Complainant

Respondent

Parties

Joe  Burns

Dun Laoghaire Rathdown County Council

Complainant

Respondent

Anonymised Parties

Representatives

Simon Donagh BL instructed by Neville Murphy McGarry Solicitors

Keith Irvine Local Government Management Agency (LGMA)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00041366-001

02/12/2020

The Complainant is employed by the Respondent as a Staff Officer. Employment commenced in 2000.

This complaint submitted under section 14 of the Protection of Employees (Fixed- Term Work) Act 2003 was received by the Workplace Relations Commission on 2nd December 2020.

The complaint submitted by the Complainant under s.14 of the Protection of Employees (Fixed-Term Work) Act, 2003 reads as follows (in his own words):

“I took an initial case to the WRC in 2017 under the Protection of Employees (fixed Term Work) Act 2003, which was unsuccessful. Since then, I have endured Penalisation and Victimisation by my employer for taking this original case and now wish to take a case against my employer under section 13 of the said act which states, that "an employer shall not penalise an employee for invoking any rights regarding their conditions of employment under the said Act". S13 further states that "an employee is penalised if he is (a) suffers any unfavourable changes in his employment or any unfair treatment.

Since 2017 I have been denied promotional opportunities, a relevant course of study which was approved under my PMDS personal plan, had my role diminished and elements of my role taken away from me without any communication from management, and finally I was forced to accept an atypical Grade V role in cemeteries in DLR after my return from workplace stress leave.

Despite my attempts to negotiate terms connected with this transfer through my union rep, I was denied all requests and forced to accept a role for which I received a weeks’ notice, and a day and half overlap with the position holder who had requested to retire in Feb 2020 and was only released in October 2020 when I was forced to replace her.

This deliberate attempt to have me removed from my current role was conducted by a team call meeting initially on Wednesday 23rd September by three senior members of this department, Mr. Ruairi O Dulaing (Senior Parks Superintendent Parks), Mr. Dermot Nolan (Administrative Officer Parks) and Mr. Ken Murphy (Senior Staff Officer in Parks) and then by a meeting which I was emailed to attend at 30 minutes notice on the 25th  September. This meeting at which I became very stressed as there was an insistence by Mr. Nolan that I take up this role at very short notice and with very little overlap with staff member retiring. I concluded at the meeting that I would give this new role some thought, and the meeting was concluded. It was with absolute amazement that on the same day after lunchbreak I returned to find a signed letter on my desk from Mr. O Dulaing confirming my move to the Cemetery Office. I protested by email to Mr. Nolan and told him that his was bullying and harassment and I would be taking this matter further. I was expected to replace my colleague in a new stressful role dealing with death after returning from workplace stress, with no proper online training which I found very disrespectful to me as an employee. After all this new role involves burying the dead via an online portal system and I felt very anxious at the lack of training in this very demanding and responsible role. I felt my recent stress leave had been totally ignored by management and I was bullied into accepting this role.

Furthermore, I was denied access to my original flexi time and travel allowance which I had held in my previous role. Again, a deliberate attempt by management to undermine my role within the organisation and I was essentially farmed out to a remote office location away from those who made the decision on my position. I am now being forced to sign off on letters re covid procedures re burials without having received the correct training or guidance and expected to be the first point of contact by outside (funeral Undertakers). I felt this was also very unfair as previous letters of a similar nature had been signed of by Mr. Dermot Nolan in my section. When I tried to protest this to Mr. Nolan, he threatened me with disciplinary action for not carrying out a task assigned to me. Again, I felt this was a deliberate attack on me and put me in a very awkward situation with my new work colleagues”.

·       The Complainant contends that since he originally took a complaint to the Labour Court in 2017, /he has been overlooked for career opportunities and denied access to relevant training opportunities that would help him progress through the organisation.

·       Since taking his original complaint to the Labour Court the Complainant has made several applications for the position of Senior Staff Officer but has failed to make the panel. The Complainant finds it very difficult to explain his demotion to his substantive grade of Staff Officer and finds it hard to explain to an interview panel that this is how DLR dealt with a recruitment embargo.

·       The Complainant experienced the same interview board members in 2017 at two separate competitions and felt it was unprofessional when the chairperson of the interview panel greeted him on the second occasion by using his first name.

·       In 2017 the Complainant was interviewed twice for the position of Senior Staff Officer, firstly in April 2017 and secondly in December 2017. His performance at these interviews was rated as follows:

  Comments made by interview board:

April 2017 – “Candidate did not demonstrate the required level of management skills and knowledge of local government”.

December 2017 – “Candidate did not demonstrate at interview the management competencies required for this position”.

·       The Complainant references a marking sheet from 2015 when he scored a total of 515 out of 700. The comment at that time was “Very Good Candidate”.

·       In another competition in December 2018 the Complainant was informed that after interviewing his application had not been successful. The marking sheet from his interview shows that he had scored 515 out of 900 he failed in the area of ‘Delivering Results’. The following comment was on the marking sheet “Failed to demonstrate sufficient range and depth of experience for this role”. The Complainant found this rejection very unfair and a deliberate decision by the Respondent to ensure that he did not regain a position as Senior Staff Officer as a result of taking a case to the WRC.

·       In an Open competition for Administrative Officers in 2018 the Complainant was ruled out at pre-selection stage and not invited for interview. The Complainant noted that the first four candidates selected for this position had less Senior Staff Officer experience than he had. The Complainant views this as discrimination against him in favour of younger, less experienced candidates for the role.

The Complainant’s role.

·       The Complainant was transferred to the Municipal Services Department in February 2016. His role was based in the Events section.

·       In May 2019 the Complainant and his staff colleagues were requested to document their roles in the Parks section. The Complainant done so and at no time was his role ever challenged or altered until after he took a grievance against two senior members of staff in that section. The Complainant believes that these two staff members undermined him and told untruths throughout the grievance process.

·       Major pieces of work and the Complainant’s involvement with the success and creation of the Marlay Park Craft Courtyard were dismissed by these two individuals claiming this was not part of the Complainant’s work. The Complainant found this very offensive considering that other members of staff in the section and outside bodies involved in the Project had nothing but praise for how successful this project had become with a lot of the credit for engaging the right tenants down to the Complainant.

·       The Complainant had project managed a very successful launch of this project attended by senior members of management in DLR including the CEO, the Cathaoirleach, and a lot of local Councillors.

·       The Complainant is greatly offended that two individuals have stated (on record) that he had nothing to do with the project. The Complainant contends that his involvement in the project was critical to the success of the project.

·       The Complainant feels that to undermine his role and take part of it away without consultation proves that Senior Management were determined to make his role less significant in this section of DLR.

Forced Job Move by Management.

·       Following a period of workplace stress leave in July / August 2020 the Complainant was informed by a Team Meeting call on 23rd September 2020 that he was requested to take up a new role on the retirement of an employee in a remote location. This new location would entail different work practices from the Complainant’s contract and would commence in three days from the date of the call.

·       The Complainant found this very stressful and felt it was a deliberate attempt to remove him from the day to day running of things in the main office.

·       The Complainant deliberated on this matter for a few hours and discussed it with his family.

·       In light of his recent stress related leave the Complainant declined the offer at the time and emailed his seniors expressing his concerns at the speedy job proposition.

·       Following the Team Call on 23rd September the Complainant was summoned to a meeting at less than one hours’ notice on Friday 25th September 2020. The Complainant had no time to contact his union representative. The Complainant attended the meeting and became quite stressed at Mr. Nolan’s insistence that he take the job.

·       The Complainant states that he could see HR putting pressure on Mr. Nolan to fill the position. It is the Complainant’s belief that Mr. Nolan had been receiving emails for months asking who was going to fill the position vacated by a retiring member of staff.

·       The meeting of 25th September was concluded just before lunch time with the Complainant stating that he would think about the position, but still felt it wasn’t something he could consider at that time due to the nature of the job and his recent stress leave.

·       It was to the Complainant’s horror that one hour after this meeting ended the Complainant discovered a letter on his desk stating that he was being assigned to this new role the following week. The Complainant immediately became very stressed as nobody could ascertain who dropped this letter on his desk.

·       The Complainant emailed the parties outlining that this was bullying and harassment.

·       The Complainant has pointed out that contained in Mr. Nolan’s response email to Cemeteries staff in September 2020 after months of them trying to seek clarity on the role to be filled, he confirmed that there was indeed a Grade V vacancy in our department, but that Mr. McHugh and Mr. O Dulaing were in discussion as to who should fill this role.

·       The Complainant asks why he was singled out to be the replacement for a retiring member of staff in cemeteries when a new Grade V member of staff had just been appointed. The Complainant asks why she was not appointed to cemeteries and not him. This new member of staff has replaced the Complainant in parks.

·       The Complainant believes that this was a deliberate attempt to have him removed by Mr. Mc Hugh and Mr. O’ Dulaing.

·       This in turn has led to a very hostile and tense workplace situation for the Complainant and after discussion with his doctor, his family and his union representative the Complainant has chosen to accept the position in the Cemetery office at extremely short notice.

·       The Complainant rang Mr. Nolan and informed him of his conditional acceptance of the position and that his inion representative would be in touch in relation to his conditions. Mr. Nolan accepted this, and the Complainant asked his union rep to broker a deal on this transfer.

·       The Complainant points out that the position that he has been forced to take on does not comply with the terms and conditions of his contract as it has different work patterns, loss of flexi time and in his case a loss of travel allowance.

·       The Complainant is now forced to use his own car every day as the public transport system does not serve the new location.

·       The Complainant points out that a one day overlap was not sufficient with the outgoing retiring member of staff.

·       The Complainant feels that his new role was further undermined to his new colleagues when he was requested to sign a letter written by Mr. Nolan in relation to Covid 19 measures for two cemeteries (Deansgrange and Shanganagh). As a new member of staff and the fact that the Complainant was not familiar with various procedures he explained to his line manager that he was not comfortable putting his name to a letter that he had no involvement in composing same letter and which was to issue to over 30 undertakers with his name being the main posit of contact. When the Complainant looked into this matter, he discovered that Mr. Nolan had signed off the first of these letters some months before this. When the Complainant challenged this matter, he was threatened by Mr. Nolan with Disciplinary sanction for non-completion of task. The Complainant feels this is another example of unfair treatment.

Conclusion.

In conclusion the Complainant states the following (in his own words).

“I am extremely disappointed that I have been singled out by my employer and treated unfairly and in a different way to other staff in DLR, since I took my case to the WRC / Labour Court in 2017. Management have denied me promotional, educational and the right to stand up for my rights. They have undermined me as a person, not addressed my workplace stress in any meaningful manner, and shattered my confidence as a person who relished the opportunity to show this organisation in the best possible light through all the events, and projects that I have been involved with over the last 20 years. I went out of my way with no additional monetary gain as an employee of DLR to encourage the best national lecturers and National Institutions and Galleries to come and be part of DLR’s Heritage Programme which showcased this Council as a progressive and forward-thinking organisation, who was always only interested in providing good community service to our public. Instead of embracing this as a positive for the organisation I was undermined, shown a complete lack of dignity and respect and made to plead for approval of all the events I managed after I took the original case to the WRC. Senior Management for whatever reason chose to lie and diminish the positive feedback and publicity which I brought to DLR. Ultimately, I had my role so demeaned and reduced that I was farmed out to a remote office by management where I was away form those chose to quench out my previous role in Parks.

I have always shown leadership and professionalism in every role and task that I have been assigned to do since I began my employment in DLR in 2000, with the aim of providing the best possible service to our public which I will continue to do to the best of my ability.

I am so disappointed that all attempts to avoid this complaint issuing to the WRC have been ignored. I would ask that I am offered a fair and impartial review of my complaint and would ask that this be assessed under the terms of the above act”.

·       The Council would raise a preliminary issue in relation to CA-00041366-001, a complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003. This complaint is for alleged Penalisation under this Act in relation to the claimant taking a previous complaint to the Labour Court under the Fixed Term Act.

·       The claimant is a permanent employee, per his Contract of Employment, and in that previous complaint the claimant sought to be regularised into a temporary post he had been working in at the time and the Labour Court determined that the claimant was a permanent employee and as such had no standing under the Fixed Term Work Act and the complaint failed.

·       The claimant remains a permanent employee working in a permanent post and as such the Council would assert that he has no locus standi under the Fixed Term Work Act where he is not a Fixed Term Employee as defined under the Act and as such the Adjudicator should not hear that complaint.

·       Without prejudice to the above point, the Council would make a second preliminary point where the current complaint relates to an allegation of penalisation taken under the Act.

(i)             Section 13 of the Act states that:

•                     — (1) Anemployershallnotpenaliseanemployee—

for invoking any right ofthe employee tobetreated, in respect ofthe employee's conditions of employment, in the manner provided for by this Part,

•                     for having in good faith opposed by lawful means an act which is unlawful under this Act,

•                     for giving evidence in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or

•                     by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9 (3).

(2)Forthepurposesofthissection,anemployeeispenalisedifheorshe—

·       is dismissedor suffers any unfavourable changein his orher conditions of employment or any unfair treatment (including selection for redundancy), or

·       is the subject of any other action prejudicial to his or her employment.

(ii)            While Section 13 of the Act provides protection to fixed term employees against penalisation. In relation to complaints of Penalisation the detriment alleged to have been imposed on the employee must be as retaliation for one of the activities related to section 13 of the Act. The claimant must therefore show

(iii)          that they suffered a detriment,

(iv)          he acted in accordance with the protected activities set out in Section 13 of the Act (and had standing under the Act

(v)           the reason the employer imposed the detriment was as a result of the protected activity.

·       In Margaret Bailey t/a Finesse Beauty Salon V Lisa Farrell HSD104 it was held that the circumstances in which liability will be imposed are “very limited and circumscribed” and “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 do not come within the scope of the Act”.

·       It has been also determined in Toni & Guy V O’Neill (2009) HSD095 that it is clear that in order to make out a complaint of penalisation the claimant must show that the detriment of which he 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. …where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of the 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 detriment.”

·       In the current case the Council raise preliminary issues that the claimant has no locus standi under the Act as they are not a fixed term employee and so cannot bring the current complaint under it. The Council would also raise an issue related to the current complaint being out of time where the claimant references his taking a previous complaint under the act and that this is the reason for the alleged penalisation. That complaint was taken in circa 2016 with the Labour Court decision issued in 2017.

·       The Council would assert that it is for these reasons that the current complaint should be dismissed.

The Complainant’s legal representative submitted a “Further Submission” on behalf of the Complainant on 31st August 2021. Contained within this submission were further alleged instances of penalisation that took place between May and July 2021. The complaint from the Complainant was received by the Workplace Relations Commission on 2nd December 2020. I cannot consider these further allegations when considering the complaint as they postdate the actual complaint being submitted to the Workplace Relations Commission.

In the current case the Respondent has raised a preliminary point in relation to the Complainant’s locus standi under the Act as he is not a fixed term employee and so cannot bring the current complaint under it. The Respondent has also raised the issue related to the current complaint being out of time where the Complainant references his taking a previous complaint under the Act and that this is the reason for the alleged penalisation.

The Complaint taken to the Labour Court by the Complainant was heard on 30th May 2017 and the Determination was issued on 2nd June 2017. That determination states “The Court concludes that at all material times the Appellant was employed as a permanent employee on a contract ofemployment of indefinite duration by the Respondent and consequently he does not have locus-standi to maintain the within appeal”.

That determination of the Labour Court has never been appealed to any superior court and therefore I have to accept the preliminary argument presented by the Respondent and that is the Complainant does not have locus-standi to make a complaint under the Protection of Employees (Fixed-Term Work) Act, 2003.

For that reason alone, I have to find that the Complaint as presented is not well founded.

That determination of the Labour Court has never been appealed to any superior court and therefore I have to accept the preliminary argument presented by the Respondent and that is the Complainant does not have locus-standi to make a complaint under the Protection of Employees (Fixed-Term Work) Act, 2003.

For that reason alone, I have to find that the Complaint as presented is not well founded.

Protection of Employees (Fixed-Term Work) Act, 2003.