HSD245

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045358 (CA-00056192-002)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court 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 7 June 2024. 

The following is the Decision of the Court.

DECISION:

Background to the Appeal

This is an appeal by Ms Naomi Lynch (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00045358, dated 25 October 2023) under the Safety, Health and Welfare at Work Act 2005. Notice of Appeal was received in the Court on 23 November 2023. The Court heard the appeal in Waterford on 7 June 2024.

Factual Matrix

The Complainant commenced employment with Three Ireland (Hutchison) Limited (‘the Respondent’) on 6 September 2022. She was employed initially on a twelve-month, fixed-term contract as manager of its Waterford store with a base salary of €40,000.00 per annum. The initial contract was renewed for a further six months on its expiry until 6 March 2024.

The Complainant was certified unfit for work from 6 March 2023 and did not attend at her place of work thereafter. She was paid sick pay for 20 working days. She submitted two formal written grievances pursuant to the Respondent’s Grievance Procedure on 30 March 2023. The outcome issued to the Complainant on 12 May 2023. The Complainant availed herself of an appeal from the initial outcome. The outcome from the appeal stage was issued to the Complainant on 4 July 2023.

The Complainant referred her complaint under the Act to the Workplace Relations Commission on 19 April 2023. She resigned her employment with effect from 28 February 2024.

The Claim

The Complainant alleges that she was penalised within the meaning of section 27 of the Act. The cognisable period for the claim is 20 October 2022 to 19 April 2023. As will be seen below, the Complainant first reported her safety concerns on 6 March 2023. It follows, therefore, that any alleged acts of penalisation must fall in the period 6 March 2023 to 19 April 2023.

Complainant’s Evidence

The Complainant gave evidence of discussions she had with Ms Ciara Coughlan (Area Manager and the Complainant’s Line Manager) before she commenced her employment as Store Manager in Waterford. She said that Ms Coughlan told her that there were historical store-wide behavioural issues in Waterford that both the Complainant and Ms Coughlan would have to “get their heads together” to resolve. It was the Complainant’s understanding at this time, she said, that Ms Coughlan would visit the Waterford store in person at least once every two weeks in order to support her. In reality, however, she said, she rarely saw Ms Coughlan in the store although she did speak on the telephone with her regularly and was encouraged to avail herself of the support of other, experienced managers such as the then-Store Manager in Arklow.

The Complainant’s evidence is that Ms Coughlan made remarks such as the following to her during their telephone conversations: “Get on the bus or get off”; You’re a manager, so manage”; and “I can’t keep taking calls about these issues”. The Complainant says that she soon began to have concerns that there would be implications for her employment if she continued to raised issues with Ms Coughlan about the situation in the Waterford store.

The Complainant gave a detailed account of an incident prior to Christmas 2022 that culminated in her instigating a disciplinary process against an employee for an alleged data protection breach which she said led to a further deterioration in the conduct of staff towards her. For example, she said, staff frequently made comments about her age and her lack of management experience. She told the Court that it seemed to her that everything she said was challenged by her colleagues in a venomous manner. She also told the Court that she brought this to Ms Coughlan’s attention and suggested that she was losing hope of getting the staff on her side and was particularly mindful that the store was missing its targets by a long shot. She said that she was aware that staff regarded her as being only a temporary manager who was backfilling for the permanent manager who was on long-term sick leave.

The Complainant’s evidence then turned to difficulties that arose in February 2023 when she attempted to arrange for a staff member to come into the store one hour before her usual start time in order to assist the Complainant with stock taking. The employee in question, she said, eventually agreed to do as she had been requested but texted the Complainant to say that she need to have a conversation with her about remarks she alleged the Complainant had made about her age. The Complainant contacted Ms Coughlan about this, she said. Her recollection was that Ms Coughlan told her to manage the situation.

The Complainant then moved on to her period of sick leave which commenced on 6 March 2023. She told the Court that she had had “a full-blown panic attack” on the evening of 5 March which led her to have an emergency consultation with her GP on the morning of 6 March 2023. She said her GP advised her to take two weeks’ sick leave. According to the Complainant, when she contacted Human Resources and the Area Manager to inform them that she had been certified unfit for work, she was asked by the latter about who was going to be running the store in her absence. The Complainant told the Court that during her conversation with Ms Gogan, HR Business Partner, she gave a very detailed account of the difficulties she had been experiencing in the store. She followed this up that same day, she said, with an equally detailed email, hoping that this would prompt the company to put in place the necessary supports. Ms Gogan, she said, acknowledged receipt of her email and medical certificate on 8 March 2023 and advised that she would be in touch following the completion of the Complainant’s period of certified sick leave to discuss her concerns. Notwithstanding this, the Complainant said that she emailed Ms Gogan again on 9 March requesting clarification regarding the actions being taken by the company to address the issues she had raised. According to the Complainant, Ms Gogan replied on 13 March and requested her to set out her grievance so that the company could investigate it formally. Ms Gogan enclosed a copy of the Grievance Policy and the Sickness Absence Policy.

The Complainant said that she in fact submitted two separate grievances in writing on 30 March 2023: the first related primarily to what she perceived as a lack of support from Ms Coughlan, her Line Manager; the second related to the behaviour of the staff in the Waterford store and its impact on her and the extent to which it made her feel unsafe in that environment.

The Complainant told the Court that the company appointed a Ms Bonfield to investigate her grievances. However, the Complainant said she would only engage with the investigation via email. She said she was aware that Ms Bonfield interviewed Ms Coughlan but not any of the store staff. She appealed the outcome of the grievance investigation she said. She told the Court that she believed that the Respondent’s failure to find her an alternative position – away from the Waterford store – constitutes penalisation within the meaning of the Act in response to the health and safety concerns she had raised in March 2023.

Under cross-examination, the Complainant was asked why she hadn’t applied for internal vacancies in the company during the period she spent at home while her grievance and appeal were being dealt with. The Complainant firstly replied that she was awaiting the outcome of the process. She later said that she didn’t have access to the database of internal vacancies during that period. In response to questions from the IBEC representative, the Complainant accepted that she had made it clear that she wanted no contact from Ms Coughlan during her initial two weeks’ certified sick leave and that during the entire period from 6 March 2023 to her resignation in February 2024 she insisted that all communication with the company be exclusively via email.

The Law

Section 27 of the Act provides:

“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) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(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).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.”

Discussion and Decision

The claim before the Court can be summarised very succinctly as follows. The Complainant was employed on a temporary basis by the Respondent to manage its Waterford store. It was known to the Respondent – and advised to the Complainant by it in advance of her employment commencing – that there was a poor working environment in that store. The Complainant became overwhelmed by the challenges she faced in the role with the result that after a mere six months there she went on certified sick leave from which she never returned. At the commencement of that period of sick leave – from 6 March 2023 onwards-, she raised concerns about her health and safety which she then proceeded to document in a comprehensive written grievance submitted to the Respondent on 30 March 2023. The Respondent engaged in a comprehensive investigation of that grievance notwithstanding the Complainant’s refusal to engage with the investigator other than via email. The outcome issued on 12 May 2023. Meanwhile, the Complainant had referred her complaint of penalisation under the Act to the Workplace Relations Commission on 19 April 2023. She told the Court that she believed that the Respondent’s failure to relocate her to a different job in a different part of its business (apparently on some date between 6 March 2023 and 19 April 2023 – when she was on certified sick leave) constitutes penalisation within the meaning of the Act.

In the Court’s view, no claim of penalisation is made out on the facts as established. There is no disputing that the Respondent dealt with the Complainant’s grievances in an appropriate manner and arranged to have them investigated fully, notwithstanding the Complainant’s self-imposed limited engagement with that process. The initial investigation -not to mention the appeals stage of the process - was not completed before the Complainant referred her complaint under the Act to the Workplace Relations Commission. The grievances were not upheld at either stage.

For the aforementioned reasons, this appeal fails and the decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
AR	______________________
25 June 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.