ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024736
A Warehouse Operative
A Logistics Company
Dave Curran SIPTU
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: 19/08/2020
Workplace Relations Commission Adjudication Officer: Roger McGrath
In accordance with Section 41 of the Workplace Relations Act, 2015 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 commenced employment with the Respondent in February 2000. The Respondent is a logistics company, providing third-party facilities management services to a large retailer. The Complainant alleges that he was penalised for complying with and making complaints under the Safety, Health and Welfare Act, 2005. The Respondent rejects the claim. A Complaint Form was received by the WRC on 7 October 2019.
Summary of Complainant’s Case:
The Complainant provided a detailed written submission. The Complainant submits that he was penalised for raising legitimate health and safety concerns over the years in his role as Safety Representative and SIPTU Shop Steward, contrary to section 27 of the Act.
The Complainant submits that he was penalised by being subjected to a three month long disciplinary investigation which resulted in his dismissal from his employment on 1 August 2019. He was reinstated on 4 September following his appeal, but had a final written warning placed on his file. He lost five weeks’ income between his dismissal and when he was reinstatement.
By way of background, the Complainant submits that in January 2019 he was asked to a meeting by the company H & S specialist. At that meeting the with the specialist it was highlighted to the Complainant that he, the Complainant, had accounted for a large number of the safety concerns lodged in 2018, which took up a lot of time and resources. It was put to the Complainant that he might be “attempting to frustrate the process”.
The Complainant submits that an incident took place on 19 April 2019 when he was attempting to move a cage. While trying to move an obstinate cage (it had a damaged wheel) a few times the Complainant noticed a brief “twinge” in his shoulder. The pain was gone almost immediately, and the Complainant stopped trying to move the cage manually. He thereafter used a vehicle (LLOP) to move the cage and two other cages with it.
A short time after this the Complainant told his Warehouse Team Manager about the broken wheel on the cage. He also said that he had felt a “twinge” in his shoulder. The Warehouse Manager filled out an accident/injury report. The Complainant made it clear to his manager that he was feeling no pain and he did not need any medical attention. With his manager’s permission he returned to work.
On 29 April 2019, the Complainant was issued with a letter inviting him to an investigation meeting to discuss the incident of 19 April 2019. An initial investigation meeting took place on 14th May and a second on 25 June. An investigation report issued on 10th July which faulted the Complainant for:
(i) Not reporting the faulty cage as soon as he found it.
(ii) “Causing himself an injury” and then pulling out the other two cages.
(iii) Operating the LLOP after feeling the twinge.
The report also detailed the number of Safety Net Forms the Complainant had submitted previously and for what reason he had submitted them. The report recommended that the Complainant be referred to a disciplinary hearing for gross misconduct.
A disciplinary hearing took place on 16 July 2019. The Complainant received a letter on 1 August 2019, informing him that he would be dismissed with immediate effect.
The Complainant submits that as well as the incident in question, the dismissal letter also went on to refer in detail to the fact that the Complainant was known to regularly submit health and safety reports and that he had, ‘demonstrated not only a disregard for your own training and safety but that you have used a process that is designed to protect our employees to defend an injury to yourself. This is wholly unacceptable in an environment such as ours.’ The dismissal letter also accused the Complainant of “double standards” in relation to the fact that he had submitted complaints previously whereas allegedly he had not followed procedures in this instance; ‘I find that a warning of suspension would not be sufficient sanction, given the nature of your behaviour and double standards demonstrated…’.
The Complainant appealed the decision to dismiss and an appeal hearing was held on 21 August 2019. The appeal was heard by an independent consultant who recommended that the sanction be reduced to a final written warning. This recommendation was accepted, and the Complainant returned to work on 4 September 2020.
The Complainant contends that his dismissal resulted at least in part from the fact that he had previously made many Health and Safety reports and that his role in raising health and safety concerns had resulted in some dissatisfaction among management. Despite this dissatisfaction the Complainant’s reports were accepted as genuine.
The Complainant submits that when he was accused of double standards in the dismissal letter this is a reference to his role in submitting health and safety concerns previously and that his employer seemed to be drawing a connection between his alleged breach of health and safety and his highlighting of health and safety problems with the company which had caused annoyance of some managers. The Complainant believes linking these two things was inappropriate.
The Complainant submits that other employees have been involved in health and safety issues without any disciplinary action being taken against them.
The Complainant does not believe that the fact that the dismissal was overturned on appeal entirely negates its impact; he had to undergo an investigative process, he lost five weeks’ pay, received a final written warning and was dismissed without notice which caused him great stress. All this even though he had a clean disciplinary record.
In summary, the Complainant submits that the Respondent’s repeated references to previous health and safety reports made by the Complainant during the disciplinary process shows that this was a factor in the outcome of the process and that there was an underlying level of acrimony towards the Complainant because he had raised so many health and safety concerns in the past. He also believes he was treated more severely than other employees. The Complainant disputes the allegation of gross misconduct and disputes he suffered an injury and therefore it was not appropriate that he be disciplined for working following an injury when no proof of such an injury exists.
Following the hearing the Respondent submitted a number of examples of disciplinary actions taken against other employees for breaches of the Health and Safety Policy. Having reviewed the examples provided, the Complainant submits that they demonstrate that the Complainant in this case was dealt with more harshly than the employees in the examples provided by the Respondent.
Summary of Respondent’s Case:
The Respondent provided a detailed written submission. The Respondent denies the claim made by the Complainant.
By way of background the Respondent submits that the Complainant has been employed by the Respondent since February 2000 and works in a warehouse supplying chilled goods to a large retail grocery chain.
The Respondent submits that the Complainant was subject of an investigation arising out of a health and safety incident on 19 April 2019. The process culminated in the Complainant receiving a final written warning for failure to follow his training and Health and Safety procedures on site by not reporting damaged equipment. The final written warning expired in July 2020.
Regarding the incident itself, the Respondent submits that on 19 April 2019 the Complainant was carrying out loading duties when he came across a cage which was not moving freely due to a damaged wheel. Standard procedure dictates that such damaged cages should not be used and should be removed from service. Despite this the Complainant made several attempts to pull the cage out and in doing so felt a twinge in a shoulder. The Complainant pulled another two cages out and moved all the cages using a machine. Only after having deposited the cages somewhere else did the Complainant report to the damaged cage and the twinge to a manager. First aid was offered, however the Complainant stated he was fine and went back to work.
The Respondent submits that in line with normal procedures relating to Health and Safety the on-site Health and Safety Team reviewed the incident and recommended an investigation to establish if a breach of Health and Safety or a breach of training occurred.
The Respondent submits that having carried out an investigation it was established that; the cage was not moving freely; that the Complainant did not report the faulty cage as soon as he found it, as per his training; that he continued to work after the incident, putting himself at further risk of injury; that he did not report the matter to his manager immediately as per his Health and Safety training; that the Complainant had lodged 373 Safety Net Forms between August 2017 and the date of the investigation meeting, thus highlighting the Complainant’s focus on and awareness of Health and Safety matters. On foot of the Investigation the matter was referred for a disciplinary hearing as potential Gross Misconduct.
A disciplinary meeting was held on 16 July 2019 at which the Complainant was represented by his union official. The outcome of the disciplinary meeting was that the Complainant be dismissed from his employment. In reaching this decision the Shift Operations Manager who made the decision stated in the dismissal letter to the Complainant that:
“Having given the matter a lot of consideration, I am satisfied that you have demonstrated not only a disregard for your own training and safety but that you have used a process that is designed to protect our employees to defend an injury to yourself.”
The letter goes on to state that:
“I find that a warning or suspension would not be sufficient sanction, given the nature of your behaviour and the double standards demonstrated. Further, I find no evidence throughout the process that you would adapt or change your behaviour in anyway.”
Considering the nature of the incident the letter the letter states:
“I would be negligent in my duties if I were to overlook this or not treat it very seriously. In that regard it is my view that dismissal is the only fair and proportionate sanction applicable in this instance and I invoke this sanction with immediate effect.”
The Respondent submits that following an appeal, heard by an independent external consultant, the decision to dismiss was decreased to the imposition of a final written warning.
The Respondent submits that no penalisation occurred and cites the cases of Toni & Guy Blackrock Limited v Paul O’Neill (HSD095) and Citizens Information Board v John Curtiss (HSD101) to support this argument.
The Respondent submits that in this case the Complainant has not only failed to show any detriment imposed by the Respondent he has failed to show any instance of him committing a protected act. To the contrary, the Complainant failed to report a Health and Safety issue. In addition, the Respondent submits that at all times in the process the Complainant failed to follow his training in not reporting an incident immediately and choosing to work on instead. The failure to report the incident and working on instead has never been denied by the Complainant. Therefore, according to the Complainant, no protected act is being claimed to have occurred.
The Respondent submits that it was the Complainant who sought the introduction of his previous safety reports into the investigative process, not the Respondent and therefore it is disingenuous to say that considering the evidence submitted by the Complainant in his defence is an act of penalisation.
In conclusion the Respondent submits that the Complainant’s allegation of penalisation is without foundation. That the Complainant in this case did not commit an act protected by subsection (3) of s.27 and (b) the Respondent did not impose a detriment on the employee because of, or in retaliation for, having committed the protected act. Accordingly, it is the Respondent’s position that there is no evidence of any penalisation. Nor is there even evidence of the Complainant committing a protected act.
Following the hearing the Respondent submitted a number of examples of disciplinary actions taken against other employees for breaches of the Health and Safety Policy. The Respondent submits that these examples demonstrated that the Complainant was not treated differently that colleagues who breached the Health and Safety Policy in the past.
Findings and Conclusions:
In the instant case, the Complainant claims that he was subjected to penalisation by the Respondent in relation to his conditions of employment contrary to Section 27(2) of the Act for having made a series of complaints to management in relation to matters concerning health and safety issues in the workplace.
The Applicable Law
Safety, Health and Welfare at Work Act 2005, states:
27.—(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) 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
28.—(1) Without prejudice to section 27 (4), an employee may present a complaint to a rights commissioner that his or her employer has contravened section 27 .
(2) Where a complaint under subsection (1) is made, the rights commissioner shall—
(a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint,
(b) give a decision in writing in relation to it, and
(c) communicate the decision to the parties.
(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:
(a) declare that the complaint was or, as the case may be, was not well founded;
(b) require the employer to take a specific course of action;
(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances.
(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of the contravention to which the complaint relates or such further period not exceeding 6 months as the rights commissioner considers reasonable.
(5) (a) A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.
(b) A copy of a notice under paragraph (a) shall be given to the other party concerned by the rights commissioner concerned.
(6) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public.
(7) A rights commissioner shall furnish the Labour Court with a copy of any decision given by the commissioner under subsection (2)
The requirements to establish that penalisation under s. 27 of the Act has occurred were set out most clearly in Paul O’ Neill v. Toni and Guy Blackrock Ltd (2010) 21 ELR 1
Firstly, it is necessary to establish that there has been a protected act. While the Respondent argued that the Complainant did not commit a protected act (in the Respondent’s view he failed to make a report when he should have and that in itself was an element in the disciplinary sanction taken against him), it was not disputed that the Complainant had raised a myriad of complaints regarding the health and safety of his workplace in the years preceding the incident of 19 April 2019. Based on the submissions presented, there had been numerous protected acts, i.e. the reports and complaints submitted by the Complainant before April 2019.The whole purpose of the Act is to improve the safety of workplaces. The purpose of s.27 is to ensure that workers are not inhibited by apprehension regarding possible detriment for having raised safety issues of concern and that, should such a detriment be imposed for this reason, they have a means of redress. No argument was made at the hearing that could suggest that the concerns raised by the Complainant were anything other than safety concerns that are protected by the Act. In Paul O’ Neill v. Toni and Guy Blackrock Ltd (2010) 21 ELR 1 the Court set down that the requirement in this regard is that ‘…the claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety.’ I am satisfied, in the instant case, that this has been established.
The second requirement is that a worker must have suffered a detriment for having raised a concern protected by the Act. This requires that a Complainant must show that there was a detriment. The Complainant alleged that he had suffered a number of detriments and it is necessary for me to consider each of these.
The first detriment alleged is that he was subject to an investigation process. I do not believe that being subject to an investigation process of itself give grounds to substantiate a claim of detriment. Although such investigations may not be pleasant, they are necessary and defining them as a detriment would excessive. I do not find the Complainant suffered a detriment because he was subject to an investigation process.
The second detriment alleged is that the Complainant suffered great stress as he was dismissed without notice and consequently he lost five weeks pay, before he was reinstated on foot of his appeal. The dismissal and subsequent loss of pay is accepted by both sides. I find that the Complainant’s his dismissal, loss of pay and the stress related to this is a detriment suffered by him.
The third detriment alleged is that the Complainant was issued with a final written warning. The issuance of a final written warning was on foot of the appeal process and the warning is no longer active. I am satisfied that the appeal process was fair, and I do not find that the imposition of a final written warning could be classified as a detriment.
In the case of Paul O’ Neill v. Toni and Guy Blackrock Ltd the Court held that where there was a protected Act and where there was a subsequent detriment imposed, in that case a dismissal, the burden of proof shifts to the Respondent ‘..to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the claimant’s dismissal’.
In applying this to the instant case, I must consider if the reasons given for the dismissal without notice provided a rational justification unrelated to the fact that there was a protected act or acts. It is evident that the relationship between the Complainant and the management team was strained due, at least in part, to the large number of safety reports submitted by the Complainant. There is no doubt that the number of reports submitted by the Complainant was a factor in the chain of events which lead to the Complainant’s dismissal. The question to be answered is whether the fact of these protected acts led to the detriment.
It should be noted that following the hearing the Respondent was asked to submit examples of disciplinary actions taken against other employees for breaches of Health and Safety procedures which would support the contention that the decision to dismiss the Complainant in this case was not unusual or in line with precedence within the company. Having reviewed the examples provided by the Respondent I am satisfied that the Complainant was dealt with more harshly than the colleagues cited in the examples provided by the Respondent. For instance, in one of the examples an employee on an “extended” final written warning was given another “extension” to his final written warning for a breach, albeit a minor breach, of the Health and Safety procedures. In this instant case the Complainant was dismissed without notice with no disciplinary warnings on his file.
In addition, the reference to “double standards” in the dismissal letter does indicate that previous reports made by the Complainant did influence the decision to dismiss the Complainant.
In summary, I find that there was a protected act and that there was a detriment suffered by the Complainant. I find that there was a causal connection between the protected act and the detriment suffered by the Complainant. Therefore, the Complainant has established his case that he was penalised in accordance with s.27 of the Act.
In conclusion, I require the Respondent to pay the Complainant compensation of €7,500 which I consider just and equitable, having regard to all the circumstances.
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.
The complaint is well founded, and I require the Respondent to pay the Complainant €7,500 in compensation.
Dated: 1st December 2020
Workplace Relations Commission Adjudication Officer: Roger McGrath
Penalisation, Protected Act, detriment,