Complainant

Respondent

Parties

Przemyslaw  Radomski

Apcoa Parking Ireland Ltd.

Representatives

Andrea Montanelli Peninsula

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-00062675-002

16/05/2024

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

CA-00062675-004

16/05/2024

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

CA-00062675-009

16/05/2024

The Complainant was employed as a Car Park Supervisor from 1 September 2023 until he was dismissed from employment with effect from 20 October 2023.

In relation to the complaints that remain to be adjudicated upon the Complainant alleged that he was not notified in writing of a change to his terms of employment (CA-00062675-002), that he received a statement of his core terms which deliberately contained false or misleading information CA-00062675-004),  and that he was penalised for complying with or making a complaint under the Safety Health and Welfare at Work Act CA-00062675-009).

The Respondent is a Parking Solutions Provider, operating throughout Ireland.  The Respondent submitted that all the above complaints were out of time, but in the alternate and without prejudice to the preliminary issues raised, it strenuously denied the complaints and submitted that there was no breach of the pieces of legislation lodged by the Complainant.

Preliminary Issues – Time Limits:

At hearing the Complainant submitted that the WRC complaint form was not a statutory form and that he had submitted his complaints by way of email on 19 April 2024.  He provided the Adjudication Officer and the Respondent with case law to support the contention that the WRC complaint form was a non-statutory form.  He pointed out that the complaints submitted on 19 April were within time and he confirmed to the Adjudication Officer that he was not seeking an extension of the time limit.

CA-00062675-002:

The Complainant submitted that he signed a protocol regarding receipt of uniform/clothes when he commenced employment but that he never received a copy of that protocol.  He submitted that when he left his employment, he was refused for a new protocol to be signed off between the parties confirming that he had given back his uniform/clothes.  He stated that he had asked Mr. D for a copy of such a document and that he was refused. 

Complainant evidence under oath:

The Complainant confirmed at hearing that he had signed a contract at the start of his employment and that he had also signed a protocol which stated that he was responsible for clothing, notebooks, safety gear etc.  He stated that he was responsible for keeping that property safe and for returning it upon termination of his employment.  He stated that he considered it part of his contract but that he was never given a copy of it.  He stated that on the day of the termination of his employment, he was told to leave everything and that in that context he sought that a protocol be put in place to record what he was giving back, but that he was refused such a protocol.  He stated that the change to his contract was “against how it usually works.”  He stated that there should have been a signed protocol in place and that in Poland it would be normal practice that there would be written verification of what was received in the first instance and what was given back at the end of employment. 

CA-00062675-004:

The Complainant submitted that under clause 34b of his contract, upon leaving the employment, he was restricted from taking up work in his area of work and in the immediate geographical area.  He stated that this restriction placed severe hardship on him in terms of looking for work elsewhere as he and his family couldn’t afford to move out from the Cork area and that this prevented him from getting opportunities for employment elsewhere and caused significant stress and anxiety.  He stated in his complaint form that he was misled by the Respondent in relation to this matter. 

At hearing the Complainant stated that he believed that clause 34b and 34c of his contract were false and misleading.  He stated that those clauses in the contract were too restrictive.  He stated that he had raised the issue with Mr. D upon commencement of employment and he believed that it was misleading because the company did not have the right to restrict his work activity.  He stated that the clause was non-specific in relation to the industry or competitors, and he stated that he had difficulty finding alternative employment due to the fact that he was concerned that he would be sued.  He stated that he also raised this matter with Social Welfare Officers who advised him that this was not correct. 

CA-00062675-009:

In the documentation provided on 19 April, the Complainant submitted what he described as a complaint area of unfair dismissal and referenced that he was making specific complaints in relation to his unfair dismissal under the Unfair Dismissals Act, under the Protected Disclosures Act, 2014, under Section 28 of the Safety, Health and Welfare At Work Act, 2005 and under the Employment Equality Act, 1998. 

Thereunder, he submitted that he had registered a complaint electronically after a telephone conversation with Safecall and that he had made a whistle blower report in relation to bullying of employees.  He stated that the Respondent received that document on 11 October 2023 and was fully up to date with all of his concerns.  He stated that he was then brought into a meeting and dismissed. 

Later in that documentation, in relation to a complaint area described as terms of employment, and bullying and unfair dismissal, the Complainant stated the following; “During my education, I gained extensive knowledge about sterility, including drinking water.  I am aware that if one of the attendants was poisoned by the water I provided from an unknown source, I could be afraid of criminal sanctions.  Hence the norm is for the employer, not the employee, to provide drinkable water”.  The Complainant further stated that given the further aggressive verbal behaviour from Mr. D when he reported this issue and the Respondent’s failure to respond to his complaint in this regard, this put him at risk of further harm to his health by undue stress and anxiety.  He stated that he also believed that this issue cast a shadow and led to the motivation behind his unfair dismissal by the Respondent. 

Witness evidence – The Complainant:

At hearing the Complainant outlined this position but was challenged by the Respondent representative who queried if this was a parallel complaint in relation to unfair dismissal under the Industrial Relations Act.  At that point the Complainant stated that in addition to the bullying complaint, he had raised issues in relation to the requirement of the Respondent to provide drinking water in the place of work.  He stated that he had brought this matter to the attention of Mr. D as there was no drinking water available on site.  He stated that Mr. D had advised him that bottled water could be brought onto the premises and that the Respondent would reimburse employees for the bottled water.  He stated that one colleague had offered to bring in drinking water in large bottles but that this was not acceptable to him as “you wouldn’t know where it was coming from”.  He stated that on foot of raising these concerns, Mr. D had become hostile towards him. 

Preliminary Issues:

The Respondent submitted that the Complainant’s contract of employment was terminated on 13 October 2023 and that he was paid a week contractual notice in lieu of service up to 20 October 2023. 

The Respondent noted that the Workplace Relations Act 2015 provided that a complaint or dispute, not being referred within six months of the alleged contravention of the legislation, and it noted that Section 41 (6) of the act states: “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 six months beginning on the date of the contravention to which the complaint relates”.

The Respondent noted that the Complainant is therefore required by Section 41 (6) of the act, to notify the WRC of the complaint, no later than six months from the date of the contravention, which means no later than 19 April 2024.  The Respondent noted that the Complainant lodged several complaints under reference number CA00062675 on 16 May 2024 and therefore outside of the six-month time limit set out in Section 41 (6) of the Workplace Relations Act 2015.

The Respondent submitted that under these circumstances, the additional claims under the different pieces of legislation outlined above were irredeemably out of time and therefore the Adjudication Officer had no jurisdiction to hear such complaints.  In light of the foregoing, the Respondent submitted that the complaints were statute barred for the purposes of the Act, and consequently jurisdiction should be declined in relation to them. 

The Respondent noted that it was open to the Complainant to seek an extension of the time limit to a period of no more than 12 months, however, it noted that the Complainant would need to provide reasonable cause for the delay in making the submission.

The Respondent noted the case of Cementation Skanska v Carroll, DWT 0338, where the court articulated the test pertaining to time limits by stating: “It is the Court’s view that in considering if reasonable cause exists, it is for the appellant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the appellant at the material time. The appellant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the appellant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time”.

The Respondent also referred to a number of other cases in relation to decisions on time limits, and specifically noted the Supreme Court decision on time limits in the context of the Co Louth VEC Versus the Equality Tribunal [2016] IESC 40, where the court stated that, “if a complaint is out of time and thus fails to satisfy a condition precedent, and remains so found after enquiry, then it can not be said to have been “lawfully referred” to the tribunal, such that it may be properly investigated for redress purposes …..”. 

The Respondent further noted that the statutory measure does not operate as a defence point or its equivalent only.  It must therefore be treated as a condition precedent to the exercise of the tribunal’s jurisdiction.

CA-00062675-002:

The Respondent submitted that this complaint was out of time but in the alternative the Respondent submitted that there were no changes made to the Complainant’s contract of employment. 

The Respondent noted that the Complainant had stated that he signed a protocol to return his uniform and was refused a copy of the protocol, however, the Respondent noted that there were no such terms of employment for the purpose of providing a copy of the protocol. 

At hearing, the Respondent representative noted that the Complainant had accepted that there was no change to his core terms and conditions and that the only change he was referring to, was his view that there should have been a protocol in place at the termination of his employment in relation to the handing back of uniform etc.  The Respondent noted that this was not a change to his terms of employment, nor was there anything in the contract in relation to those matters. 

CA-00062675-004:

The Respondent noted that the Complainant alleged that there was false or misleading information in the contract of employment in relation to his place of work which the Respondent strongly disagreed with and his place of work was clearly stated as Cork and that he may have been required to work at any other location from time to time as required by the company.  The Respondent noted that this was a standard clause in the contract of employment.  The Respondent submitted that there was no misleading information in the Complainant’s contract, that it was clear that his place of work was Cork, but that this could change from time to time to attend to the needs of the business, which was agreed by the Complainant upon signing the contract of employment.  The Respondent further submitted that the Complainant received his contract of employment, and no issues were raised in relation to his terms and conditions. 

The Respondent noted that the Complainant was required to read, understand and raise any concerns he had in relation to any of the clauses of the contract, however he accepted the terms and conditions of employment and signed the document.  The Respondent therefore submitted that there was no basis for the instant claim and that it should be declared not well founded.  The Respondent further noted that the Complainant did not suffer any financial loss under the Terms of Employment Information Act, 1994. 

At hearing, the Respondent representative noted the Complainant’s position that he could not move out of Cork and noted that in the Complainant’s submission, he did not raise an issue in relation to that specific clause in the contract.  The Respondent representative noted that clause 34b and clause 34c were standard clauses in the industry and clarified that it was anticipated that he would not work for a competitor within the immediate geographical area of the company. 

At hearing, Mr. D gave evidence under oath that prior to commencement of employment the Complainant did object to that clause, but that he had advised that it was a standard contract, and he advised the Complainant that he had a choice to either accept the contract or not take up the position.  He confirmed that he advised the Complainant that he could not work for another car park company in the immediate geographical area of Cork and within the same industry.  He noted that the Complainant objected again to the clause and that he again advised him that if he wasn’t happy with the contract, he did not have to take up the position and Mr. D confirmed that the Complainant signed the contract of employment.

CA-00062675-009:

The Respondent submitted that the Complainant alleged penalisation and that he believed that he was dismissed for having submitted a bullying complaint.  The Respondent submitted that it was its contention that the Complainant was not dismissed for submitting a bullying complaint, nor for having made an alleged protected disclosure, but rather for being considered unsuitable for the role, due to the reasons outlined in the letter of termination.

The Respondent noted Section 27 (3) of the Safety, Health and Welfare at Work Act, 2005, and that it protects employees from penalisation of dismissal for making a complaint in respect of Health and Safety in the workplace:

(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”.

The Respondent also noted Section 2 of the Safety, Health and Welfare at Work Act, 2005, which defines “relevant statutory provisions” as “relevant statutory provision means existing enactments and this Act, and any instrument made under this Act for the time being in force”.

The Respondent opened the case of Paul O’Neill versus Tony and Guy Blackrock Limited [2010] ELR 21, where the court held that the detriment complained of must have been imposed for having committed a protected act within the meaning of Section 27 (3) of the Act “The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a protected act. This suggests that 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 determent”. 

The Respondent noted that the Labour Court referred to the above decision, where the court considered the test of causation between a disclosure made under the Safety, Health and Welfare at Work Act, 2005, and alleged penalisation.  The Labour Court stated “it is necessary for a claimant to establish that the detriment of which he or she complains, was imposed “for” having committed one of the acts protected by subsection 3.  Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a protected act. This suggests that 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”. 

The Respondent submitted that in order for the Complainant to avail of the protections available in Section 27 (3), it is essential that a detriment complained of be causally connected to one or more of the matters referred to in subsection (3) of Section 27 of the act.  The Complainant must show that “but for” having made a protected act under the subsection the detriment would not have happened.  The Respondent submitted that the Complainant was not dismissed for making a complaint of bullying in the Safecall channel, notably taking consideration that the Respondent was not aware of such complaints by the date of his dismissal, therefore, the Complainant was not penalised under any piece of legislation as alleged.  In the circumstances, the Respondent submitted that the complaint of penalisation was not well founded.

Preliminary Issues: Time Limit

I have considered carefully the positions outlined by the parties in relation to the issue of time limit.  I specifically paid attention to the complaint form submitted by the Complainant on 9 April 2024, his subsequent email of 19 April 2024 and his manual complaint form submitted by email on 16 May 2024.  I noted that the Respondent had received copies of the email of 19 April 2024 and the manual complaint form submitted in May 2024, in addition to a copy of the original complaint form.  I further noted the correspondence from the WRC to the Complainant on foot of his email of 19 April, outlining to him that there was not sufficient information to progress his complaints at that time and I noted that that correspondence issued to him on 29 April 2024.

The critical question that arises is whether the information provided by the Complainant on 19 April 2024 was sufficient to be considered to be a complaint to which the Respondent must respond.  I noted the content of that email where the Complainant stated that he would “like to alert and add specific complaints from the contents of the selections made in my submitted complaint form, which reflect all the issues I wish to raise with the WRC”.  The Complainant went on to state that the reason he was doing so was because documents sent by hard copy on 11 April 2024 through An Post had not been given a specific complaint number and in that context he clarified that he wished to make additional complaints. 

The remainder of the email, which ran to 21 pages plus appendices, set out a series of incidents/issues and referred to a number of separate pieces of legislation.  However, it did not specify which set of events related to which specific complaint under the relevant legislation. 

I noted further the content of the correspondence of 29 April 2024 from the WRC where it acknowledged receipt of a specific complaint of unfair dismissal under the reference number CA-00062675-001 and that it was upon receipt of that correspondence that the Complainant then submitted on the 16 May, the manual complaint form which particularised each specific complaint.

While I accept that the correspondence of 19 April was greatly confusing in its format and layout, and in particular in relation to its lack of specificity, it is clear to me from a review of that correspondence, that the Complainant had intended to make additional complaints under the various pieces of legislation.  It is also clear that his inability to articulate his complaints in the standard format was impacted by English not being his first language, by his lack of representation and by challenges faced by him in relation to the use of the WRC complaints system. 

It is settled law that the WRC complaint form is not a statutory form and therefore the Complainant was free to submit his complaints by email.  It is evident that upon receipt of correspondence from the WRC advising that his complaints were incomplete, the Complainant then provided the manual complaint form on 16 May.  I consider his submission of this complaint form on 16 May 2024 to be merely a clarification of his earlier complaints submitted on 19 April 2024.  In all these circumstances I consider that the Complainant’s complaints are in time. 

CA-00062675-002:

I have considered carefully the arguments of both parties.  I noted that this was a complaint under the Terms of Employment Information Act, 1994, alleging that the Complainant was not notified in writing of a change to his terms of employment and that the narrative in the complaint form related to the protocol that the Complainant wished to have put in place upon termination of his employment for returning property to the Respondent.  I noted that this property was given to him upon commencement of employment or in the early days of his employment and that a similar protocol had been put in place and signed by the parties to confirm that he had received the property. 

Having considered the submissions of the parties and the evidence given at hearing, I note that Section 3 of the Act states: “3 - (1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say –

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to —

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made”.

Section 5 of the act states: “5 – (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than -

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure”.

Based on the evidence of the parties, it is evident that the protocol did not form part of the contract of employment but was simply an administrative process for recording that the employee had been given certain property.  It is also a fact that there was no change to the Complainant’s terms and conditions of employment as comprehended by Section 3 (1) (d) of the act.  In all of the circumstances outlined, I find that this complaint is not well founded. 

CA-00062675-004:

I have considered carefully the positions of both parties in their submissions and in evidence at hearing.

It is common case that the Respondent had a clause contained at 34b of the contract which restricted the Complainant from working for competitors following termination of his employment.  This restriction related to the industry and the geographical area of Cork.  I note the Complainant was unhappy with this restriction in the contract and considered it to be false and misleading as he believed the Respondent was not entitled to put in such a restriction. 

I note that the complaint made was one that said that he had received a statement of his core terms which deliberately contained false or misleading information.  I have set out above under CA-00062675-002 Section 3 of the Act which sets down the core terms of employment that must be provided by an employer.  While I share the view of the Complainant in this instance, that clause 34b was highly restrictive in relation to the Complainant’s future employment, nothing in clause 34b relates to any of the core terms comprehended by section 3 of the Act and therefore I must conclude that the Complainant did not receive a statement of his ‘core terms’ which were deliberately false or misleading.  In these circumstances I find that this complaint is not well founded. 

CA-00062675-009:

I have considered carefully the positions of both parties in their submissions and in evidence at hearing.  It seems to me that there are two matters to be considered in the context of penalisation under the Health and Safety Act.

(1)    Actions in response to his complaints in relation to drinking water

(2)    Actions in response to his complaint of bullying

1.       Actions in response to his complaints in relation to drinking water:

I note that the Complainant raised concerns with the Respondent in relation to the lack of drinking water on site and I note that the suggestion that a staff member could bring water into the site was unacceptable to the Complainant and that he believed that if he did not know the source of the water and staff were poisoned as a consequence, he would suffer a detriment.  I note that he believed that this complaint was one of the underlying causes for the poor relationship between him and Mr. D and for Mr. D’s hostile treatment of him.

I note the Respondent position that the premises within which the company was providing a security service, was an old building with poor plumbing and that this building was not owned by the Respondent.  The Respondent had noted that it had limited options in terms of putting in a system for drinking water.  However, the Respondent had suggested that staff could buy bottled water and provide receipts and that the Respondent would reimburse staff for such purchases.  I noted that the Complainant accepted that this had occurred. 

In reviewing the documentation provided and particularly the evidence given at hearing, I can find no causal link between this issue and the ultimate dismissal of the employee, nor do I consider that the relationship between the Complainant and Mr. D was impacted by this issue alone.  It was clear at hearing that the Mr. D and others in the Respondent employ, were extremely frustrated by the Complainant’s behaviour and stressed in terms of seeking to manage the impact of that behaviour on customers, on other employees and on the business.  In all of the circumstances, I do not find that this issue was the sole reason for either the dismissal of the Complainant or for the deteriorating relationship between the Complainant and Mr. D.

(2)    Actions in response to his complaint of bullying

I note the Complainant’s submission that he had submitted a bullying complaint and the following dates are relevant to the submission of that complaint:

·         The Complainant had a telephone conversation with the Safecall organisation on 9 October 2023 (Safecall is an organisation engaged by the Respondent to register whistle blower reports)

·         Subsequent to that phone call the Complainant submitted a report electronically on 10 October 2023 at 4.17 am.

·         Entry on system dated 11 October 2023 which confirmed that the Respondent had been made aware of the information (copy provided by the Complainant)

·         On 12 October 2023, the HR Director for UK and Ireland confirmed receipt of that Safecall report

·         On 13 October 2023, the Complainant’s employment was terminated

I noted the Complainant’s position at hearing that the complaint was not brought to the attention of the management in Ireland at the time of the meeting under the probationary clause of the contract which terminated the Complainant’s employment.  Given that the Complainant had no prior notice of the meeting, given that there had been no previous review meetings in relation to the Complainant’s performance and given that immediate dismissal was considered the correct option, it is difficult to accept that the Respondent had no knowledge of the complaint submitted and on the balance of probabilities, I have concluded that the Respondent was aware of the complaint when making the decision to terminate employment.  In these circumstances I must now consider whether the complaint made by the Complainant in relation to bullying in the workplace constituted a protected act under the Health, Safety and Welfare at Work Act.

I note that Section 27 (3) of the act states that “(3) An employer shall not penalise or threaten penalisation against an employee for -

(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”

In this regard I consider the Complainant’s complaint of bullying and harassment to be a complaint to the employer in relation to a Safety, Health and Welfare at Work issue and therefore appropriate to be considered under this provision.

I note further the Respondent position that the dismissal of the Complainant was in relation to a number of issues as set out in their letter of 13 October 2023 and I note the issues as follows:

·         Breach of trust

·         Utilisation of CCTV footage to monitor activities of team.  I noted the evidence set out in relation to the monitoring of employees, the purpose for which CCTV was used by the Respondent and the impact of its misuse on employees. 

·         Exceeding his authority/breach of GDPR guidelines.  I note in relation to an alleged incident that the Complainant did access personal information regarding a customer stored on the car park computer in order to make contact with them regarding an alleged incident, despite there being no complaint made and no evidence to support the Complainant’s assessment that there was an incident.  I noted further the Respondent position that the incident report written by the Complainant in relation to that customer, was intentionally destroyed by the Complainant.

·         Health and Safety – I note the Respondent position that on 6 October during a time where the fire alarm system showed repeated faults, the Complainant reset the alarm system without having the fault investigated by a professional.  I note the additional concern raised by the Respondent in relation to 11 October where a colleague identified a slip hazard to the Complainant following an incident and no action was taken to investigate the slip hazard or address same until Mr. D intervened.

·         Failure to communicate in a profession manner – I note the Respondent position that there had been difficulties in relation to appropriate communication from the Complainant to Mr. D over a number of weeks, that he had asked him to call him with any issues or problems, including while he was on leave, and that there had been multiple incidents where this had not occurred.  The Respondent noted three examples of such behaviour: -

o   in relation to the fire alarm system fault,

o   two pay stations off line at the same time and

o   an incident with a customer who the Complainant believed had collided with another vehicle and subsequent destruction of the incident report form.  The Respondent had noted that all feedback provided to the Complainant had been met with hostility and did not appear to have been taken on board. 

·         Training and development – I note the Respondent position that while base reporting was improving, there had been examples of failure to absorb training provided and specifically this related to issues with passwords and logging onto the car park computer and insertion of cash of the cash box in a pay station, despite having been shown how to do this on numerous occasions.

·         Staff management and morale – I note the Respondent position that the morale on site had dropped to an all-time low, that there was significant tension between the Complainant and his team and that despite instructions that he should take on board suggestions of feedback from his team during his training, he failed to do so and caused disharmony in the team.  The Respondent noted that the Complainant had not demonstrated adequate efforts to resolve the disharmony through conflict resolution and discussion, instead of opting for disciplinary actions.

Many of the issues outlined above were accepted at hearing by the Complainant as having occurred, albeit he had his own interpretation as to why some of those issues had occurred.  However, it was clear to me based on his own evidence, that he had used the company CCTV footage to monitor staff, that he had destroyed an incident report form in relation to a complaint that he had pursued in relation to an incident with a customer, despite the customer not raising a complaint and that he had not had the fire alarm fault investigated by a professional.  I consider all of these issues to be serious issues in the workplace and issues that were likely to cause significant impact on other employees, customers and on the business. 

I noted the Labour Court position in the case of Tony & Guy Blackrock Limited Versus O’Neill [2010] E.L.R., where the court stated that “it is necessary for a claimant to establish that the detriment of which he or she complains, was imposed “for” having committed one of the acts protected by subsection 3.  Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a protected act. This suggests that 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”. 

I am satisfied that the Complainant did commit a protected act in making a complaint of bullying in the workplace to the Respondent and I am satisfied that the Respondent was aware of that complaint at the time of dismissal.  I note the Complainant’s position that the detriment suffered by him was in retaliation for having made the complaint of bullying.  However, it is evident from the reasons set out for the decision to dismiss the employee, that there were many other causal factors in the chain of events that led to the Complainant’s employment being terminated and, in those circumstances, I find that there was more than one causal factor in the chain of events that led to the detriment complained of.  In all the circumstances I find that this complaint is not well founded. 

CA-00062675-002:

I have found that this complaint is not well founded, and I decide accordingly.

CA-00062675-004:

I have found that this complaint is not well founded, and I decide accordingly.

CA-00062675-009:

I have found that this complaint is not well founded, and I decide accordingly.

Terms of employment; penalisation