ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00003168
A Manufacturing Company
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005
Date of Adjudication Hearing: 06/12/2017
Workplace Relations Commission Adjudication Officer: Emile Daly
In accordance with Section 41 of the Workplace Relations Act, 2015and/or Section 13 of the Industrial Relations Acts 1969 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).
The Complainant worked for the Respondent, a company based in the midlands that manufactures medical devices. The Complainant refused to work a line due to concerns he had about safety risks concerning the product that was being produced. The Respondent disciplined him for failing to accept reasonable instructions and the Complainant initiated a grievance complaint. The Industrial Relations complaint relates to the way he was treated during the grievance process. The second complaint is that he was penalised for bringing the Respondent’s notice his belief that the product he was helping to manufacture was at risk of defect due to the operation of the product line.
This case was heard over a number of days. On 13 February, 12 June and 6 December 2017.
Summary of Complainant’s Case:
Industrial Relations complaint
1. The Complainant commenced work with the Respondent in 2005 as a general operative
2. The lines on which the Complainant was required to work made coils and oesophageal catheters.
3. The Complainant refused to work two lines together as he believed that this was unsafe. Not for himself, but for the ultimate users of the catheters
4. Until December 2015 a separate worker ran each line. After then a single worker was required to work two lines together. By being required to work two lines at the same time the Complainant felt that he couldn’t notice defects in the catheters and coils, which he had an obligation to remove from the line.
5. As he was required to work the two lines simultaneously he felt that he would not pick up the defects.
6. He refused to work the line
7. He was reprimanded for this and he was sent home from work in January 2016
8. He received a final written warning for insubordination and failing to follow reasonable instructions
9. He initiated his right to appeal the final written warning under the grievance procedure
10. He was informed that he had to outline his ground of appeal by the following day. He told the Respondent that this was not enough time.
11. On 3 March the Respondent not having received his grounds of appeal, refused the appeal.
12. The remedy being sought under this heading is that his final written warning be rescinded and that he be permitted to work the line safely.
13. The complaint under section 28 of the Safety Health and Welfare at Work Act 2005 was that he was penalised for raising a safety concern for the ultimate user of the product
Summary of Respondent’s Case:
1. There is nothing unsafe about operating the two lines simultaneously and there was a number of assessments done which proved this
2. No other worker who worked the two lines simultaneously had a problem with doing so
3. When the Complainant raised his concerns the Respondent set up a number of meetings by engineers and supervisors to explain to the Complainant the reasons why there was nothing unsafe in the operation of two lines simultaneously
4. Regardless of this the Complainant persisted in making this complaint and refused to work the lines.
5. As a result, he was sanctioned by way of a final written warning for insubordination and failure to accept reasonable instruction
6. He had a right to appeal but he failed to exercise it
7. At the hearing, however it was conceded by the Respondent representative that the manner in which the appeal was conducted did not allow the Complainant sufficient time to prepare grounds for the appeal and therefore the decision refusing his appeal was premature.
8. The Respondent concedes the complaint under the Industrial Relations Act in that it did not follow fair procedures in conducting the appeal
There is no jurisdiction to hear this claim because the Safety Health and Welfare at Work Act deals with safety within the workplace, it does not concern itself with the safety of end users of a product that the Respondent manufacturers. The Complainant’s definition of safety is not governed by the SHWW Act 2005.
The first time that health and safety was raised was on the WRC complaint form. The issue raised by the Complainant was a quality issue, not a safety issue. This complaint is misconceived.
Recommendation and Decision:
Section 41 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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Recommendation under the Industrial Relations Act 1969
As the Respondent conceded that the procedures in relation to the Complainant’s appeal, against his final written warning were improper I find that the complaint under the Industrial Relations Act to be well founded and I recommend that the final written warning issued on 19 February 2016 be removed from his work file. As the Complainant specifically stated that this was a complaint brought on principle and that no compensation was being sought by him, I accordingly make no such recommendation.
Decision under the Section 28 of the Safety, Health & Welfare at Work Act, 2005
I do not find this complaint to be well founded. Complaints of penalisation under section 28 of the SHWW Act 2005 are governed by section 27 of the same Act. The Complainant’s representative stated that the Complainant was relying on section 27 (3) where the complainant was penalised for making a complaint as regards any matter relating to safety health and welfare at work. However, this section does not encompass the safety of end users of a product manufactured by a Respondent. It is outside the terms of the Act, which is an Act primarily designed to protect the safety of persons while they are at work. Consequently, this complaint is not well founded and must fail.
Workplace Relations Commission Adjudication Officer: Emile Daly