ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003857
Complaint(s)/Dispute(s) for Resolution:
Act | 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 | CA-00005647-001 | 04/07/2016 |
Date of Adjudication Hearing: 07/02/2017
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
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.
Attendance at Hearing:
By | Complainant | Respondent |
Parties | Graphic Designer | Print Company |
Representative | Paul Hutchinson, B.L., instructed by Dermot O’Brien, Solicitor | Mary Ryan, HR Consultant |
Witnesses |
| Owner |
Complainant’s Submission and Presentation:
The complainant worked in an office which had a number of issues in relation to Health and Safety including lack of temperature regulation, lack of ventilation, deficient lighting which affected his eyesight at work and no communication system. The office was also badly laid out. The complainant was penalized for submitting 3 written complaints which resulted in the respondent giving him a fixed term contract in February 2016 with an expiry date of 30th March 2016. The complainant signed an amended fixed term contract after he negotiated an extension of the contract to 31st July 2016. The complainant’s employment was then extended for one month and was terminated on 31 August 2016. |
Respondent’s Submission and Presentation:
The complainant was initially employed on a Job Bridge scheme and was then employed by the respondent with effect from 1 July 2013 on a fixed term contract. Some weeks prior to that date the complainant had highlighted some issues of concern to him and the respondent took actions to resolve these issues.
In July 2014 the complainant again raised issues in relation to his workplace and the respondent took measures to address these matters.
In January 2016 the respondent sought to extend the fixed term of the complainant’s contract until 30 June 2016. The respondent took into consideration the financial uncertainty of the business and the poor performance of the complainant which had already been brought to his attention. The complainant raised some concerns in relation to the contract but finally agreed a fixed term contract that would expire on 31 July 2016. There were no assurances given as regards an extension of this contract but, at the complainant’s request, the contract was extended until 31 August 2016 on a part time basis.
The complainant during this period raised concerns in relation to workplace matters and this was responded to by the respondent by letter dated 18 August 2016.
The complainant’s employment terminated on 31 August 2016 in accordance with the agreed contract.
Decision:
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.
Issues for Decision:
Whether the decision of the respondent to offer the complainant a fixed term contract was as a consequence to the complainant raising issues in relation to health and safety in the workplace.
Legislation involved and requirements of legislation:
Section 27 of the Safety, Health and Welfare at Work Act, 2005, states:
(1) 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) not relevant
Section 27(5) of the Act states:
If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissal Acts, 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.
Decision:
This complaint was heard in conjunction with the complaint under the Unfair Dismissals Act, 1977, contained in Case Ref: ADJ00006250. Additional submissions were subsequently received from both parties.
The complainant was employed by the respondent as a Graphic Designer with effect from 1 July 2013. The employment terminated on 31 August 2016. The employment was on a full time basis apart from the final month and the complainant was paid €2,686.67 gross per month.
It is accepted in case law that for a complaint under the Act to succeed it is necessary for the complainant to prove the following:
*That the complainant made a complaint to their employer in respect of a health and safety matter
*That the complainant suffered a detriment as a result of the actions of their employer, and
*It can be proven that they would not have suffered this detriment had a complaint not been made in the first place.
There were three specific complaints in writing put forward in evidence in relation to this matter. The first of these occurred in May 2013, the second in July 2014 and the third in February 2016. Within these complaints were issues pertaining to safety and health in the workplace.
The date of May 2013 for the first complaint relates to when the complainant was still employed on the Job Bridge scheme and it was after that, on 1 July 2013, that he commenced employment with the respondent. In these circumstances it is difficult to see how the complainant suffered a detriment as a result of that complaint as the respondent employed the complainant subsequent to that complaint.
The second complaint of July 2014 dealt with a number of issues some of which were safety and health related (e.g. ventilation, heating, ergonomic lay-out) and others which were more general in scope (e.g. no customer cataloguing, no communication system between reception and designer working area). The respondent produced a letter that was drafted in reply to these matters but it was accepted in evidence that this letter had in fact never been given to the complainant. There is no doubt therefore that the complainant had raised a complaint with the respondent in relation to safety and health.
The third complaint is dated 15 February 2016 and commences with the complainant protesting about being issued with a fixed term contract and then proceeds to list a number of issues regarding safety and health in the workplace. This complaint therefore was lodged after the complainant was informed around 20 January 2016 of the intention of the respondent to issue him with a fixed term contract. It therefore cannot be argued that the decision to issue a fixed term contract was influenced by this complaint as that decision had already been made by the respondent.
It therefore follows that the only complaint that can be considered in relation to the legislation is that of July 2014.
The question therefore is whether the decision to issue a fixed term contract in January 2016 arose out of that complaint lodged in July 2014. The Labour Court, in Decision No. HSD09, stated that the burden of proof normally rested with the complainant but that where it is shown that a particular fact or issue is peculiarly within a defendant’s knowledge then the onus of proof shifts to the defendant. “In these circumstances the Court found that it was “perfectly reasonable to require the (employer) to establish that the reason for the dismissal were unrelated to (the employee’s) complaints under the Act”. The respondent’s HR advisor at the time gave evidence that she had been in contact with the respondent in 2014 in relation to giving advice on HR issues that had arisen and that she had been requested by the respondent to draw up contracts and staff handbooks for the three employees at that time. The advisor was given to understand that the complainant was on a fixed term contract and drafted his contract in those terms. The owner in evidence said that she had not issued the contracts to staff at that time. The owner also stated that in January 2016 there was not enough work for a full time graphic designer.
Had that contract been issued in 2014 then, on the balance of probabilities, a link with the lodging of the complaint might well be established. In the circumstances, however, a further year and a half passed before the issue again arose. Therefore the scenario that ‘but for’ the writing of the complaint the fixed term contract would not have issued becomes more tenuous. Having considered all the evidence before me I have decided that the complainant has failed to discharge the burden of proof required by the legislation and that, as a consequence, the complaint is not well founded. The complaint therefore fails.
Dated: 8th May 2017