Complainant

Respondent

Parties

Frank  Enright

Limerick City and County Council

Representatives

LGMA

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00057709-001

13/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00057709-003

13/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00057709-004

13/07/2023

The Complainant represented himself at the hearing and gave evidence on affirmation. Documentary evidence and legal submissions was received and relied upon at the hearing. He commenced employment as a plumber with the Respondent on 16 July 2021. The Complainant withdrew two complaints at the outset of the hearing - CA-00057709-001 and CA-00057709-004. Therefore, the hearing proceeded with one complaint only - CA-00057709-003.

The Respondent was represented by Mr Eamonn Hunt of LGMA. Mr Declan O’ Connor, Executive Engineer with the Respondent gave evidence on affirmation. Legal submissions were received and relied upon at the hearing.

Preliminary Objective

In response to the Respondent’s objection, it was submitted by the Complainant that the last date of penalisation was within 6 months of referral of the complaint to the Workplace Relations Commission.

Mr Enright

The Complainant stated that on 14 October 2011 he experienced penalisation in the form of bullying and a downgrade in his role. He made an informal complaint to the Area Engineer, who advised he would speak to the individual accused of bullying; however, no feedback was provided. The Complainant subsequently contacted his Union.

Approximately thirteen months later, the Union arranged a formal meeting with HR representative Pat Fitzgerald at the Respondent’s headquarters. Following this meeting, the Complainant received a letter from Mr Fitzgerald, which he appealed. Joe Delaney heard the appeal on 18 February 2013, but no outcome was communicated despite an email promising one. Instead, the Complainant received a redeployment letter for a permanent relocation.

The Union raised concerns about the redeployment. Between 2011 and 2013, the Complainant gave evidence that he suffered greatly, including experiencing a mental health issue upon receiving the redeployment notice. He described himself as previously being a positive person but was out of work for three months on sick leave.

The Complainant claimed that his overtime opportunities had been significantly reduced in the three years preceding the complaint, and that between 2011 and 2023 his income had “plummeted.” He sought a Freedom of Information request for overtime records of three other plumbers to compare with his own, but this was refused. He contended that his overtime was approximately half that of his colleagues and that this reduction was part of ongoing penalisation, alongside isolation, ill-treatment, and threats of disciplinary action.

He referred to the Haddington Road Agreement, stating there was no agreement to send employees out of their area, citing a “Bullying Email” of 1 May 2014 relating to a request to move him to Crome. He described being told on numerous occasions there was no work for him and that he had to remain in the yard. During Christmas periods, when overtime was generally available as part of an essential service rota, he rarely received work. While a rota existed with two employees on duty and one off, he was never called. After Christmas, employees were required to submit an overtime sheet; he stated he often had nothing to record, unlike his colleagues.

The Complainant said the penalisation had been continuous since 2011 and that if his overtime had been similar to others’, he would have been provided with the figures requested by him and his Union.

The Complainant referred to the email of 1 May 2014, which was sent to the Respondent. He submitted that the email had been sent directly to the Council, and this was not denied.

He read out the email, which he described as containing a threat – “You’re only a number; you can be rubbed out” and said that his duties within the plumbing service were being reduced.

He explained that when he met with Pat Fitzgerald, he had nothing in writing, as the Union had advised him to wait until the Council responded. The meeting notes from the Union representative were relied upon at the hearing.

The Complainant said there had still been no outcome to the appeal to Joe Delaney, after which he went out on sick leave. He referred to the meeting of 10 January 2014 and to tasks he was given on 3 November 2014.

He argued that there were two tests to consider, one being overtime rates, and that it would be reasonable to expect his overtime to be similar to that of the other two employees. He stated that the disparity was further evidence of penalisation up to the present date.

He described being threatened with a verbal warning if he did not return to the office. The Complainant applied for the Tribunal to request that the Council provide overtime hours for all employees for the period May 2013 to April 2014.

He said that from May 2013 to April 2014, his complaints had been prolonged without resolution, with no outcome to his appeal, and that he had been subject to continuing penalisation ever since.

He stated he had a right to record himself during meetings. At his first meeting with HR, he presented two complaints, but Mr Fitzgerald allegedly said he “could not hear those words of ‘bullying.’” The Complainant referenced the Council’s own Dignity at Work policy and later added that there was no response from the individual against whom he had made the complaint, and no minutes were provided, so he did not know if that person had been interviewed. He believed the matter was treated as a grievance rather than under the Dignity at Work charter, contrary to the policy.

The Complainant referred to medical evidence, stating that he had been diagnosed with a depressive disorder which, according to the Council’s own doctor, was work-related.

He referred to the minutes of a meeting with Declan O’Connor in which Mr O’Connor stated that the Complainant might be given a fair share of overtime.

He provided examples of the reduction in his overtime during the Christmas period supported by documentary evidence.

In relation to his Freedom of Information request, the Complainant stated that he had sought overtime records for the three plumbers in his immediate area but was instead provided with overtime data for all plumbers in the wider area, which he said was unclear and could not be properly interpreted.

Finally, he referred to a letter from the Senior Engineer.

The Complainant sought compensation for penalisation, citing extensive damage to his health, wellbeing, and family life. He is also seeking punitive damages in respect of what he described as the Council’s conduct towards him over a number of years.

On cross-examination, the Complainant was asked to identify the specific protected disclosure on which he relied. He stated that his first complaint was made informally on 14 October 2011 and concerned bullying and the downgrading of his position.

When asked to elaborate on the allegations, he stated that in 2007, Mr Dan Shine had said to him, “You could get your throat cut, you could be rubbed out just like that,” and that he had been treated in this manner by Mr Shine. The Complainant referred to the definitions of penalisation under the relevant legislation, including performing any duty, making a complaint to a safety representative, or being a safety representative.

He said that in 2011, he “had enough” and was called into Mr Eddie Sheehan’s office, where he received a “dressing down” and was told that Mr Sheehan would “up the tempo” against him. Over a two-year period thereafter, Mr Sheehan allegedly ignored him in the yard, assigned him the duties of a plumber’s mate while the plumber’s mate did his work, excluded him from on-call callouts, and monitored him through a tracking device allegedly fitted to his van. He further alleged that Mr Sheehan told him he was the last to leave the canteen and that this was being monitored by cameras, giving him the impression that he was specifically targeted for surveillance.

When asked if this related to health and safety, the Complainant said that an employer is required to provide a safe place of work, and that being ignored and threatened created a hostile and intimidating environment. He confirmed that his 2011 complaint was made after the behaviour had been ongoing for some time.

The Complainant said he went on sick leave on 11 and 12 October 2011 and was questioned upon his return as to whether he had really been ill.

Under cross examination, when asked about any other incidents that he believed constituted a protected act under the legislation, the Complainant referred to what he believed was an environmental protection inspection at his home. He accepted that the Council may have had a bona fide reason for the inspection but denied that any inspector had called to his house on the day in question. He said he received a letter stating that the inspector had rang the doorbell but questioned how the inspector knew which house was his.

He further stated that in 2012, he complained that an engineer had not followed up on his complaints; in 2019, he made a formal complaint regarding an incident with another employee; and that he had also made a complaint about treatment by his foreman.

When questioned about acts of penalisation alleged to have occurred between 12 January 2023 and July 2023, the Complainant referred to minutes of a meeting on 4 January 2023 and to a drop in his income during that period. He accepted that he was on-call during that time but said that “on-call” meant being available to respond if possible.

He was asked if he had ever ignored calls or texts while on-call. He replied that he could not answer without checking his phone and diary but accepted that he may have failed to respond once or twice. He admitted that he had refused to work on a weekend on some occasions and accepted that if he did not respond to calls, others would have to do the work. He said that he was not the only one who had refused work and that employees had lives outside the Council. He added that Mr Sheehan moved the on-call rota around, so he did not always know when it was his week.

He accepted that he was paid for being on standby but said that the detriment arose from reduced call-out opportunities, noting that while the call-out rate was €35 plus payment per visit, his earnings decreased over the Christmas period. He accepted that there were incidents when he did not respond to calls but maintained that such situations could happen to anyone.

It was put to him that both Mr Sheehan and Mr Shine had since left the Council. When asked to identify acts of penalisation between 12 January and July 2023 where he did not receive the appropriate overtime, he said he could not recall without consulting his diary, which was at home.

He referred to an incident on 13 January 2023 when, upon leaving Declan O’Connor’s office, he refused an instruction and was threatened with a verbal warning. He confirmed that he was on sick leave from March 2023 and accepted that he did not believe he had missed overtime or call-out opportunities during that period.

A number of inquiries were made of the Complainant in relation to his complaint. The Complainant confirmed that he was disciplined by Mr. O’Connor in late 2023 in relation to his van. He stated that he followed up on this matter three to four times.

He further explained that he took additional action when he challenged the accuracy of the meeting minutes, which he maintained were incorrect and required rewriting.

Regarding other complaints he had raised, the Complainant said these were not formally investigated. He stated the Respondent’s position was that a meeting had taken place, but no formal report was produced.

He confirmed that he did not submit a formal written complaint, but instead contacted the Executive Engineer by telephone and indicated he did not wish to put anything in writing.

When questioned about alleged penalisation at a meeting with Declan O’Connor, the Complainant stated that he was required to organise a team rota despite the fact that the team were not cooperating with him, which he considered to be a form of penalisation.

Finally, he accepted that the issues he faced, including the penalisation, were linked to his earlier complaint of bullying and demotion made in 2011.

In summing up, the Complainant maintained that they had been subjected to penalisation within the meaning of section 27. They argued that the threat of penalisation itself constitutes penalisation under the legislation.

Preliminary Objection

The Respondent submitted that no protected act had been identified by the Complainant and that section 27 requires two distinct elements, a protected act and resulting penalisation. It argued that the claim is limited to matters arising within six months from July 2023 and that any events after this date are irrelevant. The legislation, they contended, is tightly confined, and the lack of clear information or evidence of a protected disclosure has made it difficult for the Council to defend the complaint.

The Respondent relied on Business Mobile Security Services Ltd T/A Seneca Ltd v John McEvoy EDA1621 where the Labour Court referring to the use of internal grievance procedures stated

“The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.”

Mr O’ Connor

Mr. O’Connor gave evidence regarding the Safe System of Work Plan (“SSWP”), describing it as a basic health and safety requirement mandated by the Health and Safety Authority. He explained that the Council adopted an application called Pro Works for the completion of the SSWP forms.

He stated that he received a call from the Complainant’s foreman reporting that the Complainant was refusing to complete the SSWP. When Mr. O’Connor spoke directly with the Complainant, the foreman indicated he would only proceed in the presence of his Union representative. Mr. O’Connor agreed to adjourn the meeting accordingly.

Mr. O’Connor also requested the Complainant to produce completed SSWP forms from previous days, which the Complainant was unable to do. The Complainant contended that the forms should be completed on a rotation basis.

Mr. O’Connor referred to a meeting on 4 January 2023, at which he clarified the duties of the plumber. He explained that as a plumber and line leader, the Complainant was responsible for completing the SSWP forms. He indicated there was no issue if others wished to assist in this task.

Mr. O’Connor confirmed that no disciplinary action was taken against the Complainant and denied threatening him.

Regarding overtime, Mr. O’Connor stated that he was aware the Complainant was offered overtime. He was not aware of any denial of overtime between January and June 2023 and denied any penalisation of the Complainant during that period.

Finally, Mr. O’Connor stated that he was not aware of any protected disclosure made to the Health and Safety Authority prior to the hearing.

Under cross-examination, Mr. O’Connor accepted that there were occasions when other staff were unavailable or refused when asked to go out on jobs, although he was not certain of the frequency.

The Complainant put it to Mr. O’Connor that, on 13 January 2023, when he arrived in the yard, Mr. O’Connor asked if he had a problem, to which the Complainant replied that “it was Dom who had a problem.”

Mr. O’Connor confirmed that one work crew operated an SSWP completion system on a rotation basis but stated this was done by agreement. He acknowledged being aware that a colleague, Mike Scanlon, was asked to participate in such a rotation prior to the meeting on 4 January 2023.

The Complainant suggested that he and Mr. Scanlon had an arrangement to complete SSWP forms in rotation, recorded in a book kept in their van, which had subsequently been mislaid. Mr. O’Connor recalled being shown a book but stated that none of the forms inside were completed.

When asked about rotation of forms, Mr. O’Connor said that on 13 January 2023, all staff were called into the yard and it was explained that plumbers, as line leaders, were responsible for completing the SSWP forms.

The Respondent submitted that the matter now concerns a single complaint under section 27 of the Health and Safety Act. They argued that there is insufficient evidence to satisfy either limb of the statutory test for penalisation.

Regarding the release of information containing personal data, the Respondent stated they had received specific advice that disclosure was not appropriate given the small number of individuals involved but noted that such information could be released on an area-wide basis.

Preliminary Objection

The Respondent raised the argument that the complaint was statute barred where the Complaint Form was received by the Workplace Relations Commission on 13 July 2023, but the events complained of originated in 2006 and 2011.

The Complainant submitted the penalisation was ongoing and submitted a timeline of complaints in his submission.

No application to extension of time was sought.

Therefore, it is accepted that the cognisable period is from 12 January 2023 – 13 July 2023.

Section 41 (6) of the Workplace Relations Act 2015 sets out the Adjudication Officer’s jurisdiction for entertaining complaints:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 27 of the Safety, Health and Welfare at Work Act 2005 provides:

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.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals 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.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.”

Having carefully considered the evidence presented by the parties and in particular the detailed submissions presented by the Complainant.

The diary of events presented by the Complainant raises complaints from November 2006 to 26 January 2023 however in light of the consignable period, I am limited in considering allegations of penalisation from 12 January – 13 July 2023. It is clear that the focus of the discourse during this period relates to the completion of Safe System of Work Plan (“SSWP”). The meeting notes from 4 January 2023 with Mr O’Connor note that the SSWP were discussed with Mr O’Connor advising that the completion of this health and safety documentation fell within the remit of a Plumber, in this case the Complainant, to complete. A suggested compromise was offered by Mr O’Connor whereby the completion of the documentation could be shared among the crew, “but it would have to be organised within the crew themselves”.

The first reference the Complainant made to the SSWP was on 15 July 2022 when he was provided with software to complete the form and had difficulties in doing so leading him to seek assistance.

Having regard for Section 27 (3) (a) - (f), I do find that the Respondent’s instruction to complete the SSWP online or otherwise and the Complainant raising difficulties with being able to carry out the task which forms part of his remit does not constitute a protected act for the purposes of the Act. While it is accepted that the manner in which his colleagues and superiors dealt with his request falls short of the professionalism expected in the workplace, which clearly relates to culmination of 19 years of unresolved issues by both parties leading to a strained working relationship. However, for the purpose of the complaint before me, I find the Complainant did not demonstrate that he was subjected to one or more of the above forms of penalisation as a direct result of making a protected act in the workplace.

Based on the above finding, I find no value to this decision in issuing a direction to the Respondent under Section 41 (10) to produce any document relating to overtime hours.

For completeness, the Complainant did not provide any evidence of having experienced penalisation following the alleged protected acts including the overtime hours, the allegation of bullying and unresolved grievance, EPA inspections or tracking devices on the Respondent’s van within the six-month period preceding the referral of the complaint to the Workplace Relations Commission.

Accordingly, I find that the complaint is not well-founded.

CA-00057709-001

The complaint was withdrawn at the hearing.

CA-00057709-003

I find that the complaint is not well-founded.

CA-00057709-004

The complaint was withdrawn at the hearing.

Penalisation