Complainant

Respondent

Anonymised Parties

A Worker

A Pharmacy

Representatives

Amanda Kane, Mandate Trade Union

Judy McNamara IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00054570-006

17/01/2023

The Complainant commenced her employment with the Respondent on 17th October 2019 as a Customer Assistant. She was paid at a rate of €13.29 per hour and worked a 30 hour week, earning approximately €20,788 gross per annum.

She stated that she suffered from Chronic Post Traumatic Stress Disorder (PTSD) following a rape and that although the Respondent was aware of her disability, they discriminated against her and failed to make reasonable accommodations in respect of same.  She terminated her employment on 16th August 2022 by way of resignation.

In 2006, the Complainant was diagnosed with Mixed Anxiety, Depressive Disorder and Complex Post Traumatic Stress Disorder (PTSD), which resulted from being raped when three months pregnant. She has since then been under the care of her medical team headed up by her Consultant Psychiatrist. She stated that the Respondent has been aware of this since her commencement of employment.

On 16th June 2022, a dispute arose between the Store Manager, a colleague and the Complainant in relation to break times, which resulted in the Complainant being brought to the office and rebuked by both the Store Manager and the Assistant Store Manager.

The issue in dispute was that the Complainant did not go on her break on time due to another Staff Member returning late. The Manager accused the Complainant of disrespecting her, by accusing her of walking away from her and the Complainant putting her hands up to her. In the office, the Complainant became extremely stressed because she was instructed on numerous occasions to look the Manager in the eye when she was spoken to. The Complainant was also accused of being disrespectful to the Store Manager by putting her hands up/palms forward. The Complainant tried to explain that she uses her hands to express herself especially as she was suffering from anxiety. The Complainant left the office in a very distressed state.

Further to this incident, on 19 June 2022, the Complainant was rostered to work. When the Manager who was due to be off came into the store, the Complainant approached her and informed her that she had a letter for her. The Manager told the Complainant that she was not working and would take it the following day. The Manager turned to the Complainant in the middle of the shop floor and accused her of again being disrespectful to her. The Complainant became very upset and distressed, left the shop floor, put the letter in the Manager's office, went to the stockroom to try to compose herself. The Store Manager followed her into the stockroom and kept asking the Complainant "what are you crying for". The Store Manager did not have any consideration as to whether there were other staff members in the vicinity listening to the way the Complainant was being harassed. The Store Manager informed the Complainant that she was good with customers but not with management and that she had spent twenty minutes in the store listening to this that she would not get those twenty minutes back. The Store Manager turned and left the store leaving the Complainant in a very distressful state.

Due to the anxiety and distress, the Complainant went home and attended her doctor who certified her unfit to work on 24th July 2022, due to work related stress.

On 22 June 2022, the Complainant contacted the Area Manager to discuss what had happened regarding the incidents of 16 and 19 June 2022. The Area Manager responded on 23rd June, stating that she would arrange meeting between the Complainant and the Store Manager to resolve the matter informally.

The meeting took place on 28 June 2022. The Complainant told the Area Manager that she wanted to bring someone with her and was told she could not do so as it was an informal meeting. The Complainant was aware that the Store Manager would be attending but thought that she would meet the Area Manager first and maybe the Store Manager towards the end of the meeting if things went well. During the meeting, the Complainant was once again subjected to being instructed to look at the Store Manager this time by the Area Manager. The Complainant was also berated for contacting other stores looking for the Area Manager’s contact number. The meeting ended with the Complainant feeling traumatised. The Complainant stated that the meeting was intimidating with two senior Managers present and she was not given the opportunity to raise previous issues she had had with the Store Manager. She also stated that she felt the meeting was more about getting her back to work than resolving what had happened and the impact it was having on her.

The Complainant subsequently wrote to the Human Resources Operations Manager, on 6th July 2022 following on from a phone call with her. The Complainant set out what she felt was not addressed at the informal meeting of 30th June and stated that what had happened on 16th and 19th June was not addressed.

The Area Manager responded to the Complainant on 12th July expressing her disappointment in relation to how Complainant felt the meeting went and noting the Complainant's intention to continue to the formal process. The Complainant subsequently filed her Grievance and Dignity at Work complaint to the Area Manager once again outlining the incidents of 16th and 19th June, as well as her concerns in relation to the informal meeting of 28th June.

An Investigator was subsequently appointed and a meeting was arranged with the Complainant. At the meeting, the Complainant set out what had occurred on 16th June 2022, regarding the breaks and showed the meeting a text message from the Respondent that all staff received in relation to the rules of taking breaks. The Complainant was asked by the Investigator what led her to put up her hands. The Complainant explained that she did so because she talks with her hands especially when stressed and that she does not do so in a disrespectful way. The Complainant said she was very upset that she had been accused of being disrespectful resulting from her hand gestures. The Complainant informed the meeting of how she felt when she was instructed to look at the Store Manager, how intimidated and stressed she felt when the Store Manager pulled her chair near to her where she was standing and how she was focused on the window in the room as she could not look at the Manager due to her PTSD. The Complainant raised previous incidents with the Store Manager where she had raised her voice at her and had to apologise and other times when she shouted at the Complainant in front of customers and had to be told to calm down as her behaviour was upsetting her.

On 4 August 2022, the Complainant's psychiatrist wrote a letter for Complainant requesting that the Respondent transfer the Complainant to another store because it would be beneficial to her mental health.

It was highlighted, during the course of the meeting, with the Store Manager that the Investigator failed to ask any follow up questions relating to the Complainant's Mental Health History, failed to even ask a basic question such as, are you aware if she suffers from any other medical condition relating to mental health such as depression.

The investigation outcome was issued to the Complainant on 8 September 2022, approximately four weeks after the investigation started, and almost three months from the date of when the Complainant submitted her grievance on 12 June 2022. Although the Investigation Manager concluded that "there was a breakdown of communication between the Store Manager and the Complainant regarding breaks”, she failed to consider the recommendation made by the Complainant's doctor that the Respondent consider a transfer for her on the basis of her mental health.

On 16 August 2022, the Complainant gave notice of the termination of her employment and informed the Respondent that this was because of the stress that the grievance investigation was causing and the delay in bringing it to a conclusion. At the time of her resignation, the Complainant's grievance had been ongoing since 22nd June, almost two months, and the Complainant's mental health had deteriorated considerably as referenced in her psychiatrist's letter of 4th August, which was ignored.

The Complainant also highlighted that since she went out sick with work related stress to the date of her resignation, the Respondent at no time requested that she attend the Company Doctor or Occupational Health for an assessment of how she was coping and what could be done by them to improve the situation for her.

On 29 September 2022, the Complainant submitted her intent to appeal the investigation outcome. The Appeal Hearing took place on 25 October 2022. The decision was issued on 2 December 2022 and the outcome of the grievance was upheld.

The Respondent stated that the Complainant’s Store Manager raised concerns with the Complainant and a colleague on 16 June 2022, regarding both the taking of breaks and that both employees left the Healthcare counter in the store that day.

A few days after that incident, on 22nd June, the Complainant had a conversation with the Area Manager, arising from the incident of 16th June, as well as a subsequent discussion she had with Store Manager on 19 June 2022.

By email dated 22 June 2022, the Complainant set out the concerns in writing, describing a conversation regarding her daily break on 16th June which became an altercation between herself and the Store Manager, and that the Store Manager reprimanded the Complainant for behaving disrespectfully toward her. The Area Manager spoke with the Complainant by phone regarding her concerns and she explained the options available under the company Grievance and Dignity at Work Policy including an informal meeting. The Area Manager then responded to the Complainant’s email on 23 June 2022 inviting the Complainant to try to resolve the issue informally by meeting with herself and the Store Manager. An informal meeting subsequently took place on 30 June 2022 at which the Area Manager, the Store Manager and the Complainant were in attendance.

Although the Respondent believed that the matters were resolved at the informal meeting, the Complainant subsequently emailed her former Store Manager, outlining her dissatisfaction with the informal resolution provided by the Respondent.  The Complainant stated in this email that she felt that her feelings about the incident were not addressed, that she wasn’t allowed to raise other issues that had not been outlined in her email of 22 June 2022, and that she felt pressured into giving an expected return to work date.

Having learned of this, the Area Manager subsequently enquired whether the Complainant wished to pursue a grievance through a formal process, in line with the Respondent’s Grievance procedure The Respondent also outlined the support available to the Complainant through their Employee Wellbeing Service in this email. A formal Grievance letter was submitted by the Complainant two days later, on 14 July 2022. This document outlined that the Complainant had no issues with either colleagues or management prior to the alleged incident on 16 June 2022.

By email dated 27 July 2022 another manager, who had not been involved in the matter prior to this, issued an invitation to the Complainant to attend a formal Grievance meeting on 3 August 2022.

The Complainant attended the meeting as scheduled on 3 August 2022, with her representative. The Complainant named three witnesses to the incident on 16 June 2022 and advised that her preferred resolution would be for her to transfer to another store. The Investigator confirmed that she would make appropriate enquiries in this regard. The Complainant confirmed she was seeing a psychiatrist and could provide a letter from this consultant outlining that a change of workplace would be beneficial. The following day, 4th August, an email was received from the Complainant’s Consultant Psychologist, advising that ‘a change of workplace would be very beneficial for her as returning to the previous situation would cause a further decline in her mental health.

During the grievance meeting on 3 August 2022, the Complainant had identified a number of witnesses whom she believed had witnessed the alleged treatment that formed the basis for her grievances and on 12 August 2022, the Investigator met with all three of the named witnesses as part of her investigation. Two further witnesses named by the Complainant at the Grievance meeting were interviewed on 16 August 2022, namely the Assistant Store Manager and the Store Manager.

Under cover of an email dated 17th August, the Complainant furnished a letter dated 16th August, containing her written resignation. By way of reply, the Store Manager wrote back on the same date, 17th August, and asked the Complainant to reconsider her resignation, reassuring her that the Respondent wished to support her and to resolve the issues and concerns she had raised. The Store Manager noted in particular that the Complainant’s resignation was furnished during the course of an ongoing Grievance Investigation, at a time when an outcome had not yet been issued. The following day, 18th August, the Complainant reiterated her intention to resign her role with the Respondent page

Following a telephone conversation with the Store Manager on 19th August, the Complainant’s resignation was accepted. The initial findings by the Investigator following the Grievance process were furnished to the Complainant for comment. The initial report detailed the complaints submitted, the witnesses interviewed and culminated in the conclusion that there was a breakdown in communication between the Complainant and the Store Manager. The Investigator recommended formal mediation between the Complainant and her Line Manager. The Investigator also acknowledged the Complainant’s request to transfer to another store and her entitlement, as with all staff, to make such a request.

By letter dated 13th September, the Complainant responded with her comments on the report and essentially refuted the findings of the Investigator. She further alleged that she had been blocked on social media by staff members. The Investigator issued a very detailed final report on 27 September 2022. There were no findings to support the assertion that the Store Manager had any knowledge that the Complainant suffered from PTSD, or that this would cause her difficulty in making eye contact.

The Complainant was given the right to appeal the outcome. On 29 September 2022 the Complainant submitted her intent to appeal and subsequently contacted the Appeals Officer to request an extension of the time allowed to submit her grounds for appeal. This request was granted and on 6 October 2022 the Complainant submitted her grounds for appeal. The appeal meeting was arranged virtually on 25 October 2022. The appeal outcome letter was issued to the Complainant on 2 December and found that the Grievance outcome issued would be upheld. The Employee Assistance Programme was made available to the Complainant for an extended period of 3 months in order to offer her the opportunity to avail of its services.

Preliminary Matter

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015, provides as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The preliminary matter for determination is an application for an extension of time.

The Complainant lodged a complaint under the Act to the Workplace Relations Commission (WRC) on 17 January 2023. Therefore, the relevant period for consideration in assessing a contravention under the Act, having regard to the six-month statutory time frame set down at Section 41(6) of the Workplace Relations Act, 2015, is the period from 18 July 2022 to 17 January 2023.

Should I find a reasonable cause for the delay in lodging the claim, the timeframe for considering when a contravention occurred can be extended from six months to twelve months.

The established test for deciding if an extension of time can be granted for reasonable cause is that formulated in Labour Court Determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll.  The test was set out as follows:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

The burden of proof in establishing the existence of reasonable cause rests with the Complainant. To discharge that burden, the Complainant must both explain the delay and offer a justifiable excuse for the delay.  The Complainant must establish a causal connection between the reason for the delay and the failure to present the complaint in time. Finally, I must satisfy myself that the complaint would have been presented in time if not for the factors relied upon as reasonable cause. It is the actual delay that must be explained and justified.

I noted that the Complainant’s representative stated that the most recent act of discrimination was 30 June 2022 and that the Complainant was unable to present her complaint within the statutory 6-month period, namely in the period from 30 June 2022 to 29 December 2022, because of her very poor mental state over that period.

In deciding whether or not to allow the extension, I noted in the first instance that the WRC and the Labour Court have granted time extensions where health issues prevented a complaint from being made within the statutory period, as in Avoca Handweavers Limited v Carol Ann O’Keefe (EET146) A Sales Manager v. a Multinational Company (ADJ-00039112) and A Shift Manager v. A Fast Food Franchisee (ADJ-00000187). 

I also noted however that in her evidence, the Complainant’s consultant psychiatrist who had been treating her since late 2018/2019 was unable to explain why the Complainant was able to refer the complaint form on 17 January 2023 but could not do so at any stage in the statutory six month period, after the last alleged act of discrimination. Specifically, the consultant psychiatrist stated that the Complainant’s mental health appeared to improve in the period after she left the Respondent, namely after 16 August 2022. In addition, she asserted that the Complainant applied for a couple of jobs in the last few months of 2022. She further stated that she noticed no discernible difference between the Complainant’s mental health in the period around or prior to Christmas 2022, which was within the six-month time frame set out in the legislation or in January 2023, when she submitted the instant complaint to the WRC.

Based on the medical evidence presented to me by the consultant psychiatrist, as summarised above, I do not allow the Complainant’s application for an extension of time. I therefore find that I do not have jurisdiction to hear this complaint because the last alleged act of discrimination occurred on 30 June 2022 and her complaint was not referred to WRC until 17 January 2023, which is outside of the six-month time period set out in the legislation.  

 I find that I do not have jurisdiction to hear this complaint for the reasons set out above