Case Number: ADJ-00021272. Workplace Relations Commission

• Docket Number: ADJ-00021272
• Date: 03 April 2020
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, section 27 of the Safety health and welfare at work act, 2005 and section 27 of the organisation of Working Time Act, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

On 23 April 2019, the complainant submitted two complaints of Penalisation against his current employer. The claims were refuted by the respondent, a Facilities Company. Both parties were represented, the complainant by his Solicitor and the respondent by Management Support Services ltd. Both parties made oral and written presentations. The hearing was reconvened on November 6 to accommodate a witness for the respondent who was on leave during the first hearing in September.

Summary of Complainant’s Case:

The complainant’s representative outlined the facts of the case on his behalf. The complainant commenced work in the cleaning division of a large shopping centre in July 2017. He worked a 48-hour week and initially received €11.40. He currently receives €10.80 per hour in his present Pharma setting. Preliminary Issue: In response to the respondent contention that two parallel claims on the same set of facts were barred, the complainant’s representative submitted that he was entitled to be heard on two claims arising under different pieces of employment law. Safety health and welfare at work and Organisation of working time act. He contended that the complainant was a gentle and modest person not given to altercations who had lost a significant portion of his income. He had never wanted to matter to go this far. CA-00027920-001 Penalisation, Safety Health and Welfare at Work Act, 2005 The complainant began to experience interpersonal difficulties with his immediate supervisor, Mr. A, early on in his employment. He contended that he had been bullied for over a year. He was the sole Irish national on the cleaning team and his Supervisor did not was not use English in team communication. The complainant began to feel isolated and excluded. He first raised the issue by way of email to a member of the shopping centre staff on 3 October 2018 at 20.18 hrs “I am writing to query if there is some issue with my work that I am unaware of. I do my work well I am never late a never off on sick leave, but I feel disrespected and bullied daily by my supervisor. Can you please advise how this situation can be addressed? “ This document was passed to the area manager and the complainant met with Ms. A, Operations Manager during October 2018 and he began to see an improvement, which was short lived. He followed up progress on November 12 as he found that Mr A “had changed back to his normal ways again. He has started bullying me and being disrespectful towards me again…….” On 15 November, Ms A confirmed that she had met with Mr A and had established that a “personality clash “existed between both which would be best remedied by the complainant moving to the Food court area. The complainant was admonished for raising the issue with the wrong contacts who were external to the company. the complainant understood that the relocation to the Food Court was non-negotiable. The complainant contacted his Solicitor and began representations in that vein. The complainant was unwilling to relocate as it would result in a pay deduction and reduced number of hours. A copy of the contract, grievance and bullying procedures were requested. Mediation was suggested before the complainant commenced a period of work-related stress sick leave from 20 November 2018 to 26 November 2018. The respondent engaged in further correspondence dated 27 November. The complainant was advised to raise any concerns through the company procedures and could be represented by a colleague of trade union official. The complainant returned to work on November 26 only to have another altercation with Mr A regarding the proposed relocation, which he refused to undertake. the complainant resumed work related stress leave 26 November -10 December 2018. On 5 December 2018, the complainant, through his Solicitor informed the respondent of his wish to invoke the formal procedure in the grievance and dignity at Work policies and sought the appointment of an impartial investigator. The complainant appended a personal statement where he submitted “all I want is to remain in my current role and to be treated by my supervisor with the respect and dignity I am entitled to “He went on to contend that he had been penalised for raising a grievance. The complainant’s representative sought clarification when the complainant was advised by text from Mr A to forward his sick certs to his new manager at the Food court. The respondent announced that they were proceeding to investigation and findings would be submitted to senior management. Mr B, Operations Manager, was to undertake the investigation. The next day, Ms A confirmed that the complainant was noted as wanting to return to his prior role and “once he is fit to do so we will seek to re-instate him there and take reasonable steps to ensure that he is comfortable in same “ The complainant’s supervisor made a limited response but referred to a complaint he had made about the complainant on 26 November 2018. The complainant’s representative argued that this had not been put to the complainant prior to March 29. The complainant participated in the investigation. He met with Ms A for a back to work meeting on 10 January 2019 and was she suggested that he relocate to the food court pending the outcome of the ongoing investigation. On 16 January 2019, the respondent indicated that another job had come up for his consideration. he explored this hospital-based position and ultimately deemed it unsuitable. the complainant continued sick leave. The investigation report issued on 23 January 2019 and the complainants’ grievances were found to be “largely unfounded “. On 29 January 2019, the complainant queried the reasoning adopted by the investigator, Mr B and he reserved his right to lodge an appeal. He asked for an alternative role “commensurate with my previous role “ On 13 February 2019, the investigator wrote to the complainant and expanded on his reasoning for the earlier findings. “I have interpreted the findings of the investigation meetings to point to a clash of personalities between x and you and that you have misinterpreted your supervisors attempt to improve the standards on site. it appears that you have taken exception to this and taken criticism personally which I don’t believe was the intention of your supervisor on site …. The complainant was requested to comply with the mobility clause in his contract without loss of terms and conditions. The complainant was first placed on paid suspension until a suitable position became available. The complainant sought payment for his entire period of leave. On 14 February 2019, the respondent told the complainant that the “prior letter was a mistake “and withdrew the offer of paid suspension as he had not accepted the alternative roles offered by the company. The complainant submitted that by then he had suffered a significant reduction in income and he had been penalised as a result. The complainant submitted that he had pronounced mental health issues as a result. Ms A wrote to the complainant on February 26 and offered 3 potential work placements with a response time of close of business March 1. On February 28, he accepted the permanent post offered and sought payment of legal fees. The respondent indicated that the first position had been given to someone else and gave details of two other positions for consideration. The complainant was flabbergasted when he was also informed that he had been subject of a “site ban” from his erstwhile base at the shopping centre. He submitted that this had not been raised previously with him. The complainant’s solicitor contended that the complainant contract was breached and that by ignoring hi chosen representatives correspondence, the complainants mental anguish intensified The complainant accepted an offer of placement at a Pharma company on April 1, 2019 without prejudice to his intention to refer his experience to WRC. He remains there. In addressing loss, the complainant’s representative submitted that all offers made to the complainant had...