Complainant

Respondent

Anonymised Parties

A Store Employee

A Store Owner

Representatives

Sean Ormonde Sean Ormonde & Co., Solicitors

Shirley Fogarty BDM Boylan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00055853-003

31/03/2023

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

CA-00055853-004

31/03/2023

The Complainant commence employment with the Respondent on 27 September 2021 as a Visual Merchandiser.  Her employment ended on 5 September 2023.  The Complainant was paid €370 net per week.

The Complainant provided a detailed written submission.

In opening, the Complainant’s representative stated that the Complainant had experienced difficulties, bullying and harassment, from the store manager Mr A. The Complainant raised concerns with the Human Resources Section (HR) during an absence, but the matter was not dealt with properly and she returned to an “unsafe” work environment where she was rostered to work with Mr A.  The Complainant submits that Mr A turned other employees against her.  This continued up to February 2023 and beyond.  The Complainant contends that the bullying and harassment continued in that she was not dealt with properly, for example she was not given documents relating to an investigation into certain matters related to her; this led to the Complainant resigning on 5 September 2023.

The Complainant gave evidence on affirmation. The Complainant stated that from the moment she started working for the Respondent in September 2021, she found Mr A to be domineering, he told her he was in charge. Although Mr A was the Store Manager, he was doing work that she should have been doing.

The Complainant stated that the atmosphere in the store was quiet, dark, staff did not talk to one another.  The Complainant spoke with the cleaner, but Mr A told her she should not do this, the Complainant was upset and felt intimidated; she felt she was a lesser person than him.

The Complainant stated that she was suffering sleepless nights and experiencing weight loss because of what was going on at work, however she did not raise the situation with HR as she did not feel she had the right to do so.  The Complainant stayed because she needed the income and there were few similar roles available.

At the end of August 2022, the Complainant was certified as unfit to work for two months by her GP. The certificate from the GP stated that the complainant had a “medical condition.” The Complainant did not want the word “depression” to appear on the certificate. The Complainant stated that the reason she went sick was, “lots of bullying.”

While out on sick leave the Complainant contacted HR and reported the bullying and harassment that was being carried out by Mr A; as a result, Mr A was suspended for two weeks by the Respondent.   The Complainant was contacted by HR and had a long conversation with Ms B.  The Complainant stated that Ms B seemed very concerned and told the Complainant that she was going to carry out an investigation.

The Complainant returned to work in early November 2022.  The Complainant was told that Mr A was going for further training and that HR would be checking in with her regularly and that she, the Complainant was going to receive further training and she and Mr A would not be rostered to work together, so she would no longer have to interact with Mr A.

 The Complainant stated that Ms B, from HR, was not in the store on the day she returned to work as she, Ms B, had said she would be. Mr A was not aware that the Complainant was returning. The Complainant stated that Mr A only got one day’s training.  Someone from head office came down on a weekly basis to “keep him under view.” The Complainant stated that nothing had changed, she did not receive any support.  Within a week she reached out to HR as she felt isolated. The Complainant emailed HR on 17 November 2023 about her concerns but did not receive a reply.

Between her return to work in November 2022 and Christmas 2022, the Complainant stated that her relationship with Mr A was OK, face to face, but behind her back, he was bad mouthing her. The Complainant did not raise any further grievances during this period, but she did reach out to HR about the investigation and what sanction had been taken against Mr A.

The Complainant contacted HR by email on 26 February 2023.  The complainant stated that the reason she had contacted HR was because Mr A was still bullying her and that she could not continue working; things were worse than ever.  A second investigation was initiated.

The Complainant stated that she was suffering greatly at this time and had experienced severe mental health issues.

Regarding the second investigation, the Complainant stated she was out of work at the time it took place and that other colleagues were interviewed.

The Complainant stated that she had asked to be allowed to work a four-day week and although Mr A had said no, Ms B over-ruled him, and the Complainant got the four-day week.

The Complainant did not continue working with the Respondent for long after she returned to the store.  She put her resignation down to the fact that a new manager wanted her to work five days a week and HR “backtracked” on their previous agreement.  The Complainant stated she left her employment with the Respondent because her working week was changed in that she had to return to a five-day week.

The Complainant submitted that the atmosphere at work after Mr A left was not good.  There was animosity between staff and there was no support from HR, it was a “difficult work environment.”

In response to questions put to her in cross examination, the Complainant stated that a lot of the incidents she included in her written submission included incidents with Mr A which were not “major.”  Regarding one incident when she had looked for time off, the Complainant stated that Mr A had addressed her in a very aggressive manner. Regarding her return to work the Complainant agreed that she did not have any interaction with Mr A, but it was an awful experience finding him there particularly as he was not expecting her return. The situation was made worse by Ms B’s absence.  Ms B had said she would be there to send a powerful message to Mr A but she was not there.

When questioned as to why she had not raised the matter of her depression with the Respondent, the Complainant stated that she did not know then that depression is a disability but having educated herself she now understands that depression is a disability. The Complainant accepted she did not have any evidence to support her assertion that she suffered from depression. 

The Complainant accepted that when she had been out on sick certs, HR did support her and Ms B was very good. She stated that she had met with Ms B in February 2023 when news was out that Mr A was gone.  The complainant stated she was disappointed as she “should have been first to know.”

In her re-direct evidence, the Complainant stated that her equality claim was based on the fact that she was treated differently to the only male employee. She also stated that nothing changed after her meetings with HR and that she had not been supported by HR.

In closing the Complainant submits that in relation to the SHWAS complaint, a prima facie case has been established; the Complainant continuously brought matters to the attention of the HR department after which promises were made on protection, but not followed. There was no safe return to work, investigation documents were withheld from the Complainant.  The Complainant had to follow up consistently with HR, all of this impacted on her mental health, causing her to collapse at work. She was subjected to rumours and isolated in her place of work.  She brought all this to the attention of HR but she was ignored.

Regarding the Equality complaint the Complainant submits that on the Gender discrimination claim, that but for the fact that she is female she would not have been treated less favourably. Regarding her claim on the Disability ground, the Complainant submits that she has established she has a disability and that she told HR that she had a disability, yet the Respondent took no action regarding reasonable accommodation.

The Respondent provided a detailed written submission

The Respondent denies the allegations made by the Complainant.

Ms B from the Respondent’s HR Department gave evidence on affirmation at the hearing.

Ms B stated that her first interaction with the Complainant took place on 8 September 2022 when they discussed the Complainant’s concerns and she listened to the Complainant’s grievance. Ms B stated that the Complainant had made allegations about Mr A.  On foot of these allegations an investigation was launched, and Mr A was suspended from work the following day. The investigation resulted in disciplinary action being taken against Mr A, but the action was confidential.

Ms B stated that during the meeting of September 2022, the Complainant had not mentioned a disability, she had mentioned she was suffering from anxiety and depression.  Ms B had suggested that the Complainant should go to her own GP.  Ms B stated that the Complainant mentioned that she was attending her GP, however, the Respondent never received a medical report or any medical instructions from the Complainant’s GP.

Ms B stated that the Complainant’s concerns were taken seriously and that is why the Respondent proceeded with an investigation.  Ms B stated that the Complainant did not look for any accommodations or special supports. The Complainant’s medical certificates contained the reason for absence as “medical condition.”

Regarding the Complainant’s return to work in November 2022, Ms B stated that she had told the Complainant that she would attend the store that day but, in the afternoon, only.  From the Complainant’s return in November 2022 until January 2023, all seemed fine and Ms B thought things must have improved.

Ms B stated that a second investigation took place into Mr A’s behaviour following a complaint made by another employee.  Following this investigation Mr A left his employment with the Respondent.

Ms B stated that she met the Complainant on 24 February 2023, at which the Complainant requested a four-day week. Ms B stated that she told the Complainant that the Respondent could accommodate this request, but only on a temporary basis, starting in March 2023, without a specific end date.  Ms B stated that the four-day week was agreed to on the understanding that it would while the Respondent could accommodate it and when the Complainant returned to work, she would go back to a five-day week.  According to Ms B, this agreement was not put on paper as it was a temporary agreement.

In March 2023, the Complainant HR directly looking for holiday leave at short notice.  HR approved this request even though it was made at short notice.

Ms B denied the Complainant was penalised, “if anything we facilitated her,” she was the first employee to get reduced working hours, her holiday request was acceded to despite being outside normal parameters, the store went without visual merchandising on a day per week, Ms B attended the store on the Complainant’s return to work which was unusual, “whenever she brought matters to our attention, we dealt with them quickly.”

Regarding the allegation of Gender discrimination, Ms B stated she did not know where this was coming from; the workforce is predominantly female and nothing was done differently to the Complainant due to her gender.

Ms B stated that in retrospect she believed she had given the Complainant as much support as possible, above the normal, “we took every step possible.”

In response to questions put to her in cross examination, Ms B stated that the Respondent puts in different levels of support or accommodations for staff depending on the medical evidence put to them, but if the impact of the supports is going to be significant a medical report is required. 

Ms B accepted that the Complainant had made her awa re of her anxiety and depression, but that she, Ms B, was not a medical person.

When asked why the witness statements taken during the first investigation were not shared with the Complainant, Ms B stated that this was because the witnesses had asked their statements not be disclosed.  The Complainant was told that disciplinary action had been taken against Mr A and that he would be returning to work. Ms B stated the Complainant was not given a copy of the Investigation Report as she, the Complainant, said she did not want to know the details of the outcome.

Regarding the granting of a four-day week to the Complainant, Ms B stated that this was a temporary arrangement and that if it had been a permanent arrangement a letter to that effect would have been issued to the Complainant. Ms B also re-iterated her belief that lots of supports were put in place for the Complainant.

In closing with regard to the claim for penalisation, the Respondent submits that no negative action was taken against the Complainant. Rather she was supported in that her working week was changed, her holiday request was acceded to, there were many communications between her and HR, her allegations were always acted upon. In fact, the only negative action taken was taken against Mr A. All the actions taken by the Respondent were prudent.

Regarding the Equality claim, the Respondent submits that there is no possibility that the Prima Facie burden has been discharged.  Regarding the allegation of gender discrimination, the Respondent submits that the Comparator put forward works in a completely different role from that of the Complainant and no evidence was adduced to demonstrate that the named Comparator was treated any differently because he is a man.  Regarding the claim on Disability, the Respondent submits that no evidence whatsoever was put forward the existence of a disability, apart from the evidence given by the Complainant herself. There was no medical report produced, no medical certs indicated a disability.  The only certificate of note stated, “Acute Work-Related Stress.” The Respondent did react to the Complainant’s issues but, “you cannot look back in time and say, you should have known.”

Section 27 of the 2005 Act states:

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.

I have focussed on incidents referred to by the Complainant in the cognisable period only.

I refer to the Labour Court and Toni & Guy Blackrock Limited -v- Paul O’Neill HSD095.

The Court stated:

“Thus the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety.  It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal.  If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.”

The Labour Court also gave consideration to what was required in order to discharge this burden or proof stating:

“Thus 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 suggested 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 detriment.  This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

It is clear that employees will only be successful in a penalisation claim under the 2005 Act if they can prove that they:

 a)  made a complaint to their employer in respect of a health and safety matter; and b) suffered a detriment as a result of the actions of their employer; and c) It can be proven that they would not have suffered this detriment had a complaint not been made in the first place. 

I find that the that the Complainant:

(i)                  Did make a complaint to their employer in respect of a health and safety matter.  The complainant gave evidence about a number of incidents she had with Mr A.  She says that she was subject a litany of bullying behaviours by Mr A., which, when reported to HR, were subject of an investigation which resulted in Mr A being suspended from work and then being subject to some unknown disciplinary sanction. If Mr A was subjected to some disciplinary sanction, then he must have been found guilty of the charges made against him.

(ii)                Did endure more bullying and harassment after her return to work in November 2022 and she did subsequently raise these matters with HR. To balance this somewhat, I accept the Respondent’s HR team did attempt to address the Complainant’s problems to some extent.

(iii)               Suffer some a detriment as a result of the actions or more precisely the inactions of her employer when she returned to work without adequate precautions having been put in place to ensure she was not vulnerable to further actions of a bullying nature being perpetrated by Mr A.

(iv)               Has proven that, on the balance of probabilities, the bullying she suffered was exacerbated by her having raised a grievance against Mr A. previously. She felt she was ostracised at work and that Mr A was denigrating her behind her back to other employees.

(v)                 Did not terminate her employment because of this treatment, rather she left when the Respondent went to end the four-day week arrangement, which I accept on the evidence adduced, was a temporary arrangement.

In all of the circumstances I find that the complaint is well founded and accordingly succeeds. In assessing the level of compensation appropriate, I have taken into consideration the allegations made by the Complainant and the Respondent’s efforts to address the concerns and difficulties the Complainant was experiencing at work.

Having regard to all the circumstances I consider the payment of €3,000.00 compensation to the Complainant to be just and equitable.

The complaint is well founded and I order the Respondent, the employer, to pay the Complainant, the worker, compensation of €3,000.00.

The Complainant alleges that she was discriminatorily discriminated against, firstly because of her gender and secondly because she had a disability.

The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim.

I have examined whether the Complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

 “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In order to determine whether the Complainant has established a prima facie case a three-tier test is employed:

First, the complainant must establish that she is covered by the relevant discriminatory ground.

Second, she must establish that the specific treatment alleged has actually occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

 Looking at each allegation of discrimination separately, I find the following.

Allegation of discrimination on the Gender Ground. In this instant case, the Complainant is a woman and claims she was treated less favourably than a male employee.  The Complainant passes the first step on the three-tier test. Considering the second tier of the test, the Complainant alleges she was treated poorly in that no reasonable accommodation was put in place for her and she was not supported as she should have been by the Respondent when she made allegations of bullying against Mr A.  This allegation may hold some merit, and giving her the benefit of the doubt, I will accept this step in the three-tier test has been passed. However, when it comes to the third step in the three-tier test, I find the Complainant’s case falls.  In her evidence the Complainant stated that she was discriminated against because a man in similar circumstances would not have been treated the same way she was and was treated that way because she is a woman.  No evidence was produced to support this allegation.  It is mere conjecture.  Conjecture and opinion are not sufficient to raise the presumption of discrimination and shift the burden to the Respondent.  Therefore, the Complainant fails in this third step of the three-tier test. The Complainant has not established a prima facie case on the Gender Ground.

Regarding the allegation of discrimination on the Disability Ground. To establish a prima facie case the Complainant must pass each step of the three-tier test referred to above. In this instant case I find the Complainant has failed to establish that she suffered from a disability as she maintained she did in her evidence.  No medical reports, or doctor’s notes were provided by the Complainant when matters were on-going with the Respondent. No medical reports or doctor’s notes were provided post fact. In the circumstances I find the Complainant has failed the first step of the three-tier test.   The Complainant has not established a prima facie case on the Disability Ground.

The Complainant was not discriminated against.

Penalisation, bullying, disability, gender.