Complainant

Respondent

Anonymised Parties

Manager of a technical/professional speciality

Hospital

Representatives

Myles Gilvarry, Gilvarry & Associates

 Liam O’Connell BL instructed by Zoe Hughes St. John Solicitors LLP

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-00052602-001

05/09/2022

In February 2022 the Complainant approached the hospital general manager about problems she was experiencing with her line manager as well as health issues which she,  at least partly, related to her workload. She was subsequently referred on to the HR Manager who also spoke with her about her issues. At the suggestion of the HR Manager, she entered a mediation process with the line manager. There were no terms of reference drawn up for the mediation. The Complainant did not attend 1:1 meetings while the mediation was ongoing and withdrew from mediation when the manager insisted that she do so, based on her understanding or assumption those meetings were  suspended during the mediation. Following the collapse of the mediation the line manager began a disciplinary process under the Respondents  Policy. The Complainant did not participate in that process and was issued with a stage 1 warning on 6 September 2022, the day after she referred a complaint to the WRC. That sanction was overturned on appeal some time later but was due to recommence under a HR Group Manager to whom there was an objection and in April 2023 he agreed to step aside. That process was placed on hold pending the outcome of this complaint. In her complaint form the Complainant referred to being penalised for withdrawing from mediation. In the submission to the hearing, the submission described the protected act as the verbal complaint of bullying under the DAW Policy made by the Complainant in February 2022 for which she was penalised once she withdrew from mediation. Following correspondence from the then HR manager in July 2022,a written complaint of bullying was submitted by the Complainant in September 2022. That complaint was screened under the Respondent  Policy and was ‘not upheld’. The Complainant questioned the right of the Respondent to only investigate a complaint in writing and she was provided with no reasoning as to why her complaint was not considered bullying.

The issue to be determined in whether there was penalisation as defined in the 2005 Act.

The Complainant holds a senior medical/technical professional role in an acute hospital. She is employed at the hospital for fourteen years without any difficulty. Her contract is for 35 hours- however she regularly works up to 60 hours per week. A description of her duties was included in the submission. The Complainant contends that her difficulties began with the appointment of a new line manager. Various difficulties with the manager were set out in the submission.  A complaint of bullying was made in February 2022 to the GM of the hospital who then referred her to HR Department(as set out in emails) and through that Department a mediation process was established. The Complainant did not attend any further 1:1 meetings with the manager during the mediation on her understanding that these had been suspended as the managers conduct at those  meetings was  core to her complaint which she described as bullying. When in early July 2022, the line manager made it clear that the meetings were to continue while mediation was ongoing, the Complainant withdrew from the mediation. This was followed by communications regarding her nonattendance at meetings with her line manager and the commencement of a disciplinary process conducted by the same line manager. Notwithstanding correspondence from her solicitor, the line manager chaired a disciplinary meeting and issued a finding against her under stage 1 of the process. On appeal this was set aside. Although not germane to the complaint as it occurred afterwards, the complainant cannot understand and does not accept the basis on which her written complaint of September 2022 could have been rejected as a complaint of bullying under the employment procedure.

Section 27 of the HSWA was cited as the applicable law in this case. Reference was made to the Labour Court Decision in Toni and Guy citing extracts from the decision referring to the but for test and the operative consideration. In this case the protected act was the complaint of bullying made in February 2022,satisfying the first test of Toni and Guy. It is contended that the second limb of the test is met by the disciplinary proceedings and imposition of a sanction against the Complainant, which it is submitted was in retaliation for the complaint made-the protected act. This contention is supported by the submission that it was the line manager who was the subject of the complaint who initiated and conducted the disciplinary proceedings, which ultimately resulted in a sanction being imposed, by the same line manager. Having satisfied the two-limb test contained in Toni and Guy, the complaint should succeed.

On the first day of the hearing, the Respondent laid great emphasis on the need for the operational meetings to take place. All other managers in the same position as the Complainant were co-operating in such meetings. The duties and performance of the Complainant had a direct effect on other areas of the hospital.

In the first submission the Respondent cited the terms of the DAW policy setting out the various levels of intervention and the related history, including references to emails back and forth between the two employees regarding attendance at meetings and a disciplinary process over the period July to September 2022. The submission went on to describe the offers of support from the new HR Manager in late 2022 which were rejected by the Complainant to such an extent  that  an intervention by the hospital GM was required.   The outcome of the screening process was described by the HR Manager as finding  that ‘the matters complained of…under the DAW Policy…were not upheld.’ That outcome was disputed by the Complainant.

In the second submission the Respondent first  contended that the alleged detriment, namely the commencement of a disciplinary process does not constitute penalisation as defined by s.27.

Secondly, the complaint form submitted by the Complainant indicates that the alleged detriment was suffered by the Complainant for having withdrawn from mediation. Withdrawal from mediation is not a protected act under s.27 therefore any alleged detriment for the act of withdrawing from mediation does not constitute penalisation for the purposes of s.27.

Finally, even if the Complainant is permitted to reformulate her claim as she attempts to do in her submissions, she in fact made no complaint of bullying as of 5th September 2022(date of referral to the WRC) and the alleged detriment referred to, the commencement of the disciplinary process occurred  in August 2022.

Regarding the change in the grounds of the complaint as set out on the complaint form as distinct from the written submission on behalf of the Complainant, I am satisfied that the complaint is properly before me as a complaint of penalisation which is to be fully considered. There are frequently differences between the specifics of the complaint form and the arguments presented at  a hearing. The WRC form is not a statutory form and a complainant need not provide any details of a complaint on that form other than selecting the legislation under which the complaint is to be  investigated. Errors or omissions can occur in setting out grounds owing to a lack of knowledge; having no or inadequate advice at the time; confusion between a complainant and a representative or haste to meet a timeline under legislation. It is at the hearing stage, including the submission part of the proceedings that Complainants are required to nail down the basis of the complaint. And then the Respondent has, as in this case, a full opportunity to respond Indeed in this case, the Respondent  took two bites of the submission cherry even when not actually offered by the AO. Given that virtually none of the arguments put forward on their behalf were made by the Respondent until their second submission, that submission could have been ruled out as indeed was requested by Mr Gilvarry in an email to the WRC prior to the reconvened hearing, which I declined. Finally, and consistent with ‘Louth VEC’ as it is well known, this complaint was always based on a set of knowncircumstances and not something which was unknown to the respondent at any stage albeit it was expanded upon between the complaint form and the submission stages. My decision in this case takes account of all submissions and the relevant sections of the legislation.

In their submissions the Respondent sought to draw a distinction between the obligation and operational necessity for the Complainant to attend one to one meetings with her line manager and the complaint of February 2022 which led to the mediation process being established. Furthermore, they contend that no complaint was made under the DAW Policy until September 2022 and after the complaint was submitted to the WRC. Finally, they contend that there was no detriment or penalisation of the Complainant prior to the complaint being lodged with the WRC on 5 September 2022. None of these submissions are accepted in arriving at a Decision in this matter for the reasons set out.

Operational necessity to attend 1:1 meeting as the exclusive basis of the disciplinary process.

The contention that the refusal to attend i:1 meetings with her line manager was the sole reason for initiating disciplinary procedures against the Complainant  is partly  undermined by the communication issued by the GM following their meeting on 4 February  in which the GM acknowledged that the Complainant had described difficulties with her line manager and her health. The subsequent written account from  the HR manager to the Complainant on 11 February following their meeting on 8 February goes further and is clearly indicative of the content of the  approach made to the GM and later HR concerning  the alleged conduct of the line manager in her dealings with the Complainant, which in the main were conducted through meetings. The HR email of 11 February 2022 addresses the very issue of 1:1 meetings and ways which might be found to avoid them. I am prepared to accept that later in the chronology the line manager acted on advice from some part of the HR function in initiating a disciplinary process. However, that adviser either was unaware of or ignored the communication of the hospital HR Manager on 11 February where on her request not to attend 1:1 meetings put to him a few days earlier, he wrote’ In relation to the 1:1 I will speak to [manager]and until the abovementioned meeting(local mediation offered initially) is conducted, it may be suitable for another () staff member to brief xx on the () or conduct your meetings over the phone or via email.’

 Indeed, the subsequent written complaint, submitted in September 2022 is concerned  mainly with the conduct of those meetings on specific dates.  In summary, and not in any way commenting on the fairness of the Complainants perspective about those meetings or denying the necessity for full communications for operational reasons, the main basis  of the complaint of bullying is what occurred  between the two employees at  those meetings. In short-there was a known complaint of bullying concerned with the conduct of 1:1 meetings as early as February 2022. It is likely that  concerns about the performance of the Complainant as articulated by the line manager were allowed to trump the health and safety issues raised by the Complainant. Given the contents of the HR Managers email of 11 February 2022 which suggested ways around the meeting problem-the absolute necessity for the 1:1 meetings to achieve the operational necessities is not accepted as providing the sole or even a valid reason for initiating a disciplinary process due to refusal to attend such meetings. The then HR Manager in his email of 11 February not only offered alternative mechanisms for ensuring the information required by the Deputy Manager was provided to her, but he also referenced the need for balance as between the health of the Complainant and the operational needs. What is clear therefore is that from the outset, for the Complainant, the conduct of those meetings which subsequently led to the initiation of disciplinary action against her was an integral part of her complaint against her line manager. It may well be that those still remaining in the hospital after the former HR Manager moved on in July/August believed there was no previous complaint of bullying because it was not in writing. However I am satisfied that at all times up to July 2022,the then HR Manager was clear and made it clear that he was dealing with a complaint under the DAW Policy as a consequence of which he repeatedly relied on that policy to support his actions in the matter. There has been no suggestion that the line manager was not aware that there was a complaint grounded in the DAW policy, but even in that unlikely scenario she had the support of the HR function acting on behalf of the Respondent in her actions under the disciplinary process. These conclusions are supported by the contents of the first submission by the Respondent who referred repeatedly to the DAW  Policy in support of their position.

In their submission the Respondent  refer to the requirement of employees to continue to work together during a process undertaken under the DAW Policy. The Complainant did not refuse to work to or with her line manager, she declined to attend 1: 1 meetings the conduct of which which were at the heart of her complaint. Is it really the position of the Respondent  that 1:1 meetings trump all other considerations in a health and safety situation? I find that unlikely in all circumstances – but there was an absolute insistence in this case apparently because the person accused of bullying was insisting that it be so. It would appear that the employer supported that position at all times after July 2022 and continues to do so. Consequently, if there is any liability in this case, it lies with the employer as the body responsible for the health safety and welfare of both employees as well being responsible for oversight of the relevant policy.

In summary the contention that the disciplinary process was initiated solely for operational reasons or in the absence of an complaint of bullying at that stage is not accepted.

Absence of a complaint. In this argument the Respondent , particularly in their second submission, are relying on the absence of a written complaint by the Complainant until after the disciplinary process commenced and after the complaint was submitted to the WRC. This line of argument is not supported by the facts. Whereas it is correct to say that there was no detailed written complaint until September 2022 and after the initiation of the disciplinary procedure, the submission of a complaint in  written form is not a prerequisite to any stage of the Respondents  process other than the investigation stage, where the first step is to screen the written complaint by reference to the DAW Policy. Whether or not the Complainant used the term bullying in her discussion with the General Manager on February 4th  lacks relevance when the then HR Manager confirmed that he was taking action based on ‘this complaint’ in his email of 11 February 2022. Later, on March 4th, 2022,he proposed mediation- an integral part of the DAW policy. It was only after the mediation collapsed due to the withdrawal of the Complainant that the same HR Manager referred to the next phase as requiring a detailed account of the offending behaviour, so that ‘this complaint can continue under the Dignity at Work Process’ (email of 13 July 2022 refers). We would, he wrote’ be proceeding from P15 of that policy’. [Emphasis added]. Section 15 refers to the screening process. The reason the Complainant had provided for withdrawing from the mediation  was the insistence by the line manager that she attend the 1:1 meetings the conduct of which was directly related to and an integral part of her complaint of bullying. The assertions  that there was no complaint of alleged inappropriate behaviour under the DAW until after July 2022 when the disciplinary process was first mentioned by the line manager or, until the Complainant submitted a written complaint are assertions not supported by the facts or the application of the  terms of the policy prior to that date.

Definition of Penalisation

In their submission the Respondent  seeks to apply the terms of the Section 25 in such a way as to suggest that even if a disciplinary process was initiated in response to a complaint of bullying(denied) there was no penalisation as defined in section 27 of the Act.

SAFETY, HEALTH AND WELFARE AT WORK ACT 2005

Updated to 20 November 2021

Protection against dismissal and penalisation(relevant extracts).

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,

Disciplinary proceedings in the Respondents employment  operate under a collective agreement which in turn forms part of the employees contract of employment. . The initiation of disciplinary proceedings by the Respondent through her line manager post her withdrawal from mediation having made a protected report consistent with Section 27(3).(a) , represented a threat to the employee concerned as defined under subsection (3)  of s. 27 of the 2005 Act. While there are specific forms of detriment referenced in the text of section(2) these are not limited to those specific items where the text of that section contains the term ’includes’.  If an employee who has made a complaint under an anti-bullying procedure  is threatened with  disciplinary sanction by the person against whom they have made that complaint for the reason that they will not meet that person on a one-to-one basis, there are threats here, both in terms of disciplinary sanction and potentially the employees health.      That the threat of disciplinary action was real is confirmed by the imposition of a disciplinary penalty on the day after the Complainant made a referral to the WRC(but before the Respondent was notified of that complaint by the WRC).  That sanction was set aside subsequently on appeal  on grounds of the absence of fair procedures as I understand it.  As an aside I note that it was intended the disciplinary action would be revisited in 2023 following the appeal – to  be heard by the HR manager advising the hospital. He had signed the stage 1 disciplinary sanction along with the line manager. He also  represented the Respondent  at the adjudication hearing and had the line manager present and consulted throughout the proceedings. An absence of objectivity can be observed throughout the disciplinary process. In support of the contention that the Complainant would have been justified  in feeling threatened by the disciplinary process, the Respondent issued an email on 17 January 2023 in which she was advised: ‘it is under consideration that you are in peril of breach of your contract of employment.’. In HR speak, this is a very serious statement.  

 The Complainant did delay in submitting her formal written complaint and was overly reliant on external legal advice when support was offered to her by the HR Manager appointed in December 2022 to the point of resistance to  those offers of engagement. However, whatever the thinking of those advising the line manager to proceed with a disciplinary process against the person who had made a complaint against her, it does appear that there was a lack of appreciation of the significance of what she was complaining about in the context of health and safety legislation i.e. the 2005 Act and the need to factor that into all processes and actions. This was apparent at the first hearing of this complaint when the submission of the Respondent was steeped in an IR approach without any regard to the legislation under which anti bullying policies are required - as a health and safety measure and which when they are made, become a protected act under the legislation.

Operational concerns may well have been justified. There cannot be an expectation of  one set of reporting and working arrangements for the Complainant to suit her view of life or traditional manner of working. However, when the complaint about her line managers conduct at meetings was such an integral part of the complaint made to HR and acknowledged by that Department by reference to the DAW policy, any reasonable person could only conclude, on the balance of probabilities, that there was a causal link between the making of that complaint and the subsequent efforts to discipline the Complainant for resisting the conduct of  those meetings on a 1:1 basis. 

The Complainant made a verbal complaint which is a protected act under the Health and Safety Act 2005. When the protected measure of mediation, a stage in the agreed policy, was in place she was not subjected to disciplinary action. When she withdrew from that process, she was pursued by way of a disciplinary process by the very person she had complained about who in turn was acting under advice. The ground put forward  for justifying the disciplinary process does not stand up to scrutiny as a justified standalone reason. I am of the view that on the balance of probabilities, the reasonable conclusion is the Complainant did make a complaint under the DAW and was penalised for doing so. Whether that action was wholly as a consequence of making a complaint is debatable but so long as it formed part of the reason for the penalisation, the complaint succeeds. At this juncture I note that it was the Complainant who cited the ‘but for’ test used by the Labour Court in Toni and Guy’. The ‘but for’ test is probably the highest bar that could be test for the linkages between a claimed protected act and a detriment or penalisation, or at least that is the way it is commonly presented in this type of case, usually by the Respondent. It is however only one of a range of terms which can be used to set the test for a complaint as to whether there was a link between action A and detriment B. Whatever expression, legal or otherwise is used in these cases, once a Complainant has established that they did exercise a right protected by the Act and that there was a detriment of penalisation, the Respondent must reach a high bar to prove that their actions were wholly or mainly unconnected with the exercise of those rights under the relevant legislation.  The Respondent in this case has not reached the requisite threshold.

The Complainant has succeeded in establishing a sufficient level of proof of a threat of  penalisation for having made a complaint against her manager under the DAW for which she was entitled to the protections contained in  the HSWA. The Respondent has not established a sufficient level of proof to discharge the burden of proof required of them in this case.

Before moving on to redress, and not for the first time recently, I find it necessary to comment on the pre screening process utilised by the Respondent  in their collective agreement. It would appear that instead of being a screening process which identifies whether the complaints could constitute bullying if upheld-they have become clouded with the issuing of findings-using terms such as not upheld. In both cases which I have examined recently this has occurred and moreover there is a conclusion by the screener that effectively the manager concerned is only doing their job. In this particular case the issue raised by the Complainant was primarily one of conduct, of the way in which she was addressed, repeatedly. Again, without drawing any conclusions regarding the fairness of these charges-those descriptions contained in the current  complaint go beyond the manager doing his or her job into the way they are doing that job in terms of their interpersonal relations and behaviour towards the Complainant. For this reason, following  a concern about the manner in which the screening process was applied in this case, I am issuing an order that the complaints be investigated under the DAW Policy. I will also add the following caution to the Respondent -there is a  doubt about the ‘right’ of an employer to decide not to investigate a complaint of bullying without the agreement of the person making the complaint. Nonetheless in my experience the screening process in this large employment has served all parties well since it was introduced many years ago. However, to continue to serve the parties to the collective agreement requires assessments which do not overstep the mark into the area of findings as to whether a complaint is upheld or not upheld.

Under Section 28 of the 2005 Act, I am required to decide whether the complaint is well founded. And I may decide  on redress which can be in the form of compensation (for which there is no stated upper limit) and/or order an action by the Respondent. I have decided to provide for both in this decision, as provided for in Section 28. Regarding the contents of  an order, I addressed the parties twice on the second day of  the hearing on the need to find a way forward, to maintain and develop this employment relationship in the interests of the hospital and patient care and the employees involved.  Unfortunately, both sides have become entrenched in their position or so it appears. The following is a general statement explaining the orders contained in the decision for both parties and also some of the supporting considerations.

A. I declare the complaint well founded for the reasons stated.

B. I require the Respondent  to pay compensation to the Complainant of €5000 which I expect will assist in the payment of her legal fees. It is highly  unlikely that the Complainant would have managed her way through this entire process without professional support. At the same time, the Complainant herself must be or become willing to fully engage directly  with her employer so as to satisfy their operational requirements and not only as she determines sufficient. She must also  be prepared to work with and through the HR Manager who works to the General Manager on employee relations issues and not only, as she, the Complainant sees fit.  As an objective observer I detect an underlying tone of resistance to change on the part of the employee which has in all likelihood contributed to her difficulties, at the very least her stated health difficulties.  The compensation would be greater were it not for my view that the contents of the order as a whole are weighted in favour of the Complainants position, while at the same time intended to provide a path away from the current impasse.

C. The General Manager is to engage an investigator appointed from the Respondents  panel of such persons to commence an investigation of the complaint of 28 September 2022 submitted by the Complainant, under Terms of Reference consistent with the Respondent  DAW 2022 Policy and to commence no later than the end of January 2024.

D. The Respondent is to make arrangements to ensure that the working hours of the Complainant comply with the maximum working hours under the Organisation of Working Time Act with effect from 1 January 2024. While there should be discussion between HR and the Complainant in an effort to reach a mutual operational agreement on this aspect, ultimately the obligation on the Respondent is a statutory mandatory one and they must take the necessary steps to ensure that the working hours of the Complainant are fully compliant under the legislation.

E From the date of this decision, until the final outcome of the investigation process, the Complainant and the Deputy Manager are to report directly to the General Manager in respect of the function for which the Complainant is responsible and accountable. Meetings will not normally involve the presence of both managers with the General Manager unless she deems such attendance as essential for operational reasons. It will be for the GM to determine the form of written or oral communications short of 1:1 meetings which are to be provided by both managers to the GM and to each other. Meetings includes virtual meetings on a 1:1 basis.

E. All planned or intended disciplinary action in relation to non-attendance at meetings by the Complainant with her line manager to date is to be set aside.

All of the forgoing are set within the general framework of health and safety and the elimination of the effects of  the act of penalisation.

CA-00052602-001 Health Safety and Welfare at Work Act 2005

The complaint of penalisation by the Complainant against the Respondent  is well founded.

The Respondent is to pay compensation the Complainant of €5000 which is to be paid no later than the end of January 2024 unless this Decision is appealed by either side in the interim.

The General Manager is to engage an investigator appointed from the Respondents  panel of such persons to commence an investigation of the complaint of 28 September 2022 submitted by the Complainant, under Terms of Reference consistent with the Respondent  DAW 2022 Policy and to commence no later than the end of January 2024.

No later than 1 January 2024  the Respondent is to provide the Complainant with a working schedule which is complaint with the Organisation of Working Time Act 1997,as amended, in terms of her hours of work.

From the date of this decision, until the final outcome of the investigation process, the Complainant and the Deputy Manager will report directly to the General Manager in respect of the function for the which the Complainant is responsible and accountable. Meetings will not normally involve the presence of both managers with the General Manager unless she deems such attendance as essential for operational reasons. It will be for the GM to determine the form of written or oral communications short of 1:1 meetings which are to be provided by both managers to the GM and to each other. Meetings includes virtual meetings on a 1:1 basis.

All disciplinary action or proposed action in relation to non-attendance at meetings by the Complainant to date is to be set aside.