Complainant

Respondent

Parties

Patrick  Mooney

Wicklow County Council

Representatives

Represented by Stephen O’ Sullivan, BL instructed by  Freehill Craughwell Solicitors

Represented by Local Government Management Agency (LGMA)

Act

Complaint 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-00052538-001

02/09/2022

The complainant states that he made a complaint on 26 March 2020 under the Equality and Diversity and Dignity at Work Policy. The complaint related to bullying/harassment and victimisation by Mr C, the General Services Supervisor and by Mr B, District Engineer from January 2019 to the date of his complaint. The complainant states that during this period, he had been removed from gritting duties and had been left working alone carrying out sweeping duties, working on the side of the road with inadequate equipment and no access to the canteen. The complainant submits that this constituted a complaint to his employer relating to safety, health and welfare at work for the purposes of section 27 of the Safety, Health and Welfare at Work Act, 2005.

The matter was dealt with on an informal basis by the respondent and the complainant claims that the respondent tried to get him to agree to a transfer which the complainant would not accede to. It was submitted that the matter ultimately went to formal investigation. The complainant states that the Outcome of the Investigation report was that his complaints were not well-founded. The complainant states the report also made a recommendation that he be transferred to a different section and receive some training in how the Dignity at Work policy applies to the complainant’s behaviour.

The complainant states that he had not asked for or consented to a transfer. He submits that any finding of misconduct against him arising from his complaint was procedurally and substantively unfair. In this regard, the complainant cites the caselaw in Tsourova v ICON Clinical Research Ltd [2005] 16 ELR 250.

The complainant submits that the Investigation Report was not in accordance with fair procedures, in that he did not have timely access to documents, a witness he requested to be called was not agreed to by the investigator. He further states that findings were made against him which were not permitted under the Terms of Reference and that the report was irrational in its findings. The complainant states that he made an appeal and Ms K, Director of Services determined same. However, Ms K did not uphold the complainant’s appeal.

The complainant states that as a result of the transfer he has lost out on gritting duties and overtime. The complainant states that he made data protection requests but that the respondent has failed to furnish same. The complainant submits that the findings of the Investigation Report and the direction to transfer him constitute penalisation contrary to section 27 of the Safety, Health and Welfare at Work Act, 2005.     

The respondent states that the complainant is employed as a general operative. It states that on 26 March 2020, the Council received a formal complaint under the Dignity at Work policy from the complainant against his line manager and the district engineer. The respondent states that at the material time, the country was entering its first lockdown due to the Covid pandemic. The respondent states that emails were exchanged in relation to the complaint and a virtual meeting  took place online on 12 March 2021 with the District Administrator Mr F, the complainant and his union representative in an attempt to deal with the complaints informally. Also in attendance were the two employees which were subject to the complaint.

The respondent states that following this meeting, on 15 March 2021, the complainant’s union representative emailed Mr F and requested that given that the meeting did not manage to resolve the issues that the complaints be dealt with by way of formal investigation under the Dignity at Work policy. The respondent states that it commenced the formal process and on 5 July 2021, Mr M (retired City Manager) was appointed and all parties were notified of his appointment. The respondent states that on 28 July 2021, the terms of reference setting out the scope of the investigation were circulated to all parties. The respondent states that between 1 October 2021 and 11 January 2022, interviews were held by the investigator with all parties and also with witnesses identified during the process.

The respondent states that on 15 December 2021, records of 7 meetings and 1 response were sent to the complainant in accordance with item 9 of the terms of reference. It states that on 17 December, an additional note received from Mr C was forwarded to the complainant. The respondent states that on 20 December 2022, the union official requested additional time to go through the notes on behalf of the complainant. It was submitted that this additional time was granted with the deadline for submissions extended to 31 January 2022 as requested. The respondent states that on 27 January 2022, a record of the meeting with Mr Mc on 11 January 2022 was sent to the complainant. The respondent states that all notes from the interviews were shared with the complainant and the other parties to the complaint and they were given the opportunity to respond in writing. The respondent states that the complainant submitted a response on 31 January 2022 and the respondents reverted on 31 January 2022 and 1 February 2022.

The respondent states that on 19 May 2022, the respondent received the report from the investigator and a copy was issued to the complainant and the other parties to the complaint on 20 May 2022 via email and posted to the parties on 23 May 2022.  The respondent states that none of the allegations made by the complainant were upheld. It submits that all parties were given 10 working days i.e. 3 June 2022 to submit any comments on the report and they were also given the option of submitting an appeal to the Chief Executive by the same deadline. The respondent states that on 3 June, the Chief Executive received an appeal in relation to the outcome of the investigation from the complainant. On 9 June 2022 the Chief Executive appointed Ms. K (Director of Services) to manage the appeal.

The respondent states that Ms K reviewed the twelve page appeal document received from the complainant and identified four areas which were relevant to the Dignity at Work investigation i.e. (i) natural justice (ii) forced to engage in informal process (iii) complaints relating to the investigator (iv) demand for another investigation. The respondent maintains that each of these were considered by Ms K, however the appeal was not upheld. The respondent states that the complainant received a full response to his appeal on 28 July 2022. The respondent states that subsequently the complainant submitted a claim to the WRC alleging that the investigation was “inadequate and not in accordance with fair procedures” and that “evidence was relied on that was not furnished to the complainant”. In the claim, the complainant further alleges that the appeal process was incorrect as was the decision to move him to a different section.

The respondent asserts that the complainant submitted a complaint to it and same was investigated appropriately under the Dignity at Work policy. The respondent states that it attempted to deal with the issue informally in the first instance. However, the complainant subsequently requested, through his union official, that the matter be formally investigated. The respondent duly appointed an external investigator. The respondent states that the name of the investigator was notified to the complainant and no objection was received. The respondent submits that terms of reference were established and circulated to the relevant parties and similarly, no objections were received.

The respondent asserts that the complainant was interviewed by the investigator and had the support of his union official at that meeting. It states that the investigator met with all the relevant parties including witnesses. All parties received notes of their interviews and were given an opportunity to comment on same. The respondent states that all comments received were shared with the investigator. It states that the investigator included all this information in his report once it was received and this was circulated to all parties at that stage and they were afforded the right to comment on the full report at that stage.

The respondent states that the investigation did not uphold the complainant’s allegations against his line manager and the district engineer. The respondent states that in the course of his investigation, the investigator formed the opinion that the working relationship between the complainant and his colleagues was irretrievably damaged and gave a recommendation that the complainant be moved  to another section of the Council. The respondent states that the investigator noted that the existing situation was unsatisfactory for all parties and this was the basis for his transfer recommendation. He further stated that he was concerned by the complainant’s behaviour towards his work colleagues and recommended that “he receive some training in how the Dignity at Work policy applies to his behaviour”.

The respondent states that the complainant was given a right of appeal to the Chief Executive and the complainant duly exercised this right. The appeal was carried out be the Director of Services who was not involved in the process up to that point and she considered all matters relevant to the investigation. The Director of Services did not uphold the complainant’s appeal. The respondent refutes any allegation that the investigation process was unfair or inadequate. The respondent maintains that all information received by the investigator was provided to the complainant when the investigation report issued to him.  The respondent states that when it reviewed the investigation report, it was evident that there had been a fracturing of relationships. It states that once the appeal process concluded, the respondent had a duty to act on the investigation report. The respondent states that there was no finding of bullying against the complainant’s line managers; however it was clear from the report and the witness statements that there was a consistent and common perspective of difficult working relationship between the complainant and all of his colleagues.

The respondent states that on the basis of the information established in the investigation, the respondent was of the view that a continuation of the fractured working relationship was not a sustainable option based on the findings of the investigation. The respondent states that it did not penalise the complainant however it could not ignore the outcome of the report and its findings. The respondent states that it was evident that the working relationships were broken and it had to consider what was the appropriate option taking into consideration three elements (a) the needs of the complainant (b) the needs of his colleagues (c) the obligations on the respondent as it relates to all of its employees and the provision of a safe workplace.

The respondent states that having given careful consideration to these elements, it came to the belief that there were two choices i.e. transfer the complainant to another area or transfer all of his colleagues to another area. The respondent chose to transfer the complainant and notified him of same on 18 August 2022. The complainant was transferred to another location, a recycling centre on 15 September 2022. The respondent states that it has a duty of care to all of its employees including the complainant and having reviewed all aspects of this matter, it determined that, in meeting this obligation, it was more appropriate to redeploy the complainant under his existing terms and conditions. The respondent states that there is no detriment arising to the complainant due to this transfer given that his home location is closer to the location he was transferred to.

The respondent submits that the principles of natural justice and fair procedures have been applied, the complainant has been represented at all times by an experienced trade union official. It states that at all times the complainant has been advised about the procedure and was provided with all documents which were to be relied upon in the course of the investigation. The respondent asserts that the procedure conforms to the code of practice under the Industrial relations Act 1990 and S.I. 146/2000 and the principles of natural justice.

The respondent submits that it was justified based on the outcome of the investigation to redeploy the complainant to an alternative work location. The respondent states that under Health and safety grounds, it would be remiss it its role as an employer if it did not take all reasonable action to “prevent any improper conduct or behaviour likely to put the Safety Health and Welfare of employees at risk” (Safety, Health and Welfare at Work Act, 2005).

The Relevant Law:

Section 27 of the Act stipulates as follows:

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,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to 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.

Penalisation is described to have occurred where there is a direct causal link between the making of a complaint and the detriment that followed because of making that complaint otherwise known as causation. 

The Labour Court in the seminal case of O’Neill v. Toni and Guy Blackrock Limited [ELR21] considered in detail the matter of a causative link as follows:

“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 detriment 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 determent”. 

Therefore, in order to make out a complaint of penalisation contrary to the Act, it is necessary for the complainant to establish not only that he suffered a detriment of a type referred to at subsection (1) but that the detriment complained of was imposed because of, or was in retaliation for, having committed a protected act.

The Labour Court also accepted that “an unjustified sense of grievance cannot amount to a detriment within the Statutory meaning” Shamoon v. Chief Constable RUC [2003] 2 AER 26.

The complainant contends that having made a complaint of bullying which constitutes a protected act, he was subjected to a detriment in terms of the findings of the investigation report and the direction to transfer him to a different location.  

Having considered the within matter, I find that the bullying complaint made by the complainant raised health and safety matters which constituted a protected act.  I note that an independent external investigator (a retired City Manager from a different division) was appointed with the agreement of the complainant and his union representative together with the respondent.  I note that Terms of Reference were drawn up and similarly agreed by all parties. I note that the complainant was interviewed by the investigator and had the support of his union representative.  I note that the investigator met with all relevant parties including witnesses and that all parties were circulated with notes of the interviews and entitled to make comments on same. I note that the investigator did not uphold the complainant’s allegations of bullying. The investigator made a recommendation that given the fracturing of relationships within the area due to a common thread  of a difficult working relationships between the complainant and his colleagues that the complainant be transferred to a different section. The investigator also recommended that the complainant receive training in the Dignity at Work policy in relation to his behaviour.

I note that the complainant had the option to appeal which he did and the appeal was carried out by the Director of Services who carried out an examination based on the grounds of appeal. The Director of Services did not uphold the complainant’s appeal.

Based on the totality of the evidence in the within matter, I find that while the complainant made a complaint of bullying wherein he raised health and safety matters which constituted a protected act, the transfer of the complainant to a different section was not in retaliation for having made a complaint but rather a reasonable and measured decision based on the findings of the outcome of the investigation process. I note that the location the complainant was transferred to was in fact closer to his home. I further note that the complainant was redeployed under his existing terms and conditions of employment.

Having examined the matter, I am unable to find a causal connection between the alleged detriment complained of and the fact that the complainant had committed a protected act within the meaning of the legislation. In all of the circumstances, I find that the complainant has not established that he suffered any detriment that constitutes penalisation within the meaning of section 27 of the Safety, Health and Welfare at Work Act, 2005 in relation to this matter.

I find that the within claim is not well-founded. 

Penalisation, Safety, Health and Welfare at Work Act, 2005