ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046755
Parties:
| Complainant | Respondent |
Parties | Claire Ralph | Salvation Army |
Representatives | Self- represented | Beauchamps LLP. |
Complaint(s):
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-00057728-002 | 15/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00057728-003 | 15/07/2023 |
Date of Adjudication Hearing: 09/01/2024
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
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. I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The parties proceeded in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required.
I gave the parties an opportunity to be heard, to present evidence relevant to the complaints and to cross examine witnesses.
The respondent was represented by Beauchamps LLP. The respondent Head of HR and the respondent Regional Manager also attended.
The complainant was self-represented. She was accompanied by a fellow union colleague.
The respondent witness and the complainant gave evidence under affirmation.
Background:
The complainant has presented a complaint that the respondent penalized her contrary to section 27 of the Act of 2005 after she had presented complaints of bullying to the respondent in February and April 2023. The complainant has worked as a catering assistant with the respondent since 2/7/2014. Her gross weekly wage is €259. She works 20 hours a week. She submitted her complaint to the WRC on 15/7/2023. |
Summary of Complainant’s Case:
Request for an adjournment The complainant requested an adjournment as she had been unare of the respondent’s submission until the 8/1/24. The respondent stated that their submission is influenced by the paucity of specifics in the complainant’s complaint form, and the respondent’s understanding that the complainant was intent on withdrawing the complaint and committing to the internal grievance process which is in being. I considered the request but declined as the complainant’s submission was very meagre and was confined to her complaint form. Also, the respondent’s representative had just come on record. I offered the complainant an opportunity to read the submission or to take time as necessary to consider the respondent’s arguments. The hearing proceeded. CA-00057728-003 Complaint under Section 28 of the Safety, Health & Welfare at Work Act, 2005 The complainant withdrew this complaint as it is a duplicate of CA-00057728-002. CA-00057728-002 Complaint under Section 28 of the Safety, Health & Welfare at Work Act, 2005. Evidence of complainant given under affirmation The complainant works as a catering assistant in the respondent’s residential centre for persons suffering homelessness. She submits that she worked in an unsafe environment. She was required to work alongside unqualified agency staff, sent in to cook for the clients. The complainant states that she was working there for 12 years, cooking, without a cookery qualification, at the request of kitchen supervisor. She had been asked to make soup, spaghetti bolognese and roast beef, but also while doing her work as a catering assistant. She believes that this combined workload constitutes a hazard and compromises her health and safety. She refused to do the cooking since Christmas 2022. In March 2022, her trade union SIPTU asked that a cook be appointed. This did not happen. An unqualified assistant cook works in the kitchen. Aside from the risk to her health and safety, she has been subjected to needless criticism. In December 2022, the supervisor agreed that she could take a break for 5 minutes. When she returned the management told her that she was not allowed to leave the premises. She had been unaware of this rule. A second incident of bullying occurred when the manager gave her a verbal warning due to her late arrival at work; her son needed help on that date. The Head of HR told her that she would withdraw the warning, but she never got any letter confirming same. She submitted a complaint about the aforementioned incidents to the Regional Manager on 10/2/23. The Regional Manager responded on 22/2/23 offering apologies and asking the complainant how she wanted to proceed with her complaint. The complainant did not respond because by this stage she was obtaining legal advice. The complainant submitted a complaint of bullying in late March to the Regional Manager UK and Republic of Ireland. She received no response to that letter. As the complainant was unrepresented, I advised that a complaint under section 27 of the Act requires her to identify a detriment in accordance with the provisions of section 27 (3) of the Act of 2005 as opposed to any disregard on the respondent’s part for her complaint of bullying. The complainant stated that since 2014 she had been provided with 1-2 extra shifts a month, but that after her complaints in February and March 2023, she was reduced to one extra day a month. In addition, the respondent failed to offer her Sunday working which carried a premium of 1.75 an hour. She used the word bullying in her complaint submitted to the respondent under the grievance procedure. She received the Dignity at Work Policy eight weeks after she requested same Cross examination of complainant. The complainant confirmed that she sent a hard copy of her complaint to the respondent Senior Business Partner in the Belfast Office. She stated that she did not receive the five letters which he sent to her as they were sent via email, and she does not accept that she has access to the Salvation Army internal email system. She stated that her supervisor trained her in the use of the email. But she had previously told the complainant not to use it at home; access to it was only allowed in the workplace. The complainant did not respond to the assertion that she acknowledged receipt of an email from the respondent in May 2023. She refuted the suggestion that she deliberately chose to ignore the Senior Business Partner’s emails to her. Concerning her resignation in September 2023, she refuted the suggestion that she would only accept the respondent’s request for her to withdraw her resignation and return to work once in receipt of a cash payment from the respondent. Concerning the alleged reduction in extra hours which the complainant alleges was the detriment, the complainant states that she cannot be sure if she was offered extra hours on 10 and 11 January 2023. She confirmed that she was on leave from 13- 23 January 2023. She states she was called once and not 5 times with an offer of extra hours on 4/2/23. The complainant did not receive the invitation to return to work first sent via work email until four weeks after the meeting of 21/10/23. It was then sent to her personal email. She asks that her complaint be upheld. |
Summary of Respondent’s Case:
The respondent denies that they penalised the complainant. The respondent operates a Charity, assisting persons suffering temporary or permanent homelessness throughout Ireland and the UK. The complainant has failed to make out her case. The complainant was employed as a relief general catering assistant. In April 2023, the complainant sent a hard copy of her grievance to the Senior Business Partner in Belfast. The initial delay in responding to the complainant’s grievance was down to the fact that she sent it to an unmanned postal address which was a church. The Senior Business Partner sent five emails to the complainant in response to hers and got no reply. On 16/9/2022, the complainant submitted her resignation. On 21/10/22 SIPTU asked the respondent to accept a rescinding of the resignation, which they did. On 21/10/22, the HR invited the complainant to withdraw her resignation and return to work. All the matters complained of are the subject matter of an ongoing grievance process, so this claim is an abuse of process. It should not be before the WRC. A remedy is available within the Grievance Procedure. Amy detriment which may have occurred is entirely attributable to her own actions. Evidence of Head of HR for the Ireland Region given under affirmation. The witness works in Dublin and Belfast. The witness states that the initial grievance in April 2023 was sent to unmanned address, a church in Belfast. So, it could only be picked up during times of services. The Minister had to forward the grievance to HR in London who requested the witness to activate the grievance procedure. The Senior Business Partner in Belfast emailed the complainant on five occasions to start things moving. She received no reply to her efforts. The witness states that an employee is automatically set up on email upon commencement of their employment and are provided with an email address. She advised in reply to a question that she would need to check if all employees had received training in the use of the email. Computers are on site. The Senior Business Partner in Belfast got a read receipt from the complainant in December. The complainant resigned, unexpectedly, on the 16/9/20223. The respondent had been more than willing to engage with the complainant, who had not given the respondent an opportunity to address her concerns via the grievance procedure. The respondent offered the complaint an opportunity to withdraw her resignation. The witness refutes the complainant’s assertion that from April 2023 onwards the respondent withheld the extra hours previously offered to her as a result of her lodging a grievance. The complainant has a contractual obligation to work two days a week for 20 hours. The custom of offering her additional hours and Sunday work was undisturbed by the lodgement of her grievance. On 10 and 11 January 2023, the complainant refused extra hours. On 14/2/23 the respondent telephoned her 5 times to see if she was available to take on extra hours. She was not available. The complaint was on sick leave from 21/4--31/5/23. She did not offer the complainant additional hours in June 2023 as that is the norm when an employee returns from long term sick leave. Following the complaint’s withdrawal of her resignation, she returned to work on 30/11/2023. She was rostered for additional hours in December. Concerning the meeting called on 21/11/23 to encourage her to withdraw her resignation, the complainant failed to acknowledge that the Senior Business Partner in Belfast had sent her emails. At this meeting, the witness made it clear to the complainant that they wanted to deal with her grievance as she had not given them that opportunity. The witness not knowing that the complainant had secured alternative employment after her resignation on the 16/9/2023, and unaware, therefore, that the complainant had been in receipt of a salary, offered to recompense the complainant for what she believed to be a loss of salary for a period of two months (160 hours), plus 2 Sunday premia payments. The witness made it clear to the complainant that this offer of unpaid salary and a step-up payment where she had undertaken the duties of a cook was conditional on the complainant engaging with the respondent about the matters submitted in her grievance and withdrawing the complaint from the WRC which had been lodged the previous July. The complainant happily accepted the money but on the withdrawal of the complaint from the WRC, the complainant asked the witness to pay her legal and other costs. The witness asked her to furnish the receipts for the legal and other costs, but she never got those details. The witness understood that the complainant had agreed to withdraw her complaint from the WRC. The witness asked the complainant to confirm that she had withdrawn the complaint. Her representative was no longer representing her. She paid her the money ( 160 hours and two Sunday premia payments) before Christmas so that she would not be financially disadvantaged, not knowing that she had been earning a salary in another job while not working for 2 months with the respondent. An investigation into the complainant’s complaints commenced in December; a report issued to the complainant as to whether she wished to add or subtract any detail; she did not respond. The complainant finally emailed her on 2/1/24 seeking €2000 in legal costs and €3000 in compensation. The respondent is a charity and must comply with the struct guidelines issued by Charities Regulator re expenditure. Furnishing receipts for costs claimed is imperative. These receipts were never supplied to the respondent. Legal authorities. The respondent relies on the case of Toni & Guy Blackrock Limited -v- Paul O’Neill HSD095 where the Labour Court determined that the employee must prove on the balance of probabilities that he/she made complaints regarding health and safety in the workplace and such complaints resulted in him/her being penalised in the workplace. The respondent submits that the complainant has failed to make out her case and her complaint should not be upheld.
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Findings and Conclusions:
I am required to establish if the complainant was penalised contrary to section 27(3) of the Act for having raised concerns about her health and safety, manifested in the instant case as complaints of bullying. Relevant Law. Section 27 of the Act of 2005 provides 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) n/a (e) n/a (f n/a
(5) n/a”
The Act makes clear that in order to succeed in a claim of penalisation, the complainant must demonstrate that she has (a) committed a protected act, (b) suffered a detriment within the meaning of section 27, and (c) can show a causal connection between (a) and (b). The protections provided against penalisation which the complainant invokes can only arise where the complainant had committed a protected act prior to the penalisation occurring. What was the protected act? The complainant identified a number of protected acts; she submitted a complaint to the Regional Manager on 10/2/2023 concerning what she considered to be bullying behaviour which included an unwarranted verbal warning by her immediate supervisor. The next protected act is the lodgement of a grievance, again citing bullying, to the Senior Business Partner on in April 2023. She heard nothing back. Hence the evidence indicates that the complainant did commit a protected act and satisfies the first limb of the test described above. The detriment identified by the complainant. The respondent reduced the number extra shifts and Sunday work resulting in a loss of income contrary to section 27(2)(c) of the Act. I find that her evidence fails to bear this out. Other than for a generalisation, the complainant offered no specifics as to the number of extra shifts worked before or after the lodgement of her complaints of bullying. She did not contest the respondent’s evidence which showed an unaltered provision of extra shifts in January 2023(she refused extra shifts on 10 and 11 January) unavailability on 14 /2/23 to take on extra hours, absence due to sick leave from 21/4-31/5/23, an offer on 23 /7 /23, a Sunday, of a 10-hour shift, an offer on 26/7/2023, of an extra 10-hour shift, two extra 10-hour shifts in August 2023, one of which was a Sunday. She resigned on 16/9 /23. Following the respondent’s offer to her to withdraw her resignation and the complaint’s withdrawal of her resignation, she returned to work in 30/11/2023.She was rostered for additional hours in December. The focus in this investigation must be narrow. Was a protective act invoked? Was it followed by a detriment? In Patrick Kelly t/a Western Insulation v Algirdas Girdsius (HSD081), where the complainant asserted that the failure to provide him with health and safety training resulted in an injury, the Labour Court stated: “It is clear from a plain reading of subsection (3) of this section that penalisation is rendered unlawful under the Act when it is perpetrated on an employee for having performed or committed one or more of the acts referred to in the succeeding paragraphs of that subsection. Thus, it is perfectly plain that in order to succeed in a cause of action grounded on the Section a Claimant must establish not only that he/she suffered a detriment of a type referred to at subsection (1) but that the detriment was imposed because of, or was in retaliation for, the employee having acted in a manner referred to at subsection (2). In the instant case the Court makes no finding in relation to the alleged contraventions of the Act referred to by the representative of the Claimant. If there were any such contraventions the remedy is provided elsewhere in the Act and does not come within the jurisdiction of this Court. There is, however, no evidence of any kind to establish any causal connection between the alleged omissions relied upon and any act on the part of the Claimant of a type referred to at subsection (3)”. The Labour Court found the complaint to be misconceived. In the instant case, the complainant has failed in her evidence to satisfy the requirement to show that she suffered a detriment. That she was unhappy with the pace of the response to her complaint does not fall within the range of responses to a protected act set out in section 27(3), and considered to constitute a detriment. I find the complaint to be misconceived. |
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.
I do not find this complaint to be well founded. |
Dated: 25/04/2024
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Alleged penalisation; lack of evidence of detriment |