ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00027352

Parties:

Complaint:

Date of Adjudication Hearing:  14/10/2022

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint was referred under Section 41 of the Workplace Relations Act 2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 4th March 2020.  Following delegation to me by the Director, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  Following a number of adjournments to accommodate the Parties and pending the introduction of the Workplace Relations (Miscellaneous Provisions) Act 2021 to meet the requirements of the Supreme Court Judgement in Zalewski 2021 IESC 24, I heard this complaint by remote hearing on 14th October 2022 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020. 

The Complainant was represented by O’Donnell Waters Solicitors whilst the Respondent was represented by Byrne Wallace.  The Complainant’s current Line Manager was in attendance if required to give evidence on behalf of the Respondent.  Comprehensive written submissions and supporting documentation was received on behalf of both Parties.  The changes to hearing procedure provided by the Workplace Relations (Miscellaneous Provisions) Act 2021 were outlined to the Parties.  In line with same, the hearing was held in public pursuant to Section 41(13) of the Workplace Relations Act 2015 (as amended) and evidence was taken on oath.  The Parties were made aware that their names would be published within this decision. 

By way of preliminary issue and in response to the Respondent’s submissions, the Complainant’s Solicitor submitted that this complaint of penalisation had been inadvertently referred to the WRC under Schedule 3 of the Employees (Provision of Information and Consultation) Act 2006 and instead, should have been referred under Section 28 of the Safety, Health and Welfare at Work Act 2005.  An amendment to the statutory basis for this complaint was sought accordingly.  The Respondent’s Solicitor opposed this application contending that there was no lawful basis for converting the statutory basis for a complaint, particularly post Zalewski 2021 IESC 24.  Without prejudice to the Respondent’s position that this complaint is unmeritorious, a preliminary issue as to the jurisdiction of the WRC was raised.  It was contended that as no act of alleged penalisation was identified in the complaint form as falling within the 6/12 month period prior to referral, this complaint is statute-barred under Section 41 of the Workplace Relations Act 2015. 

As the issue of whether this complaint is statute-barred goes to the WRC’s jurisdiction to investigate this complaint, I directed that this would be heard first.  If finding for the Respondent, that would dispose of the complaint and a decision would issue accordingly.  If finding in favour of the Complainant, the amendment application would be addressed at a substantive hearing with reasons reserved to the decision.  To this end, I afforded the Complainant an opportunity to give evidence of the alleged penalisation giving rise to his complaint.  For the purpose of this exercise, I indicated that I would take his evidence at its height in order to determine whether there were any alleged acts or omissions that could potentially constitute penalisation falling within the requisite 6 month period prior to referral of his complaint to the WRC, or within the prior 12 month period if reasonable cause could be shown to extend time.  As Section 41 of the Workplace Relations Act 2015 governs the time-limits for the referral of complaints under both the Employees (Provision of Information and Consultation) Act 2006 and the Safety, Health and Welfare at Work Act 2005 (as scheduled enactments under Schedule 6 of the 2015 Act), it was not necessary to rule upon the application for an amendment before determining this issue.  It should also be noted at this juncture that the Respondent strenuously refutes the Complainant’s contention that he was denied the opportunity for promotion throughout his career on any basis, as set out in a detailed written rebuttal.

Preliminary Issue on whether Complaint statute-barred:  Respondent’s Position:

The Respondent raised a preliminary objection to the jurisdiction of the WRC to investigate this complaint on the basis that it is statute-barred under Section 41 of the Workplace Relations Act 2015.  Specifically, Section 41(6) provides: “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”  Section 41(8) provides: “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”  It was submitted that the last act of alleged penalisation referred to in the complaint form occurred on 21st September 2017, where the Complainant asserts that he was unsuccessful in a promotion competition.  As this complaint was referred to the WRC on 4th March 2020, approximately 2.5 years later and more than 12 months after the last act of alleged penalisation, it is thus statute-barred.

In relation to the Complainant’s evidence adduced below, the Respondent’s Solicitor further submitted that his complaint of a ‘lack of rotation’ referred to for the first time in written submissions and evidence was an afterthought, being proffered at this juncture to bring his complaint within time.  It was pointed out that as the alleged penalisation started from the commencement of his employment in 2000 and some of the alleged acts predate his role as a Quality Manager from 2008-2010, this alleged penalisation cannot credibly be attributed to that role.  Furthermore, as rotation between different work specialities related to the Complainant’s normal daily duties as assigned, a ‘lack of rotation’ could not constitute penalisation.

Summary of Complainant’s Position and Evidence on the Preliminary Issue:

At the outset, it was confirmed that Complainant is claiming that the Respondent has denied him the requisite training and work experience required for promotion owing to him holding the role of Quality Manager from 2008-2010, including a ‘lack of rotation’ between different work specialities.  Subject to his application for an amendment of the statutory basis of his complaint being granted, he specifically seeks to rely upon Section 27(1), (2)(b) and (3)(e) of the of the Safety, Health and Welfare at Work Act 2005.  Section 27(1) provides: “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.  Without prejudice to the generality of Section 27(1), Section 27(2) lists the types of penalisation that may arise and in this respect, the Complainant relies upon Section 27(2)(b) specifying: “demotion or loss of opportunity for promotion,”.  Section 27(3) lists the actions of employees that are protected from penalisation under the 2005 Act.  Specifically, the Complainant seeks to rely upon Section 27(3)(e) providing: “An employer shall not penalise or threaten penalisation against an employee for… being a safety representative…”  Section 2 provides that: “a “safety representative” means a person selected and appointed under section 25 as a safety representative;” which further defines same.

The Complainant gave evidence on oath outlining the alleged penalisation giving rise to this complaint.  He read through and supplemented the contents of his complaint form and submissions with oral evidence.  He confirmed that he has been employed by the Respondent as a Medical Laboratory Scientist based at University College Hospital Galway since his appointment on 1st November 2000 to the Histology Department.  He is currently on a salary of circa €55,000.  He outlined his qualifications and employment experience.  He has technical qualifications and a Master’s Degree in Science.  He also had prior work experience with a University and a private company before taking up his employment with the Respondent.  He contends that he has been refused promotion with the Respondent on the basis of insufficient training and work experience throughout his career such that he has not advanced beyond basic grade as follows:

- He missed out on a promotion in 2004 as he had been away abroad when the position was advertised.

- On 13th of January 2006, he was refused a promotion for the position of Laboratory Manager owing to a former employer failing to send on the correct documentation confirming his work experience on time.

- On 19th of April 2007, he was unsuccessful for a competition for the position of Senior Medical Scientist.  The Respondent had cited limited knowledge and experience of Histopathology as well as a failure to demonstrate a systematic approach to organising workloads and staff even though the Complainant had been working in the de facto role of Senior Medical Scientist.  He further contended that he had not been “trained or rotated” within all of the 4-5 specialist areas required to gain the necessary work experience.

- After the refusal of this promotion, the Complainant maintains that he was advised by his Line Manager that he was the ‘Acting Senior’ on numerous occasions and was even introduced as an ‘Acting Senior’ at meetings.  He undertook the tasks and workloads that would normally be performed by Senior Medical Laboratory Scientists, albeit his renumeration was never increased.  When he had asked his Line Manager to formally confirm his position, she had advised that the matter was being dealt with by the HR Department.  In November 2007, he had contacted the HR Department who advised that they knew nothing of his role as ‘Acting Senior’.  Thereafter, he had repeatedly sought clarification of his position.

- On 6th November 2008, the Complainant was asked by his Line Manager to take on the role of Quality Manager, which he contended equated to a safety representative within the meaning of the Safety, Health and Welfare at Work Act 2005.  (Note: varying dates were given for this appointment but this is the accepted date by the Respondent and is most favourable to the Complainant’s case).  This was a voluntary role which he held alongside his existing position.  He again asked his Line Manager to confirm his position as ‘Acting Senior’ and entitlement to a higher salary and she informed him that she was “fighting hard” for him.  However, in January 2009, his Laboratory Manager confirmed that he did not hold this position.

- On 9th October 2009, the Complainant was again refused a promotion for a Senior Medical Laboratory position in the Histopathology National Cancer Control Programme.  Prior to the interview, he had enquired about resigning from his position as Quality Manager and indicated that he wanted to gain experience in Immunohistochemistry / Specials required for the job vacancy.  He was advised not to resign as Quality Manager as it would stand to him in the interview.  Separately, issues of concern were raised by him in his capacity as Quality Manager when highly explosive substances were found on the premises during a health and safety review of stored chemicals.  The safe disposal of the chemicals had necessitated the assistance of the Army.  During the course of the interview for this position, he was informed by his Laboratory Manager (interviewing) that he had handled the situation badly and caused controversy within the Laboratory.  Following the interview, he was advised that he had not reached the minimum acceptable mark in the areas of managing and development.  In direct evidence, he added that he had raised many other health and safety issues in his capacity as a Quality Manager including concerns regarding repetitive strain, absence owing to chemical sensitivity and ventilation which had led to a “black mark” against him.

- In August/September 2012, the Complainant enquired again about his situation with the HR Department. 

- In August 2014, the Complainant was refused a promotion for the position of Medical Laboratory Senior.

- On 29th June 2016, a staff shortage was cited as the basis for refusal of a training course on stress control.

- On 21st September 2017, the Complainant was refused a promotion for a temporary position as Senior Medical Scientist in the Division of Anatomic Pathology Department on the basis of insufficient experience. 

In evidence, the Complainant clarified that it was the lack of relevant training and work experience required for promotion up until the date of referral of this complaint on 4th March 2020 that constituted penalisation as confirmed in written submissions submitted to the WRC on 29th March 2022.  In particular, he contended that all throughout his career, he had not been rotated between as many specialist work areas as his comparable colleagues.  An undated graph demonstrating that he was only rotated between 3 areas whilst his counterparts had up 5-7 rotations within a six-month period was submitted in support of his contention.  By way of corroboration, he said he had not been informed of a promotion competition in 2021 whilst on Covid leave.  On occasion, he had considered resignation or retirement owing to this alleged penalisation.

In this respect, the following was stated in the ‘Complaint Specific Details’ section of the complaint form:   “I have not been afforded the opportunity by my employer for the proper training and development which would have made it possible for me to advance to the position of Senior Medial Scientist in my initial four-year period of employment and subsequently, to the position of Laboratory Manager.  I estimate that I have a loss of earnings in the region of €370,000 exclusive of pension contributions or gratuity.  My employer has breached the terms of my Contract of Employment specifically its PDP (Personal Development Planning) which is encouraged for all HSE Employees.  The HSE Employee Handbook states that all employees would be offered a range of career options linked to an employee’s desire to continue their education and training.  It also purports that the employer would actively encourage employees to develop their skills and capabilities with particular emphasis on their current role to enable an employee optimise their contribution.  The booklet states the employer needs to ensure that the staff are clear in their roles and responsibilities and have requisite knowledge and skills and a process of Personal Development Planning (PDP) is encouraged with your Line Manager.  The HSE state that PDP is a continuous development process which enables people to make the best use of their skills and help to advance both the individual plan and strategic goals of the HSE.  Obstacles have been placed by my employer throughout my employment and they have breached the Terms and Conditions of my Employment Contract and denied me the opportunity to advance in my career.  I believe I have been penalised, victimised and consequently, refused a promotion due, inter alia, to my role as the Health and Safety Representative within the Organisation. I believe I have been unfairly treated by my employer because I took on this role.  I believe I have been refused and denied the relevant training opportunities and therefore have not advanced beyond the (basic grade).”

Cross-examination of the Complainant

Whilst many of the Complainant’s assertions as outlined above are in issue, the Respondent’s Solicitor limited cross-examination to the preliminary issue of whether any alleged penalisation occurred within the 6/12 month period prior to the referral of this complaint.  Firstly, the Complainant was questioned as to the formality of his role as a Quality Manager or safety representative and the scope of his duties within this capacity.  He confirmed that the role primarily entailed attending to routine daily health and safety issues pertaining to quality control in the Laboratory.  He confirmed that he had been afforded sufficient time by the Respondent to attend to these duties and had never been curtailed in relation to undertaking this role. 

The incident report in relation to the disposal of the hazardous chemicals stored on the Respondent’s premises in 2009 was put to the Complainant.  The report confirmed that the matter had been fully addressed at the time and did not suggest any wrongdoing on his part.  He maintained that at his interview for a Senior Medical Laboratory position afterwards, the Laboratory Manager had criticised his handling of the incident.  He accepted that because that Laboratory Manager had retired five years previously, he could not have had any role in relation to his rotation in reaction to that incident within the 6/12 month period prior to the referral of this complaint.  He also agreed that a number of named staff responsible for fixing his roster had no reason to penalise him.  He maintained that he had been denied sufficient rotation up until the date of referral of this complaint by his current Manager.  A lengthy list of training courses which he had undertaken up until the referral of this complaint was put to him.  He accepted that the only time when he had been refused a training course was the example cited in 2016.  He also agreed that his last unsuccessful interview for promotion was in 2017.  It was put to him that whenever he had sought exposure to a particular speciality, this had been facilitated.  He agreed that whilst he had been facilitated in one requested area, he had been repeatedly told at interview for promotion that he did not have the requisite experience.  He confirmed his view that he had been denied relevant training and work experience “all along” his employment with the Respondent.  It was put to him that as this pre-dated his role as Quality Manager and the health and safety incident in 2009, holding this role could not credibly be the root cause.  He maintained that he had also raised many other health and safety issues within that capacity.  It was suggested that he was clearly aggrieved about his lack of promotion long before his role as a Quality Manager.  He replied that this “has gotten an awful lot worse as he is viewed as a trouble-maker”. 

When asked by this Adjudication Officer to specify how the alleged penalisation against the Complainant had been any different following his appointment as a Quality Manager in 2008, his Solicitor confirmed that the situation had pertained from when he had commenced employment with the Respondent in 2000.  However, when the Complainant became a Quality Manager, he was “digging a deeper hole” and he had also become more vocal about seeking the requisite training and work experience required for promotion.

Findings and Conclusions:

The Complainant commenced employment with the Respondent in 2000 as a Medical Laboratory Scientist.  He alleges that the Respondent has denied him the requisite training and work experience for promotion to a senior role, outlining a history of unsuccessful applications since 2006.  He contends that this constitutes penalisation for holding the role of Quality Manager from 2008-2010.  For the purposes of determining whether the WRC has jurisdiction to investigate this complaint, it is necessary to determine whether the Complainant has identified any acts or omissions potentially constituting penalisation within the requisite 6 month period prior to referral under Section 41(6) of the Workplace Relations Act 2015, or within the prior 12 month period if reasonable cause can be shown to grant an extension of time under Section 41(8).  For the purposes of this exercise, I have taken his evidence at its height and assumed his proper appointment as a ‘safety representative’ within the meaning of the Safety, Health and Welfare at Work Act 2005.

To preserve all positions, I have also considered the definitions of penalisation under both the Employees (Provision of Information and Consultation) Act 2006 and the Safety, Health and Welfare at Work Act 2005.  Section 13(2) of the Employees (Provision of Information and Consultation) Act 2006 defines penalisation as: “For the purposes of this section, an employees’ representative is penalised if he or she- (a) is dismissed or suffers any unfavourable change to his or her conditions of employment or any unfair treatment (including selection for redundancy), or (b) is the subject of any other action prejudicial to his or her employment.”  Section 27(2) of the Safety, Health and Welfare and Work Act 2005 defines penalisation as: “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.”

Having carefully considered the Complainant’s evidence and both Parties’ submissions, on the balance of probabilities, I am not satisfied that there are any identifiable acts or omissions constituting penalisation under either Act within the 6/12 month period prior to referral of this complaint on the following basis:

(1)  It was confirmed on behalf of the Complainant that the penalisation alleged within the 6/12 month period prior to the referral of this complaint was his ‘lack of rotation’ between different work specialities required for successful promotion.  In both his complaint form and evidence, the Complainant contended that this situation had pertained since the commencement of his employment with the Respondent in 2000, albeit that he seeks to attribute this to his role as a Quality Manager from 2008-2010 and raising various health and safety issues in that capacity.  I am satisfied that he has not identified any marked change in this alleged treatment after taking up the role of Quality Manager such that any disguisable detriment arises in reaction to same.  As such, he is attempting to shoehorn his grievance into the 2005 Act.  It follows that there is no act or omission potentially constituting penalisation within the referral period.

(2)  Even if I was to accept the Complainant’s contention that the ongoing denial of training and work experience by management had worsened after he had taken up the role of Quality Manager in 2008, I am not satisfied that he has identified any potential penalisation within the 6/12 month period prior to referral of this complaint.  In his complaint form, the Complainant alleged that he had been“…refused and denied the relevant training opportunities” and elaborated in written submissions and evidence that this constituted a ‘lack of rotation’ between different work specialities.  On balance, I am of the view that a ‘lack of rotation’ is too vague to constitute any act or omission constituting penalisation where there is no evidence of any specific request being made by the Complainant for exposure to a particular speciality or refusal of same by the Respondent within the 6/12 month period prior to the referral of this complaint. 

Accordingly, I do not have jurisdiction to investigate the substantive complaint as it is statute-barred.  I am further satisfied that even if I acceded to the Complainant’s application to amend the statutory basis for this complaint, he has not identified any alleged acts or omissions potentially constituting penalisation owing to holding the role of a Quality Manager in 2008-2010 or any actions undertaken in that capacity.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint.  Based upon the aforesaid, I find that this complaint is not well-founded and that disposes of all matters. 

Dated: 01/11/2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Preliminary issue - whether statute-barred or act or omission constituting penalisation within 6/12 month period prior to referral of complaint - Section 41(6) & (8) of the Workplace Relations Act 2015