Complainant

Respondent

Parties

Breda Kelleher

LXV Remedies Holdings Limited t/a Sam McCauley Chemists.

Representatives

Terence O'Sullivan Terence J O'Sullivan Solicitors

Mr Kevin Bell BL instructed by  DAC Beachcroft

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-00051086-001

10/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00051086-002 WITHDRAWN

10/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00051086-003

10/06/2022

The Complainant commenced employment with the Respondent as an ‘Over The Counter’ Sales Assistant on 15 September 2005. She resigned from her employment by way of letter to her manager on 24 January 2022. On 10 April 2009 the Complainant lodged a bullying complaint with the Respondent against a pharmacist employed by the Respondent – Ms A. The complaint was investigated by the Respondent and upheld. Ms. A was issued with a final written warning and transferred to another branch of the Respondent’s business.

The Complainant was unfortunately diagnosed with a serious illness  in October 2017 and commenced an extended period of sick leave in January 2018 until September 2018. At the commencement of the Coronavirus pandemic the Complainant was medically certified for leave in order to limit her exposure to the virus, following her  treatment.

During the course of the pandemic, Ms A returned to the branch where the Complainant worked. The Complainant submits that she was not properly accommodated in her return to work when she requested that she should not work with Ms A again and that the alleged  lack of concern and inadequate actions of the Respondent amounted to penalisation under Section 27 of the Safety, Health, and Welfare at Work Act 2005 (the 2005 Act).

Furthermore, the Complainant submits that her terms and conditions of employment were changed in that an agreement she had with the Respondent not to have Ms A return to the pharmacy was abandoned by the Respondent without consultation or notification to her, contrary to Section 5 of the Terms of Employment (information) Act 1994 (the 1994 Act).   

The Respondent’s submits that all  actions in respect of the Complainant were reasonable and sympathetic throughout. The Respondent contends that no ‘protected act’ under the 2005 Act was identified by the Complainant and nor can any of the Respondent’s actions toward the Complainant  be characterised as penalisation under the Safety, Health, and Welfare at Work Act, 2005.

The Respondent further asserts that the Complainant’s contract was never amended in the terms claimed, and that even if they had, the contents of that amendment fall outside of the ambit of the 1994 Act.

Summary of the evidence, under affirmation, of the Complainant:

The witness gave a detailed description of the trauma and injurious nature of the bullying treatment she had suffered at the hands of Ms. A in 2009. Whilst she was on sick leave,  she was shocked to discover that Ms. A had returned to the branch where she (the Complainant) was due to return to work after a period of serious illness. She described her upset on  discovering  that the Respondent had no record of the circumstances whereby Ms A had been moved originally from the shop. The Respondent had originally planned to roster her on opposite shifts to Ms A but the day before she was to return to the shop, a member of management informed her not to return. She herself had noticed that Ms A was working in the shop at that time when she had reason to visit to collect ‘Lotto’ money from other members of staff.

The Respondent had proposed mediation, but she could not stay in the same room as Ms A, and she felt the mediation exercise was pointless. She felt at all stages that she was seen as the problem, and not the presence of Ms A.

The Complainant submitted a grievance and  agreed to do a number of days in another location in December 2021 to allow the grievance process to proceed. This was of great inconvenience to her because she had a distance to travel as well as having to  alter childminding arrangements. She ultimately resigned In January 2022 because she believed  she had reached the end of the road with the Respondent as she felt  her concerns about Ms. A  were not being adequately addressed.

In cross-examination the Complainant accepted that she could not point to any ‘protected act’ under the 2005 Act whereby she was penalised by the Respondent. Neither could she describe the actions or the omissions of the Respondent as being retaliation for bringing up the issue of not working with Ms. A.  The Complainant agreed with the Respondent’s counsel that the moving of Ms A to another branch as a one of the sanctions for bullying her, was not an  agreement she had with the Respondent, but  was a disciplinary sanction taken without a request or other input  from the Complainant. The Complainant did not deny that she sought voluntary redundancy as a solution to her grievance nor that she declined to go back to mediation despite repeated requests from the Respondent.

Summary of the evidence, under affirmation, of Mr Peter Maher - Chief Operations Manager.

The witness described the circumstances whereby Ms. A returned to the store  in question. He said that there was a requirement for a pharmacist in the store and that Ms A came from a store where there was a surplus of pharmacists. He said it was purely a business decision. He stated that he had no knowledge of any ‘protected act’ in respect of the 2005 Act  from the Complainant. He stated in evidence that the Respondent had at all times offered the Complainant  different  shifts from Ms. A,   , and that initially she seemed to be in favour of this,  but then  the Complainant sent a number of added  conditions in an email on 11 January 2022 (exhibited) as follows, which could not be reasonably applied:

“ I will be rostered to work full days on Monday, Tuesday & Wednesday 9.30 –6.30

Under no circumstances is (Ms. A) to ever be rostered to work with me and further I will not be expected under any circumstance to work with her on grounds of urgent needs of the business or otherwise. If it is necessary for her to work a day I am rostered to work then provided I am given adequate notice and am paid for the day in full then this is acceptable.

Ms. S will be instructed not to come in to the store on any day I am working.

In relation to this, I am putting you on notice that (Ms. A) deliberately stood in the laneway immediately adjacent to my house for 5-10 minutes and looking in my windows after mediation.

If I have to finish 20 minutes early to avoid an overlap, I will be paid for this without having to work it. Likewise if I have to start 20 minutes later to avoid an overlap I will be similarly paid.

As I am having to change the family routine to accommodate my employers  direction I require to use some of my accumulated holidays to finish at 2pm on the Monday and Tuesday of each week until July.

This will get me to the summer and I can look at working full days from then. I attach a list of holidays I have accumulated. Remainder of holidays to be used as required.”

 When asked by the Complainant’s solicitor in cross-examination  if the Respondent had sought out the files on the bullying investigation, the witness stated that they could not locate the files but accepted fully that that the Complainant  had been bullied by Ms. A. and that Ms A. had been removed from the store for that reason, as well as receiving a final written warning. The witness rejected the position that it was always the intention of the Respondent to have the Complainant and Ms. A working at the same time but rather to have them on opposite shifts. However, he stated, the added conditions demanded by the Complainant were not workable.

The Respondent’s counsel stated that he  did not see the need  to bring a further  witness into evidence to show  that there was no ‘protected act’ under the 2005 Act, on the basis that  it was the Respondent’s position that both the  Complainant in evidence, and the Complainant’s solicitor position in submission, that there had been no protected act committed by the Complainant.  

Respondent’s Legal Argument:

CA-00051086-001: Penalisation under the 2005 Act:-

 The Respondent submits that it was admitted by the Complainant that there was no protected act as allowed for under the 2005 Act. Furthermore, it contends  that none of its interactions with the Complainant fall within the definition of “penalisation” as set out in s.27 of the 2005 Act.   The Respondent argues that its actions  toward the Complainant were self-evidently sympathetic and reasonable. The Complainant suffered no detriment whatsoever from any act of the Respondent. It submits that  none of the Respondent’s actions toward the Complainant were motivated in any way by a desire to penalise her for exercising any statutory right under the 2005 Act.

The Respondent opened Toni and Guy Blackrock v Paul O’Neill [2010] 21 E.L.R. as the important  case for examining the scope of section 27 of the 2005 Act. 

CA-00051086-003: Terms of Employment (Information) Act, 1994

 The Complainant contends that when Ms. A was transferred in 2009 that her (the Complainant’s) contract was amended to include a term that the Complainant would not be required to work at the same store as Ms. A ever again. No such contractual commitment ever took place. The Respondent submits that even if it did, any such commitment does not fall within the parameters of s.3 of the Terms of Employment (Information) Act, 1994 and so would not have had to have been included in any written statement of the Complainant’s terms and conditions. The Respondent further submits that  even if there had been a breach of this Act, that breach would have occurred in 2009 and therefore would be outside of the limitation period provided for by s.41(6) of the Workplace Relations Act, 2015.   

CA-00051086-001: Penalisation under Section 27 of  the Safety, Health, and Welfare at Work  Act:-

The Complainant submits that she was penalised by the Respondent  under section 27 of the 2005 Act when she raised concerns about working with Ms. A, who was found to have bullied her after a workplace  investigation in 2009. 

Section 27 of the 2005 Act deals with penalisation and protection for employees as follows:

(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 undersection 11or appointed undersection 18to 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).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

The recognised seminal case in relation to the interpretation of section 27 of  the Act is Toni and Guy Blackrock v Paul O’Neill [2010] 21 E.L.R., opened by the Respondent, where the Labour Court set out the test to be applied in determining whether a complainant has made out the necessary causal link between the detriment complained of and the reporting of the protected Act:

“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 suggests 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 detriment.”

In this instant case the Complainant must establish: (a) on the balance of probabilities, that she committed a protected act, (b) that she suffered a detriment (c) 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 Complainant in her evidence accepted that she had not committed a protected act. For further clarity I asked the Complainant’s solicitor if a ‘protected act’ for the purposes of section 27 of  the 2005 Act is being relied upon in this case.  He answered in the negative. Notwithstanding this fundamental prerequisite for claiming penalisation under section 27 of the 2005 Act, and even if it could be construed that raising concerns in the manner that the Complainant did with the Respondent was a protected act, the Complainant accepted in her evidence that she did not believe the actions of the Respondent in this case, could be described as retaliation for her concerns about working alongside Ms. A. Having considered all the relevant submissions and evidence, I find that the Complainant did not discharge the burden that she committed a protected act, nor could she establish penalisation as defined under section 27 of the 2005 Act. Therefore, I find that the complaint was not well founded.

CA-00051086-003: Terms of Employment (Information) Act, 1994

The Complainant submitted that she believed  that an undertaking by the Respondent  not to have Ms. A work in the same store as the Complainant could be constructed as a contractual term and the decision to move Ms. A back to the same store was a breach of that term and, furthermore, a breach of section 5 of the 1994 Act in that she was not notified in writing of the change in her terms.

Section 5 of the 1994 Act provides:

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute [other than a registered employment agreement or employment regulation order] or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

The Complainant accepted in evidence that the decision to move Ms A to another store in 2009  was not part of an agreement with her (the Complainant). I am satisfied therefore that it did not transpose a new term into her contract, therefore there was no change that required notification under section 5 of  the 1994 Act. Moreover, even in the unlikely happening that there was agreement, such a term does not fall under section 3 of the 1994 Act.

CA-00051086-001: Penalisation under Section 27 of  the Safety,  Health and Welfare at Work   2005 Act:-

For the reasons outlined above, I find that the complaint was not well founded.

CA-00051086-003: Breach of Section 5 of the Terms of Employment (Information) Act, 1994:-

For the reasons outlined above, I find that the complaint was not well founded.

Safety, Health and Welfare at Work Act 2005, Penalisation, Terms of Employment (Information) Act 1994.