ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022114
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 27/01/2020
Workplace Relations Commission Adjudication Officer: Brian Dolan
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015,following the referral of the complaints 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 Claimant commenced employment with the Respondent as a HGV driver on 30th September 2018. Throughout his employment his weekly remuneration was €589.33. On 17th April 2019 the Complainant’s employment was terminated by the Respondent on the grounds of redundancy.
On 18th June 2019, the Complainant lodged complaints under the Unfair Dismissals Acts, the Safety, Health and Welfare at Work Act, the Protected Disclosures Act and the Terms of Employment (Information) Act with the Commission. A hearing in relation to all matters was convened and finalised on the 27th January 2020.
At the outset of the hearing, the representative for the Respondent raised a preliminary issue regarding the duplication of the complaint between the legislation referred. On foot of the same the Respondent’s representative withdrew the complaints under the Protected Disclosures Act and the Safety, Health and Welfare at Work Act and proceeded under the Unfair Dismissals Act and the Terms of Employment (Information) Act only.
Both parties submitted extensive written submissions prior to the hearing and presented witness evidence along with further oral submissions at the hearing. Both parties availed of the opportunity to question the evidence as presented.
At the commencement of the substantive hearing, the Respondent submitted that as the Complainant had not accrued one year’s continuous service he could not avail of the protections set out in the Unfair Dismissals Acts. By response, the Complainant sought to rely on the exemption to the service requirement set out in Section 6(2)(ba)- a dismissal arising wholly or mainly from having made a protected disclosure.
Whilst the parties agreed that the Complainant did make a disclosure in relation to certain matters on 11th February 2019, the Complainant submitted that this fell within the normal requirements of the Complainant’s role and could not constitute a protected disclosure within the meaning of the Act. The Respondent submitted that the disclosure of 11th February 2019 related to health and safety matters and clearly fell within the definition of a protected disclosure within the meaning of the 2014 Act. In this regard, the parties agreed that this was the net point in relation to the establishment of a protected disclosure and the consequent exemption to the service requirement set out in the Acts.
The content of the communication of 11th February is not disputed by either party. Here, in the first paragraph of the same, the Complainant requests the attention of the Respondent’s Health and Safety representative in respect to several matters that had arisen regarding the arrangements of the shelving units in the vehicle. The Complainant goes on to describe the process of “putting double trays in single spots” in the vehicle and outlined the risks such activities posed to him and other drivers. The Complainant also attached numerous photographs demonstrating the issue and the potential dangers it caused.
In relation to the same, the Respondent submitted that the reporting of the matters raised in the communication fell within his function as a driver and did not consist of an act or omission on their part. As such, it was submitted that the reporting of these issues could not constitute a Protected Disclosure within the meaning of the Act. In support of this submission, the Complainant opened the case of Carr -v- Donegal Council PD/15/5.
By response, the Respondent submitted that Section 5(3)(d) of the Protected Disclosures Act expressly enumerates the endangerment of an individual’s health and safety as a “relevant wrongdoing,” the reporting of which would constitute a protected disclosure. It was submitted that the email of 11th February clearly purports to alert the Respondent of concerns that were likely to endanger his health and safety. As such, it was submitted that the present situation was envisioned by the legislation and its protections should apply. In the relation to the case cited above, the Respondent submitted that it could be distinguished on its facts to the present situation. In particular, the Respondent submitted that the Complainant in the case cited was a station officer reporting concerns regarding his subordinates, in line with his duties as supervisor. This was contrasted to the present matter whereby the Complainant was reporting an issue that did not fall within his normal duties to detect.
In this regard, Section 5(1) of the Protected Disclosures Act defines a “protected disclosure” as a “disclosure of relevant information made by a worker in the manner specified”.
Section 5(2) defines “relevant information” as that which, “in the reasonable belief of the worker…tends to show one or more relevant wrongdoing”.
Section 5(3)(d) enumerates fact that “the health or safety of any individual has been, is being or is likely to be endangered” as an example of a “relevant wrongdoing” cited above.
Section 5(5) states that,
“A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.”
In relation to the Complainant’s express contractual terms, Part 3 of the Complainant’s contract of employment states that, “you will be responsible for checking both your truck and trailer where it allies for faults that might hinder you from completing your journey on time”. Part 8 then states that, “vans/trucks must be kept in a clean, tidy and hygienic manner at all times with engine oil, water and pressure of tyres checked on a daily basis. Any faults must be reported on a traffic control form and left for the attention of the Depot Manager / Transport Manager.”
In light of the foregoing, I find that the reporting of the issue on 11th February did not fall within the Complainant’s function to “detect, investigate or prosecute”. It can be seen from the express terms quoted above that the Complainant was charged with reporting “faults that might hinder you from completing your journey on time”. This provision relates to mechanical faults that might cause a time delay and, presumably, disruption for the operation of the Respondent. The second contractual provision relates to a standard daily review of a vehicle and again does not relate to the issues reported by the Complainant. The matters reported by the Complainant were not of a standard, everyday nature, they related to a significant health and safety issue that could potentially cause serious harm. These faults did not specifically relate operation of the vehicle itself, but to the system operated by the Respondent in loading the vehicles. I also note that unlike the Complainant in Carr -v- Donegal Council PD/15/5, the Complainant was not a member of management and was not charged with organising the methods of loading the vehicles for the organisation as a whole.
In the matter of Rosderra Irish Meats -v- Tibor Baranya UDD1917, the Labour Court found that an employee’s request to a health and safety officer to change role as an he was “in pain” did not constitute a protected disclosure. The Court held that in such matters it is crucial that a complainant must allege some form of wrongdoing on the part of the Respondent. I further note that this approach has recently been approved by the High Court in the matter of Tibor Baranya -v- Rosderra Irish Meats Group Limited [2019 / 169 MCA]. In the present circumstances, it is clear that the Complainant did allege wrongdoing on the part of the Respondent. The communication of the 11th February outlines that the method of loading the vehicles adopted by the Respondent might cause injury and expressly stated that this “should not happen”. I also not that by response, a member of management of the Respondent stated that this practice is “causing problems” and instructed that the practice should stop immediately.
In light of the foregoing, it is apparent that on 11th February the Complaint sought to report a relevant wrongdoing that endangered his health and safety and that the reporting of the same did not arise from a function of his employment. As such I find that the communication of 11th February constituted a “protected disclosure” within the meaning of the legislation. Following from the same, I accept jurisdiction to hear the substantive complaint.
Summary of Complainant’s Case:
The Complainant commenced employment with the Respondent on the 30th September 2018. At all times his role was that of HGV driver.
On 11th February 2019 the Complainant reported a number of concerns in relation to arrangement of the trays in his vehicle. Herein, he stated that this had caused in injury in the past and was likely to cause further injury in the future. Shortly thereafter, on 23rd March 2019, the Complainant was involved in a workplace accident, apparently caused by the issue previously complained of.
On 1st April, shortly after the Complainant’s return to work, he was presented with a contract. To the Complainant’s surprise, this described the tenure of his employment of fixed term, with a termination date of 27th July 2019. In the Complainant’s view, this contradicted what he told at interview regarding the permanence of the role.
On 15th April, the Complaint was invited to a meeting the following day with a HR representative. While the Complainant initially believed this meeting would relate to the contract he had been recently issued, when he attended the same he was informed that the Respondent had “some bad news for him”. The Complainant was handed correspondence which stated that the Respondent intended to terminate his employment from the 27th April 2019. The rationale for the same was said to be “company requirements”. No further explanation was offered for the abrupt termination of his employment, indeed when he sought to challenge this outcomehe was informed that the meeting was terminated and he was asked to leave. At this point the Complainant was deemed to be within his statutory notice period.
Following this meeting the Complainant sought a further informal meeting with his direct line manager. In the course of this meeting, his line manager set out the transport routes he would follow for the forthcoming week. Later that afternoon the complainant requested a copy of the Respondent’s handbook and safety policy via email. Approximately an hour and a half later the Complainant returned a missed call from his direct line manager. During this conversation, the Complainant’s manager informed him that following a discussion with HR, his employment was to be terminated with immediate effect and he would now be paid in lieu of notice.
On 17th April, the Complainant emailed a number of members of the Respondent’s management team. Here, the Complainant set his issues with the manner in which he had been dismissed. In the course of this correspondence the Complainant summarised the health and safety concerns he raised in the course of his employment and outlined the poor treatment he had received since that date. In the course of this email the Complainant directly states that he feels this poor treatment, in particular his dismissal, arose as a consequence of his raising issues regarding health and safety matters.
Later that day, the Complainant received a brief email confirming that his employment had terminated with immediate effect. Nevertheless, this communication also undertook to investigate the matters complained of. The Complainant also received correspondence confirming that his employment was to be terminated immediately.
On 19th April, the Complainant again emailed another, more senior member of the management team. Again, the Complainant outlined the poor treatment he had received and stated that he believed that this arose from his making a complaint in relation to health and safety. Here, the Complainant again requested some form of intervention in respect of the same. In June, given that it was apparent that no such intervention would occur or no such investigation was being carried out, the Complainant lodged the present complainant with the Commission.
The Complainant submitted that in the weeks following his referral of the Health and Safety complaint, he was presented with a contract which contradicted what he was verbally informed in relation to the tenure of his employment. Shortly thereafter, he was invited to a meeting whereby his employment was terminated without any explanation. When the Complainant sought an explanation for the same his notice period was immediately cancelled. When the Complainant expressly stated that he believed that his poor treatment arose from the health and safety concerns raised earlier, he was ignored and the earlier poor treatment was confirmed by the highest levels of management. The Complainant submitted that the complaint in relation to the health and safety matters constituted a protected disclosure and the sequence of events described above demonstrates that his dismissal arose wholly and mainly from the same.
Summary of Respondent’s Case:
By response, the Respondent submitted that he Complainant’s employment was terminated on the grounds of redundancy. In February of 2019 the Respondent sought to restructure their business in order to create efficiencies and maintain competitiveness. Part of this re-structuring examined the deliveries section, where the Complainant was employed. As part of this review it was determined that four persons had to be made redundant. Given the relatively short duration of the Complainant’s employment he unfortunately was selected to be one of the four persons made redundant.
It was accepted that he Complainant raised various health and safety issues in his email of the 11th February, however it was disputed that this constituted protected disclosure within the meaning of the Acts. It was further submitted that the issues raised by the Complainant were resolved by the Respondent shortly thereafter and the Complainant was not subject to any adverse treatment in relation to the same.
Regarding the issue of the Complainant’s contract, the Respondent stated that a delay occurred in issuing this to the Complainant. The Respondent submitted that this contract should have reflected what the Complainant was told at interview and that all new employees are issued with fixed term contracts of a six-month duration as a form of probationary period. It was absolutely denied that this contract was issued as a result of the Complainant’s raising health and safety concerns.
The Respondent accepted that the meeting whereby the Complaint was issued with notice of his dismissal was brief, they submitted that he was informed that he was being dismissed due a restructuring process in the course of this meeting. They submitted that the Complainant became visibly agitated during this meeting and remained agitated during his meeting with his line manager thereafter. As a consequence of the same, a decision was taken to pay the Complainant in lieu of his notice and terminate his employment immediately.
Regarding the investigation into the Complainant’s grievances. The Respondent submitted that these were issued after the termination of his employment and as such he was not party to them. Nevertheless, they stated that they determined that the Complainant raised various health and safety matters that were appropriately responded to by the Respondent.
In summary, the Respondent submitted that the email of 11th February did not constitute a protected disclosure. They further submitted that the Complainant was dismissed on the grounds of redundancy and the health and safety disclosures previously raised were immaterial to the same.
Findings and Conclusions:
As set out in the preliminary decision above, I find that the email of 11th February 2019 constitutes a protected disclosure within the meaning of the Protected Disclosure Act 2014.
Section 6(2) of the Unfair Dismissals Acts provides that,
“…the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following;
(BA) the employee having made a protected disclosure”
In the matter of Dougan and Clark -v- Lifeline Ambulances Limited  29 E.L.R. 210, the Circuit Court considered what would amount to substantial grounds for a Court to conclude that a dismissal may have resulted “wholly or mainly” from having made a protected disclosure. In doing so, Comerford J. set out the following grounds for consideration:
1. The temporal proximity between the making of the protected disclosure and the dismissal;
2. Whether there was any animosity between the parties as a result of the protected disclosure;
3. Whether fair procedures and natural justice were afforded to the employee in the dismissal process;
4. Whether any such procedures were a mere “window dressing;”
5. Whether the employee who made the disclosure was treated less favourably compared to other employees.
Regarding the first point, the Complainant was dismissed approximately six weeks after making a protected disclosure. During that period there was no allegation of misconduct, no issues raised regarding capability and no consultation or mention of redundancy. The Complainant had no idea when attending the meeting with management that it might result in his dismissal, instead believing that the meeting concerned an issue regarding his contract of employment. In such circumstances I find that a close temporal proximity between the Complainant making the protected disclosure and his dismissal.
While it appeared that the Respondent initially responded well to the disclosure, it is clear that relations between the parties soured somewhat shortly thereafter. In particular, the Complainant was aggrieved to be presented with a contract that contradicted what he was previously informed in relation to the tenure of his employment. He submitted that his contractual terms were amended without his consent as a consequence of making the protected disclosure. While the Respondent denied that this was the case, it is clear that a formerly serene working relationship became strained following the communication of the protected disclosure. Whilst the Complainant was initially provided with work during his notice period, once he requested employment documentation he was informed that the dismissal was to take effect immediately. When he expressly stated that he believed his dismissal arose a consequence of issuing a protected disclosure, the previous decision was affirmed, and the Complainant’s pleas were effectively ignored. Considering the foregoing points, I find that animosity arose between the parties following the communication of the protected disclosure.
In this circumstance, the third and fourth points may be dealt with together. It was accepted by both parties that the procedures adopted in dismissing the Complainant were fundamentally lacking in natural justice. While the Respondent submitted that the dismissal of the Complainant arose from a redundancy situation, it is apparent this was done without any consultation with the Complainant, without providing any advance notice of the meetings, without allowing any form of representation and without allowing any form of appeal even when the Complaint expressly requested the same. In effect, the Complainant was summoned to a meeting and simply informed that he was dismissed. I also note that the correspondence issued to the Complainant during the meeting was silent in relation to this alleged redundancy procedure, instead referring to ambiguous “company requirements”.
In light of the accumulation of the foregoing points, and I find that the dismissal of the Complainant arose “wholly and mainly” as a consequence of his having made a protected disclosure. Consequently the complaint under the Unfair Dismissals Act is well-founded and succeeds.
Section 41 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.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00029141-001 – Complaint under the Unfair Dismissals Acts
I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that his application is well-founded.
In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.
Whilst the Complainant has sought to mitigate his losses and secured alternative employment quite quickly after his dismissal, this was at a lower rate of pay and the Complainant has suffered a loss in earnings. Nevertheless, a person of the Complainant’s skill set is in high demand and I do not anticipate that the Complaint will suffer an ongoing loss of income as a result of this dismissal.
Having regard to the same, I award the Complaint the sum of €5,000 in respect of his loss of earnings to date.
CA-00029141-002 – Complaint under the Terms of Employment (Information) Act 1994
Given that the Complainant did not receive any written terms within the timeframe set out in the Act, I find in that the complaint is well founded and the Complainant’s application succeeds.
Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks remuneration in respect of breach of the Act. In this regard, the Respondent submitted that as the Complainant did not suffer any detriment, such an award should be minimal. Having regard to the totality of the evidence presented, I do not agree with this submission. It is clear that the Respondent’s failure to furnish a written statement at or near the commencement of the Complainant’s employment gave rise to significant difficulties and confusion towards the end of his employment. It is also clear that the Complainant was without any form of written terms for the majority of his short employment. In such a situation, the Complainant cannot be said to have suffered “no detriment” as submitted by the Respondent.
In light of the foregoing, I find that the Complaint is well-founded and award the Complainant four week’s remuneration, or the sum of €2,357.32, in compensation.
Dated: 19th August 2020
Workplace Relations Commission Adjudication Officer: Brian Dolan