ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00038974
Parties:
| Complainant | Respondent |
Parties | Michelle Spellissy | Legal Aid Board |
Representatives | Darragh McNamara BL and Andrew Robinson BL instructed by Sean Costello & Co. Solicitors | MP Guinness BL instructed by Holmes O'Malley Sexton Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00049815-001 | 22/04/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00049815-002 | 22/04/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00050221-001 | 03/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00049815-003 | 22/04/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00051986-001 | 29/07/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00052708-001 | 08/09/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00054164-001 | 16/12/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00054315-001 | 30/12/2022 |
Date of Adjudication Hearing: 06/09/2023
Workplace Relations Commission Adjudication Officer: David James Murphy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
Background:
The Complainant is a solicitor working for the Respondent’s Portlaoise office.
She is a grade 3 solicitor providing legal advice and representation on behalf of the Respondent. She works in the Respondent’s Portlaoise office and has a significant case load. The Complainant reports to a grade 2/ managing solicitor who heads up the Portlaoise office.
On the 2nd of February 2022 the Complainant raised a number of issues via the Respondent’s Performance Management System. These had to do with a ventilation fan which affected her working environment and low staffing in the centre.
On the 14th of March 2022 the Complainant raised a separate issue which was that she kept getting shocks in the office when she opened a window or touched a filing cabinet. The Respondent later arranged an electrician to attend her office and it was deemed that these were static shocks.
The following day the Complainant received an email from people point, the public service shared HR function, alleging that she had been absent without authorisation. At the time the Complainant and her managing solicitor had been going back and forward on a day the Complainant went to Dublin to take and Irish exam. This matter then progressed into the disciplinary process.
The Complainant alleges that the referral for unauthorised absence and the subsequent referral to the disciplinary process were penalisation for her having raised the earlier issues with were disclosures under the Protected Disclosures Act and the Health Safety and Welfare at Work Act.
The Complainant was deducted a day of pay for the day she attended the exam and submits that this was a breach of the Payment of Wages Act.
Case Management
On the first day of hearing the Complainant withdrew the following complaints.
CA-00050221-001
CA-00049815-003
CA-00052708-001
CA-00054164-001
CA-00054315-001
As such the following complaints were heard and are considered in this decision.
CA-00049815-001 under the Protected Disclosures Act, 2014
CA-00049815-002 under the Payment of Wages Act, 1991
CA-00051986-001 under the Safety, Health & Welfare at Work Act, 2005
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Summary of Complainant’s Case:
The Complainant attended the hearing and gave evidence. Her solicitor submitted detailed written submissions and her barrister made oral submissions on her behalf. The Evidence of the Complainant The Complainant was admitted to the roll of solicitors in 2007. She worked in private practice and the chief state solicitors before joining the Respondent in 2016. She initially worked under a temporary contract and was made permanent in 2018. On the 2nd of February 2022 she submitted her performance management (“PMDS”) feedback as part of the Respondent’s PR process. At the time there was an ongoing issue with the Complainant’s office. The Portlaoise office is located in a mix use commercial retail building. Their offices are on the second floor. A takeaway restaurant is located in an adjoining single story part of that building. The Complainant’s office looks out onto the roof of this restaurant where there is a ventilation fan. This fan was extremely noisy when turned on and vibrations from the fan would travel into the Complainant’s office. This gave the Complainant’s headaches and created difficulty for her concentrating. The fan was on from noon and created great difficulties for the Complainant in completing her work. She never sought medical attention at the time as she knew that the fan was the cause of the headaches. She was working from home when she could on a 60/40 split. The Complainant flagged this issue in her PMDS report. Around the same time the staff in the centre reduced. A part time clerical officer retired. Another part time clerical officer left and another grade 3 solicitor was transferred. The Complainant was concerned about getting the staffing and in particular that she would be asked to cover her colleague’s caseload, which was already high. As such she referred to this in her PMDS report also. On the 7th of February the Complainant received details for an upcoming Irish language exam she was due to sit in Dublin. She had applied to the course in August 2021 and been approved to do the course in September 2021. She had completed an exam in 2021 already and had done so with her manager’s knowledge. The Complainant updated the Respondent’s shared calendar, which they use for court dates and other availability issues, that she was going to be taking an exam on the 18th of February 2022. On the 16th of February her manager emailed her looking to meet to discuss her PMDS. She suggested the 17th which the Complainant had taken for annual leave. The meeting was then scheduled for the 24th . On the 18th of February the Complainant went up to Dublin for the exam. She left home at 9am. She did the exam at 12.30 and then took a lunch break and went home. She considered herself working all day as she was attending the exam. She did not take her laptop but took her phone, if there was anything urgent should could be called. She went home and logged on for about and hour at 5.20pm. When she logged on she discovered an email from her manager who had tried to get in touch with her that day but had received her Out of Office. The manager noted her surprise at seeing the exam in the diary and that the Complainant hadn’t booked any leave and asked her to clarify the position. The Complainant emailed her manager back. The Complainant went into work early on the 21st of February to catch up. She had her PMDS meeting with her manager later that day. They discussed the exam and the manager outlined the view that she should have applied through the study leave policy. The Complainant was unaware of the policy and felt she could have really used it considering she had taken annual leave to study. Her manager told her she needed to apply through learning and development (“L and D”). The Complainant was confused by this as L and D had paid for and approved the course. The course was obviously beneficial as there is a wider public service strategy to expand the numbers of Irish speakers in the public service. She had previously attended an exam and her manager had even covered her that day and attended court to cover for her. The exam in February 2022 was for the same course but a higher level. She did what she had done in the past and what she believed was correct. Only in February 2022 she received a very different response. She was told she needed to take a half day’s annual leave for the day in Dublin and this was her last half day. She did not believe this was fair as she was not just working that day but essentially working overtime. None of her clients were adversely affected and it was a benefit to the public service. She doesn’t think her manager was aware of any procedure either. On the 14th of March the Complainant emailed her manager about the shocks she was receiving in the office. These did not cause her pain, but they were uncomfortable. She would receive shocks when she opened the window or the filing cabinet. It seemed like static, but she had been there for a year and had never noticed it before. Her manager gave her approval to contact facilities about it and they sent an electrician. After this the Complainant’s manager opened a case with people point stating that the Complainant had an unscheduled absence. The Complainant challenged this. The Complainant PMDS was completed on the 21st of March 2022 for the year 2021. This referred to an unauthorised absence. The matter was then referred into the disciplinary process in April. This has extremely serious implications for the Complainant and while this process is in train it limits her ability to get promotions or transfers. The Respondent initially proposed that her manager hear the disciplinary, but she was obviously conflicted and the Complainant objected. The Respondent proceeded to deduct her a day’s pay totalling €123.50. This was before any disciplinary process had concluded. The Complainant submitted an internal grievance and the first tranche of WRC complaints in April 2022. The Respondent paused the disciplinary process. Cross examination of the Complainant The Complainant did not apply for annual leave to attend the exam. She did not inform her manager directly about the exam. She had previously raised the issue of the ventilation fan on the 10th of November 2021. Her email refers to the ventilation system being loud and causing vibrations. She raised the issue on the 23rd of December 2021 and 29th of December 2021. She accepts that the Irish exam was not compulsory but it was encouraged as per government strategy. The previous exam took place in 28th of August 2021 in Dublin. She didn’t take annual leave nor directly inform her manager that time either. The Irish lessons were held online. When she was notified about the exam she shared it in the diary but did not put in that it was in Dublin nor in person. But she believes everyone was aware she was doing the exam. Generally, there wouldn’t be a culture of asking permission and notifying managers. She could usually just get on with her job. She was of the view that she had approval to do the course and therefore everything to go with it. On the day of the exam she returned home 10 minutes before close of business and worked for an hour and 10 minutes. On the 23rd of February she contacted L and D, advised to apply for study leave through people point and retrospectively applied for study leave. On the 7th of March L and D approved a half a day study leave and exam leave. On the 8th of March the Complainant’s manager asked her to apply for study leave for the morning of the exam and annual leave for the afternoon and outlined that the Complainant needed to discuss such leave with her beforehand. The Complainant disputes that this was reasonable. She returned to work at 5.20pm and worked in the afternoon. Ultimately, she made up the time. The Complainant believes her manager is arguing she should be working for nothing for that though accepts that she mostly studied and attended the exam. The requirement to apply for annual leave was in her view discretionary. The Complainant believes she was penalised by way of negative Performance Review comments, deduction of pay and being invited to a disciplinary hearing. She accepts she received an overall rating of satisfactory, but she is not happy with the commentary which refers to unauthorised absence. These issues occurred in 2022 not 2021 which the PMDS was for. The Complainant appealed the PMDS but was told she could only appeal the rating and not the commentary. It was put to the Complainant that the office was busy and that attending an exam in Dublin might not be the best use of time. The Complainant’s position is that the exam was compulsory because of the course, and the Respondent had approved and paid for the course. Redirect The Complainant followed the exact same procedure in 2021 and 2022. The only difference was that in between she had raised the health and safety concerns. She often works overtime. |
Summary of Respondent’s Case:
The Respondent’s solicitor submitted detailed written submissions ahead of the hearing and their barrister made further oral submissions on their behalf. Mr Andrew Field attend the hearing and gave evidence on affirmation on behalf of the Respondent. Mr Field is Assistant Director HR . All policies HR policies are readily available to staff and are in the staff handbook. These include the policies for applying for leave, getting approval for specific courses, further education, mobility within the civil service. CPD is run separately from these voluntary policies and is obligatory. Where a staff member is approved for a course, they need to make an application. The Protected Disclosures policy is also readily available and the Complainant did not raise a Protected Disclosure. The annual PR management system (“PMDS”) is not the route staff should take to raise a Protected Disclosure. A narrative accompanies a member of staff’s rating, which is either satisfactory or unsatisfactory. Mr Field does no believe a narrative can be appealed, only a rating. However if there are issues the Respondent will bring in a more senior manager to facilitate the next year’s PMDS. Where someone has been absent without leave then that is considered an unauthorised absence. The appropriate process is to notify people point. He does not accept that just because no issue was identified when the Complainant previously went to an exam in 2021, that there was implicit approval for a further absence. He referred to the Respondent’s policies, specifically where it states that If a staff member does not attend work then they are deemed to be unauthorised absence. Cross Examination of Mr Field It was put to Mr Field that neither the Complainant nor her manager were aware of the policy. He is of the view that these are still the policies in place. It was pointed out that authorisation to make deductions from pay is not in the staff handbook. Mr Field outlined that the information would be in all of the HR resources available to the Complainant combined. These include, people point, circulars as well as contract and staff handbook. It was put to Mr Field that if there was a dispute as to the application of the policies then this should be resolved before deducting pay. Mr Field referred to the disciplinary process. Redirect of Mr Field Mr Field confirmed that the staff portal and NSSO are available to all staff. He is of the view that the of deduction of pay is a separate issue of disciplinary. |
Findings and Conclusions:
Offer of Employment in Other Centre An issue arose in the course of the hearing which I heard evidence on, but I ultimately do not think was relevant. That was that just before the resumed hearing the Complainant received an offer to work in a different legal centre operated by the Respondent. The reason for the offer was that her place on an external panel had come up. The deadline for her to reply to the offer was the time and date of the hearing. It was suggested that this was not coincidental and was an attempt on the part of the Respondent to resolve the matter via a transfer if the Complainant withdrew her case. Aside from the evidence that the Respondent provided in the hearing, namely that of Ms O’Sullivan, I note that the Complainant is legally represented. If the Respondent wanted to offer to settle her complaints in exchange for a transfer, they could have done so by way of a without prejudice communication. They would not need to resort such antics. The Protected Disclosures Act, 2014 and under the Safety, Health & Welfare at Work Act, 2005 CA-00049815-001 and CA-00051986-001 concern two parallel complaints of penalisation. The Complainant raised the following issues with the Respondent in early 2022. On the 2nd of February 2022 she submitted comments in the PMDS system which complained of a ventilation fan which affected her working environment as well as staffing issues.
On the 14th of March 2022 the Complainant emailed her manager to say that she kept getting shocks in the office when she opened a window or touched a filing cabinet.
The Complainant alleges that these communications constituted protected disclosures as protected by the Protected Disclosures Act and complaints or representations as regards to matter relating to safety, health or welfare at work, as protected by the Safety Heath and Welfare at Work Act. The Complainant further alleges that as a result of raising these issues she suffered a detriment in that she was deducted a day’s pay, had a negative narrative associated with her performance review (“PMDS”) which mentioned unauthorised leave and referred to the disciplinary process. As outlined in the legal submissions made in the hearing and in writing, the definition of the type of communications protected under these two acts is extremely wide. Particularly so in the case of the 2014 act, following the decision of the Supreme Court in Baranya v Rosderra Irish Meats Group Ltd. In determining such a case I believe it is prudent to work back to front. That is first determine whether the Complainant suffered a detrimental action on which a case for penalisation could be based. If so, then determine whether detrimental action was in retaliation for the communications cited as disclosures, complaints or representations as protected by these acts. Only then, when those two steps have been satisfied, determine whether that those communications were in fact disclosures, complaints or representations protected by these acts. 1. Detriment The Complainant was deducted a day’s pay totalling €123.50. Her 2021 PMDS made reference to an unauthorised absence. It is important to note that the Respondent seems to treat the narrative comments attached to a PMDS as written in indelible ink and cannot be appealed or altered. While this is not an incredibly serious comment it is a negative one which remains on the Complainant’s record. The Complainant was also referred into a disciplinary hearing. While this did not progress and has not resulted in any outcome the referral itself is detrimental particularly as according to the Complainant’s evidence, the state of being in a disciplinary process itself could affect her ability for promotion or internal transfer. I am satisfied that the above actions could be consider detrimental and could be the basis for a claim of penalisation if related to either a protected disclosure or complaint or representation regarding health and safety. 2. Causation As outlined in evidence the Complainant was due to attend an exam on the 18th of February 2022. Her manager didn’t know about that the exam would require a full day’s absence. She had emailed the Complainant that day and was surprised to get an autoreply. The Complainant and her manager had the following exchange by email. “Michelle, l just sent you an email and got an out of office message, I don’t see that you have leave in for today I see you have an Irish test in the shared diary , can you let me know the position? Thanks Katie” “Hi Katie, Yes I had an lrish Test today in Dublin. I didn't have access to my email, this is why I put on the notification on in case someone sent me an email in relation to something important. Regards, Michelle Spellissy” The Complainant and her manager discussed the issue at her PMDS meeting the following Monday the 21st and the Complainant’s manager outlined that she she should have applied through the study leave policy. There was then engagement between the Complainant, her manager and the HR to determine what the day she attend the exam should be treated as. The Complainant’s manager asked her to apply for study leave for half of the day and annual leave for the other half as per the Respondent’s policy. The Complainant refused and the manager proceeded to flag the day as an unauthorised absence. As a result of this action the Complainant was referred to the disciplinary process for being absent. On the 1st of April HR wrote to the Complainant to let her know that they were treated the 18th of February as an unpaid day and her payment of that day as an overpayment. They deducted the €123.50 from her pay on the 8th of April. The Complainant’s manager further noted the unauthorised absence in her PMDS narrative. This read: Unauthorised absence 18 February- I became aware of this when I sent an email to MS and got an out of office message saying back on 21 February. MS had travelled to Dublin to do an Irish exam. I was aware of an entry in the shared diary marked 'lrish Test 2.15pm' and assumed this was an online test as all classes were online. MS did not contact me seeking authority to attend.The email exchange that followed was argumentative. I note when setting up the 'in person' epntds meeting around the 16th February , MS emailed me saying she was on leave on 17th and working from home but did not mention her Irish test on the 18th. I have made an application to People point for UA and am going to follow this with the disciplinary process. On the 2nd of February the Complainant had raised the issue of the ventilation fan beside her office and staffing levels. This was done via her PMDS feedback. On the 14th of March the Complainant emailed her manager asking could she escalate the issues she had around receiving, what were in hindsight static, shocks in the office. The Complainant’s manager referred her to facilities and they sent out an electrician. The Complainant’s position is that these communications, rather than the dispute with her manager regarding her exam attendance the 18th of February, were the cause of the deduction of her pay, the comments of her manager in the PMDS and the referral to the disciplinary process. Penalisation in the workplace, by its nature, can occur discreetly and indirectly. A manager has many points of interaction with their subordinate and if they are trying to penalise them, they can do so under the guise of some apparently unrelated matter. My role is to reasonably interpret the facts before me while being alive to this possibility. On review of the facts available, I do not accept that the Complainant treatment was in retaliation for the issues she communicated in her PMDS and the subsequent email. There is no evidence that the Complainant’s manager, or anyone at the Respondent particularly cared about the issues she was reporting, which were presumably the role of facilities to solve, rather than the managing solicitor. Even if it was her manager’s role to solve these issues, I note the Respondent did seem to act on the Complainant’s requests and facilitate an electrician to inspect her office and also solved the issue with the vent. The Complainant completed an exam in late 2021 without issue, she has inferred that the difference in how the Respondent reacted in 2022 is because of these communications. In the circumstances I don’t think that is a reasonable conclusion to draw. Once her manager discovered she was in Dublin on the 18th there was clearly a dispute on the issue of how this leave was to be dealt with. Her manager proposed a course of action to satisfy the Respondent’s policies on leave and the Complainant refused to follow this proposal as she did not deem it fair. This would seem to be the logical source of the issues between the parties and the cause of the exam being treated as an unauthorised absence. As the cause of the detriment the Complainant suffered is unrelated to her alleged protected disclosure or complaint or representation regarding health and safety, I will not consider those issues further and make no findings on whether the communications the Complainant has referred to were protected by either act. Payment of Wages Act CA-00049815-002 concerns the deduction of the Complainant’s salary of €123.50. As outlined already the Complainant had been paid for the 18th of February during that pay period. Subsequently a dispute arose between her and her manager whether she was absent on that day and the Respondent made a deduction from her salary on the 8th of April. Section 5(1) of the act provides that An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it. The Respondent cited civil service Circular 07 /2018 as their authority for deducting her salary at the time of deduction. Where a staff member takes unplanned unpaid leave, unpaid leave at short notice, or exceeds the staff members access to self-certified sick leave, the full amount of the consequent overpayment will be recouped from the staff member's salary at the first available opportunity. Where the amount owed to the Exchequer exceeds the staff member's gross salary, deductions wilt be made from gross salary on all subsequent pay dates until the amount is fully repaid. Leaving aside for a moment the questions as whether this circular formed a part of the Complainant’s contract or was an instrument made under statute, at the time of the deduction there was clearly a dispute between the Complainant and her manager as to whether she was in fact absent unauthorised. The Complainant had spent the day in question attending an exam for a course she was pursuing via the Respondent’s learning and development supports. She was unaware she could get study leave and had taken previous study days as annual leave. Her manager also appears to have been unaware of the policies. When she was applying for the course and getting approval, she clearly was not told about how the Respondent wanted her to treat exams or study time. This issue was unresolved, yet the Respondent moved automatically to deduct pay from the Complainant’s salary. I am of the view that as the Complainant was challenging whether or not she was absent from work the Respondent should have first determined properly whether or not that was the case before applying the above circular. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00049815-001 The complaint is not well founded. CA-00051986-001 The complaint is not well founded. CA-00049815-002 The complaint is well founded and I direct the Respondent to pay the Complainant €123.50. |
Dated: 11th of January 2024
Workplace Relations Commission Adjudication Officer: David James Murphy
Key Words:
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