HSD239

Appeal of Adjudication Officer Decision No's: ADJ-00039446 (CA-00051086-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 14 April 2023 in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts, 2005 to 2014.  A Labour Court hearing took place on 4 October 2023.

The following is the Decision of the Court:

DETERMINATION:

This is an appeal by Breda Kelleher (the Complainant) against a Decision of an Adjudication Officer (ADJ-00039446, dated 15 March 2023) under the Safety, Health and Welfare at Work Act 2005 (the 2005 Act) against her former employer LXV Remedies Holdings Limited t/a Sam McCauley Chemists. The Adjudication Officer found that the complaint was not well founded.

Factual Background

The origin of this complaint goes back to 2009 when the Complainant, who worked as an OTC (Over the Counter) Assistant in the Respondent’s Midleton pharmacy, lodged a formal complaint of bullying by a colleague. The complaint was upheld. The colleague (who is referred to as Person A in this decision) was issued with a disciplinary sanction and transferred to work in a branch at another location. The Complainant continued to work at the Midleton pharmacy without further incident.

The Complainant was absent through illness for an extended period from October 2017 until 31 July 2021. Before returning to work the Complainant became aware that Person A was re-assigned to work in the Midleton pharmacy.  She raised concerns about that matter with the Respondent and referred to an agreement reached in 2009 that Person A would not work in the Midleton pharmacy so long as the Complainant remained employed at that location.  The Respondent could find no evidence of an agreement.

The Complainant did not return to work initially, although certified fit to do so, and there followed a series of engagements between the parties to address the Complainant’s concerns.  Ultimately, the Complainant resigned her employment on 24 January 2022.

The Complainant asserts that she suffered penalisation for raising concerns about her health and safety in the workplace. The Respondent rejects that assertion.

Position of the Complainant

The Complainant had genuine concerns about her health and safety on returning to work. Notwithstanding assurances given to her in 2009, she was forced by the Respondent to concede safeguards to her wellbeing. The Complainant was penalised for making a protected act. The detriments that she suffered included, the transfer of duties, loss of pay, denial of due process, coercion and intimidation, and ultimately constructive dismissal.

The Complainant refutes that she was afforded reasonable accommodation or that the Respondent acted with due regard to their duty of care to her. The employee was stymied at every turn. She should not be penalised because the 2009 agreement was not set down in writing. The Respondent cannot rely on a change of ownership to assert that it had no records of that agreement other than the warning letter issued to Person A. The lack of a file does not absolve the Respondent of its obligations regarding health and safety. The Respondent knew that assurances were given to the Complainant in 2009 or at the very least that a complaint was made.

Business needs cannot trump an entitlement to a safe place of work and peace of mind.  It is entirely within the gift of the Respondent to decide where Person A should work. The Respondent’s assertion that it needed to retain a pharmacist in the Midleton branch does not justify any of the penalisations suffered by the Complainant for making a protected act. The actions of the Respondent in this case cannot be justified by business needs.

The raison d’etre for Section 27 of the Act is to protect and encourage employees to feel safeguarded by law to allow them raise health and safety issue including bullying and harassment. A failure to protect an employee against bullying and harassment where the fact of bullying is already established does not allow an Employer to resile from its obligations under the Act.

Position of the Respondent

The Complainant was absent from work for an extended period due to illness. On her return to work, the Complainant informed the Respondent that, given her past difficulties with Person A some 12 years previously, she was unable to return to work. During the pandemic Person A was assigned to the Midleton pharmacy for operational reasons as there was a requirement for a pharmacist there.

The Complainant referred to a commitment given that she would never have to work at the same location as Person A.  The Respondent has no evidence of such an agreement but confirmed that it was willing to assist the Complainant in returning to work.

The Respondent proposed that the Complainant’s working time with Person A be minimised by working different shifts, being rostered for different days, scheduling staggered starts and early finish times to ensure no cross-over at shift changes. The Complainant refused to consider any solution that envisaged Person A working at the Midleton pharmacy.

The Respondent confirmed that it would continue to pay the Complainant until the issue was resolved, notwithstanding the fact that her entitlement to sick pay had expired.

In the following weeks the parties engaged with a view to arriving at a resolution that would be satisfactory to all. The parties undertook a mediation process, The Complainant unilaterally terminated the mediation on 30 September 2021.

In October 2021 the Complainant instigated a grievance alleging that there was a binding commitment since 2009 that Person A would never work in the Midleton pharmacy so long as the Complainant remained employed at that location. The Respondent committed to progress the Complainant’s grievance upon her return to work. The Complainant returned to work at the Mahon branch on a temporary basis to allow for the progression of her grievance.

A HR Business Partner who recently joined the company and had no prior knowledge of the facts was appointed to investigate the Complainant’s grievance. The grievance was not upheld, as the accommodations proposed were found to be reasonable solutions that would obviate the need for the Complainant and Person A to work together. The Complainant rejected that outcome. She objected to continuing to work at the Mahon location, stating that her place of work was Midleton.

The Complainant was advised that she would be rostered at Mahon pending an agreed transfer. As the Complainant did not attend for work, she was not paid. However, she was paid for three shifts by mistake on 10, 11 and 12 December 2021. The Respondent did not seek to recoup these monies.

On 11 January 2022 the Complainant agreed to return to work at Midleton branch under protest provided certain pre-conditions were met. The Respondent could not agree to the Complainant’s demands that she only work Monday to Wednesday, however, the Respondent guaranteed that the Complainant and Person A would never be rostered to work on the same shift, or even on the same day.

The Complainant resigned her employment by letter on 24 January 2022.  The Respondent replied asking the Complainant to reconsider her resignation. The Complainant did not withdraw her resignation and stated that she would be making a complaint pursuant to s.27 of the Safety, Health & Welfare at Work Act, 2005.

The Respondent responded with empathy, flexibility, and financial generosity to the Complainant’s concerns. The decision to move Person A to the Midleton branch was based on the operational needs of the Respondent and nothing else. The Complainant was offered different proposed solutions to address her concerns. She rejected all proposed solutions.

The Complainant accepted at the Workplace Relation Commission hearing that she did not make a protected act; that admission disposes of her claim under the Act. None of its interactions with the Complainant fall within the definition of “penalisation” set out in s.27. The Complainant suffered no detriment from any actions of the Respondent. Moreover, none of the Respondent’s actions toward the Complainant were motivated in any way by a desire to penalise her for exercising any statutory right under the 2005 Act.

Testimony of Breda Kelleher – Complainant

The Complainant told the Court that in June 2021 she contacted her line manager Sean Maher about returning to work following an extended period of sick leave. She raised concerns about Person A working in the Midleton branch. He said that he would contact HR, but she heard nothing back.

In August she notified HR of her concerns about working in the same location as Person A and asked that an agreement concluded in 2019 be located on her file, as she wanted that agreement honoured. Having investigated the matter, she was told there was no agreement on her employee file.

On 25 August 2021 she emailed the Chief Operating Officer expressing her concerns that there was an unwillingness or inability to implement the terms of the 2009 agreement. On 27 August 2021 HR wrote to her and reiterated the same proposals made to her on 13 August, i.e., she could work alternate shifts to Person A with a ten-minute gap between the shifts to ensure their paths did not cross, or alternatively she could work on different days to Person A.

In September 2021 she agreed to attend mediation. Mediation was not a success. She saw Person A on the laneway near where she lived and felt that her concerns were well founded.

In October 2021 the Complainant lodged a formal grievance about the Respondent ignoring her concerns about bullying and harassment and breaching the terms of a resolution accepted by her 2009.  HR advised they would look at her grievance when she returned to work, and that her pay would cease unless she returned to work.

She agreed to return to work but was subsequently advised that she could not return on the agreed day as she needed to complete Covid training. She went to the pharmacy on that day to pay into the lotto syndicate, she saw that Person A was working there.  She queried how she was rostered with Person A on the same day that she was due to return to work.

She agreed to return to work in the Mahon branch for a two-week period, to give her employer an opportunity to investigate matters.  The outcome of that investigation was that she was given the option of working in Mahon Point or Douglas, or alternatively returning to Midleton.

She was told that she was paid in error Christmas week.  She was told to consider her position over Christmas.

In January 2022 she agreed to return to work in Midleton provided certain conditions were met. The conditions included that she work Monday to Wednesday, and that Person A was not allowed into the store whenever she worked. HR came back to say that the option of working Monday – Wednesday was no longer available, and that she could raise a grievance if unhappy about that decision.

She felt that there was no desire to facilitate her return to work. She had no option but to resign. She was penalised for making a complaint. Her pay was stopped, she was transferred to another store, and her shifts were changed.

Under cross examination, the Complainant accepted that her contract of employment stated that the company reserves the right at any time to transfer her to any other branch, where your services are required.

She acknowledged that she continued to be paid from August to December 2021, although she only attended work for a two-week period during that time. She accepted that her pay was stopped in December because she refused to return to work. She acknowledged that her reason for requesting set working days was due to childcare issues rather than health and safety concerns, and that it was agreed that she would return to work on a three-day week basis initially. She said that she did not instigate a further grievance before resigning as she did not want to deal with the matter anymore.

The Complainant said she that she did not understand what the term ‘protected act’ meant when asked at the WRC. She was put on the spot at the WRC and felt compelled to give a yes or no answer.

Relevant Law

Section 27 of the Safety, Health and Welfare at Work Act, 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—

…

(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,

…

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

Statutory Time Limits

The Act of 2015 at Section 41 (6) provides:  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.

Deliberations

The Court’s jurisdiction in this appeal is confined to assessing breaches of the Act that occurred within the cognisable period for the complaint. As the Complainant referred her complaint to the Workplace Relations Commission on 10 June 2022, the cognisable period is the period from 11 December 2021 to 10 June 2022. The Complainant resigned from her employment on 24 January 2022, the Court’s jurisdiction is confined to assessing any complaints of penalisation that occurred in the period from 11 December to 24 January 2022.

The Court must assess whether the actions of the Respondent amounted to prohibited penalisation, within the meaning of Section 27 of the Act.

The Court in considering the complaint must address three questions. In the first instance the Court must be satisfied that a protected act or acts has or have taken place as described in the Act at Section 27. Secondly the Court must be satisfied that the Complainant suffered a detriment during the relevant period as described in the Act at Section 27. Finally, the Court must decide whether the detriment was suffered because of her commission of a protected act.

Was there a protected Actas described at Section 27 of the Act?

The Complainant asserts that she raised numerous concerns with her employer about her health and safety on returning to work from a period of sick leave, and that this is sufficient to ground a claim under the Act.  She cited specific examples as follows:

On Friday 30 July 2021 she notified HR that she had raised concerns about Person A working in the Midleton branch with her line manager four to six weeks previously but had heard nothing further.

On 25 August 2021 she wrote to the Chief Operating Officer setting out that she had been the victim of sustained bullying in 2009 and had reached a compromise agreement on the basis that Person A would never work in the Midleton store whilst the Complainant was employed there.  She said the failure to implement the resolution agreed at that time was causing her financial worry and stress.

On 14 October 2021she formally lodged a grievance that the Respondent had “chosen to ignore an extremely serious about case of bullying and harassment”, and that “it had allowed the other party return to Midleton permanently in breach of agreement” reached in 2009. The Complainant cited concerns that the proposal made to her did not provide the necessary safeguards.

Counsel for the Respondent asserts that no protected act is identified to ground a complaint under the Act, and that at the first instance hearing the Complainant admitted that she did not make a protected act, and this admission on its own disposes of her claim under the Act.

The Complainant accepts that her evidence under cross examination was that there was no protected act to ground her claim but says that she didn’t understand the question and felt compelled to give a yes or no answer. The Court notes that she had the benefit of legal representation at first instance.

Having considered the submissions made and the correspondence opened to it, the Court is satisfied that the communications from the Complainant to the Respondent in the period after she was certified fit to return to work constituted a protected act within the meaning of the Act at Section 27(3)(c) in that those communications amounted to a representation in relation to a matter relating to the Complainant’s safety, health, or welfare at work.

As a result, the Court finds that the Complainant has satisfied the first leg of the test in that the Complainant made a protected act as provided for at Section 27(3)(c) of the Act “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”.

Was the Complainant penalised as described in the Act at Section 27?

Having found that the Complainant had made a protected act the Court must establish whether she was penalised for so doing.

In Paul O'Neill v Toni & Guy Blackrock Limited [2010] ELR 21, this Court held that the detriment complained of must have been imposed “for” having made a protected act within the meaning of Section 27(3) of the Act when it found:

‘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 detriment.’

The essence of the Complainant’s case is that she was penalised under the Act when she was forced to return to work in the same workplace as an individual who had subjected her to bullying behaviour in 2009. The Complainant asserts that she was subject to numerous detriments including, inter alia, a transfer of duties, loss of pay, denial of due process, coercion and intimidation, and ultimately constructive dismissal. As cited above the Court has no jurisdiction to consider allegations of penalisation that fall outside the cognisable period for the within complaint. The Court’s jurisdiction is confined to assessing any complaints of penalisation that occurred after 11 December 2021.

Was the Complainant penalised under the Act when transferred to Mahon Point?

On 17 December 2021 the Complainant was informed that she would continue to be rostered at Mahon Point pending any agreed transfer. The Complainant’s position is that that the Respondent’s insistence on her attending work at locations other than Midleton Branch constitutes penalisation, for having engaged in a protected act.

It is accepted that the Complainant agreed to return to work at the Mahon Point branch for a two-week period from 25 November 2021 to facilitate the progression of her grievance. The outcome of that grievance was communicated to her on 10 December 2021, and she was given the option of working in the Midleton branch on different hours or days to Person A, or alternatively working in the Douglas or Mahon Point branches. On 14 December 2021 the Complainant declined these options. She informed her employer that she was not willing to continue working in Mahon Point and that she could not return to Midleton on the basis as suggested.

The question the Court must consider is whether the Complainant was penalised when the Respondent informed the Complainant that she would continue to be rostered at Mahon Point. In considering this matter the Court notes that the Complainant’s contract of employments states as follows: -

“Your primary place of employment is Sam McAuley Chemist Midelton, Co. Cork. You are employed as OTC Sales Assistant and are transferable to all areas within the store. The Company reserves the right, at any time, to require you to go permanently or temporarily to any branch, where your services may be required.”

The Complainantaccepts that this contractual term in her contract of employment entitles the company to require her work in any branch where her services may be required.

In the Court’s view the Respondent was entitled to inform the Complainant that she would continue to work at Mahon Point pending any agreed transfer in circumstances where (i) her contract of employment provided for such a transfer, (ii) the Respondent had undertaken an investigation into the Complainant’s grievance, (iii) the Respondent had made an offer of reasonable accommodation to address the Complainant’s concerns as an outcome of that investigation, and (iv) the Complainant had declined all options presented to her. The Court is of the view that the Respondent did not act unreasonably when it informed the Complainant that she would continue to be rostered at Mahon Point pending any agreed transfer.  Accordingly, the Court finds that in these circumstances the Complainant was not penalised for making a protected act when she was rostered at Mahon Point pending any agreed transfer.

Was the Complainant penalised under the Act when her pay ceased?

On 20 December 2021 the Complainant was notified that her pay would cease if she failed to report for duty. The Complainant submits that the Respondent’s failure to pay her wages because of her refusal to attend for work constituted a penalisation for having engaged in a protected act.

The Complainant notified the Respondent on 14 December 2021 that she would not return to work on the basis suggested and requested that the Respondent consider an appropriate offer of redundancy. She stated that she expected to remain on payroll whilst the company considered the matter.

The Respondent wrote to her stating that if she failed to report for duty she would not be paid.

The Respondent also notified the Complainant that she was paid inadvertently for three days on 10, 11, 12 December and that it did not intend to recoup that over payment.

It is accepted that the Complainant was paid for the period from August 2021 when she was certified fit to return to work up until mid-December 2021, although she only attended work for a two-week period during that time. The Respondent ceased paying the Complainant wages having made it clear to her that the grievance process had concluded, and that the reason for ceasing payments was her refusal to take up her assigned work role. The Complainantaccepts that her contract of employment entitles the company to require her to work in any branch where her services may be required. As a result, the Court finds that the Complainant’s pay was stopped because she failed to attend work. Consequently, the Court finds that the Complainant has not penalised for making a protected act when the Respondent ceased to pay her wages.

Was the Complainant denied due process?

The Complainant asserts that she was denied due process by the Respondent. No evidence was presented to the Court to substantiate a claim that she was denied due process during the relevant period for her complaint. Consequently, the Court finds that the Complainant has not established that she suffered a detriment in relation to this matter.

Was the Complainant subject to Coercion and Intimidation?

The Complainant asserts that she was subject to coercion and intimidation by the Respondent. No evidence was presented to the Court to substantiate a claim of coercion and intimidation during the relevant period. Consequently, the Court finds that the Complainant has not established that she suffered a detriment in relation to this matter.

Was the Complainant subject to Constructive Dismissal?

The Complainant alleges that she was constructively dismissed for making a complaint to her employer about her health and safety at work. She contends that her constructive dismissal amounts to a penalisation within the meaning of the Act.

On 21 January 2022 the Respondent notified the Complainant that she was rostered at Midelton branch from the following week and that if she felt that she was treated unfairly she could raise a grievance in line with the company grievance procedure.

On 24 January 2022 the Complainant resigned her employment by letter stating that she was forced to resign and was severely punished for seeking to safeguard her wellbeing. She further stated that the employer had breached obligations regarding her welfare and had proposed significant changes to her employment.

On 26 January 2022 the Respondent set out the steps it had taken to accommodate the Complainant since August 2021, when she was certified fit to return to work.  At the end of the letter the Respondent states “I would urge you to take some time to consider your decision. It has always been our intention to support your return to work, and your position remains available to you”.

In reply, the Complainant took issue with aspects that letter and expressly stated that the termination of her employment was a constructive dismissal, and that she was penalised under the Act for seeking her right to a safe workplace,

Having regard to the evidence and submission before it, the Court finds no basis for the Complainant’s assertion that she was constructively dismissed from her employment. In this regard the Cout notes that the Complainant was asked to reconsider her decision to resign and had the option of utilising the grievance procedure but chose not to do so. The Court further finds that no proposed changes were made to the Complainant’s contract of employment, and that there were no breach of health and safety obligations on the part of the Respondent.

Having regard to the above, the Court finds that the Complainant was not subject to a constructive dismissal for making a protected disclosure to the Respondent.

In this case there was clear disagreement between the parties about the parameters of accommodations to be provided to the Complainant on returning to work from an extended period of sick leave. In making out her complaints of penalisation under the Act, the Complainant relies heavily on an alleged compromise agreement concluded in 2009. The Respondent says that it has no evidence of such an agreement. The Respondent’s position is that the options presented to the Complainant represented a reasonable accommodation and were fair and in the interests of all the parties. In the Court’s view, having regard to the evidence and submissions made, the Respondent acted reasonably in attempting to address the Complainant’s concerns.

The Court’s jurisdiction under Section 27 of the Act is narrow in its application. The section only applies where an employer penalises or threatens penalisation against an employee for making a complaint or representation to their employer regarding a matter relating to safety, health, or welfare at work. An allegation that an employer has failed to meet its obligations regarding health and safety matters arising from a commitment made to the Complainant in 2009 is an industrial relations matters that falls outside the Court’s jurisdiction when considering complaints under the Act.

For the reasons outlined above, the Court finds that the Complainant has failed to provide evidence that she was subject to penalisation for the making of a protected act within the meaning of the Act. As a result, the Court finds that the complaint of penalisation is not well founded.

The Adjudication Officer’s decision is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
DC	______________________
20 December 2023	Deputy Chairman