Complainant

Respondent

Anonymised Parties

A Postal Clerk

Government Agency

Representatives

Frank Drum BL  Collier Law

HR manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040411-001

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040411-002

14/10/2020

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

CA-00040411-003

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00040411-005

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00040411-006

14/10/2020

The Complainant is a postal clerk employed since 2000 working part-time.

CA-00040411-001

The Complainant complains of an unlawful deduction from her wages on 9th October 2020.

CA-00040411-002

The Complainant says her employer has not paid her or paid her less than she is due.

CA-00040411-003

The Complainant claims she was not notified in writing of a change to her terms of employment.

CA-00040411-005

The Complainant claims she has been discriminated against due to her age and disability. She claims victimisation, harassment and her employer failed to provide reasonable accommodation for her disability. The most recent date of discrimination took place on 9th October 2020.

The Complainant was subjected to harassment on ground of her age. A Supervisor began making jokes over the Complainant’s age. Two other members of staff began laughing and said the song on the radio by Gilbert O’ Sullivan was her vintage. The Supervisor set a tone which was discriminatory and did not respect the Complainant’s dignity at work. The Complainant was made to feel different over her age and felt harassed.

CA-00040411-006

The Complainant claims she was penalised for complying with or making a complaint under the Safety Health and Welfare at Work Act 2005.

The Complainant was subjected to harassment and joking on grounds of her age by her Supervisor in front of other staff.

On 5th June 2020, the Complainant was at work in the post office and turned around when without warning there was a “resounding whack” on the armrest of her chair which shook with the force. The Supervisor grunted aggressively “serve the customer”. The Complainant felt alarm, fear and shock. She was put in fear and her dignity had been undermined. The Supervisor said “you wouldn’t treat a dog like that”. The Complainant contacted her union as she felt unsafe. A Consultant Psychiatrist stated the Complainant had panic attacks walking to work the morning after the incident, with palpitation, rapid breathing feeling dizzy and sweaty.

On return to work on 9th June 2020, the Complainant was called into see the Manager and told it was of the utmost importance there was no gap in service to customers. It was put to her there was a 21 minute gap between her last transaction on 5th June 2020 and the employee who replaced her and took on her first customer. The Complainant submits she was given a verbal warning for slacking. There was no enquiry as to the reasons behind the gap. The Complainant told the Manager about the incident with the Supervisor which he ignored. The Complainant submits that following the incident and her attempt to return to work, the Manager made clear he was not interested in the assault and as a consequence an unsafe and hostile working environment was in place.

On 3rd July 2020, the Complainant submitted a formal grievance under the Dignity at Work policy. There was no reply. The Respondent did not comply with the Dignity at Work policy as the informal approach was not considered, nor notified of a contact person. No designated person was appointed to establish the facts of the complaint. The Respondent refused to notify the complaint to the Supervisor as they said this would be “unfair”.  Investigators were not appointed or terms of reference. The Complainant was forced to submit a second complaint as no steps were taken to address her concerns. The Respondent frustrated all attempts by her to view the CCTV in a safe environment, and no witness statements were ever provided.

On 13th August 2020 the Complainant was told that the HR Manager had seen the CCTV and it did not appear to support her complaint. He said he cannot give it to the Supervisor as it is unfair to him and appears to be conclusive evidence he did only “tap” the chair. The HR Manager said he did not want her going down a road she might regret. The Complainant was invited to view the CCTV in the office, but could not do this in the presence of the Manager.

The Complainant submits that the Respondent failed to follow their procedures to such an extent there was a detrimental and severe impact on her health, and she felt threatened by the HR Manager’s comments. She raised a number of issues in a letter of 24th August 2020, but no steps were taken, or to allow her view the CCTV. The Complainant was notified she would be put on half pay on 17th September 2020. The Respondent relies on the IB code of practice & CCTV policy as the basis for refusal of access to the CCTV, however, there are no grounds and it amounts to bullying. The HR Manager received a report from the Supervisor. The Supervisor said he legitimately approached the Complainant on 2 occasions as she was not serving customers and did not strike her chair as described. The Complainant was accused of exaggeration. The HR Manager communicated a tainted and biased outcome in breach of the procedures. The HR Manager refused to investigate her complaint, so the Complainant contacted the Health and Safety Authority as she was being penalised. She felt the HR Manager was trying to force her to retract her statements.

The Complainant raised another grievance dated 9th October 2020 under the Dignity at Work policy in relation to the HR Managers response, threatening to dismiss her grievance, withhold sick-pay, refusal to facilitate access to CCTV, not progressing her grievance, threats, harassment due to her age, victimisation for raising concerns over health and safety. The Complainants grievance was not upheld. No witness statements were provided to the Complainant. The grievance was reviewed by the Business Development Manager. He upheld the finding that the Supervisor did not hit the chair in the manner described. He asked the Complainant to comment on the allegation that she was presenting challenges for her Supervisor by not serving customers and remaining at the counter to finish reports. The Complainant objected to this as she said CCTV should not be used to raise performance issues as it is for security. The Respondent did not deal with her grievance adequately.

On 23rd October 2020 the Complainant was notified the Company intended to withdraw her sick-pay as she was not co-operating. The Complainant said the Respondent unreasonably refused to give access to the CCTV in a safe environment. On 30th October 2020, the Complainant’s sick-pay privilege was withdrawn from 23rd November 2020 due to the Complainant’s persistence in pursuing complaints that are proven groundless. The incident was an isolated incident and did not concern bullying. It referred to the focus moving to the possibility the complaint may be malicious. The Complainant submitted her third grievance to the CEO on 8th December 2020, claiming that the HR Manager continually harassed her while on certified sick-leave, the HR Manager should have recused himself as he refused to investigate the complaints while communicating a predetermined outcome, misusing personal data, loss of sick-pay, failing to accept medical certificates and threats of disciplinary action. The HR Director replied to say he did not see a basis for initiating a formal investigation as he cannot see any prima facie evidence of bullying and harassment. The Complainant replied saying she considered the withdrawal of sick pay to be retaliation and penalisation for pursuing Dignity at Work complaints. The Complainant lost 11.5 weeks of €423.14 gross pay.

CA-00040411-001

The Complainant has 21 years of service with the Respondent. Following receipt of the Complainant’s complaint, the Respondent provided a range of supports including their Grievance procedure which is collectively agreed with its group of trade unions. As the Complainant was on extended sick-absence, the Respondent engaged through the Attendance Support and Management Process. The Company made every effort to use agreed procedures to address matters but was frustrated by her lack of engagement.

The Complainant was absent from 18th June 2020. On 3rd July 2020, a letter of complaint was received by the HR Manager regarding an incident on 5th June 2020. The Complainant asserted her Supervisor who approached her hit the armrest of her chair with aggressive force so there was a whack. She said she considered it an assault and was nearly knocked out of the chair. She was put in fear for her health and safety. The Branch Manager in the retail office investigated the complaint and CCTV footage was viewed. The Manager formed the view that the CCTV did not support the Complainant’s description of events. At an ASMP review the Complainant was informed of this, and a proposal for a facilitated meeting with the Supervisor to promote positive interactions. The Complainant did not take up the opportunity to review the CCTV footage.

The Supervisor gave his version of events which were that he tapped the Complainant’s chair to get her attention and was available for discussion with the Complainant to resolve any issue. The evidence from the investigation of the incident was the incident did not occur in the manner described by her. The Complainant did not take up the offer of a conciliatory meeting with her union representative or put forward any proposal. She submitted six complaints to the Workplace Relations Commission on 14th October 2020 prematurely.

The Supervisor responded in relation to the incident in the office when Gilbert O’ Sullivan came on the radio and he said “this is more [Complainant’s] vintage”. When the Complainant informed him she was hurt and offended, he said he was mortified he offended her and made a full apology. The Supervisor said it was a light-hearted remark and was not malicious. The Supervisor also said he made a mistake one day on who was relieving whom which impacted on the Complainant when she raised this.

CA-00040411-002

The complaint under the Payment of Wages Act 1991 refers to the date of breach as 9th October 2020 for CA-00040411-001 and CA-00040411-002. The Respondent denies any breach as the sick-pay entitlements change due to length of absence of the employee from full pay to half pay following 92 days absence within 12 months as set out in Circular 35/2016.

CA-00040411-003

The Respondent denies any breach of the Terms of Employment (Information) Act. The pay increase was a collective agreement brokered under the Labour Court, which provided for the introduction of the revised sick pay scheme. This was communicated to staff through Circular 35/2016.

CA-00040411-005

The Complainant alleges that she has been discriminated against and harassed by reason of age and disability, was treated unlawfully by failure to provide reasonable accommodation and in her conditions of employment. There is no reference in correspondence from the Complainant to the company to 9th October 2020 of harassment.

The company is blind to the alleged discriminatory treatment of the Complainant as it has no detail. It refutes the allegations and refutes the complaint made.

CA-00040411-006

The Complainant complains she has been penalised for complying with or making a complaint under the Act. No details are provided and the company is blind to the alleged penalisation, it refutes all claims.

The Company sought to engage the Complainant and her Supervisor in a conciliatory meeting in order to foster positive working relations. The Grievance procedures were applied but not exhausted due to lack of engagement by the Complainant.

I have heard and considered carefully the written and oral submissions, and evidence of the parties.

Due to the sensitive medical information of the Complainant, I am anonymising the identity of the parties to these complaints.

CA-00040411-001 & 002

The Complainant alleges a breach of S6 of the Payment of Wages Act 1991 and an unlawful deduction from her wages on 9th October 2020. The Respondent complied with the arrangements set out in Circular 35/2016 when reducing sick-pay of the Complainant. These complaints are not well founded.

CA-00040411-003

The Complainant alleges a breach of S7 of the Terms of Employment (Information) Act 1994. Changes to the Complainant’s sick-pay were set out in Circular 35/2016 following a collective agreement and were circulated to staff.

This complaint is not well founded.

CA-00040411-005

The Complainant alleges (i)discrimination against in terms of S6 (2) (f) and (g) of the Employment Equality Acts 1998-2015 in respect of her conditions of employment, (ii) harassment by the Respondent, (iii) victimisation by the Respondent and (iv) that the Respondent failed to afford her reasonable accommodation for her disability in a complaint received by the Workplace Relations Commission on 14th October 2020.

S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned.

The burden of proof is set out in Section 85A(1) of the 1998-2015 Acts which provides that:

“Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

The Complainant alleges age discrimination, harassment and victimisation when her Supervisor made joking comments in front of other members of staff and said the song on the radio by Gilbert O’ Sullivan was her vintage. The Complainant subsequently objected to the comments and the Supervisor apologised.

S14 of the Employment Equality Act 1998-2015 defines harassment as unwanted conduct related to any of the discriminatory grounds, being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. The Complainant was offended by the jokes relating to her age made in front of other laughing members of staff. She has twenty-one year’s service with the Company and was close to retirement . Having considered the decision of the Labour Court in McCamley v Dublin Bus [2016] 27 ELR 81, I find the Complainant was harassed by her Supervisor and treated less favourably due to her age and I award her €1,000 for the effects of discrimination. There is no evidence of victimisation.

S16 of the Acts provides that a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as appropriate measures) being provided by the person’s employer. The employer shall take appropriate measures, where needed in a particular case to enable a person who has a disability-

(i)                  To have access to employment.

(ii)                To participate or advance in employment, or

(iii)               To undergo training,

Unless the measures would impose a disproportionate burden on the employer.

I find no prima facie case of discrimination against the Complainant on the grounds of disability, victimisation or failure to reasonably accommodate has been adduced, and the complaint fails.

CA-00040411-006

The Complainant alleges she has been penalised due to making a complaint regarding her health and safety. The Complainant lodged a number of grievances which were not upheld by the Company regarding an incident which took place on 5th June 2020 which she says was a whack to her chair which shook, a joking comment by her Supervisor and being treated differently by her Supervisor in a work context. The Complainant says she felt alarm, fear and shock and felt her dignity had been undermined. The Complainant’s Consultant Psychiatrist in 2021 stated the Complainant had never had any issue like this previously, she reported suffering from panic attacks as a result. She found the Complainant was suffering from an adjustment disorder preventing her return to work until the dispute was resolved.

The Complainant told her manager about the incident and was given a verbal warning for slacking. Following lodging her first grievance on 3rd July 2020, under the Dignity at Work policy, the Complainant was not interviewed or witness statements provided. The Complainant refused to view the CCTV in the office, as she said she could not do this in the presence of the Manager. The Respondent’s review of the CCTV indicated the grievance would not be upheld and the Complainant was informed. The Complainant felt pressurised to drop her grievance and the outcome of the grievance was predetermined.

The Complainant says she felt threatened by the HR Manager’s comments.  Following review of the CCTV the Complainant was accused of exaggeration. The Complainant’s performance was raised as part of the Grievance. She objected to use of CCTV for performance issues as it is for security purposes.

On 23rd October 2020 the Complainant was notified the company intended to withdraw her sick-pay as she was not co-operating with the Attendance Support Management Policy in not taking action to assist her return to work and co-operating with the viewing the CCTV. The Complainant viewed the withdrawal of sick pay to be retaliation and penalisation for pursuing Dignity at Work complaints. The Complainant lost 11.5 weeks of €423.14 gross pay.

I have considered carefully the evidence and submissions of the parties. The Respondent formed a view in relation to the incident in the early stages from the CCTV however, it would have been preferable if it could have invited input from the Complainant and investigated the grievance in the usual way setting out the basis for its reasoning.  The Respondent offered a conciliatory conversation to the Complainant at the early stages with a view to resolution of the issues, but this was unfortunately not taken up by the Complainant although in her interest. The Complainant did not propose any way to resolve the dispute even though resolution is recommended by her Psychiatrist to facilitate return to work.

The Respondent’s Attendance Management Support Policy allows consideration of co-operation with processes in return to work to be taken into account in continuation of sick-pay. I am not satisfied that the Complainant was penalised due to her complaint in relation to her health and safety, and find the complaint is not well founded.

CA-00040411-001 & 002

The complaints are not well founded.

CA-00040411-003

The complaint is not well founded.

CA-00040411-005

I find the Complainant was discriminated against and harassed on the grounds of age and award €1,000 compensation which I direct the Respondent to pay. The complaint of disability discrimination, harassment and victimisation fails.

CA-00040411-006

I find the complaint is not well founded.