Complainant

Respondent

Parties

Deirdre  Reilly

Vantive Manufacturing Limited, formerly Baxter Healthcare

Representatives

Myles Gilvarry Solicitor, Gilvarry & Associates Solicitors

Shane MacSweeney Solicitor MacSweeney & Company Solicitors

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-00064233-001

21/06/2024

This is a complaint of penalisation brought pursuant to section 28 of the Safety Health and Welfare at Work Act 2005.

The Respondent raised a preliminary application that the complaint is misconceived and incapable of succeeding.

Following an Adjudication hearing on 9 April 2025 the legal representatives requested time to allow supplemental submissions to be filed. Time limits were agreed for these submissions to be filed by 16 April 2025 and reply submissions by 25 April 2025. However no submissions were received and therefore this decision issued on the basis of the evidence heard at the Adjudication hearing, oral submissions made by the legal representatives and legal submissions filed in advance of the Adjudication hearing date.

At the Adjudication hearing the Respondent representative requested that the name of the Respondent be amended to Vantive Manufacturing Limited, which is now reflected in this decision.

The Complainant gave evidence under oath on the Respondent’s preliminary application as follows:

She is a forklift driver and has worked for the Respondent for 30 years since 1.3.1995.

In 2021 she raised a health and safety concern with her line manager about a forklift driver colleague X, who intimidated her and drove his forklift very dangerously beside her, on one occasion, colliding with her forklift. She  reported the issue to her line manager who led her to believe that he had reported this to the Respondent HR Department because thereafter X  no longer entered her work area.

Everything was fine until 2023 when she arrived to work one day and found X driving a forklift within her work area. She was shocked and rang her supervisor and when she could not contact him, she left the workplace. She felt in fear and could not work in the same area as X, particularly without any supervisor being present.

The Complainant went to HR to explain the situation and re-stated that she could not work in the same work area as X because of his threatening conduct to her. She asked the HR manager why management had changed their position from how they had dealt with the situation in 2021. HR advised her that no previous complaint in 2021 was recorded on their HR system and that her previous complaints had not been reported to HR in 2021. This greatly surprised and disappointed the Complainant. She then verbally asked HR to investigate her bullying and harassment complaint against X.

By January 2024 still, no investigation had been commenced. She felt as if her complaint had been ignored and nothing had been done. The Complainant was continually frightened in her workspace not knowing if X would enter her work area or not. Her request for an investigation had been ignored. In January she issued a formal written request for a bullying and harassment investigation.

An investigation was commenced and the Respondent issued a report on 15 April 2024. By then the Complainant had gone on sick leave (from 4 April) arising from a serious health diagnosis, unrelated to work, that required surgery.

In the Respondent’s report her complaint was not upheld in part due to the length of time that had passed since 2021 when the acts of alleged harassment occurred. This was deeply unsatisfactory and upsetting for the Complainant.

At the time of the WRC Adjudication hearing the Complainant has been on sick leave since April 2024 but intended to return to work in the weeks following the Adjudication hearing. However she remains frightened of working in the same work area as X.

She has given 30 of her best years to the Respondent. She has never caused trouble and never complained about anyone other than X. Protection from him was the one request she ever made of management and the Respondent denied this to her.

The Respondent did not cross examine the Complainant on her evidence in respect of the preliminary issue.

In response to the Respondent’s preliminary application that the complaint is misconceived:

The Complainant stated that she raised a verbal complaint in 2021 and again in 2023 and when nothing was done to investigate her complaint. In January 2024, she issued a formal written complaint. These complaints  - whether verbal or written – each constitute protected acts under section 27 of the Safety Health and Welfare at Work. The Respondent does not dispute that the Complainant’s complaints constitute a protected act under SHWW Act.

When asked to identify the acts of penalisation the Complainant said that they were:

-          The Respondent’s failure to investigate her complaint within a reasonable period

-          The Respondent’s failure to take disciplinary action against X.

-          The Respondent’s failure of the Investigator to conclude that X had bullied and harassed the Complainant and

-          The Respondent’s failure to protect the health and safety of the Complainant

The Complainant representative contends that section 27 (1) of the SHWWA permits a finding that the acts of penalisation were omissions that arose because of a protected act.

The Respondent raised a preliminary application that the complaint is misconceived because the alleged acts of penalisation do not meet the definition of penalisation in section 27 of the SHWWA.

The Respondent submits that the test to determine if penalisation has occurred is a “but for” test as set out in the Labour Court decision in O’Neill v. Toni and Guy Blackrock 2010 ELR 21  which held that the onus of proof is on the Complainant to prove that a protected act (a health and safety complaint) was raised (which is conceded by the Respondent) and that, but for, the making of that protected act,  that the detriment or penalisation would not have occurred (which is not conceded by the Respondent.)

The Respondent contends that ordinary meaning of section 27 of the SHWWA requires that any alleged penalisation must be in response to and because of a complaint being made. It cannot be that it would have happened anyway. The onus of proof has not been discharged by the Complainant and the complaint is misconceived.

The Respondent contends that applying the Toni and Guy test to this complaint does not result in proof of penalisation.

For example - that the failure to investigate her complaint within a reasonable period (which is the alleged detriment) would not have occurred but for the fact that she raised a complaint is a circular argument which fails the Toni and Guy but for test. It is not true to say that a delay in investigating her complaint, from October to January would not have occurred but for the Complainant making a protected act. While she may have been unhappy with the delay – it is not a detriment that occurred because she complained about X.

This legally misconceived approach equally applies to the other alleged acts of penalisation:

-          that the failure to take disciplinary action against X, would not have occurred but for the fact that she raised a complaint against X;

-          that the failure of the Investigator to conclude that X had bullied and harassed the Complainant would not have occurred but for the fact that she raised a complaint and

-          the failure to protect the health and safety of the Complainant would not have occurred but for the fact that she raised a complaint.

None of these are penalisations which arise because she made a complaint. She made a complaint. She was not happy with the process or outcome of the grievance process but what occurred was not in retaliation to her raising a complaint, which she was entitled to do.  It is conceded that the alleged acts of penalisations were outcomes of her raising a complaint, outcomes that she may be unhappy with but that does not mean that they were done to punish her for making a complaint.

The Complainant relies on a misapplication of section 27 of SHWWA.

Section 27 is a specifically focussed provision. Its purpose is to prevent an employee being punished for complaining about a health and safety issue at work.

The Complainant’s unhappiness about the investigation and its outcome do not amount to acts of penalisation and section 27 does not allow an Industrial Relations complaint to be converted into a statutory breach.

It is accepted by the Respondent that the Complainant asked to invoke the industrial relations jurisdiction of the WRC but the Respondent objected to this which they are entitled to do. But the Complainant is not then permitted to redesign her IR complaints into a section 27 SHWWA complaint because that is a very distinct and different complaint.

Given the facts and applying the ordinary meaning of penalisation in section 27 (1) to those facts does not prove that the Complainant was penalised by the Respondent for raising a health and safety complaint.

I am satisfied that this complaint is misconceived in that it is incapable of succeeding.

The Law

Section 27 of the SHWWA states as follow:

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.

Issue to be determined

It is common case that the Complainant made a protected act. This was either verbally in 2021 and 2023 or in writing in January 2024. I am satisfied that the Complainant has discharged the onus of proving that a protected act(s) occurred.

The issue that is in dispute is whether an act of penalisation occurred because of her making this/these protected act(s).

Finding

I accept the Complainant is correct  - that the generality of section 27 (1) is not limited only to the examples of penalisation set out in subsection 2.

However the ordinary construction of the wording of Section 27 (1) means that a detrimental act or omission must be proven to have occurred as a result of, or in retaliation to, the Complainant making of the protected act.

As the Labour Court in O’Neill v Toni and Guy 2010 ELR 21 held:

“…the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act…where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.” 

From the facts as alleged by the Complainant the following findings cannot be avoided.

The Respondent’s failure to investigate her complaint in a timely fashion cannot be said to be a penalty which would not have occurred but for the Complainant raising a health and safety complaint.  The Complainant has not proven that the delay between October 2023 (or earlier if the protected act was made in 2021) and January 2024 was a penalising action which occurred because she raised a health and safety complaint. It might be said to be less than satisfactory that a delay took place but no causative link of penalisation has been proven.

The Investigator’s report findings cannot be said to be a penalty which would not have occurred but for the Complainant raising a health and safety complaint.  I accept again that the Complainant was unhappy with the investigation report findings but she has not proven that these were made to penalise her because she raised a protected act.

The failure to take disciplinary action against X cannot be said to be a penalty which would not have occurred but for the Complainant raising a health and safety complaint.  I accept that the Complainant again was unhappy about this outcome, but she has not proven that this outcome was to penalise her because she had raised a protected act.

The failure to protect the health and safety of the Complainant cannot be said to be a penalty which would not have occurred but for the Complainant raising a health and safety complaint.  The Complainant has not proven that the failure to protect her health and safety (which the Respondent denies) occurred to penalise her because she had raised a protected act.

I accept that the Complainant was unhappy with these outcomes, many of which overlap but that does mean that they were retaliatory actions to her making a health and safety complaint.

I have great sympathy for the Complainant. She has given 30 years of hard work to the Respondent, and she feels frightened for her safety within her workplace. She has been off work for over a year now due to ill health. I hope that the Respondent will acknowledge the fear that she holds and make reasonable accommodation for her on her return.

However on the basis of the evidence of the Complainant and the legal submissions advanced on her behalf I am satisfied that the complaint is legally misconceived from a statutory construction of section 28 point of view and that it is incapable of succeeding.

I find this complaint to be not well founded.

This complaint is not well founded

Penalisation - SHWWA