Complainant

Respondent

Anonymised Parties

A Technical Manager

A Meat Processing Company

Representatives

North Connacht and Ulster Citizens Information Service

A Human Resources Advisory Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 as amended (by agreement) to:                                                          Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Safety Health and Welfare at Work Act 2005.

CA-00063730-001

27/05/2024

The Complainant alleges that she raised a safety health and welfare at work grievance/complaint against a third party non-employee of the Respondent, who was regularly present on the Respondent site, and that she was penalised for doing so.

The Complainant gave evidence under oath as follows:

On 1 March 2018, she was employed as a Technical Manager with the Respondent.

The Respondent runs a slaughter and meat processing business which operates mainly in Northern Ireland but also in the Republic of Ireland (RoI) where the Complainant worked.

The Complainant’s role was to oversee the management of health and safety of the RoI meat plant to ensure compliance with health and safety rules. At the start of her employment, she thought that the general operative employees might not like her enforcing health and safety rules – wearing of PPE and adherence to safety practices – but she did not expect that management would not support her or would undermine the job that she was trying to do to. Her job protected the Respondent  against product contamination, protected the staff from injury, and protected the company from litigation.   The Complainant took her role seriously. It was an important management role.

Members of a Government Department attended the plant on slaughter days. Apart from health and safety compliance she also oversaw the accreditation of the business by An Bord Bia.

She was the only female member of management.

There was a culture of sexism throughout the Respondent workplace. Despite the Complainant raising concerns with her managers about the behaviour of male employees, inadequate action was taken to what she found to be a toxic male work environment. Gender-based discrimination seemed normal and commonplace. It was within this work environment that safety, health and welfare concerns arose for her.

The Complainant accepts that her EEA complaints cannot be the subject of this investigation because they are time barred. However, she contends that even if these incidents are too long ago to base WRC complaint, they are still relevant to consider because this culture of inequality is relevant to the SHWWA penalisation complaint and illustrates that the managerial approach was to downplay safety breaches when they took place and this allowed a practice to develop where women were treated disrespectfully.

An example of this was the work Christmas party in 2021 when a male work colleague acted in a threatening way towards the Complainant calling her a prostitute, and unknown to her making sexual gestures towards her and filming it on his phone. The offending worker subsequently left the employment but having made a complaint about it to management the Complainant was never informed how or if the worker had been sanctioned before he left. She was frightened of him and when she came to work around that time she never knew if he would be on site or not. Management treated the situation as if she had exaggerated the incident.

Other incidents (which also are statute barred) involved sexist remarks being made about her by managers to visiting investors (as she was about to enter a management meeting she heard her boss saying about her “wait till you see this doll”) and there were other incidents that made her feel objectified.   The comments were offensive, sexist and undermining. When she objected, she was made feel by her managers that she was overreacting and/or that she was making unnecessary trouble.  

The Respondent business is a meat factory which predominantly employs men.

It was within this context that when she raised a complaint about XY, a male Government Department employee about his attitude towards her –instead of being supported, she was penalised by the Respondent.

The Respondent threatened to discipline her, they persistently contacted her when she went on sick leave and they tried to get her to leave her employment.

Time Limit

The Complainant does not accept that the complaint is out of time, but if it is found that the alleged acts of penalisation took place outside the period of 6 months -  but inside 12 months -  prior to the issue of the WRC complaint form, the Complainant seeks an extension of time based on reasonable cause, which is that from 28 September 2023 until 27 May 2024 (when the WRC complaint issued)  the Complainant was unwell, was on certified sick leave due to work related stress (which is not in dispute) and was unable to issue the WRC complaint until she recovered.

Safety Health and Welfare at Work / SHWWA complaint

On 14 July 2023 the Complainant raised a grievance in respect of an altercation that she had the previous day with XY, a member of the Government Department team who attended the site on slaughter days.

A meeting was called by the Respondent on 28 July 2023 at which the Complainant and XY attended. The issue was discussed and XY further dismissed her at the meeting. The meeting ended with both the Complainant and XY requesting the Respondent that a formal grievance investigation take place.

The Respondent appointed its HR firm to conduct the investigation.

Pursuant to the investigation the Complainant and XY each filed written statements setting out the Complainant’s complaint against XY and his complaint against her.  

In her written statement the Complainant raised four complaints as follows:

1.       The first incident with XY was regarding the female toilet. The female staff were having issues with male staff using the ladies’ toilet and they complained to me that they left them unclean/not fit for purpose. I arranged with maintenance to get a key for the ladies’ toilets so that they would be able to lock it and circulate the key between the other females on site. This was welcomed and agreed upon with all the female vets and the female staff. Members of the female staff informed me that XY had demanded that he must control the key and that it was to be kept in his office. I approached XY to ask him if this was the case and he responded to me saying “I work for the Government Department and I can do what I want.” I didn’t respond and left the conversation and made a complaint to XY’s line manager at the time. I felt disrespected and threatened by his response as it was aggressive and degrading towards me. From that moment on I avoided XY as I did not want to give him the opportunity to make me feel like that again.

2.       The second incident with XY occurred on Monday 3 July which I dispute, was regarding the window in the Government Department Office. I was walking across the yard and noticed a member of staff… using the window to receive paperwork from XY. I spoke only to HH and highlighted the issues in the past with the widow and the near failure of our BRC audit. The Government Department was aware of this issue and had locked the window to prevent any issue reoccurring. XY was sitting with his back to the window and he was not involved in the conversation and I dispute the accusation that I slammed the window. XY was not involved in this conversation at any point during my conversation with HH.

3.       The third incident was on Friday 14 July 2023 when XY walked in through the office, and I approached him as he entered the main reception area, and I asked if he could use the front entrance in future. He ignored me at first. I repeated myself and he responded by raising him hand and telling me repeatedly to “F**k off”. I didn’t respond to this as again I felt threatened and extremely upset by this. I went to XY’s line manager as I was upset, and my manager was off duty at the time. I also dispute the accusation that I barged into a private conversation as the reception office is not a private office, it is an open place space which is shared by myself and another (employee.)

4.       The most recent incident was during the meeting which was held on Friday 28 July with [named participants] During the meeting XY said “who does she think she is” when speaking about me and I felt that this was yet another attack towards me. During the meeting XY informed me that he too was going to put in a complaint against me as he believes that I did not follow proper procedure when I went to his manager on the 14 July to discuss the incident that had just occurred. This also came across as quite threatening and his “bully boy” behaviour made me feel extremely uneasy.

5.       XY has repeatedly used aggressive language with me and his manner towards me has been extremely demeaning. He has made me feel uncomfortable, threatened, and disrespected. My personal wellbeing and mental health should not be at risk in my workplace but unfortunately, XY’s behaviour and words have really taken a toll on me and I no longer feel like I can work to my fullest potential while this is ongoing with no resolution.

In her oral evidence at the Adjudication hearing the Complainant said that were it not for a toxic environment which had become the norm within the workplace that XY he would not have responded so aggressively to what were very normal queries about health and safety issues on the Respondent premises from the Respondent health and safety manager.

The health and safety risk with leaving the window open was due to risk of insect entry to the meat production floor. The Respondent management downplayed this incident when she reported it. It was as though there was a collective eye roll by management whenever she tried to do her job.

No one from management ever said – “Do as she says– this is a health and safety measure and she is the health and safety manager.” The Complainant never felt that she had the support of management.  Instead, there was a cold shouldering towards her by management and they ignored much of what she raised in terms of health and safety concerns that might require any change. She became isolated within the workplace.

The incident on 13 July 2023 in her office when XY attempted to cut through the office and his reaction to her - telling her to “F**k off” was a tipping point for the Complainant. She was not prepared to keep on being disrespected. She knew that the Government Department were important to the Respondent, because they had the power to decide if the Respondent’s operated or not, but XY’s treatment of her had become unacceptable and she needed management to support her.  She raised a complaint against him so that the Respondent management could intervene and draw a line in the sand because his attitude to her was worsening.

When the meeting was convened on 28 July 2023 and XY said “who does she (the Complainant) think she is?” No one from management intervened or supported her.

It is the Complainant’s case that XY’s treatment of her impacted her health and well-being. Her anxiety increased. XY’s conduct to her had become a health, safety and welfare issue. This was clearly expressed in her written statement.

An Investigation was then commenced by the Respondent’s HR advisor.  The Complainant was provided with XY’s grievance statement which disputed her statement:

In respect of the first complaint XY denied being aggressive to the Complainant but admitted that he said that he retained the toilet door key to allow a temporary vet to use it.

In respect of the second complaint XY did not deny that the Government Department office window to the outside was open. He said it was the Complainant who was aggressive when she closed the window.

In respect of her third complaint XY said that the Complainant was aggressive and told him not to use the stairs and to use the front door instead. He admitted that he at first ignored her. He also admitted telling her to “F**k off” but that it was under his breath. He said that he was frightened of her.

In respect of the fourth complaint XY did not recall saying “who does she think she is.”

The Respondent’s representative at the Adjudication hearings is an employee of the HR advisory firm that carried out the Respondent’s internal investigation.

At the Adjudication hearing the Complainant submitted that the investigation lacked fair procedure and that the investigation report was the start of the penalisation which occurred because she had raised a safety concern.

The Investigation was carried out between 4 August 2023 and 4 October 2023 (when the Investigation report issued.)

The Complainant says that she was penalised both by the Investigation findings and by the actions of the Respondent thereafter.

She contends that without any explanation the investigation was conducted as a disciplinary investigation as opposed to a grievance investigation. The investigators findings were inexplicable.

In respect of her first complaint the Investigator found no wrongdoing by XY even though her admitted to retaining the key to the female only toilet. There was no finding that the Complainant had been correct, as the health and safety manager to instruct him and other Government department men to not use the female toilet. The conclusion that the Investigator reached in respect of her first complaint, was that the Complainant was wrong to have reported the argument to XY’s line manager instead of her own manager and because of that the Investigator recommended that the Complainant be disciplined for failing to follow company grievance reporting procedures. And that was the only finding that she made in respect of that complaint.

In respect of the second complaint the Investigator found that the Government Department window to the outside was open and paperwork was being passed through it. But there was no mention of this being a safety breach because of the risk of insect ingress. Instead the Investigator found that it was reasonable to believe that XY felt fearful because he had his back to the window when the Complainant closed it and because the window may have been heavily sprung it is reasonable to believe that XY got a fright.

In respect of the third complaint even though XY admitted to the Investigator that he told the Complainant to “F**k off” the Investigator found that this had been prompted by an aggressive approach to him by the Complainant and on foot of this the Investigator recommended that the Complainant be disciplined for aggressive behaviour and obscene behaviour or conduct.

In respect of the fourth complaint the Investigator found that there was no evidence to support the claim that XY said of the Complainant “who does she think she is.”

The Investigator additionally recommended that as the Complainant had admitted to sending a copy of her written statement to a friend - who was not employed by the Respondent to proof read -  using the company email,  that the Complainant should be disciplined for gross misuse of company email systems.

No aspect of the grievance that was raised by the Complainant was even addressed never mind upheld by the Investigator even in the face of admitted acts of wrongdoing by XY.

The Investigation report was sent to the Complainant on 4 October and she was advised that a Disciplinary Officer had already appointed by the Respondent and that this person would contact her in due course to commence a disciplinary process against her.

When the Complainant received the investigation report on 4 October 2023 she felt like everything had been turned upside down.

Having raised safety concerns with her employer she found it was she who was facing disciplinary action for obscene behaviour and conduct (which the dictionary defines as sexually offensive conduct); for failing to use company grievance reporting procedures regarding the toilet issue; for acting aggressively toward XY even though he admitted telling her to “f**k off” in the office and for improperly using company email systems (because she sent a draft of her complaint statement to a friend to proof read.) There were no findings or recommendations against XY whatsoever. There was no intervention by management to remedy even the wrong doing that XY accepted had occurred.  

There was no recommendation that treating their Technical Manager in this way was not acceptable to Respondent. Nothing to say that she was within her rights to tell him not to use the female toilet. Or that it was unacceptable to tell the Respondent health and safety manager to “F**k off.” No direction was given by the Respondent to the Government Department team to remind them that they were on the Respondent premises and that the Respondent’s duty of care to protect the health safety and welfare of its employees, extended to actions of third parties on their premises.

The Complainant contends that this biased approach by the Investigator was because the Respondent depended on a good relationship with the Government Department, who had the power to close the production plant if they chose to. To the Complainant it was clear that keeping the Department happy was more important than her well-being.

The Investigation process was replete with flaws from the start.

It was conducted as a disciplinary investigation as opposed to a complaint about the Complainant about her feeling unsafe in her workplace.

The Investigator made findings, without ever raising these issues with her, that the Complainant failed to follow company grievance reporting procedures; acted aggressively; used obscene behaviour and grossly misusing the company email systems by emailing a 3rd party. The Complainant was never asked about any of these matters.

The Investigation report proved (a) that there was prejudgement against the Complainant (b) that fair procedures were not adhered to and (c) that the disciplinary action that was pursued against her was penalisation because she made a health and safety complaint.

On receipt of the Investigation report on 4 October 2023 the Complainant immediately went on certified sick leave for work related stress.

Then the Respondent almost immediately started emailing the Complainant. Five days into her sick leave - on 9 October 2023 – the Respondent invited her to a work absence meeting. They emailed her asking her to return keys. They emailed her again to arrange a disciplinary meeting. This was all despite the Complainant furnishing sick certificates on her employer confirming that she was ill. It was intimidating. When she asked her managers to stop contacting her and her doctor then also instructed them to stop, they persisted into late 2023 and early 2024.

In February 2024 the Respondent management emailed her attaching an exit agreement suggesting that she leave her job. The Complainant had no reason to leave her job. She was good at her job.

The proposed exit agreement stated “there have been challenges with your working relationship with other colleagues over the past few months. Despite the company’s best efforts to resolve these issues, it appears that there remains a significant and persistent breakdown in both parties ability to work together effectively. Recognising the importance of a productive a harmonious work environment management would like to propose reaching an amicable resolution to the situation through an exit agreement. This would entail a mutually agreed upon separation from your current role at..”

On behalf of the Complainant, it was submitted that penalisation occurred is self-evident. Having sought an investigation against XY because she felt unsafe in the workplace and felt threatened by his behaviour, the investigation inexplicably converted into a disciplinary investigation rather than investigation into her and XY’s grievance. The report that followed recommended that disciplinary action be taken against her. She was told by the Respondent that disciplinary action would commence. During her sick leave, Respondent managers kept contacting her to attend meetings despite she and her doctor asking that she be left alone to get better; Internal emails between the Respondent and their HR advisors which were disclosed to the Complainant showed that the Respondent wanted to either get into a position that they could dismiss her (for failing to attend disciplinary meetings) or get her to agree to leave voluntarily.

None of this evidence is contested because the Respondent called no witnesses at the Adjudication hearing. Only the Investigator gave evidence, a person employed by the Respondent HR firm who made recommendations to the Respondent.  But no evidence was tendered for how the Respondent management acted on foot of the recommendations.

The Complainant submits that multiple acts of penalisation occurred because she raised a complaint a health and safety complaint, and but for this she would not have been penalised.

Under cross examination the Complainant stated:

She did not accept that her penalisation complaint was “a nonsense.”

She did not accept that emails to get her to attend disciplinary or return to work meetings so soon after she went on sick leave were reasonable, appropriate or a normal roll out of the company disciplinary or absenteeism policy. She was suffering acute anxiety at that time and needed time to get better.

She accepted that the words “health safety or welfare at work” were not expressly stated in her written grievance, but not only was Respondent management fully aware that the Complainant felt threatened by XY’s conduct, her written grievance stated it. It expressly claimed that her personal well-being and mental toll had been put at risk by XY’s aggressive conduct and she was seeking that her managers intervene.  It could not have been clearer. Her complaint was about her work conditions which were unsafe.

She admitted that she emailed her friend - who worked outside the company – a copy of her written grievance to proof-read.

She said that when she raised the grievance first her ambition was fairly low level.  She simply wanted her managers to speak with XY to get him to treat her with respect. She believes that because he was on the Respondent premises, they had a duty of care to intervene on her behalf.  He treated her as if she had no authority even though she was the Respondent’s Technical Manager in charge of health and safety on site. The directions that she gave XY were not even remarkable – “close the windows on slaughter days” “don’t use the female toilets” - yet because of the culture of sexism that pervaded the workplace his non-cooperation and disdain to her, telling her to “f**k off” had become normalised.

She didn’t accept that it was members of the Government Department who asked to hold the first meeting. She sought the meeting by way of an email to her manager. It was only at the 28 July meeting when she requested a formal investigation that XY did too.

Apart from the fact that it was not supposed to be a disciplinary process, there were no grounds to discipline her following the investigation. The investigator side stepped the substantive complaints that the Complainant had requested be investigated and instead the Investigator picked up on less important procedural matters but the investigation report was then all about the procedural matters rather than the bigger picture which was that any time  she attempted to do her job and address health and safety concerns, she faced aggression, her directions were ignored and her authority was undermined which resulted her in her mental health being adversely impacted. None of this was addressed by the Investigator.

The investigation report itself is evidence of the fact that when she asked for a personal safety issue to be addressed, the response of the Respondent was to discipline her, intimidating her by contacting her during sick leave and then trying to get her to end her employment  

The Respondent consented to the amendment of the complaint made by the Complainant’s representative on day 2 (11.11.2024) from a discrimination complaint to a complaint under the Safety Health and Welfare at Work Act. (SHWWA)

The Respondent’s evidence to ground their defence was limited to the Respondent’s HR firm employee, the Investigator.

The Respondent did not call evidence from any Respondent employee to contest the assertions that the Complainant was penalised by Respondent management from October 2023 on.

When asked if the Respondent was going to call evidence the representative advised that Adjudicator that he would rely instead on the evidence of the Investigator, the Complainant’s own evidence and submissions.

The Respondents’ asserted defence was:

-          The WRC complaint was issued outside of the 6-month statutory time limit.

-          The grievance that was raised by the Complainant was not a complaint about a safety health or welfare matter, as per section 27 of the SHWWA. It was about a few altercations that she had with XY.

-          Section 8 of SHWWA afforded them a defence based on what is “as far as reasonable practicable”

-          As there was no protected act, any alleged penalisation cannot be said to have occurred due to a protected act.

-          The Investigation was properly conducted

-          Any allegation of penalisation is denied

-          No causal link has been established between the Complainant raising a complaint against XY and how she alleges that she was penalised subsequently.

The Respondent initially objected to the admission of exit agreement letter of 7 February 2024 on the basis that it was marked “without prejudice” but withdrew this objection on day 3 of the Adjudication after the Complainant’s representative submitted that there were no proceedings in being when the exit agreement issued and that without prejudice claim did not hold unless there were existing legal proceedings in being.

The Investigator gave the following evidence under oath

She is an employee of the Respondent’s HR Advice company and she was asked to carry out a workplace investigation. This was carried out between 4 August and late September 2023 and the outcome was sent to the parties on 4 October 2023.

The process that she followed was in strict adherence with the process set out in the Respondent employment handbook.

Under the Respondent grievance procedures the Respondent was entitled to recommend disciplinary action against the Complainant

Under cross examination she stated:

She has no training in the Irish employment legislation. Her training in in respect of Northern Ireland HR practices. She is not familiar with the WRC Code of Practice for dealing with a Grievance or indeed any guideline or publication issued by the WRC.

This was her first workplace investigation.

She did not see a distinction between a disciplinary investigation and a grievance investigation.

She did not know that the WRC Code of Practice guidelines on Grievance Processes which advises that grievance investigations and disciplinary investigations should be dealt with distinctly.

She accepts that use of female toilets by men could be considered as a health and safety concern for female workers

She accepts that an open window of the Government Department office on slaughter days may be a health and safety concern because of the risk of insect ingress to the production area.

She accepts that XY admitted swearing at the Complainant and accepts that her report did not recommend that management engage with the Government Department to ensure that XY did not swear at the Complainant in the future, because the Respondent had no authority to discipline non-employees.

She accepted that incidents that the Complainant raised, took place on the Respondent premises during work hours but stated that the Respondent did not employ these workers so had no obligation to tell them what to do.

She did not consider that the word obscene had any sexual connotation. She used the words “obscene behaviour and conduct” in her Investigation as meaning aggressive behaviour.

She did not accept that she was biased in conducting her investigation

She did not accept that she considered evidence that was not disclosed to the Complainant.

She was tasked to conduct an investigation and make recommendations. Action that was taken by the Respondent after they received her Investigation report lies with the Respondent.

She is not aware why no one from the Respondent gave evidence at the Adjudication.

This ended the evidence of the Investigator.

Correspondence between the Complainant and the Respondent was relied upon by the Respondent representative, in his cross examination of the Complainant, but this evidence was not proven by any Respondent witness.

This correspondence corroborated the Complainant’s evidence as to fact that the Respondent attempted several times to contact the Complainant in October – November  - December 2023 (while she was on sick leave at a time when they were in receipt of medical certificates) and also that an exit agreement was sent to her by them in February 2024.

The questions that I am required to address and answer in this decision are as follows:

1.       Is the complaint out of time and if so, is there reasonable cause to allow an extension to be granted?

2.       Did the grievance that the Complainant raised with management in July/August 2023 relate to safety health or welfare at work (as per section 27 3(c) of the SHWWA) as alleged by the Complainant?

3.       If the answer to Q. 2 is yes, was the Complainant penalised for making such a complaint?

4.       If the answer to Q.3 is yes, what is the appropriate remedy?

1.       Time Limit

This WRC complaint was lodged in 27 May 2024.

The Complainant alleges that the acts of penalisation commenced with the issue of the Investigation Report dated 28 September 2023 which was served on her on 4 October 2023. As the issue of the Investigation report is an alleged act of penalisation which occurred outside the 6-month period prior to the issue of her WRC complaint I am compelled to find that this part of the Complainant’s complaint is out of time. I refer to the period from 4 October 2023 to 27 May 2024 (7 months and 23 days) as “the relevant period.”

Reasonable Cause Extension

I am satisfied that the Complainant was unwell due to work related stress from 5 October 2023 up to and including when she issued her complaint in May 2024. I have seen all the medical certificates that were filed, which cite “work stress.”

The applicable test for a “reasonable cause” extension - from 6 to 12 months - is set out in the Labour Court in the case of Cementation Skansa v. Carroll, DWT 0338 which held that it is a matter for the Complainant to show that there are reasons which both explain the delay and afford an excuse for the delay.

The Labour Court in Skanska set out a five-element test to establish reasonable cause:

1.  The Complainant must explain the delay

2.The explanation must be reasonable

3.There must be an objective standard applied in the circumstances of the case

4.There must be a causal link between the circumstances and the delay

5. The Complainant must show that, if the circumstances were not present, s/ he would have submitted her/his claim.

The Complainant gave uncontested evidence that in October 2023 she was diagnosed with severe anxiety and depression. I am satisfied that the Complainant was was too unwell to issue a WRC complaint – during the relevant period and that this meets each of the 5 elements of the Skansa test.

Finding: I am satisfied that the claim is out of time and I am satisfied that circumstances exist to permit me to extend time to allow for the Complainant to bring a SHWWA complaint to 12 months from the date of the alleged penalisation. I am satisfied that the complaint is not time-barred.

Q.2. Did the complaint that the Complainant raised with management in August 2023 relate to safety health or welfare at work (as per section 27 3(c) of the SHWWA) as alleged by the Complainant?

The grievance issues raised by the Complainant in July 2023 and particularised in writing in August 2023 were as follows:

-          when she approached XY - to ask if he was using the female toilets and if he had kept the key - he dismissed her and responded aggressively saying she had no right to ask him.

-          that Government Department workers allowed a window from their office to outside be open during production time – in breach of the health and safety rules in meat production facilities and that she told them to close it.

-          that XY entered her office to short cut through the office, and when she told him to use the front door, he raised his hand and told her to “F**k off”

-          during the preliminary meeting on 29 July 2023 XY asked the convener of the meeting with respect to the Complainant “who does she think she is?”

Her complaint was that she felt threatened by XY’s conduct towards her. The words that the Complainant used to describe how she felt were “threatened,” “degraded,” “uneasy,” “uncomfortable,” “disrespected,”  and that “her well-being and mental health was at risk.”

The matter that I need to decide is whether any of the matters that the Complainant raised in her grievance fall within section 27 (3)(c) namely that they are a complaint or representation as regards any matter relating to safety health or welfare at work.

The points within the Respondents submission that engaged with the section 27 penalisation complaint were:

-          that the burden of proof to show a causal link between the raising of a complaint and alleged penalisation is on the Complainant to discharge (O’Neill v. Toni and Guy Blackrock Ltd.)

-          that the complaint disclosed was not related to health safety or welfare at work

-          that no penalisation occurred. 

Given the content of the Complainant’s written complaint it is difficult to see how the Respondent could contend – had they tendered any evidence – that her complaint was not a complaint or representation as regards any matter relating to safety health or welfare at work because it was expressly that. She claimed that XY’s treatment of her was impairing her well-being and putting her mental health at risk. Her complaint could not have been clearer - she felt unsafe and unprotected in her job.

To this the Respondent relied on a section 8 “as far as is reasonably practicable” defence which is a defence to a claim that a health and safety breach had occurred as opposed to a claim that an employee was penalised for making a protected act, a health and safety complaint. To be clear, this Adjudication was not about whether a breach of health and safety occurred or not and section 8 does not present a defence to a section 27 complaint.   

The Respondent’s defence was also that because the words “health safety or welfare” were not stated in her grievance which precludes from it constituting a health, safety welfare complaint, which I am not persuaded by.

The Complainant’s 2 August 2023 email, set out her complaint which was that she was being psychologically adversely affected because of how XY was treating her on site and she was asking her employer to investigate this. I am satisfied that this constituted a protected act under SHWWA. I am satisfied that the complaint related to safety, health or welfare at work.

I will now consider whether the Complainant was penalised for making such a complaint.

Q.3 Was the Complainant penalised for making a health and safety complaint?

Section 27 (1) of SHWWA defines penalisation as being:

“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.”

Section 27 (2) sets out that penalisation can include but is not limited to:

• suspension, lay-off, or dismissal or the threat of same;
• demotion or loss of opportunity for promotion;
• transfer of duties, change of location of place of work, reduction in wages or change in working hours;
• imposition of any discipline, reprimand or other penalty; and
• coercion or intimidation.

The test for this is set out in Toni & Guy Blackrock Limited -v- Paul O’Neill HSD095 in which the Labour Court determined that the employee must prove on the balance of probabilities that he/she made complaints regarding health and safety in the workplace and such complaints resulted in him/her being penalised in the workplace. Once these two proofs have been satisfied, it is for the employer to satisfy the court that the health and safety complaints did not influence the treatment of the employee. 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:

“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.”

In summary, the employee must establish the following to discharge the burden of proof:

• the employee must prove that he/she made a complaint regarding health and safety issues in the workplace;
• the employee must prove that he/she suffered some sort of detriment as a result of making the complaint concerning health and safety issues; and
• the employee must prove that this detriment would not have been suffered if the complaints were not raised.

Based on the evidence available to me I am satisfied that the Complainant was penalised for raising a health and safety complaint and that the Respondent has not provided any evidence to allow for a contrary finding to be made.

I find that the investigation was not appropriate in a number of respects.

Firstly, from the start it was conducted as a disciplinary investigation instead of an investigation into a health and safety grievance.

Secondly the findings went beyond its remit. What was required of the Respondent was to either uphold or not uphold the Complainant’s complaint and/or to uphold or not uphold XY’s complaint against her. But the Investigator’s findings went further and recommended disciplinary action against the Complainant.

Thirdly some of the recommendations resulted from matters that were not raised with the Complainant before or during the investigation. For example there is no evidence that she was told that she was being investigated for failing to adhere to company reporting procedures, which was one of the Investigator’s findings.

Fourthly, while the Investigator now admits that her finding - that the Complainant had acted obscenely - was a misuse of the word and she did not intend to find the Complainant had acted in a sexually offensive way. However that is what the word obscene means, so the effect on the Complainant of that word being used in the report findings at the time is relevant to determine if the finding constituted detrimental treatment or penalisation. This specific finding must have been particularly triggering for the Complainant given that she herself had previously been subjected to degrading sexual behaviour at a work event.

Fifthly none of the Investigator’s findings upheld any of her health and safety complaints – even in circumstances where XY admitted telling her to “F**k off” and admitted to retaining a female toilet door key when she asked him to return it to her.

Findings

I am satisfied on the balance of probabilities that the Investigators findings resulted from a biased process and that the recommendations that ensued -  to discipline the Complainant -  were not only fundamentally unfair for the reasons listed above but that they would not have been made other than because she raised a health and safety complaint.

I am satisfied that a recommendation to discipline the Complainant was a reprimand which constituted an act of penalisation which would not have occurred but for her raising the complaint.

I am satisfied that management by pressurising her during her sick leave to attend disciplinary meetings, work absence meetings were done for a purpose which was to coerce her and to intimidate her into leaving her job and if that did not work, to ask to leave. I am satisfied that the internal emails between Respondent management and their HR advisors are evidence of a intentional strategy to end her employment.

I am satisfied that the Respondent contacting her during a period of certified sick leave when both she and her doctor asked them to desist– was penalising conduct which would not have occurred but for her making the complaint in August 2023.

I am satisfied that the proposal by Respondent so that she would voluntarily leave her employment by way of an exit agreement in February 2024 – was done to pressurise her and that this was an act of penalisation which would not have occurred but for her making the complaint in August 2023.

In conclusion, I am satisfied that the Complainant has discharged the burden of proof that she was penalised for a protected act – ie making a complaint - which was a health and safety complaint – and that but for raising this complaint, she would not have suffered the detriment – in the varied forms that it took -   that she did.  

Having discharged this burden, as the Respondent has provided no evidence to allow a contrary conclusion to be reached, I am satisfied that this complaint is well founded.

Q.4. Remedy

It is my view that an entirely different approach could have been adopted by the Respondent. The background issues to this complaint were known to management. That the Complainant faced an ugly sexist interaction with a male employee in 2021 was known to management.

The Complainant was the only female member of management in an overwhelmingly male work environment. Her job – which protected the Respondent from litigation and reputational risk– was one that she did conscientiously, yet when she raised a health and safety concern - she faced management hostility. She was treated as a troublemaker, instead of as an asset to the Respondent whose health and safety and wellbeing was important to them.  

Unfair treatment of women workers in predominantly male working environments - particularly within management roles - is not new. Recent WRC case data shows that gender-based equality complaints are on the wane, but unfortunately discriminatory attitudes still exist.

It is why employers - particularly over the last 10 years those whose workforce was predominately made up of one gender, one race, one religion etc.  – have adopted equality diversity and inclusion policies. EDI policies assist in addressing discriminatory attitudes and conduct in the workplace. Staff training allows for protections to be put in place for employees particularly those in under-represented cohorts.

Section 28 of the SHWWA sets out the remedy that an Adjudicator may award where a contravention of section 27 has been found under which an Adjudication officer may require an employer to pay to the employee “compensation of such an amount as…is just and equitable having regard to all the circumstances.”

I consider that the compensation level that is just and equitable having regard to all the circumstances of this case, including the impact that the penalisation had on the Complainant’s health, her loss of income due to ill health,  the lack of a serious or evidenced defence to the complaint, to ensure that the remedy is effective, proportionate and dissuades against future breaches by the Respondent,  is the sum of €48,000.00 which approximates just over one year of the Complainant’s gross salary.

This complaint is well founded. I award the Complainant €48,000.00.

Safety Health and Welfare at Work Act – Penalisation