ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00045358

Parties:

Complaint:

Date of Adjudication Hearing:  15/08/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint  to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant alleges that she was penalised for making a complaint under the Safety, Health and Welfare at Work Act 2005.

Summary of Complainant’s Case:

The Complainant commenced employment on 6 September 2022 as a Store Manager in one of the Respondent’s stores.   She stated that she first reported safety concerns to the Respondent on 6 March 2023.  In her email to HR, she outlined issues which she experienced since commencing work as a Store Manager which included:

Behavioural problems with staff, Data protection breaches, lack of support from her Manager to address the concerns she highlighted and indirect threats from the Manager regarding people needing “to get on the bus or off”.

In her email, the Complainant outlined instances of significant concerns around behaviour and conduct of staff in the store ranging from vaping to refusing to use the Respondent’s system for customers’ details.  One recent situation which occurred the day before her email was in a situation where she required a staff member to come in at 8am, the staff member was refusing to do so, despite a stock taking situation and the staff member threatening her on the basis of hearsay that she had heard the Complainant had made comments about her age.  She requested HR to investigate the staff member’s baseless claims which she had been threatened with via text from the staff member.  She stated that she had advised multiple times that the team in the store could not be managed by one manager given the level of disruption from them.   She requested HR to address what she described as systemic bullying behaviour she was subjected to in the store.  The Complainant also outlined her concerns regarding not having been advised or receiving clarification about the ending of her probation which was due to be finished on that date 6 March 2023.   HR replied to her email stating that as she was on sick leave they would encourage her to focus on her health and link back in two weeks.  The Complainant responded that she was out of work due to the situation that her regional manager and the company had not provided any meaningful action on what she had reported and she needed HR to support her as a manager in the business to make the work environment safe for her to return by finding it unacceptable for a staff member to threaten their manager with age discrimination claims every time she manages them.  She also asked would she be paid while on certified work related stress leave.

HR responded attaching the grievance policy and asking her for submission in support of her formal grievance, should she with to pursue it.   They also replied to her question about sick leave by stating that the company policy is 20 days sick leave in a 12 month period. 

Following this, the Complainant submitted her two formal complaints.  The complaint relating to safety and welfare at work was extensively covered in her submission.  She requested an investigation into the staff member’s allegation of age discrimination.  She stated that due to the serious nature of the situation that the Respondent had allowed the workplace to be extremely   unsafe.  In terms of resolution, she stated that she expected to go back to work but given the circumstances, and the refusal of the Company to pay more than 20 days sick leave, that a new position should be made available to her in order to provide her with a safe workplace.

The response from the Company was slow.  It took a total of 9 weeks for a resolution to be proposed by which time the Complainant had used all 20 days of her contractual sick leave.  It took a further 8 weeks to respond to the investigation appeal.  At that point the Complainant was left with no choice but to apply for social welfare support as she was no longer receiving an income.  She made it clear throughout her communications with HR that she was only on medical certs as she felt unsafe in the workplace and she would have been certified back to work if the Respondent had provided her with an alternative workplace or position.  The Complainant submits that she has been penalised by the Respondent through receiving no formal income for raising her concerns over her safety and health in the workplace due to bullying and harassment.  

Summary of Respondent’s Case:

On 13 November 2022, the Complainant emailed Ms S, Employee Relations Specialist, to discuss concerns with a rota request in store. The call was arranged and took place on 2 December.                     On 21st December 2022, the Complainant raised concerns regarding a potential data breach involving a Retail Associate in the Waterford store. This was subsequently fully investigated by the Respondent.  

On 26 February 2023, the Complainant emailed Ms S to request a call to discuss concerns with her manager. The call was arranged and took place the following morning.   After the call, Ms S sent the Complainant EAP details and internal polices for raising concerns. 

On 28 February, Ms G, HR Business Partner, contacted the Complainant to arrange a follow up call.   On 1 March, the Complainant, Ms S and Ms G have a call to further discuss the Complainant’s concerns and proposed next steps for resolving. After the call Ms S sent the Complainant an email suggesting ways to move forward and asked the Complainant to contact her when she had decided how she wished to proceed. 

On 6 March, the Complainant contacted Ms S and Ms G to arrange another meeting. The call took place with the Complainant and Ms G that day. The Complainant discussed concerns she had from over the weekend and after the call sent on a GP medical certificate certifying her as unfit for work for 14 days. Later that evening, the Complainant emailed Ms G and Ms S further outlining her concerns.

On 8 March Ms G acknowledged receipt of the email and GP cert and outlined that she will be in touch in two weeks (following the Complainant’s certified sick leave) to discuss the Complainant’s concerns further. 

On 9 March the Complainant emailed Ms G with further concerns and requested clarification on action taken by Company. 

On 13 March, Ms G requested the Complainant to submit details of her grievance and advised that the Company can then initiate formal investigation and sent copies of the Sickness Absence Policy and Grievance Policy. 

On 19 March, the Complainant responded to Ms G and submitted an updated sick cert and outlined that she would share details of grievance. 

On 30 March, the Complainant submitted two formal grievances to Ms G and Ms S and a further medical certificate certifying her as unfit for work. 

On 4 April, the Complainant contacted Ms G and Ms S to request an update on her grievance.  On 4 April, Ms G responded to the Complainant to acknowledge her email and provided on update on the process.

On 5 April, the Complainant responded to Ms G with further concerns and requested clarification regarding her sick pay.  Ms G responded later that day with the following:

“Thank you for your email. I can confirm you first raised your concerns regarding your Commercial Sales Manager (CSM) with us on 27th Feb ’23. We had been trying to work with you in order to resolve things informally and had a further meeting with you on 1st March 23 to discuss possible ways of informal resolution, which you wanted to take time to think about. Please note as per the grievance policy, and as standard in these cases the company will always try to resolve these matters informally. Some suggestions were made to you in order to look at ways in which we could help resolve these matters with your CSM however you later advised that these were not an option and that you intended to proceed with a formal complaint. Following this, on 6th March 23, you raised an issue with regards to a staff member accusing you of age discrimination and confirmed this would form part of your grievance also. I note that we shared full details on how to proceed with a formal complaint on 27th Feb 23, furthermore I note that it was on 31st March 23 that we received your formal grievance/desired outcome. As advised, this will be handled within the formal grievance processes. I understand your desire for a quick outcome on this however in order to follow fair procedures and ensure all parties are fairly treated an investigation needs to take place. It is not at the company’s request that you remain on sick leave whilst the investigation process is managed and we would welcome you back should you wish to return. I have attached the Sickness Absence Policy for your information, this, along with your contract of employment advises on the number of discretionary sick days you are entitled to. As advised above, we are more than happy to welcome you back to the store and support you in your role whilst the investigation is underway. I appreciate you may decide against this and should you choose to remain on sick leave this will be unpaid given you have utilised your sick pay at this stage. Other options available to you are annual leave and unpaid leave”. 

On 6 April, Ms B, Business Relationship Manager for UK and Ireland, who was appointed to hear the Complainant’s grievance, invited the Complainant to a grievance meeting on 13 April and attached supporting documentation to be reviewed in advance including the Complainant’s grievance documents, the Grievance Policy, the Terms of Reference, and the official invite letter. 

On 12 April, the Complainant responded to the invitation and declined to attend the meeting and requested that the investigation proceed based on her written complaints. 

On 13 April, Ms B responded to the Complainant’s email and acknowledged that she did not wish to attend the meeting and advised that she would continue the investigation. 

On 19 April, the Complainant referred this complaint to the WRC before the outcome of the investigation had concluded or been communicated to her. 

On 24 April, the Complainant emailed Ms B and Ms M, Employee Relations Specialist, to request an update on the investigation. Ms M responded on 26 April to outline the timelines for the investigation. The Complainant responded on 28 April, outlining concerns with the timelines.  

On 12 May, the investigation process concluded, and the Complainant was invited to a meeting to discuss the outcome. The Complainant declined to attend the meeting and requested the outcome in writing.  The Complainant’s grievances were not upheld for the reasons outlined in the Investigation Report.

On 17 May, the Complainant submitted an appeal and HR responded to confirm receipt of same. 

On 22 May, Ms K, Employee Relations Manager, contacted the Complainant to outline the appeals process and between 22 – 29 May, Ms K and the Complainant exchanged a series of emails regarding the process.

On 30 May, Ms EB, Business Affinity Manager, was appointed to hear the appeals process. 

On 2 June, Ms K followed up with the Complainant to enquire if she will be submitting further evidence as part of her appeal.

On 12 June, the Complainant responded to advise that she was gathering evidence and would send it on. 

On 15 June, the Complainant submitted evidence as part of the appeals process. 

On 9 July, the appeal process concluded, and the Complainant’s appeal was not upheld.

On 18 July, Ms G contacted the Complainant to discuss engaging on the recommendations set out in the report. 

On 19 July, Ms G contacted Ms K to provide an update on the recommendations set out in the report. To date, the Complainant has remained on certified sick leave and has refused to engaged in the recommendations issued.

Safety, Health and Welfare at Work Act, 2005

The Complainant alleges that she was ‘penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act, 2005’.  The relevant sections of the legislation provide, at Section 27 (1) that ‘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.

Section 27 (2)

Without prejudice to the generality of subsection (1), penalisation includes-

(a) suspension, layoff or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977-2001) 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.

Section 27 (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…..

In support of the Respondent’s position that no such penalisation occurred, the Adjudicator is asked to have regard to the finding in the case of Toni & Guy Blackrock Limited v. Paul O’Neill (HSD095), in which the Labour Court stated:

No Causal Link / the "but for" Principle in Section 27 Claims

This Court has held that a causal connection must be established between the employee exercising their rights under Section 27(3) and the employer’s alleged subsequent ‘penalisation’ actions under Section 27(2), if any. In ‘This matter is before the Court by way of a complaint of penalisation within the meaning ascribed to that term by s.27 of the Act of 2005. Hence, the Court is not concerned with the fairness of the dismissal per se. Its sole function is to establish whether or not the dismissal was caused by the Claimant having committed an act protected by s.27 (3) of the Act.’ The Labour Court made it clear in that case that in order to be successful in bringing a complaint of penalisation it is necessary for a Complainant to establish that the detriment which s/he submits was imposed was in fact “for” having committed one of the acts protected by s.27(3). The Complainant would have to prove that the detriment to her terms and conditions she claims to have suffered must have occurred because of, or in retaliation for having committed a protected act. That is, the alleged detriment would not have arisen "but for" the employee having exercised one of the six actions under Section 27 (3).

The approach of the Labour Court in the case of Citizens Information Board v. John Curtis (HSD101) stated:

‘It is clear that, redress under the Act is only available where (a) an employee commits an act protected by subsection (3) of s.27, and (b) the employer imposes a detriment on the employee because of, or in retaliation for, having committed the protected act’’. The claim resting with the Complainant’s allegation of penalisation is without foundation as the employer did not impose a detriment on the employee because of,or in retaliation for, having committed the protected act’’. Accordingly, it is the Respondent’s position that there cannot be a causal link between a protected act and her entitlement to pay whilst on sick leave after exhausting the Company Sick Pay entitlement [the alleged penalisation]. Therefore, the claim under this legislation is without foundation.’

In the case of St. Anne’s Service Roscrea v Rose Maher, HSD084, it was submitted by the Respondent that the Complainant had exhausted all her entitlement under the Respondent’s sick pay scheme. Accordingly, her pay stopped. This had nothing to do with the complaints made by the Complainant. The Court determined the following in the decision;

“The Court is satisfied that no grounds have been submitted to substantiate her claim that the reason she was not paid her due entitlements under the sick pay scheme, was a retaliation attempt by the Respondent, thereby penalising her for invoking the Act. The Court is satisfied that in the circumstances of her absence, the Respondent operated the scheme in the appropriate manner. Having examined all the detail, the Court is of the view that there was no material delay nor other related difficulties, which could give rise to a complaint under the Act. During this period the external Investigator engaged by the Respondent conducted his investigation in as timely a fashion as was possible in all the circumstances and any delays in the completion of that investigation during that period were attributable to reasonable factors outside the control either of the external Investigator or the Respondent employer. Therefore, the Complainant’s allegation of penalisation on this ground must fail. “

Similarly, in this instant case, the Complainant’s entitlement to pay whilst on certified sick leave was paid in accordance with the Respondent’s Sick Pay Policy and was not an imposed detriment in retaliation to any complaints made by the Complainant.

In her submission to the WRC, the Complainant also makes references to delays in the complaints process. The Respondent sought to progress the matter as soon as was reasonably practicable. Notwithstanding the Respondent’s position that any complaints were dealt with in accordance with full and fair procedures, the Respondent wishes to refer the Adjudication Officer to the Labour Court case of St. John’s National School v Akduman (HSD102). In finding for the Respondent, the Court stated the following in their decision;

“While any delay in the investigation of a complaint of bullying is to be deprecated, the Court cannot, for the reasons set out in this Determination, hold that the Complainant was penalised within the statutory meaning of that term. Accordingly the appeal is disallowed and the Decision of the Rights Commissioner is affirmed.”

Accordingly, it is the Respondent’s position that there cannot therefore be a causal link between a protected act and the alleged penalisation and for the reasons set out above, the Respondent respectfully submits that this claim must fail.

Findings and Conclusions:

Section 27 of the Act prohibits an Employer from penalising an Employee for exercising their rights under the Act.  Simply put, this means that an employee cannot suffer a detriment for having made a complaint to the Employer in relation to his or her safety health and welfare at work or in retaliation for having committed a protected act.

In this instant case, the Complainant holds very strong views about her treatment by the Respondent.  She was critical from the start about how long the process of investigation took and the detrimental affect this had on her earnings which reduced to nil after the 20 days paid sick leave expired. 

The Labour Court on many occasions has found that there must be a causal link between the employee committing the ‘protected act’. i.e. making the complaint, and the detriment to the employee.  In Toni & Guy, the Court found that

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed  for “having committed one of the acts protected by subsection (3). Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act.This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

In this instant case, the Respondent’s strict application of their sick pay policy could be deemed to have been harsh on the Complainant and a reasonable employer may have come to some arrangement that did not involve the employee’s earnings being reduced to nil during the investigation time period.  It is understandable that the Complainant feels aggrieved and penalised.  However, the application of the policy cannot be judged to have been in retaliation for the Complainant having made her complaint.   For the reason that the Respondent did not reduce the Complainant’s pay in accordance with their sick leave policy in retaliation for having made a complaint or committed a protective act, I find the complaint to be not well founded. 

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint  in accordance with the relevant redress provisions under Schedule 6 of that Act.

Dated:   25/October/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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