Complainant

Respondent

Parties

Dainis  Kriscuns

Lidl Ireland Gmbh Lidl Head Office

Representatives

Larkin Tynan Nohilly Solicitors

 Fieldfisher LLP

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-00043359-002

01/04/2021

The Complainant, Mr Kriscuns, works as a warehouse operator for LIDL.  He alleges that, following submission of a grievance under the Terms of Employment (Information) Act 1994 he was penalised by the respondent by way of a disciplinary case being taken against him.  This is the second complaint the complainant has made relating to a purported instance of penalisation for a second time.  With the agreement of both parties all of the complaints were dealt with by me on 30th April 2021.

CA-00043359-002 Terms of Employment (Information) Act, 1994 - Penalisation

On the 26th of July 2019 the complainant lodged a Grievance Complaint in respect of the change in relation to sickness pay and other issues. The change in sick pay was a change of the complainant’s terms of employment without his agreement. Following lodging this Grievance Complaint a disciplinary process was instigated against the complainant alleging under-performance of duties. This was penalisation. The complainant was subjected to a further disciplinary process for insubordination on 22nd of July 2020 in relation to refusing to sign a Review Document, the contents of which he fundamentally disagreed with. The complainant alleges that the second disciplinary process instigated against him, with the result that a final warning was issued, was as a result of him questioning his initial grievance complaint.

The Complainant alleges that he was subjected to a disciplinary process in response to him having raised a grievance under the Terms of Employment (Information) Act, 1994 . That is denied. The Complainant instigated a grievance in relation to certain matters, as he was entitled to do. That grievance was investigated in accordance with the company's well-defined procedures. The outcome was not to the Complainant's liking. He was afforded the opportunity to appeal that outcome to a member of management who was not involved in the original process. Despite submitting his appeal five weeks after the deadline to do so had expired and despite failing to attend two scheduled appeal hearings, the Complainant was afforded a further opportunity to ventilate his grievance. The appeal panel carefully considered but did not uphold the substance of his complaints.

Separately, the Complainant was investigated for consistently poor performance over a defined period of time. The Complainant was one of the poorest performers in the warehouse and he was one of a number whose performance was reviewed around this time. Having undertaken an investigation in accordance with the company's well-defined procedures, it was determined that the Complainant had a case to answer and he was invited to a disciplinary hearing. He was provided with all of the material to be considered in advance of the hearing. He was advised of his entitlement to be accompanied by a colleague and assisted by a translator, if he desired. He was advised that disciplinary action could follow up to and including dismissal.

The outcome of the disciplinary process was that the Complainant received a verbal warning. This is the lowest form of sanction that was available to the decision maker. As he was entitled to do, the Complainant appealed this outcome. Notwithstanding the fact that his appeal was out of time, he was afforded the benefit of an appeal hearing with an independent member of management. The points that he made were considered and that manager concluded that the original sanction was warranted in circumstances where the Complainant had failed to engage with his line manager and had refused to accept that his line manager was entitled to set performance targets for him and other operatives. There is absolutely no connection between the submission by the Complainant of his grievance and the investigation of the Complainant's consistently poor performance. The Complainant was one of a number of operatives investigated around this time. There is no causal connection between the grievance and the investigation. Had the respondent sought to penalise the Complainant, it would not have allowed him to progress his grievance appeal over five weeks late and it would not have imposed the lowest form of sanction following the disciplinary process.

The Complainant alleges that he was subject to a further disciplinary process in late 2020 and cites this as a further instance of penalisation as a result of him lodging a grievance complaint and a complaint to the WRC. These claims are denied.  The Complainant seeks to link this disciplinary process to a grievance that was filed by him in July 2019. He also seeks to link it to the claims filed by him in the WRC. There is absolutely no link or causal connection between either him invoking his rights under the company's grievance process or him filing claims before the WRC and the legitimate, proportionate and reasonable attempts by management to engage with the Complainant in relation to his underperformance.

  The second investigation and disciplinary process arose in circumstances where the Complainant consistently resisted efforts to engage in relation to his performance.  The Complainant was not penalised for invoking a right conferred on him by the Act. He was investigated for his poor performance and his insubordination

Like other statutory provisions aimed at preventing penalisation, the Complainant is required to demonstrate a causal link between (i) the invocation by him of a protected right and (ii) an act of penalisation. In this case, there is no such causal link and there was no penalisation. The Complainant exercised his legal right to invoke the grievance procedure. He had the benefit of an investigation and hearing into his grievance. He was afforded an appeal of the outcome to an independent manager. The subsequent investigation and disciplinary process into the Complainant's performance arose in circumstances where the Complainant was demonstrably one of the poorest performers in the warehouse. He was only one of a number of staff who were also investigated at this time. The sanction that was imposed at the conclusion of that process was a verbal warning which is the lowest form of sanction available. 

CA-00043359-002 Terms of Employment (Information) Act, 1994 – Penalisation

Section 6(c) of the Terms of Employment (Information) Act, 1994 prohibits penalisation and states;

6C. (1) An employer shall not penalise or threaten penalisation of an employee for—

 (a) invoking any right conferred on him or her by this Act,

Penalisation is defined in the Act and includes in Section 6(c) 5 (d)

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty)

In O’Neill v Toni and Blackrock, Ltd (2010)  ERL 21 the Labour Court found in relation to the question of penalisation as follows:

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 determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. 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 suggested 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 a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent. The act is silent on the question of how the burden of proof should be allocated as between the parties. This question was considered by this Court in Department of Justice Equality and Law Reform v Kirwan (Determination HSD082 (June 1), 2007). Here the Court held as follows:

“It is clear, however, that in the absence of any contrary statutory provision, the legal burden of proof lies on the person who asserts that a particular fact in issue is true”

The complainant therefore must show that ‘but for’ the fact that he sought to assert his rights under the Terms of Employment Information Act 1994 he would not have been subjected to a disciplinary hearing which is the penalisation claimed.  It is clear from the evidence given that the respondent had concerns about the performance of the complainant, and other employees, and that this is what motivated the investigation under the disciplinary procedure. These concerns were ongoing and related to the second disciplinary proceedings insofar as the document which was required to be signed by the complainant related to ongoing performance issues. I am satisfied that this was the primary motivation of the respondent in instigating the disciplinary procedures.  I therefore conclude that the complainant has not established a case of penalisation and that the complaint is not well-founded.

Claim CA-00043359-002 under Terms of Employment (Information) Act, 1994 is not well founded

Terms of Employment (Information) Act, change of terms, penalisation