Complainant

Respondent

Parties

Employee

Worker

Representatives

Mr Seán Carabini Fórsa

Mr Desmond Ryan BL instructed by Mr Joseph Dolan Office of the Chief State Solicitor

Act

Complaint/Dispute 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-00051078-003

09/06/2022

These matters came before the Workplace Relations Commission dated 14/10/2022.  This complaint is in addition to those filed on 09/06/20222.  The Complainant alleges contravention by the Respondent of provisions of the above listed statute in relation to her employment with the Respondent.  The aforesaid complaint was referred to me for adjudication.  A hearing for that purpose took place on 30/06/2023. 

The Complainant commenced employment with the Respondent on 01/10/2007.  The Respondent is a government department.  The Complainant is employed in an agency of that government department.  The Complainant is at all material times a civil servant. 

CA-00051078-003 complaint of penalisation pursuant to the Safety, Health and Welfare at Work Act, 2005 (hereafter the 2005 Act).  

The Complainant alleges financial penalisation for raising a complaint under the Dignity at Work policy.     

The Complainant’s claim is denied by the Respondent.  The Respondent submits the Complainant has in fact suffered no detriment whether in terms of her pay or in any other regard. 

Following an incident in work on 10/06/2021 with a work colleague in relation to an operational matter the Complainant raised a complaint under the Dignity at Work Policy.  The Complainant commenced a period of sick leave on 14/06/2021 and returned to work on 13/08/2021.  The Complainant commenced a further period of sick leave on 31/01/2022 and returned to work on 15/06/2022.    

The Complainant submits she expressed her criticism of the manner in which her complaint was being processed in an email to the Respondent on 06/05/2022.   The Complainant further submits that at a meeting on 17/05/2022 attended by the Complainant and her trade union representative together with HR representatives of the Respondent, she expressed her extreme displeasure when she was informed her complaint was not going to be investigated as it did not meet threshold for investigation. 

The Complainant submits that her criticism of the manner in which her case was processed has led to her being penalised and she contends this is reflected in the decision to affect her pay.   The Complainant submits she had been told she was in receipt of Critical Illness Protocol (hereafter CIP) at a meeting on 17/05/2022.  The Complainant was on full pay at the time and assumed that this was being done under the CIP.  The Complainant submits she was informed by an HR Representative (1) that, to the best of her knowledge, she was on the CIP at the meeting on 17/05/2022.   

The Complainant received correspondence from the HR Business Partner on 24/05/2022 informing her that she has been placed on half pay and that an overpayment had been generated as a result.  The amount of the overpayment is €5141.83. They were also critical of the Complainant for not having submitted medical certificates.  However, it is clear from the records of the National Shared Services Office (hereafter NSSO) that they had, in fact, received the medical certificates.

The Complainant submits the overpayment would not have been generated without the actions of the Respondent.  The Complainant submits the overpayment was recouped through a combination of a docking of her wages and annual leave.

The Complainant submits this detriment contravenes Section 27(2)(c) of the Act, which states that penalisation includes: "transfer of duties, change of location of place of work, reduction in wages or change in work duties.” 

Direct evidence of the Complainant given under oath at hearing:

The Complainant clarifies the penalisation she alleges relates to an overpayment made to her by the Respondent.  She states there was a commitment made to her at a meeting on 03/03/2022 that she would be restored to full pay and her understanding of that commitment was that she would remain on full pay while her investigation was ongoing.  However, when she received a letter from the NSSO on 05/10/2022 advising her of an overpayment she states that her belief is because she was critical of the HR Business Partner, they penalised her financially as she now has to repay the overpayment.  The Complainant states “this is why they did what they did.”  

When I asked the Complainant had she not realised she was in an overpayment situation she states she thought she was in receipt of Critical Illness Payment (CIP) as she had applied for this benefit. 

The Respondent representative did not seek to cross examine the Complainant.   

The Respondent submits the Public Services Management (Sick Leave Regulations 2014 (S.I. No. 124/2014), the Public Services Management (Sick Leave (Amendment) Regulations 2015 (S.I. No. 384/2015) and Circular 05/2018 have been complied with consistently and fairly as regards the Complainant. 

The Respondent submits it has consistently and fairly applied the Public Services Management (Sick Leave Regulations 2014 (S.I. No. 124/2014) as amended to the Complainant’s situation and is at a loss to understand how she can maintain that she has been in any way penalised or treated less favourably in this regard. In fact, the Respondent has done everything possible to afford latitude to the Complainant in supporting her, as is seen from its decision to restore the Complainant to full pay.

The Respondent submits the substantive allegations made by the Complainant as to the Safety, Health and Welfare at Work Act 2005 do not disclose any cause of action under that Act due to the complete absence of each of the central ingredients required for a penalisation complaint under that Act, namely detriment caused as a result of the protected act of making a safety, health and welfare at work complaint within the meaning of section 27 of the legislation. Under this provision, it is necessary for the Complainant to establish that she suffered detriment as a result of making the said complaint or representation. The Respondent submits that it is abundantly clear that the approach of the Respondent regarding the investigation or its approach to the Complainant’s sick leave are in no way causally linked to the Complainant’s protected act of making the complaint and thus in no way meets the high causation hurdle imposed by the Labour Court on complainants in penalisation cases.

The Respondent cites the following case law in support of its case:

O’Neill v Toni & Guy Blackrock Ltd [2010] ELR 1

Direct evidence of HR Representative (1) given under affirmation at hearing:

The witness confirmed that sick leave is dealt with under Circular 05/2018 and she explained how sick leave is calculated in the rolling year and made reference also to the aggregate period.  The criteria set out in the aforementioned circular apply to all civil servants.  The witness also clarified the role of the NSSO which is completely independent and autonomous.  The witness was present at the Zoom meeting of 03/03/2022 referred to by the Complainant in her testimony.  Also present at this meeting were the Complainant, her trade union representative and the HR Business Partner.  HR Representative (1) states the purpose of the meeting was to work out a road map in order to facilitate the Complainant’s return to work. 

As the Complainant was approaching the half pay scenario arising from the application of the relevant applicable sick pay arrangements as set out in Circular 05/2018 it was agreed she would remain on full pay while the logistics of the Complainant’s requests regarding her return to work were worked through.  It was estimated this would take a week or two but as it happened it took longer, and she remained on full pay until her return date on 04/04/2022.  The witness states she raised a case to restore to full pay while they were facilitating the Complainant’s return to work and when she did not return to work on 04/04/2022 as agreed the witness states this was raised as sick leave. 

The witness states she does not recall any discussion on Critical Illness Payment (CIP) during the meeting on 03/03/2022 and her understanding was that the Complainant’s entitlement to sick leave at full pay was coming to an end and that is why they were doing everything they could to get her back to work.  HR Representative (1) does not recall any discussion of CIP taking place on the meeting of 17/05/2022.  The witness confirms the Complainant returned to work on 15/06/2022 but from 04/04/2022 she had hit half pay because she had not returned to work as agreed and the sick pay arrangements should have kicked in but, due to a payroll error, the Complainant had continued to be paid in full for that month resulting in an overpayment and the subsequent overpayment advice letter from NSSO. 

Direct evidence of HR Business Partner given on affirmation at hearing:

The HR Business Partner described the meeting of 03/03/2022 had a very cordial and productive meeting.  He confirmed the imperatives driving the meeting were financial from the Complainant and her representative’s perspective as she was approaching the half pay mark.  The Complainant requested a change of team and a change of line manager before she would return to work.   The witness states this would involve an internal transfer and he agreed to exercise his discretion to keep the Complainant on full pay until such time as matters were sorted and he envisaged at the time this would take a week or two.  The witness states that a change of line management by request would be an infrequent situation but reporting to a different manager was the Complainant’s request and the imperative was to get her to return to work. 

The HR Business Partner emailed the Complainant on 23/03/2022 confirming her return-to-work date as 04/04/2022 in response to an email from the Complainant seeking an update.  The Complainant did not return to work.   The witness confirmed all his interventions in regard to the Complainant had been positive with the aim of getting her back to work and he states he would not or in fact could not have intervened in any way with the NSSO to the detriment of the Complainant.  He states the first time he heard CIP referenced was in May.  He states he exercised his discretion on the matter of restoring full pay to the Complainant while her return-to-work conditions were met, and the discharging of those conditions was undertaken by him on a case-by-case basis.  The HR Business Partner confirmed the overpayment had been paused at the moment pending the hearing of these matters. 

Cross examination of HR Business Partner:

The Complainant representative sought confirmation of when the date of return to work on 04/04/2022 had been communicated to the Complainant.  The witness confirmed that this was communicated to the Complainant by email on 23/03/2022 to her Hotmail account from which she had emailed him seeking an update.  The HR Business Partner added that had he known there was a problem with 04/04/2022 as a return date it could have been deferred but there was no communication from the Complainant, she simply did not return on 04/04/2022. 

Direct evidence of HR Representative (2) given on affirmation at hearing:

The witness confirmed she was not in attendance at the Zoom meeting on 03/03/2022 but that the HR Business Partner had contacted her to in relation facilitating the Complainant’s return to work through moving her to the team she had requested and the line manager she had chosen.  The witness explained there were internal processes that needed to take place and system changes that would be close to 04/04/2022.  The HR Representative (2) states this was not a typical situation, or a typical case and she had the transfer letter in draft awaiting the Complainant’s return on 04/04/2022.  This letter issued subsequently on 15/06/2022 when the Complainant returned to work.  The witness strongly refutes allegations of penalisation and states the ultimate aim was to get the Complainant back to work. 

In conducting my investigation, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.    I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

The Relevant Law:

The jurisdiction of the Labour Court and by extension of the WRC in complaints of penalisation under the 2005 Act has been considered in a number of cases included among which is the case of Iarnrod Eireann v. Nick P Neary [HSD139] where the Labour Court held as follows:

“The Court’s jurisdiction under this Act is limited and narrow in its application.  It has jurisdiction to hear claims of penalisation referred under Section 27 only.  The Court has no jurisdiction to hear allegations of breaches of safety, health and welfare at work under the Act and such allegations cannot in themselves form part of claims of penalisation or unfavourable treatment within the meaning of Section 27 of the Act.”

What is in issue in the within case is whether the Complainant was penalised within the meaning of section 27 of the Safety, Health and Welfare at Work Act, 2005.  This section, in relevant part provides: -

27.—(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,

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

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

Penalisation is described to have occurred where there is a direct causal link between the making of a complaint and the detriment that followed because of making that complaint otherwise known as causation. 

The Labour Court in the seminal case of O’Neill v. Toni and Guy Blackrock Limited [ELR21] considered in detail the matter of a causative link 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 detriment 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 suggests that where there is more than one causal factor in the chain of events leading to the detriment complained the commission of a protected act must be an operative cause in the sese 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 conduct”. 

The Toni and Guy case firmly establishes the “but for” test as it is generally referred to in penalisation cases. 

In order to make out a complaint of penalisation contrary to the 2005 Act, it is necessary for a complainant to establish that the detriment of which he/she has complained was imposed on him/her “for” having committed the protected act.  The penalisation will usually comprise an indentifiable 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 as held by Hyland J in Conway v. Department of Agriculture [2020] IEHC 665.    

The Labour Court in the case of An Garda Siochana v. Hazel Delahunt [HSD 1311] noted that the term “detriment is not defined in the legislation but that it has been considered in some UK decisions which noted that “a detriment exists if a reasonable person/worker would or might take the view that the [treatment] was in all the circumstances to his detriment” Khan v. Chief Constable West Yorkshire [2001] UKHL 48 but also that any act on which penalisation is based “must amount to a detriment in the claimant’s terms and conditions of employment and not something that merely has the potential to lead to such a result is not enough.”

The Labour Court also accepted that “an unjustified sense of grievance cannot amount to a detriment within the Statutory meaning” Shamoon v. Chief Constable RUC [2003] 2 AER 26.

The scope of what can be considered a “protected act” under the legislation is broad.  The request for a copy of the bullying and harassment policy was sufficient for the Labour Court in In Board of Management of St. David’s CBS Secondary School Artane v. Siobhan McVeigh [HSD 118] to find that it was a protected act. 

Having established a protected act, I must establish, having regard to all the circumstances, that the protected act was the operative cause leading to the detriment alleged. 

In the within case the protected acts relied upon by the Complainant are (1) an email of she sent to the HR Business Partner on 06/05/2022 in which she articulates her criticism of the manner in which her complaint has been dealt with.  The second protected act relied upon relates to a meeting on 17/04/2022 during which the Complainant expressed her dissatisfaction with the manner in which her complaint had been dealt with.  The detriment complained is an overpayment in her salary.  Penalisation seemed to crystalise for the Complainant when she was faced with an overpayment. 

Even if I accept the protected acts relied upon by the Complainant fall within the very broad scope under the legislation I then must consider if the protected acts cited were the causative factor in the decision to place the Complainant on half pay, a decision not properly executed in fact as circumstance would have it,  which then resulted in the overpayment situation for the Complainant which she alleges is the detriment.  I have two accounts of events as they occurred in regard to the Complainant’s pay situation before me that are entirely at odds in most respects.   Notwithstanding, I am obliged to draw my conclusions from the facts as presented to me and by taking into account all other relevant factors and surrounding circumstances.   

Critical Illess Protocol (hereafter CIP)

The matter of CIP was an integral part of the evidence adduced together with the ensuing disparity in that evidence.  In trying to establish the facts I am considering this matter at the outset under its own heading. 

It was not established at hearing the definitive date on which the Complainant applied for CIP.  However, I note her application was refused and she was notified of this position by correspondence of 15/03/2022 which the Complainant states she did not receive as it was sent to her previous home address.  It would be reasonable to infer she more than likely applied in or around February 2022 as she would have been aware her entitlement to sick leave on full pay was drawing to an end. 

The Complainant alleges she asked at the meeting on 03/03/2022 if she was currently in receipt of CIP and she states she was told by HR Representative (1) that to the best of her knowledge she was on the CIP.  However, this does not reconcile with the decision made by the HR Business Partner at that same meeting to exercise his discretion that they would maintain the Complainant on full pay pending her return to work in a week or two when they had sorted out her return-to-work requirements namely new line manager and new team. 

If the Complainant had been in receipt of CIP at that time, there would have been no reason for the Business Partner to exercise his discretion to maintain her on full pay pending completion of the return-to-work arrangements.  If she had been in receipt of CIP this would have been the same as being in receipt of full pay.   The Complainant would simply have moved across from full pay CIP to normal full pay when she returned to work on the date agreed which was 04/04/2022 and there would have been no requirement for the HR Business Partner to exercise his discretion to maintain her full pay status in the intervening period.   

In any event the Complainant did not return to work on 04/04/2022.  The Complainant states in evidence that she did not receive the email from the Business Partner confirming both the return-to-work date and confirming to her all arrangements she had requested had been actioned. 

Overpayment:

Arrangements for paid sick leave are governed by Circular 05/2018 which provides as follows:

Limits for Sick Leave

·        92 days on full pay in a rolling 1 year period counting back from the day before the latest date of absence followed by 91 days on half pay subject to:

·        A maximum of 183 days in a rolling 4-year period counting back from day before the latest date of absence.

Limits for Sick Leave Granted under the Critical Illness Protocol 

·        183 days on full pay in a rolling 1 year period counting back from the day before latest date of absence followed by 182 days on half pay subject to: 

·        A maximum of 365 days in a rolling 4-year period counting back from the day before the latest date of absence.

The Complainant was on sick leave from 14/06/2021 to 13/08/2021.  The Complainant was on sick leave from 31/01/2022 to 15/06/2022.  As the 03/03/2022 approached she was just on 92 days and would have been reduced to half pay on the basis of my calculations and taking into account the rolling one-year period as set out above. 

I am satisfied the NSSO were instructed to maintain the Complainant on full pay from 03/03/2022 to allow the time to make the arrangements to effect the transfer to new line manager and new team. I am satisfied that when the Complainant failed to return on the agreed date of 04/04/2022 HR were informed of this and a case was raised to the NSSO to make them aware of this but the information was not acted upon and the Complainant remained on full pay even though her pay should have been reduced to half pay in line with sick pay arrangements set out in Circular 05/2018 when she did not return to work on 04/04/2022. 

This payroll error was further compounded by a case raised manually by the Complainant’s new line manager stating that she was out sick from 03/03/2022 when in fact she had been receiving the benefit of a discretionary decision on the part of the HR Business Partner to maintain full pay while he sorted out return to work arrangements the Complainant had requested.  The NSSO understood this to be a continuation of her previous sick leaven absence which ultimately exacerbated the existing confusion even more. 

The net result of the sequence of events detailed above is that the Complainant incurred an overpayment.  I am satisfied this overpayment is a result of a catalogue of misunderstandings and errors in regard the Complainant’s pay and not only on the Respondent’s side.  The Complainant’s understanding that she was in receipt of CIP merely because she had applied for it meant that she did not immediately realise she was in an overpayment situation although it is apparent that she was monitoring her sick leave and was aware she was approaching a half pay situation hence the financial imperative on both sides underpinning the meeting of 03/03/2022 to get the Complainant back to work.  The HR Business Partners discretionary initiative to maintain the Complainant on full pay to ensure she would not suffer any detriment while return to work arrangements were sorted out backfired spectacularly as this measure only added to the confusion. 

On balance the claim by the Complainant that she was penalised for expressing her criticism on the manner in which the Respondent handled her complaint is a proposition I cannot accept on the basis of the foregoing sequence of events in relation to her pay.  The Complainant states in direct evidence she criticised the Business Partner and “this is why they did what they did”.  The plain fact is the NSSO is completely independent and autonomous.  The inescapable fact is the Complainant incurred an overpayment because she was paid full pay when in fact she should have been paid half pay as soon as the sick leave arrangements set out in Circular 05/2018 kicked in which did not happen.  The Complainant’s overpayment is by no means an anomaly.  The plain fact is this is a payroll error.  Payroll errors occur.  There is a Circular in existence namely Circular 07/2018 which deals with such occurrences and sets out the repayment options for overpayment in pay situations.    

I have carefully considered the totality of the evidence before me and I conclude the Complainant’s overpayment was due to her receiving full pay when she should have been in receipt half pay and not because she criticised the handling of her complaint.   The Complainant has not established that her criticisms of the manner in which her complaint was dealt with were an operative cause. I find that payroll errors were the operative cause of the overpayment and nothing else.  The Complainant has failed to establish any link between the act complained of (the overpayment) and the criticisms she made of the manner in which her complaint was handled. 

Accordingly, I find that the Complainant has not established that she was penalised within the meaning of section 27 of the 2005 Act in respect of this matter. 

For the reasons stated above I decide this complaint is not well-founded. 

Penalisation; overpayment; payroll error;