ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002226
Complaint(s)/Dispute(s) 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
Date of Adjudication Hearing: 25/04/2016
Workplace Relations Commission Adjudication Officer: Emer O'Shea
In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Preliminary Matter of Jurisdiction
At the time the alleged incidence of penalisation occurred , the claimant was on an induction course (Fri. 6th.Nov) in anticipation of starting work on Monday 9th.Nov.2015.However , on the basis of the documentation submitted by the claimant , I am satisfied that he had entered into a contract of employment with the respondent and accordingly I am satisfied that he met the definition of employee under the Act. Consequently, I am satisfied that I have jurisdiction to investigate the complaint.
Complainant’s Submission and Presentation:
I was attending an induction day for upcoming participation / employment on a Tus scheme with the respondent for a one year fixed term / contract. The induction day was Friday 6th November 2011 and my first day working on site was due the following Monday.
As part of the induction today, we the participants / employees were asked to fill out a number of forms. One of these forms in particular was reference to Health and Safety and requesting of Personal Protective Equipment (PPE). The forms listed items such as;
1. Safety footwear
2. High Vis Jacket
3. Wet Gear trousers and jacket
4. Jacket with logo
6. Eye protection
7. Ear protection
8. Face mask / dust mask
9. Life Jacket
(please note the above list is an example of the order and items listed on the official document)
There were blank boxes beside the item names. These boxes had to be checked / ticked for the necessary PPE. As my position was due to be at Community Gardens whereby I would be using a lawnmower and a strimmer, I made a request for Eye Protection, Ear protection and a face mask in addition to the normal that is steel cap boots, high vis jacket, wet gear. I also asked for gloves.
As the supervisor, was walking around collecting the forms from the other employees, he picked up my form and said that 'I was asking for a lot of things'. I replied by saying that 'I needed them especially the eye protection and ear protection as I would be using a power strimmer and a lawnmover'. The Supervisor took the form and said that 'I had no hope of getting that stuff'. He crossed out the items such as ear protection and eye protection and a face mask and gave me a new blank form and told me to fill it out again.
I then expressed again to the Supervisor that this equipment was needed by me for my Health and Safety as I would be using power tools. He then got agitated and verbally aggressive to a degree towards me and told me to 'fill out a new form excluding the items that he had scribbled out of the existing form'. I then said to the Supervisor that 'as the form was a request form that I would be making the request as per original form for Health and Safety reasons and that if the employer choose not to provide the items then that was the respondent’s choice but I would be making the request irrespective of his expressions'.
The Supervisor then openly exclaimed that he 'did not care about my health and safety' and 'to sign the new form excluding ear protection, eye protection and face mask'. I replied 'no' and that 'I care about my Health and safety'.
The Supervisor then said 'either sign the form or go back to the dole office and sign on there...' I then said to the Supervisor ' so you dont care about my health and safety' and he replied 'no', I then said to the Supervisor. again ' so you dont care about my health and safety' and he replied again 'no'.
I then said to the Supervisor 'if you dont care about my health and safety then goodluck to you' and I walked out. As I was walking out the Supervisor told me to 'sign on the dole because I would now not be working for the respondent'.
The claimant submitted that the Supervisor’s actions in directing him to sign on the dole effectively amounted to dismissal and this fell within the definition of penalisation under the Act.He contended that this was to his detriment and only arose because of the health and safety concerns raised by him in relation to PPE equipment and safety.He asserted that he never refused to sign the form presented by the employer- he did not sign the amended form which excluded the provision of ear protection, eye protection and a face mask.The claimant asserted that he had undertaken a Safe Pass on the 86h.May 2015 and the course tutor had advised all participants if you needed PP to always speak up.The claimant has a B.Sc in Environmental Management and asserted that eye and ear equipment were basic requirements where tasks included grass cutting.
Respondent’s Submission and Presentation:
The respondent rejected the allegation of penalisation and set out an account of the work the claimant was expected to do at the community garden.It was submitted that PPE issued to TUS staff is based on the particular operation at hand.It was submitted that the programme of work involved in the centre for mid November was weeding and the tidying of beds and raised beds.It was advanced that this was assessed as very low risk from a health & safety point of view.The standard PPE issued would be gloves, wellingtons or steel toe capped boots , high vis jacket and hard hat.It was asserted that during the growing season the TUS participants would be involved in mowing of lawns and strimming and this work would be considered to be of much higher safety risk- training would be provided and at that point in time eye protection, protective gloves and face masks would be provided.
It was submitted that the respondent have a zero accident record having engaged over 1,500 participants through TUS and takes its safety obligations very seriously.It was submitted that the PPE offered to the claimant at the time was the appropriate equipment for the low risk activities of weeding and tidying beds.It was submitted that the claimant was advised by the Supervisor of his need to report to the Dept. of Social Protection if it was his decision not to participate on the programme and that this was entirely for the claimant’s benefit.
The Safetech representative advised that the company had provided a Health & Safety consultancy service to the respondent for over 10 years and stated that the respondent’s safety policies and procedures met a very high standard.
The Supervisor categorically denied that he at any stage indicated that he had no interest in the claimant’s health & safety – he submitted that Health & Safety was one of his core principles .He submitted that the claimant refused to sign the form and said he was not required to do so and left the room. He submitted that his advice to the claimant to make sure he signed back on the dole was to ensure payment for the claimant.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have reviewed the evidence presented at the hearing and noted the polarised accounts of the claimant and the Supervisor with respect to the exchange that had taken place between them.I note that in his direct evidence the Supervisor could not recollect telling the claimant that the disputed equipment would be furnished when it came to the grass growing season.The claimant was adamant that no such information was disclosed to him.I further note that if it was the practise that such equipment is provided following training and during the grass growing season , this could have been recorded on the RSS/TUS Participant Health, Safety & Equipment Form and dealt with the claimant’s concerns but it was not.In these circumstances I find on the balance of probabilities that the claimant’s account is more credible and I accept his contention that his non participation on the TUS scheme was directly linked to the dispute about PPE .Consequently , I am upholding his complaint of penalisation and I require the respondent to pay the claimant €750 compensation within 4 weeks of the date of this decision.
Dated: 20th July 2016