ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002456
Complaint for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005
Venue: WRC; Lansdowne House, Dublin 4
Date of Adjudication Hearing: 15/11/2016
Workplace Relations Commission Adjudication Officer: Eugene Hanly
In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was employed as an Apprentice Electrician from 10th November 2015 to 10th March 2016. He was paid €200.00 per week. He has claimed that he was penalised and dismissed in retaliation for reporting an unsafe practice. He has sought compensation.
Complainant’s Submission and Presentation:
The Complainant stated that on the 21.01.16 he was working on a construction site and was pulling cables through conduit, working at height. As is common with such work, he was on a ladder and had to position himself very close to the end of the wall close to a large window. He positioned his ladder very close to the window along the edge of the flooring to gain access to this area. After completing his work he came off the ladder and his foot fell right through some Lamer-therm (an insulating material used as a fire retardant) causing him to lose his balance and fall. This material was the same colour as the floor and being used to fill in a gap of around 30 centimetres from the window and posed a risk to anyone using a ladder in such circumstances or anyone who might have stood on it such as himself. The drop to the next floor was around 3 metres which could be seen in the gap created. He told his colleague who he was working with and showed him the gap. He said that the HSA health and safety inspector had just been through the site telling people about working with glasses and was concerned that he didn't see this. He immediately took pictures of the scene and emailed the HSA to tell them that their inspector had missed this risk. As workers, we hadn't been informed of this risk at any point before commencing work. The HSA informed him that someone would contact them next week, he kept a close eye on the scene and wanted to tell his foreman, MK but he had previously shouted and sworn at him for simply searching for a ladder (which were always in short supply) so he decided it would be better to keep working and once he knew exactly where he was then tell him. He didn’t see MK until the following day and informed him as soon as he saw him. He had previously shown little respect for him as a new apprentice so he wasn't entirely surprised when he showed little interest in his concerns and just told him to tell someone else - a man from the main contractor who he had never met before. Later that evening, he emailed the HSA again to inform them that his foreman had shown little interest in my concerns. After around one week, MK approached him to ask him about the incident and where it had happened because he was having a "safety meeting" with the company and wanted to raise this issue. Thinking it a little strange after so long he showed him the area. He showed new concern for the issue and claimed that before he had been clear enough with him regarding what had happened, that it was the Complainant’s fault that he didn't come to see it. When he disputed this account from him, he completely changed his demeanour and said, "well, this is really serious, someone contacted the HSA. Was it you? Who was it? Anyone in your family? He pressed him on this issue to which he said to him that he didn't think he had any right to ask him about this. He then went on to threaten him by saying, "there are serious consequences for people who do this type of thing..." "you dont just go to the HSA." Following this, he didn't hear anything about this but MK was clearly angry with him and kept bringing up the issue with the HSA. In one toolbox talk he said, "the Complainant fell through a hole....you know if anything like that happens you don't just go to the HSA, someone called the HSA about something, they said it was a Respondent Operative but we don’t know who...." He was very embarrassed and felt our crew began to have raised suspicions that it was him. He felt again very threatened. Later the same week, a young lad cut himself very badly and had to go to hospital to which he joked to everyone, "maybe someone should give the HSA a call!" It was only when he was off sick with the flu and had to email a sick note to his Director LC that the issue came up again. He called in to MK to say that he couldn't come in as he was sick, which MK was very angry about, claiming that he had been sick a lot recently. In his email he decided to apologise for this absence and that also he hoped that as it was him who had contacted the HSA it hadn't detracted from his obvious commitment to his apprenticeship. With his admission he was called for a meeting with LC and the Health and Safety Manager. Expecting this to be a friendly meeting to discuss how concerned they were about what had occurred they instead claimed that he should have gone to MK sooner, or if that hadn't been successful, then to the director himself, regardless of the fact that he was rarely contactable. He told them that MK was very unpleasant to him and had been swearing at him for simple things but they showed no interest in this. They also claimed that he had gone against the Safety Statement but not telling MK in "under one hour". Feeling belittled and accused again, he was told to return to work and ensure that things would be ok with MK to ensure good working conditions which he duly did and continued with his work. He had free parking in one site but was then told to park on the street. He was given very basic work such as cable tying. He was moved from site to site where there was not enough work and was giving sweeping jobs. Once that particular project was completed he was without warning sent to a number of different sites with little notice in Dublin and then abruptly on the 10th March told to go and see LC at the main office for 8am. Expecting to be told where the next project was to be, he was shocked to hear that he had "scored very low on all areas of the apprenticeship" and that his time was up with them. It was shocking in that he had never had any complaint, nothing was ever raised and he had worked well for the three months of my six month trial apprenticeship. It was also a surprise because he had been told to expect my review in April, not March. His feeling is that it was retaliation for his HSA complaint. Another concern he had is that they will try to damage his reputation with such false feedback on his performance and will not be able to find any apprenticeship which he had worked so hard for and had been applying for many months prior to this contact. With the points raised he has copies of emails he sent to the HSA at the time the events occurred, including his foreman's threats and accusations.
He stated that he had not failed his apprenticeship. He was not made aware of a review of his performance. He was not told that he was not performing well. He had been given an excellent reference from one site manager. He believes that he was penalised for reporting an unsafe practice in the company to the HSA. He is seeking compensation.
Respondent’s Submission and Presentation:
The complaint before this hearing is under the Safety Health & Welfare at Work Act. While he has made reference to the Protected Disclosures Act in his submissions nevertheless that Act is not before this hearing. If he is now submitting a complaint under that Act it is now outside the time limit allowed and so should be rejected.
Safety, Health & Welfare at Work Act Complaint
Under the Safety, Health & Welfare at Work Act they stated that he had been offered a contract of employment and he confirmed that he was willing to comply with company health and safety regulations and codes. He was informed that if he was successful he would be offered a trial period for six months. He was offered a six month pre-apprenticeship subject to successfully completing that probation period. He received induction training on Safety at Work and Dignity at Work concerning bullying and harassment. On 21st January 2016 he had an incident at work regarding his foot going through a section of flooring. He did not report this to the Site Foreman, which is the company procedure. Instead he contacted the Health & Safety Authority (HSA). A witness RM was named by the Complainant but he stated that he saw the leg of the ladder, not his leg go through the flooring. He told the Site Foreman the next day alleging that he didn’t expect him to do anything about it. It was unclear as to why he would form that view. He had received comprehensive training and a safety statement detailing the procedures to be followed. When he reported the incident the Foreman asked if he was hurt and he replied that he was not, so no form was filled out at that time. However he noted it in his dairy. On 2nd February the Site Foremen spoke to the Complainant and asked him if he had reported the matter to the HSA, he replied that he had not. He was then asked to fill out a near miss report. The Foreman rejects any suggestion that he was aggressive or used threatening language towards the Complainant. By not reporting the incident when it happened he left a safety risk exposed. As the Foreman did not know who had reported the matter to the HSA he could not be accused of threatening him for doing so. The next day 3rd February the Foreman held a “tool box” talk to inform staff of an incident so as to ensure that they were aware of it so that they could take a proactive approach to it. On 9th February 2016 he contacted the Foreman that he was unwell and would not be in work. The Foreman reminded him that this was the third absence. The medical cert states influenza however he refers in his submissions bullying. On 9th February 2016 he advised the Director that it was he who had reported the incident to the HSA. The Director had considered it a minor event and there were no repercussions. However he decided to meet with the Complainant if nothing else but to remind him of procedures. The Safety Manager also attended the meeting on 2nd February 2016. They reject that this meeting was “very unpleasant”, it was calm. The meeting took place downstairs for privacy reasons. On 22nd February he was moved to another site. He arrived 35 minutes late. He stated that he had parking problems. He was issued with a verbal warning for this lateness by the Site Manager. He told the SiteManager that under no circumstances was he prepared to pay for parking and that he was leaving. The Site Manager personally paid for parking that day. He also stated that under no circumstances would he work on a Saturday. They rejected that he was given basic work; cable tying is usually the work of first year apprentices. At the end of February the Site Manager and a Foreman had issues with his performance regarding “Lift track” and cutting away cabling. There has been no evidence linking the HSA report to his contract. His performance was assessed and it was poor. His general attitude, pace of work and time keeping were all questionable and his sharpness and skill of workmanship were considered slow /bad. He was rated 4 out of 10 and it was noted that he would not make a good electrician. Having received poor assessments the Director then consulted the Contracts Manager who felt that the Complainant was not interested in his job. This together with three days absence in a four week period was concerning. On 10th March 2016 the Director met with him with a fellow Director and they explained that due to performance and attendance he was not meeting the required standard and that they would not be giving him a four year apprenticeship. He then shook the Director’s hand thanked him for the opportunity. During the probationary period the Respondent was not obliged to follow the disciplinary procedure when terminating the employment. The Respondent also terminated two other apprentices for not making the required standard in November and December 2015. They cited case law in support of their position, in particular Toni & Guy Blackrock Ltd v Paul O’Neill (HSD095.
In summary the Respondent stated that the Respondent has 12 years of training apprentices. The Complainant was only employed for four months. He failed to comply with company procedures for reporting health and safety issues. He never raised any grievance regarding the alleged conduct of the Foreman MK. His contract was terminated because he was unsuccessful at passing his probation.
There were only three persons in the company that knew that the Complainant had made the report to the HSA. His employment was terminated due to his failure to pass his probation as a direct result of his absence, poor performance and unsuitability. He has not established that it was the reporting of the incident to the HSA that led to his dismissal. There is no causal link established. The complaint is rejected.
Witness MK advised that he was told of the incident on 21st January 2016. He told the Complainant to speak to the Building Foreman. He didn’t issue a verbal warning to him. He denies that he was threatening or bullying in his behaviour. It was on 2nd February that he became aware that an employee of the Respondent had reported them to the HSA.
Witness RM stated that the incident concerned the leg of the ladder giving way not the Complainant’s leg. He told the Complainant to report the matter to the Foreman MK. He stated that the Complainant had no tools of his own; he never asked questions, employees are constantly moved to different sites, the Foreman MK has never been aggressive to him and the Complainant distanced himself from his colleagues. A building site is a place where you want to be.
His contract was terminated because he was unsuccessful at passing his probation. This complaint is rejected.
Preliminary point – Protected Disclosures Act
The Complainant presented a complaint to the Workplace Relations Commission under the Safety, Health & Welfare at Work Act. He was notified of the hearing and specifically that the complaint was solely under that Act.
The only complaint before this hearing was under the Safety, Health & Welfare at Work Act. This complaint was investigated on that day and below is the decision in respect of that complaint.
Findings - Safety, Health & Welfare at Work Act
Sec 27 of the Act states, “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.
I find that penalisation can only be established if conduct or omissions which are included in the statutory meaning of the term penalisation arise and as a consequence of an act protected in subsection 3 and but for the protected acts of subsection 3 the claimant would not have suffered the detriment complained of.
Therefore the Complainant has to establish that the Respondent upon learning of the complaint to the HSA retaliated through aggressive behaviour, moving him to various sites, giving him demeaning tasks and ultimately dismissing him.
I have adduced the following facts from the investigation.
The Complainant was on a six month pre-apprenticeship probationary contract of employment.
The Respondent reserved the right not to award a four year apprenticeship if he did not achieve the required standards of performance.
I find that he accepted this contract of employment.
I find that he received induction training, including safety training and he was issued with a safety statement.
I note that on 21st January 2016 there was an incident at work. The Complainant alleges that his foot went through the Lamaterm flooring, whereas the witness RM alleged that it was the leg of the ladder that went through the flooring.
I note that RM stated that he told him to report it to the Foreman.
I find that he did not report it to the Foreman immediately but instead took pictures of it on his ‘phone and reported the incident to the Health and Safety Authority (HSA).
I note that he was trained to report these matters to management. He failed to do so.
I note that the Complainant alleged that he believed that the Foreman would not act appropriately with that information.
I find that he did not support that opinion with any clear cut evidence.
I find that he was wrong in not reporting this incident to management. If he was serious about having an unsafe situation dealt with quickly then he should have reported it to management.
I note that the HSA Inspector called to the site and deemed the situation unremarkable; they made no comment or recommendation.
I note that the Complainant has alleged that he was penalised for reporting this incident to the HSA by being subjected to aggressive behaviour from the Foreman, being moved to various sites, being given demeaning jobs and ultimately dismissing him.
I note that on 2ndFebruary the Complainant denied to the Foreman that he had reported the incident to the HSA.
I find that it was on 9thFebruary 2016 that the Complainant advised the Director by email that he had made the report to the HSA.
I find that 9th February 2016 was the first time that the Respondent knew who had made the report.
I note that the Director had viewed the incident as a minor one, particularly as the HSA had made no comment or recommendation.
Instances of alleged retaliation: Aggressive behaviour
I note that the Complainant advised the hearing that the Foreman had used aggressive behaviour before and after the incident as reported.
Therefore I do not find that aggressive behaviour was used in retaliation to him making the report to the HSA.
I note the Respondent’s position that all employees are moved from site to site depending on the needs of the business. This was supported by witness RM. They advised that he was in two sites before reporting the incident to the HSA and three sites after reporting the incident.
Therefore I find that movement between sites could not be construed as retaliation.
I note that the Respondent stated that first year apprentices carry out many basic jobs that require doing, such as cable tying and floor sweeping.
I did not find that this was done in retaliation.
I found no evidence that free parking was provided for employees.
I did not find that the Complainant having to pay for parking was an act of retaliation. In fact I note that the Foreman personally paid for it one day.
I note the conflict of evidence regarding working Saturdays.
I note that the Complainant had four days absence in four months, which is high given the short period of employment.
I note that he was late also.
I note that assessments were carried out on apprentices and he scored 4 out of 10. The assessment found that he was a poor performer, not interested and did not integrate was unsuitable and had an absence record.
This was the reason given for deciding to let him go.
I note that two other apprentices were also let go during the Complainant’s employment.
In Considine v Limerick City and County Council, HSD165, the Labour court stated that: “The Court observes that the statutory protections are designed to ensure that a person cannot be penalised for making a complaint under the Act. However, it is not a protection against the normal and unrelated exercise of management within an employment. Where there is a coincidence of timing between the performance of a protected act and the taking of a sanction or prospective sanction against a worker the Court will require a clear explanation for the two events. Where it is not convinced that they are independent of each other the Court will exercise the powers vested in it under statute to protect a worker’s statutory rights. However, where two incidents occur around the same time and the Court is convinced that they are independent of each other the Court must allow management to function normally.”
I have considered the evidence and I find that the matters in question are in fact independent of each other.
I have not found a causal connection between the reporting of the incident to the HSA and the ultimate termination of his contract.
I have found that he was dismissed due to his failure to pass his probation.
I find that the termination of employment could have been handled better, it lacked fair procedure.
However this is a complaint under the Safety, Health & Welfare at Work Act not the Unfair Dismissals Act.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the above stated reasons I have decided that this complaint should fail.
Dated: 20th December 2016