Transport Infrastructure Ireland (Represented by Mr Terence McCrann, McCann Fitzgerald Solicitors) v Maurice Leahy
| Jurisdiction | Ireland |
| Judgment Date | 15 March 2018 |
| Judgment citation (vLex) | [2018] 3 JIEC 1501 |
| Court | Employment Appeal Tribunal (Ireland) |
| Docket Number | DETERMINATION NO.EDA1819,ADJ-00002960 CA-00003971-001,FULL RECOMMENDATION |
| Date | 15 March 2018 |
Labour Court (Ireland)
FULL RECOMMENDATION
ADE/16/105
DETERMINATION NO.EDA1819
ADJ-00002960 CA-00003971-001
Chairman: Mr Hayes
Employer Member: Ms Connolly
Worker Member: Mr McCarthy
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
1. Appeal of Adjudication Officer's Decision No: ADJ-00002960.
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 15 February 2018. The following is the Determination of the Court:
Mr Maurice Leahy submitted a complaint to the Workplace Relations Commission on 20 April 2016 in which he states that he has,) contrary to s8(1), 14 A (1) and 74(2) of the Employment Equality Act 1998, been discriminated against by Transport Infrastructure Ireland (TII).
His complaints are summarised under various headings as follows:
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1. Failure by his employer to make reasonable accommodation for his request for a move to another work area despite knowledge of the ongoing difficulties with his line manager, his health background and a recommendation by Medmark that it would be to his benefit to move positions.
2. Abuse of medical referral process, including exaggeration of his disability to a serious mental illness in a medical referral to Medmark in December 2014.
3. Lack of urgency in investigating his complaint against his line manager.
4. Putting him at a disadvantage for potential promotion by creating a job description which blatantly excluded his area of expertise, despite this being a key function of the unit concerned.
5. Treating him less favourably than a colleague in terms of application of disciplinary procedure. Summoning him to a disciplinary meeting on 22nd October 2015 but his excluding his colleagues who were directly involved in the matter.
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6. Treating him less favourably by not conducting ‘return to work’ meetings after sickness absence until requested by him and abdicating line manager responsibility for this on the grounds of the “sensitive nature” of his condition.
He alleges he was victimised by his employer after making known his intention to make a complaint to the Equality Authority and following the making of a formal complaint against his line manager. The victimisation took the form of:
1. The respondent's attempts to subject him to a disciplinary process based on a flawed investigation of his complaint, resulting in a flawed Investigation Report.
2. The victimisation persisted despite representations from his solicitor that he would seek an injunction to prevent the process going ahead.
Finally, he alleges that there were serious breaches of company policy which deprived him of his right to natural justice. He itemises those breaches as follows:-
1. Lack of understanding of organisational bullying and harassment policy and procedure by his line manager.
2. Lack of understanding and misinterpretation of organisational bullying and harassment policy and procedure by the external investigator appointed.
3. Failure by his employer to recognise and address the mis-application of organisational bullying and harassment policy and procedure policy.
4. Failure by his employer to act reasonably when making decisions and to provide reasons for those decisions.
5. Failure by his employer to apply policy and procedure in a fair and objective manner.
6. Failure by his employer to provide a duty of care to me and comply with health and safety requirements.
7. Failure by his employer to provide a right to natural justice.
The Respondent rejects the complaints.
The Complainant has worked for the respondent since 2000. He was first employed as a temporary Clerical Officer and from 2001 as an Executive Officer. He was subsequently appointed to the grade of Higher Executive Officer following a further promotion in 2004.
In 2010 he was assigned to work in the Programme and Regulatory Unit and was given responsibility for administration of roadworks consent applications submitted to the NRA by telecommunications companies. He was subsequently (August 2015) transferred to the Road and Tunnel Safety Division of what by that time was called Transport Infrastructure Ireland.
During this time he experienced several bouts of ill health that caused him to be absent from work on a number of occasions. Following one such period of illness he returned to work on 18 November 2014. On 2 December 2014 he was informed by a work colleague that a senior member of staff Mr G.L. had informed her that the reason for his recent absence from work was because he “had a breakdown because of work.”
He reported the incident to Management and a number of meetings to discuss the alleged comment followed. He subsequently decided to make a formal complaint against Mr G.L. under the Bullying and Dignity at Work Policy. He opted to have the complaint dealt with through formal procedures.
That procedure requires that an independent person be appointed to conduct an investigation into the complaint. Such a person was appointed to undertake the investigation under agreed terms of reference.
The investigator conducted her investigation and concluded as follows:
• Having thoroughly examined the allegations and the circumstances of this complaint is the view of this investigation that this case, as a single issue case, based on hearsay, should not have proceeded to formal investigation.
In light of the framing of ML's formal complaint (FC) in the strongest, possible terms despite the allegation being wholly based on unfounded hearsay, and the unconvincing and seeming contrived nature of the evidence as outlined above, the investigation, finds, on the balance of probability, that the complaint is false and vexatious .
The Report was presented to the Complainant at a meeting with management on 1 July 2015. At that meeting he was also handed a copy of the organisations Disciplinary Procedure which he says puzzled him somewhat. However, he says, it soon became clear why they been supplied to him.
He was required to reply to the Report of the Investigator by noon on 6 July 2015 some 3.5 working days after receiving it. He also at that time expressed his concerns to Management regarding the possible disciplinary sanctions that might be taken against him.
Around this time he instructed his solicitors to review the Report and to correspond with the Respondent on his behalf seeking to have it set aside. Correspondence between his solicitors and the Respondent ensued.
The Complainant was absent from work through illness during the period that followed.
On his return to work Management decided to establish whether the Complainant was medically fit to proceed to the next stage of the internal procedures. It referred him to a specialist occupational health specialist which declared him medically fit to proceed. The respondent then invited by letter dated 22 October 2015 to a meeting on the 28 th October 2015. In the relevant part the letter stated:
• “… in accordance with TII's Disciplinary Policy and Procedure, a copy of which is attached, you are now invited to attend a disciplinary meeting on Wednesday 28 October at 2pm to discuss the possible disciplinary action arising from the findings of the Report. As you are aware the Report determined that your complaint was not upheld and, in particular, that your allegations, as made, were “false and vexatious”.
You will be given every opportunity to make full submissions in relation to all or any aspects of the issues arising from the Report, under the Disciplinary Policy and Procedure, before any decision will be made.”
The Complainant's solicitors objected to the meeting and suggested instead that an independent person be appointed to review the Report and its findings.
The Respondent agreed to this suggestion. A review of the Report was carried out by an agreed independent person. She concluded in the relevant part as follows:
• The Investigation Report is incorrect in its conclusion that Mr Leahy's complaint should have not proceeded to formal investigation.
The terms of Reference had no provision for making a finding of “false and vexatious” and the Investigation Report should not have made this finding and
A false and vexatious finding cannot be made in the absence of an investigation .
The Respondent accepted that report and the matter was closed.
On the 20 April 2016 the Complainant submitted a complaint, detailed above, to the Workplace Relations Commission. It is that complaint that is now before this Court.
Section 77(5) of the Act states
• (5) (...
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