HSD2410

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00029767 (CA-00040411-006)

BACKGROUND:

The Complainant 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 03 September 2024.

The following is the Decision of the Court:-

DECISION:

This is an appeal by Veronica Dowling against the Decision of an Adjudication Officer (ADJ-00029767, CA-00040411-006) made under the Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”) against her former employer, An Post. The Adjudication Officer did not uphold her complaint of penalisation under the Act.

This case is linked to EDA2451. For ease of reference the parties are given the same designation as they had at first instance.  Hence, Veronica Dowling is referred to as “the Complainant” and An Post is referred to as “the Respondent”.

Summary Position of the Complainant

The Complainant contends that she was penalised because she made a protected disclosure relating to health and safety after an incident in the workplace on 5 June 2020. The Complainant feared for her safety at work when without warning on 5 June 2020 there was a “resounding whack” on the armrest of her chair, and her supervisor grunted aggressively “serve the customer”. The Complainant felt alarm and shock. The act of punching or whacking another person’s chair is threatening and unacceptable. The Complainant informed her shop steward and her union official. 

On 9 June 2020, the Complainant was given a verbal warning by her manager for slacking at the counter on 5 June 2020. When she told him about the incident with her supervisor, he was not interested. Consequently, the work environment was unsafe and hostile.

The Complainant submitted a formal grievance under the Dignity at Work Policy on 3 July 2020. She was not provided with a policy which set out how her grievance would be progressed or how she would be supported. No steps were taken under the Dignity and Work policy.

On 17 August 2020 the Complainant attended an attendance management meeting with her union official. She was told that her complaint could not be given to her supervisor, as there was clear evidence that he did not hit her chair. She was not allowed watch the CCTV footage, unless her manager was present. The Complainant felt threatened.

By letter on 24 August 2020, and again on 4 September 2020 the Complainant requested a copy of the CCTV footage.

By letter dated 5 September 2020 Kevin Cullen, HR Manager, said there were constraints around the use of CCTV footage. He tried to force her to retract her statement and outlined several penalties that would be considered and taken against her. The Complainant was advised that if she did not withdraw her complaint her grievance would not be upheld, and her sick pay withdrawn.

As a result, the Complainant was forced to submit a second complaint as no steps were taken to address her concerns. On 9 October the Complainant lodged an additional grievance under the Dignity and Work policy, reiterating her previous complaint, and further claiming that she was suffering harassment and intimidation by Mr Cullen. She received a reply on 15 October 2020 and her grievance was subsequently referred onto Chris Howell, and then to the CEO in December 2020.

The Respondent refused to address the Complainant’s grievance in accordance with their policies and refused to notify the Supervisor about her complaint as they said this would be “unfair”. The policy on assault was not communicated to the Complainant. No designated person was appointed to establish the facts of the complaint. Investigators were not appointed, or terms of reference provided. The Respondent unreasonably refused to give her access to CCTV footage in a safe environment, which constituted harassment and intimidation. The Complainant’s sick-pay privilege was withdrawn from 23 November 2020, in retaliation and penalisation for pursuing Dignity at Work complaints.

Summary Position of the Respondent

It is accepted that the Complainant made a “complaint” within the meaning of S.27(3)(c) of the 2005 Act, when she made a complaint about an incident at work on 5 June 2020. Thereafter, she was absent on sick leave from 18 June 2020, which she attributed to the incident on 5 June 2020. The Company responded speedily to her complaint. When the Complainant drew attention to the availability of CCTV footage of the incident, the footage was confirmed as being available to her.

At a meeting on 17 August 2020, which was on-line due to COVID-19, the Complainant was advised that the CCTV footage did not appear to corroborate her description of the incident. The footage could not be viewed at that meeting, as MS Teams did not support playing the footage. Arrangements were made for her to view the footage in the Branch Manager’s office, with her trade union representative. She refused to view the unredacted CCTV footage.

The Complainant was entitled to complain that her supervisor should not have touched her chair. She may have believed that she was subjected to a “whack” that almost knocked her out of her chair. She was mistaken in her view and this fact is indisputable given the CCTV footage. The Complainant made a serious allegation that she was assaulted in the workplace. The Complainant was afforded multiple opportunities to view the footage but refused to do so. She deliberately elected to not view the CCTV footage. Having made a serious allegation, she refused to cooperate with the investigation and frustrated the process thereafter.

The Complainant then made complaints against the HR Manager (Kevin Cullen) who was involved in investigating the complaint. On 9 October 2020 she sent a letter by e-mail in which she restated her complaint against her line manager and raised allegations against Kevin Cullen.

The Company applied its internal grievance procedures in a fair, reasonable and transparent manner with a focus on resolution. The grievance procedures were applied but not exhausted due to lack of engagement by the Complainant. She prematurely referred her complaints to the Workplace Relations Commission on 14 October 2020.

The Complainant was moved from full pay to half pay following 92 days of absence within 12 months, as provided for in Company Circular 35/2016.  Employees have responsibilities to co-operate with any investigation or review. The Complainant elected to not engage and in light of her refusal to cooperate, the Respondent ultimately made the decision to withdraw her sick pay. That decision was not a penalisation within the meaning of the Act. There is no causal connection between her complaint and the alleged penalisation.

Evidence of the Complainant

The Complainant worked in St Andrew St Post Office. On 5 June 2020, she suddenly encountered a violent impact and on turning around her supervisor was standing to her left. He told her that she should be serving customers. She was very shaken and told her shop steward about what happened.

The following Tuesday, she was invited to the office by John Broderrick (her manager) who said there was a 21-minute gap between her transactions with customers. When she told him about the incident, he blanked her, which she took as an endorsement of her supervisor’s actions.

She met with her trade union representative who said that he would deal with the matter. She was certified by her GP as suffering from stress and anxiety and never returned to work. 

On 3 July 2020, she wrote to HR and subsequently met Kevin Cullen on 17 August 2020 with her union official. The meeting was very confrontational. Mr Cullen took issue that she had contacted the Health and Safety Authority (HSA). He said that the CCTV footage did not support what she had said. He would not let her see the CCTV footage, unless in the company of those involved.

The Complainant referred the Court to various correspondence. She wrote to Kevin Cullen on 24 August 2020 to seek a copy of the CCTV footage and to clarify that the terms assault had originated with the HSA on hearing about the incident. Mr Cullen replied by email on 5 September 2020 in which he attempted to force her to retract her complaint and outlined several penalties that would be considered and taken against her should she proceed with her complaint. She made a formal complaint under the Dignity at Work policy on 9 October 2020 to which she received a reply on 15 October 2020. The Complainant eventually saw a redacted version of the footage.

Cross examination

The Complainant thought the CCTV footage would prove what had happened but was told that she could only see it if she dropped her complaint. She was told that if she saw the CCTV footage, she would see that she was mistakenly exaggerating matters, yet she was only person who experienced the chair being violently hit. She never said (her supervisor) assaulted her. She did not report the matters to An Garda Siochana.

She was given the option of viewing the footage with her manager present but was not allowed to see it on her own. She was not afraid of any of her colleagues but did not feel comfortable or safe in the work environment. No-one listened to her. Kevin Cullen thought she was exaggerating. He used the words “sinister” in correspondence and accused her of making a “malicious” complaint.

The Complainant confirmed that she had no complaint about the procedures or policies in place. She accepted that Mr Cullen replied to her complaint on 3 July outlining the steps in the grievance procedure, and that she agreed to his proposal to address the matter with her line manager. She acknowledged that her union official informed the company that she was not able to meet at that time. She accepted that the minutes of the meeting of 17 August were accepted but said that she never agreed to view the footage with her union official. She had no recollection of being offered a meeting on 20 August 2020 to view the footage. She was provided with her supervisor’s statement about the incident. 

When asked how she was punished for making a complaint, she said that she was not allowed to see the footage without acknowledging her mistake. She was told to acknowledge that she mistakenly exaggerated the incident and Kevin Cullen used the words “sinister” and “malice”. She could not recall precisely when or where those words were used. When asked if she was saying that she had no option to see the footage unless she acknowledged her mistake, she said she thought she would be browbeaten and couldn’t understand why she wasn’t allowed to see the footage.

The Complainant accepted that her sick pay entitlement was automatically reduced to half pay after 90 days.  She could not say why that formed part of her complaint

Testimony of Kevin Cullen - HR Regional Manager

Mr Cullen’s role was to assign the complaint to a manager to carry out an investigation. The grievance process has a three-stage process. All procedures are agreed with the trade union.

The Complainant confirmed her agreement that matters be progressed with her line manager as a first step but did not engage thereafter when her line manager tried to contact her. She would only communicate through her union. She did not attend the first meeting scheduled and wanted to engage with occupational health before meeting management. Normally those meetings happen together, but there were delays because of COVID-19.

By 6 August 2020 he was getting concerned as the Complainant was absent from work for six weeks. He had seen the CCTV footage and there was a disparity between it and her account. He thought she would be reassured if she viewed the footage. The CCTV footage was available from the outset. 

A meeting was held online on 7 August 2020. The focus was to get consensus on what happened and agree a pathway forward. The meeting was not confrontational. The Complainant confirmed that her absence solely related to the incident on 3 July 2020. Mr Cullen advised her that the CCTV footage was inconsistent with her complaint. He agreed to arrange for her to view the footage with her union official and to expedite her referral to occupational health. He explained that the footage had to be viewed in a secure location, with a manager present, however, privacy would be allowed, with the manager staying at the other side of the room. He saw no reason why the office which could be accessed through a separate entrance was not considered to be a safe environment. Later it transpired she didn't agree to viewing the footage with her union official.

Mr Cullen stepped back from the case until he heard back from occupational health. On 3 September 2020 occupational health advised him that the Complainant would contact him. The Complainant wrote to him on 4 September 2020 again requesting a copy of the CCTV footage.

Mr Cullen replied by email on 5 September 2020 and once again explained the restrictions around showing un-redacted footage. She was entitled to a redacted version. He stated his concern that the Complainant was not cooperating with the investigation and advised her that sick pay can be withheld in circumstances where an employee does not cooperate with an investigation or make reasonable efforts to return to work. He referred to the Complainant mistakenly exaggerating actions, as he was conscious that she had not seen the CCTV footage. He never referred to her as “problematic”. He said it was problematic that she referred a complaint to the HSA and then declined the opportunity to view the CCTV footage when it was made available to her. When he referred to the Complainant taking the next step, he was hopeful that she would agree to participate in a conciliatory meeting. He understood the e-mail would be read by her union official, who had previously participated in meetings to help resolve issues between individuals in the workplace. He had not discussed it with the official but expected him to be open to that approach. 

He was concerned that they were moving away from a resolution, as the initial complaint had escalated from tapping a chair and a resounding whack to a violent and criminal assault, which wasn't evident from the footage. When he cautioned the Complainant about going down a road she may regret, he did not mean that she did not have a valid complaint. He told her that a complaint of violent physical assault and criminality had greater consequences.

On 9 September 2020 the Complainant submitted a complaint under the Dignity at Work Policy stating that he had refused to let her watch the CCTV footage in his safe environment, and that he had not investigated the matter. The matter was referred to another manager, Chris Howell, who became involved on 15 October 2020. An Post was never contacted by the Health and Safety Authority.

The Complainant’s sick pay reduced to half pay on 9 October 2020, which was outside his remit.

Cross examination

When asked why the matter was progressed as a grievance when the Complainant requested that the matter be investigated under the Dignity and Work Policy, Mr Cullen said the Complainant agreed to progress matters with her line manager as a first step. If she was not satisfied with that process, she had the option to escalate the matter at any time. An outcome can be overturned at any stage of the three-stage grievance process. The trade union raised no issues about with the procedures.

He had not anticipated a dispute about CCTV footage. He did not tell her to withdraw her complaint, or that her complaint was closed. He asked her to review the footage and her complaint, as her view was subjective and there was objective evidence in the footage. For reasons he did not understand, she would not meet her line manager or watch the footage. He secured a redacted version for her.

In his email of 5 September 2020, he suggested a way forward and proposed a meeting that would have parameters agreed with the Complainant and her union official. He did not think that his language was highly prejudicial. His focus was on resolution, and he intended the letter as advice. When asked how the Complainant should interpret the letter given its stated findings about the incident, he said that there was clear evidence in the footage which was hugely relevant to his considerations.The Complainant had made very serious allegations of violent assault by a colleague. A person accused of violence in the workplace is suspended without prejudice which would take a huge toll on that person.

Relevant Law

Section 27 of the Safety, Health and Welfare at Work Act, 2005, provides as follows: -

Protection against dismissal and penalisation.

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.

Deliberations

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 a complaint under the Act 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 committing a protected act.

Was there a Protected Act?

It is accepted that the letter from the Complainant to Mr Kevin Cullen on 3 July 2020 regarding an incident in the workplace on 5 June 2020 constitutes a complaint about matters relating to safety, health or welfare at work, and as such is a protected act within the meaning of s.27(3)(c) of the Act.

As the complaint was lodged to the WRC on 14 October 2020, the relevant period for consideration by the Court is from the period from 3 July 2020 up to 14 October 2020.

What detriment is alleged during the relevant period?

Counsel for the Complainant contends that the Complainant suffered a detriment as the Respondent refused to grant her access to CCTV footage in a safe environment and by letter dated 5 September 2020 tried to intimidate the Complainant into retracting her complaint by outlining penalties, including the withdrawal of sick pay benefits, that would be considered and taken against her should she proceed with her complaint. Counsel also contends that the Respondent failed to address her grievance in accordance with its policies.  When asked in evidence to clarify the nature of the alleged penalisation the Complainant said that she was not allowed to view the footage without admitting her mistake.

The Respondent’s position is that the Complainant has provided no objective evidence that she was subject to any penalisation for making a complaint.

Access to CCTV Footage

The Complainant did not view the CCTV footage prior to lodging her complaint to the WRC on 14 November 2020 but was given access to a redacted version at a later date having formally submitted a data access request.

The Court heard evidence that prior to 14 October 2020 an unredacted version of the CCTV footage was made available for the Complainant to view in a separate area at her workplace. The Complainant objected to viewing the footage at her work premises with others present. Her evidence was that she did not feel safe and wished to view it on her own. In the Court’s view, Mr Cullen gave a reasonable explanation about the policy restrictions in place around viewing unredacted CCTV footage and why such footage could not be released to the Complainant in the manner she requested without compromising security and CCTV regulations. Mr Cullen also explained what measures would be put place to ensure that she had privacy to view the footage with her union representative, while a manager remained at the other side of the room. The Complainant provided no cogent explanation for her refusal to view the footage in those circumstances, particularly as she stated that she was not fearful of her supervisor or any other work colleagues.

In his letter of 5 September 2020, Mr Cullen advised the Complainant “It should be a simple matter to view the footage and to acknowledge that you were mistaken”. Under cross-examination, the Complainant qualified her assertion that she had no option to see the footage unless she acknowledged her mistake, to say that she felt she would be browbeaten into accepting that she was mistaken. The Complainant did not avail of the opportunity to view the footage, which would have allowed her the opportunity to counter Mr Cullen’s assessment of the incident. 

Having regard to the facts presented, the Court finds the actions of the Respondent regarding access to CCTV footage to be reasonable. The Court finds that the Complainant was not prevented from watching the footage, which was available to her to watch with her union representative. From her evidence it is clear that she was not denied access to the footage unless she admitted she was mistaken. In light of the above, the Court finds that the Complainant suffered no detriment in relation to access to the CCTV footage.

Withdrawal of sick pay entitlements.

The Complainant accepts that the reduction in her sick pay entitlement from full pay to half pay on 9 November 2020 was a measure implemented in line with her terms and conditions of employment. Accordingly, the Court finds that the making of a protected disclosure was not the operative cause of the reduction in her sick pay on 9 November 2020.

The Complainant’s sick-pay benefit was subsequently withdrawn on 23 November 2020. The Court makes no comment on that measure which occurred after her complaint was lodged to the WRC on 14 November 2020 and falls outside the jurisdiction of the Court.

Having regard to the above, the Court finds that the Complainant suffered no detriment in relation to a reduction or withdrawal of sick pay benefits during the relevant period for the complaint.

Company Policy and Procedures

Counsel for the Complainant contends that the Complainant was penalised as the Respondent failed to address her grievance in accordance with its policies. The Complainant in her own evidence countered that assertion when she confirmed that she had no complaints about the procedures or policies in place, and that she had agreed to have her complaint addressed with her line manager, a first step. The outcome of that process had not concluded by 14 October 2020 when the Complainant referred her complaint to the WRC.

Having regard to above, the Complainant cannot rely on the assertion that the Respondent failed to address her grievance in accordance with its policies, in circumstances were she agreed to progress her complaint with her manager as a first step and that process was thwarted by several factors including her absence on sick leave and the unforeseen dispute about access to the CCTV footage.

As a result, the Court finds that the Complainant was not subject to adverse treatment in the way the Respondent policies were applied.

Allegation of Harassment & Intimidation

Counsel for the Complainant further contends that the Complainant was subject to harassment and intimidation by Mr Cullen when in an email of 5 September 2020, he prejudged the outcome of the Complainant’s grievance, and attempted to force her to retract her complaint by threatening her with withdrawal of her sick pay and a finding that her grievance would not be upheld.

Following receipt of that email, the Complainant lodged a complaint about Mr Cullen under the Dignity at Work Policy on 9 October 2020 and subsequently lodged a complaint to the WRC on 14 October 2020. The Court must decide if the Complainant suffered a detriment in the period from receiving the email on 5 September 2020 and submitting her complaint to the WRC on 9 October 2020.

The Court has already determined above that the Complainant suffered no penalisation in relation to access to CCTV footage, withdrawal of sick pay benefits and the application of the Respondent policies during the relevant period for the complaint.

While the Complainant was clearly dissatisfied with her interactions with Mr Cullen, such that she made a formal complaint about him, no evidence of any detriment to her arising from Mr Cullen’s email of 5 September 2020 during the relevant period was presented to the Court.

The Court notes the very broad nature of the protections provided under s.27. An employer cannot penalise or threaten penalisation against an employee for making a protected act. The Complainant is protected by law in raising health and safety concerns whether or not the Respondent regards them as reasonable. The Court must consider is whether or not the email of 5 September 2020 constituted a “threat” of penalisation for making a protected act.

The tone and language of the email from Mr Cullen conveys his frustration that the agreed process had not moved forward. He informs the Complainant that her account is not consistent with the CCTV footage and that it is incumbent on her to view the footage. He refers to employee responsibilities to cooperate with any investigation under company procedures and advises her that it is problematic that she has provided an “exaggerated account” and that he can see no basis for her refusal to visit the office to view the footage. He stresses that she must take the next steps and can do so by confirming that she will cooperate with efforts to resolve the matter by participating in a virtual meeting with management and her union official. He goes to state that if she does not do so he will have to write to her “to formally advise you that your grievance is not upheld and that the question of whether the company should continue to pay sick pay in this circumstance will arise.  I do not want to do that as I believe a positive outcome is possible for everyone and I would urge you to respond to this email confirming that you will participate in a conciliatory conversation with a view to achieving a return to work and a better relationship going forward.”

In the Court’s view, the letter is detrimental to the Complainant as it threatens to make a finding about the Complainant’s complaint in circumstance where the investigation into that complaint had not concluded. However, on balance, the Court finds that Mr Curran’s threat to make such a finding was made in response to the Complainant’s failure to cooperate with the process thus far, rather than the making of a protected act by her on 3 July 2020 regarding an incident in the workplace on 5 June 2020.  As a result, the Court does not find that the Complainant was penalised or threatened with penalisation for making a protected act.

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.

The Court notes that it was open to the Complainant to progress her complaints internally and exhaust internal procedures before lodging a complaint to the WRC. While the Complainant’s evidence was that her complaints were subsequently investigated by another member of management after she lodged her complaint to the WRC, any matters arising after she lodged her complaint to the WRC fall outside the jurisdiction of the Court. 

Based on the evidence and submissions made, the Court found no evidence of detriment suffered by the Complainant in response to making a protected act on 3 July 2020.

In this case, for the reasons outlined above, the Court finds that the Complainant has failed to provide evidence that the making of a protected disclosure within the meaning of the Act in July 2020 led to adverse treatment in the relevant period under consideration as a result of making that complaint.

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
ÁM	______________________
25 October 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Áine Maunsell, Court Secretary.