Complainant

Respondent

Parties

Adrian  Gates

Carlow County Council

Representatives

Ger Malone of SIPTU

Eamonn Brophy, Carlow Co Council and Council Officials

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-00049130-001

11/03/2022

The Complainant commenced employment with the Council in September 2004. He was appointed a Waterworks Caretaker Grade 3 in January 2015.  The employment continues.

The weekly hours are 39 and pay per fortnight is €1438.00

The issues in contention concern an allegation of Bullying and Harassment by a Manager which was the subject of a formal complaint to the Council on the 13th October 2021.

It was alleged that a series of retaliatory actions by Management - “penalisations” against the Complainant followed. This was contrary to Sections 27/28 of the Safety, Health & Welfare at Work Act,2005.

These allegations were resolutely denied by Management.

The Complainant made a substantial Written submission supported by a personal Oral testimony. He was represented by Ms. Malone from SIPTU.

He was appointed to a Grade 3 Waterworks Caretaker position in January 2015. All proceeded without incident until late 2019 when a new Engineer was appointed to the Waterworks section – Mr. L.

As an opening aside, the Complainant’s Representative, Ms Malone of SIPTU, queried how Mr Brophy could now be the Respondent representative/spokesperson as he had also been a major “Player” in the Respondent’s actions. Ms Malone also noted the “Convenient” absence or Mr Ra, the Director of Services from the Hearing. She was denied the opportunity to cross examine him on his investigation report of the 4th November 2021.

The Complainant had, in view of the almost incestuous nature of the Respondent Managers behaviours in dealing with his complaint, requested that an Independent Investigator be appointed. He was still making this request in addition to Redress under the S, H & W Act of 2005.

In her presentation Ms Malone stated that Mr L’s first action, following his appointment as Engineer in charge, was to interfere and reset the Alarms on the Complainant’s network -effectively reducing the levels of call out on the network and thereby significantly reducing the Complainant’s overtime. Mr L then refused to sanction the Complainant’s travel expenses in an effort to coerce and force changes in working practices on the Complainant.

The contested work practices had been in place for some six years and had been agreed with Mr L’s predecessor. The Complainant raised these grievances with his local manager Mr. By, Ms Ba, Executive Engineer and Mr Brophy in HR. Eventually it went as far as Mr Ra, the Director of Services. All these efforts were to no avail.

Eventually on the 13th October 2021 the Complainant made a formal Complaint of Bullying to the Council CEO Ms Holahan. He requested that an external Investigator be appointed to hear his case. Ms. Holohan, the CEO, passed the formal complaint to the Director of Service, Mr Ra, to process and investigate. On the 4th November 2021 Mr Ra replied, effectively, dismissing the complaints. The process was completely spurious and principate. It afforded the Complainant not even a pretence of natural justice. He had not been offered the opportunity to speak directly, in support of his case, to Mr Ra before the Investigation Outcome was published. The absence of Mr Ra, and the avoidance of cross examination , from the Hearing was again flagged by Ms Malone.

In November 2021 the Complainant was subjected to a humiliating “Mileage check” by the Engineer Ms Ba. This was pure Penalisation. The issue of his availing of Toilet facilities at his home in Carlow was also queried and he was directed to use completely unsatisfactory facilities near his network site. This was further Penalisation. His application for the promotion competition for a Supervisor position was also set aside by Management on spurious grounds by Mr Brophy in HR. Other issues also arose such as the question of “Holiday / Sick cover” for the Network of a colleague. The Complainant had always traditionally provided this cover. However, the Management had now given the work to a new Temporary/Relief worker.

In summary the Complainant made a formal Complaint of Bullying in October 2021 and has since that date been subjected to a sustained series of penalisations. This is completely contrary to Sections 27/28 of the Safety, Health and Welfare at Work Act 2005.

Ms Malone cited considerable Labour Court and Leagl precedent in support of the case. Cases HSD131, 121, 139 & 153 were extensively referred to establish the definitions of Harassment and Penalisation. Mr Ra’sinvestigation /follow up on the Bulling Complaint of October 2021 had been spurious and precipitate. The Complainant cited the landmark Labour Court of O’Neill v Toni & Guy case 21 ELR 1 to point to the two “tests” required in a Penalisation case. First the Complaint has to satisfy that a “protected act” as set out in Sections 27/28 took place and secondly that the penalisations referred to have to be directly and casually linked to the “protected” acts.

On both Tests the Complainant’s case is solidly founded.

Detailed documentary material was provided in support of the Complainant’s case. The Complainant in his Oral Testimony was clear cut and forceful. He was fully cross examined by Mr Brophy for the Respondent.

The Respondent made a detailed written submission supported by Oral testimony from Ms Ba, Mr L & Mr Ay. Mr Brophy of HR was the principal spokesperson.

Mr Brophy outlined the Respondent response as follows

The Complainant made a formal complaint of bullying against Mr L in October 2021. The CEO referred the matter, as was proper procedure, to the Director of Services Mr Ra. He investigated the matter fully and replied on the 4th November 2021. The Council has detailed procedures in this area, and they were carefully followed. It was accepted that the Complainant had not been interviewed directly in relation to his letter. However, the Respondent argued that as so much in the Complaint letter was already well known to all parties Mr Ra could safely rely on this prior material and his personal knowledge of the Complainant.

Mr Brophy, for the Council, argued that Mr Ra gave a comprehensive detailed reply. The fact that the Complainant did not accept the outcome does not mean that the complaint was, correspondingly, valid.

The allegation regarding the call out alarms was set out fully. The Engineer, Mr L, did not in some negative way change the alarm systems. He simply re prioritised them to ensure that minor issues did not trigger immediate call out alarms. Maters of a minor nature can be attended to the next day, and this was a normal management action. Mr Ay gave corroboration.

Issues regarding the checking of mileage was a result of Local Government Auditor requirements and was not specific or targeted against the Complainant alone. It may have appeared intrusive but was necessary for Audit purposes. Ms Ba, executive engineer, gave oral testimony on this point.

The issue of cover for other water networks had been comprehensively addressed at local level. If the Complainant was not asked by the local Supervisor to attend to another Network, it was clear that he was not going to be paid for this duty. The Council, on foot of an agreement with SIPTU had hired two extra “relief” caretakers and this was a proper use of this additional resource. It was nothing personal or negative against the Complainant. Furthermore, it was entirely appropriate for the Engineer to determine, for Caretakers, which sites were visited and on what schedule, daily or otherwise.

The issue of the Supervisor Recruitment competition was referred to. The Council had clear rules requiring application to be prepared in a particular format -typed. This had not happened in this case and the Complainant’s application had not been shortlisted. Mr Brophy had not been aware of the names of the non-shortlisted applicants when asked about the rule at the relevant time.

The use of Toilet facilities and the Complainant travelling home to Carlow Town to use his own domestic facilities, was discussed. Irish Water and the Council had facilities in Borris Wastewater plant that were perfectly adequate. A key had been given to the Complainant to use these facilities and travelling home to Carlow was unwarranted. Payment of mileage expenses for these trips to home in Carlow was not sanctioned on this basis.

The Complainant had raised issues of Stress in his initial complaints. The Council had arranged an appointment for the Complainant with Medmark -the OH consultants. As the appointment was not kept by the Complainant, the Council had indicated to him that they were now of the view that the Stress issue had resolved itself.

Mr Brophy, Spokesperson, referred in detail to the Mr Ra’s reply (4th November 2021) to the Bullying complaint. It was comprehensive and had addressed all the issues raised by the Complainant. Many of the Complainant’s issues were of an Industrial Relations nature and had been properly addressed including a number of previous references to the WRC & Labour Court.

Mr Ra had, in the view of the Respondent, correctly identified that the Complainant’s issues did not satisfy the definition of Bullying in the Councils’ policy. Accordingly, the Councill did not take the matter further as a Bullying matter.

Oral testimony was given by Mr L, the Engineer, regarding the Call Out Alarms. It was a purely technical engineering matter and could not in any way be seen as a form of Penalisation or Negative action against the Complainant. A fault had developed on one weekend (a failure to properly function) but the system supplier had been contacted and the matter resolved. Mr Ay corroborated. Ms Ba, Engineer, gave details of the Travel and Subsistence issues and the Local Government Audit requirements.

In concluding summary, Mr Brophy stated that, in the view of the Respondent, no proper issues of Bullying had ever arisen and accordingly no Penalisations as claimed by the Complainant could be made out.

Ms Malone cross examined all the Respondent witnesses.

3:1        The Leagl position – the Safety, Health & Welfare Act,2005 and Legal precedents.

Sections 27 & 28 of the S, H &W Act 2005 refer. They were quoted extensively in the written papers of the Parties. The key Legal issues that underlie this case are best seen in the landmark O’Neill v Toni and Guy Blackrock Ltd case HSD095. In this case the Labour Court stated that in a case of Penalisation, which it is alleged we have here, two “tests” are crucial. The Tests are

Firstly, Did a Protected action (as defined in Legislation) take place? 

and Secondly with regard to a Detriment complained of

“Must have been imposed for having committed a protected act or omission of a type referred to at subsection (3) of the section, in the sense that“but for” the protected act or omission having been committed the detriment would not have been imposed. This imposts a requirement to show a chain of causation between the impugned detriment and the protected act or omission”.

To review this case, we must use this template as a guide when reviewing the Oral evidence and written materials presented

3:2        Review of the Evidence – Oral testimony and written materials.

Two key pieces of written materials are crucial here – the Complainant’s formal letter lodging his Complaint dated the 13th October to the CEO and the reply of Mr Ra, Diretcor of Sertvices dated the 4th of November 2021. The Council’s Policy Document on Dignity at Work has also to be seen as background.

The Formal Letter of the 13th October 2021 covers some eight areas of concern as identified by Mr Ra. These ranged from the Alarm settings on Water Network Treatment Plans to general health issues of the Complainant. The Complainant, in essence, argued that Mr L the Engineer had in some malign manner “Bullying” altered the settings to reduce the frequency of Alarms so that the need for afterhours calls out would be reduced. This would have significantly lessened the overtime opportunities of the Complainant. This was a very significant allegation and underlay the Bullying complaint.

Oral testimony in support/contravention was crucial here.

Engineer Mr L supported by his colleague Mr Ay, absolutely denied this allegation. Mr L, an engineer of long standing, stated that he adjusted the settings to reduce unnecessary calls out for minor issues. These had little impact of the water system and could easily wait until the next regular shift. This was a perfectly legitimate managerial action and had nothing to do with the individual Waterworks caretaker involved. To suggest that it was done malignly against the Complainant was a complete absurdity to which he took grievous personal offence.

The Oral testimony of the Complainant, in the view of the Adjudicator, could be characterised as having large elements of the view that each Caretaker was “Bishop in his own Diocese”. He knew the system intimately and the Engineer’s interventions were often ill informed and lacking in actual local knowledge. In addition, the Engineer’s intervention, in this case to reduce Call Outs, was motivated by disputes related to the Complainant Caretakers role on other schemes. It was a punitive action in the view of the Complainant.

For an Adjudicator this was a considerable issue in terms of the “Burden of Proof” requirement. The Labour Court has often cautioned over the use of “Assumptions and Conjectures”, no matter how strongly felt by a Party, to base a case.

Two Council Engineers gave sworn testimony, under cross examination, that the alterations to the settings were normal managerial actions that had no relationship to any individual Caretaker. They were cross examined by Ms Malone.

In this case the Adjudication view has to be that the Complainant has not adequately satisfied the Burden of Proof to make out a case of Bullying as regards the Waterworks Alarms settings.

The other issues in his letter of Formal Complaint, (Travel and Subsistence, Cover at other Schemes, Hygiene and Personal needs, Overtime changes and Winter Gritting) while equally strongly felt, suffer from the same deficiency. At best they are Industrial Relations issues more suited to the dispute mechanisms appropriate to them.

An exception might well be the Recruitment Competition for the Supervisor post. The Council made a mix up of this and openly admitted their shortcomings. However, to allege that the Complainant was a malign victim due to a bullying agenda against him personally lacked credible evidence. Other candidates had suffered from the same administrative mistakes.

In review of the Council Dignity at Work Policy and the definitions of “Forms of Bullying” at Page 9 & 10 of the Policy Document, it is fair to say that some of the Complainant’s issues and assumptions could have been covered. However, the Burden of Proof argument /shortfall again comes into play.

The Complainant view that the Local Managers were biased and “hand in glove” with each other and a new outside Investigator was needed to give Natural Justice to the investigation was considered by the Adjudicator. The Adjudication view was that it was most unlikely that a new Investigation by an Outsider Person would yield any new insights into what was, at heart, an Industrial relations matter as opposed to a Bullying issue.

The absence of the Director of Services, Mr Ra, from the Hearing was regrettable, thereby denying Ms Malone her opportunity to cross examine. However, his detailed written reply of the 4th November was an acceptable if somewhat inadequate substitution.

3:3          Adjudication Summary

In final Adjudication summary the Complainant’s letter of the 13th of October 2021 was essentially an Industrial Relations Grievance matter. It simply did not satisfy any required Burden of Proof to convert it into a personal Bullying issue as alleged.

Accordingly, and closely following the O’Neill v Toni and Guy “tests” referred to above a “Protected act” as defined may have taken place in the lodging of the formal letter of the 13th October. However, the Complainant has not satisfactorily made the case that this was a case of “Bullying” followed by “Penalisation”. As the Labour Court has stated and referred to above unproven Conjecture and Assumptions do not base solid cases.

The Complaint has to be deemed Not Well founded.

The Complaint fails.

Penalisation, Protected Act, Safety Health & Welfare at Work Act 2005.