Ireland or the EU - there is the added requirement of applying for and obtaining a work or an employment permit which is granted by the Minister under Section 8 of the Act. It seems that a large portion of the Complainant’s job was dedicated to assisting Employees with their various applications and renewals which were required by them to obtain and stay in lawful employment with the Respondent. I appreciate the enormous complexities around applications such as these, and this is compounded by the fact that there are inevitable language difficulties. There are also potential difficulties in communicating with staff by email or text messages. Employees are on different shifts and not always available. In Covid times there was the added difficulty of the public offices of Garda Stations and Government departments being unmanned or not readily contactable.

In her evidence the Complainant described having to chase down individual employees and make them gather their paperwork, fill out the application forms and get the task done. I accept that this task is made all the more difficult and hectic at a time of high turnover of staff. In fact, it seemed to me on listening to the evidence, that the Complainant’s presence at the workplace (at some level) was a basic requirement for getting this aspect of her work done.

As I understand it by August 2021 the Complainant was working from home on Monday, Wednesday and Friday and was in the administrative block of the Hospital on Tuesday and Thursday. This was a schedule which suited the Complainant very well as she was a lone parent living some distance from the place of work.

However, I do accept that there was a need to ensure that there was sufficient catering staff with sufficient support to cater to a 700 bed Hospital and that everyone on the Galway Hospital site was providing a frontline service. I understand that the Complainant’s line Manager (MOC) flagged with the General Manager that the Complainant was needed to be on site along with the rest of the administrative staff who were by Autumn 2021 returning en masse to the workplace after different periods of Covid-related remote working. I understand that the Complainant and her General Manager had a meeting in the GM’s office on or about the 7th of October 2021. The Complainant was not happy to return to the workplace and expressed a preference to continue working remotely. The GM was clear that he wanted the Complainant as a presence in the workplace.

Whilst I cannot know exactly what was said in the course of the meeting, I do accept that on the 8th of October the General Manager forwarded the flexibility request form to the Complainant so that she could formally put in a request for remote working flexibility. A proposal to extend arrangements to January 1st, 2023, seemed to have been on offer. An email dated the 14th of October appears to confirm that this was the thrust of the conversation. The email stated-

“As discussed last week yourself, Michelle, and myself need to have a meeting to discuss your request to continue working from home partially until January 1st”

In her evidence the Complainant suggested that the GM was proposing the imposition of a five-day week back in the office on her. She says that this was never to have been part of the arrangement as she had negotiated that  on every Monday she could work from home specifically to work on payroll. The Complainant also took issue with the GM changing her working hours though I would have thought that the half hour difference was simply a mistake in detail.

It is an unfortunate fact that both the Complainant and the GM failed to document their meetings in this period of time which makes it difficult for me to reconcile the Complainant’s evidence of being treated with contempt by the General Manager as against the GM evidence, which was that he tried to meet the Complainant halfway in consideration of her particular circumstances.

What is clear, in any event, is that as of the 27th of October 2021 the Complainant and her Manager had entered into a written agreement (which was shown to me) that the Complainant could continue to work from home for three days a week (as per her then arrangement) until the 1st of January 2022 at which time she was expected back on-site full time as her presence is essential to the business needs (per the Respondent). It seems to me that the Complainant was happy to accept the terms on offer and did not, at that time, indicate that her return to work in January would be problematic.

There is no evidence of any further communication between the parties in November or December 2021 though I understand that the Complainant was asked to compromise her Christmas holiday arrangements so that she could process payroll remotely. The Complainant did not make any particular issue of this at the time, though raised it in the course of the hearing as being evidence of mala fides on the part of the Respondent GM.

The Complainant did not turn up at her place of work on or after the 1st of January 2022. On his return to the workplace the Respondent General Manager wrote to the Complainant on the 7th of January 2022 stating what the terms of the October agreement had been and requesting that the Complainant return to the workplace as dictated by the business requirements. I would state that given the apparent insubordination, the tone and content of the GM’s email was even handed in the circumstances.

The Complainant emailed a reply setting out the various reasons why it was difficult for her to return to the workplace on a full-time basis and I accept that there were childcare issues for the Complainant. It is noted that the Complainant did not contest the Employer’s assertion that her presence onsite was in the overall operational interests of the company. The Complainant did raise the issue of whether she should be expected to work on Mondays at all at this time. The Complainant finished by saying

“Due to this, I will not be able to meet your requirement s and will now have to look for another job if Tuesday and Thursdays in the office are no longer available”

On the 8th of January 2022 the General Manager wrote back to the Complainant stating that none of these issues were raised back in October, nor since October. The GM said that his requirements to have the Complainant onsite remained the same. In consideration of the childcare issues raised, the GM suggested a period of parental leave might be needed and could be organised. Of particular note is the fact that the Complainant was given a right to appeal the General Manager’s decision -

“If you wish to appeal my decision, an appeal can go to SS [the Area Manager] and must be received by SS no later than midday on the 15th of January.”

Two things are noted by me here. Firstly, that the Complainant agreed in evidence that she had some experience in HR and understood the significance of a right of Appeal. Secondly, that SS was known to the Complainant and that she was someone with whom she had a good relationship and someone who had facilitated her before.

However, in her evidence the Complainant suggested that the outcome of the Appeal was a forgone conclusion and that in fact the GM was in fact operating to manoeuvre the Complainant out of the workplace. The Complainant handed in her Notice at this time stating that her family life is more important. I accept that the Complainant was very upset at having to make this decision but cannot understand why the Complainant did not exercise her right of Appeal. In fact, I do not understand why the Complainant did not look for any alternative arrangement – such as working a four-day week which had previously operated well for her.

On its face, the facts appeared to outline a Constructive Dismissal scenario. However, the Complainant opted not to pursue a complaint under that legislation (claiming penalisation instead). Having considered the facts as they presented before me it would, in any event, be hard for me to find that the decision to terminate her employment at that point in time was a reasonable decision so I doubt a claim under UD would have been successful.

Instead, the Complainant has made the case that the demands made by the Employer that the Complainant return full time to the workplace was intended to operate as a punishment or retaliation for her having raised issues with non-compliance with the Employment Permits Acts of 2003 and 2006. On balance this is a proposition I cannot accept.

Whilst I accept that the Complainant highlighted with HR and the General Manager that a particular recruit’s paperwork was not in order as of the 13th of October 2021, this seemed a fairly routine observation that was confirmed as being correct (by HR) as of the 19th of October. The recruit was not engaged for another month or two as the Visa details were verified. Nothing about this interaction struck me as untoward or irregular. This is a workplace that relies heavily on the availability of foreign workers. There is a robust in-house checks and balances process for ensuring there is no infringement of work Visas (and the unrelated Garda vetting processing) requirements. Not least of these is checks and balances is the scrutiny and overview that the Complainant herself is engaged to provide.

I further note that the Complainant herself agreed that this was not something that she ever felt she would bring to the attention to the Gardai or the relevant Department. This was only ever a matter of concern raised by her and dealt with by the HR Manager.

There is absolutely no nexus between the issue of an unavailable work permit and the ongoing demand being made of the Complainant that she return to the workplace on a fulltime basis.

Decision:

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

Dated:  14-11-2022

Workplace Relations Commission Adjudication Officer:  Penelope McGrath

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