Complainant

Respondent

Parties

Manouj  Sharrma

McArdle Transport Limited T/A McArdle Skeath

Complainant

Respondent

Anonymised Parties

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Representatives

Setanta Landers Setanta Solicitors

IBEC on 15/11/2024 andMP Guinness BL instructed by Edward Kelly Holmes O'Malley Sexton Solicitors on 27/02/2025

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00062385-001

25/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00062385-002

25/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under  Part 14 Section 103(55M) of the Health Act, 2007

CA-00062385-003

25/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00062385-004

25/03/2024

The Complainant started employment as an Assistant Warehouse Coordinator with the Respondent on 15 November 2023. He stated that in January 2024 he was both treated unfairly and had his employment terminated because of protected disclosures he made in the workplace.

The Complainant stated that he had been informed at the interview stage that supervisors and operators were not adhering to standard operating procedures of the Respondent, and he would be tasked with aligning the Respondent’s work practices and bringing health and safety standards to the requisite standard. The Complainant reported to the Warehouse Coordinator who reported to the Senior Warehouse Coordinator. The Complainant managed four supervisors, and they managed circa 20 operatives.

At the beginning of the Complainant’s employment, he was tasked with completing a physical audit of the warehouse whereby he identified a number of audit issues. On 14 December 2024, the Complainant identified improper and dangerous storage of pallets where there had been 33 incidents between November & December 2023. The Complainant brought those incidents to the attention of the Warehouse Coordinator but was subsequently instructed by the Senior Warehouse Coordinator not to carry out any more audits.

On 9 January 2023, the Complainant identified a serious health and safety concern in respect of the handling of liquid nitrogen. A liquid nitrogen cylinder was left in an open door in the chill area of one of the Respondent’s warehouses as a door stop. The Complainant met the supervisor of the warehouse who indicated that he was working on the liquid nitrogen cylinder and forgot to return it and left it in that area.

On 10 January 2024, the Complainant raised this issue with his manager via Whatsapp and requested CCTV to be preserved. On 11 January 2024 the Complainant noticed that no action was taken in respect of the safety concerns he had raised with the Warehouse Coordinator in relation to the liquid nitrogen incident. The Complainant reported the incident by email to both the Warehouse Coordinator and the Senior Warehouse Coordinator.

On 12 January 2024, the Complainant met with the Senior Warehouse Coordinator and highlighted that the Warehouse Coordinator had not taken any action on the liquid nitrogen incident. The Complainant reminded the Senior Warehouse Coordinator that the company had two Standard Operating Processes and documents for the proper handling of liquid nitrogen. The Complainant stated that this incident should not go unreported. The Senior Warehouse Coordinator asked the Complainant not to escalate the matter. The Complainant stated that he would raise the issue with the COO if it was not reported.

On 15 January 2024, the Complainant emailed the Warehouse Coordinator and the Senior Warehouse Coordinator to inquire if an investigation was taking place in respect of the liquid nitrogen situation. The Senior Warehouse Coordinator replied to the Complainant that the matter did not need to go any further. The Complainant queried why the incident was let go without investigation and sought a meeting in that regard.

On 15 January 2024, the Complainant also raised an issue with the Senior Warehouse Coordinator about the refusal to allow him to drop his pregnant wife, who was working at the Respondent’s premises, to the bus stop during his working hours. The Complainant requested to receive the policy which stated employees were not permitted to leave the site until their shift had finished.

On 16 January 2024, the Complainant met with the Warehouse Coordinator and the Senior Warehouse Coordinator. The Complainant was advised at this meeting that they were overwhelmed with all the reports and concerns the Complainant had been raising with respect to health and safety and he was pressured not to follow up further on the liquid nitrogen incident. He stated that he was informed that action had been taken on it and a Deviation Report was submitted to the Chief Operations Officer.

Also on 16 January 2024, the Complainant saw the Chief Operations Officer and asked him for a meeting to report the issues that had arisen. The Complainant was informed by the Chief Operations Officer that he would need to speak with the Warehouse Manager first and he would then revert to discuss the matter with the Complainant.

On 17 January 2024, the Complainant was called to a meeting with the Chief Operations Officer. The Complainant was told that he was attempting to undermine and overrun both the Senior Warehouse Coordinator, and the Warehouse Coordinator. The Complainant was dismissed effective immediately.

On 8 January 2024, the Complainant had a meeting with the Senior Warehouse Coordinator, and the Warehouse Coordinator, who was the Complainant’s line manager. The purpose of the meeting was to discuss the working plan going forward for supervisors. After the meeting, the Complainant emailed the Senior Warehouse Coordinator, and his supervisor about incorrect storage of pallets.

Following this, the Complainant also sent another email regarding clipboards, daily machinery checks and allocation log sheets, where they had been removed from their locations. He requested to have the matter discussed with supervisors. The Warehouse Coordinator responded the next day, on 9 January 2024 and stated that she had discussed the matter with all supervisors and teams.

On 9 January 2024, the Senior Warehouse Coordinator forwarded an email to the Complainant and the Warehouse Coordinator which asked them to address “mixed carton” labels with their teams. The Complainant responded stating he would advise the supervisors.

On 10 January 2024, the Complainant emailed the Senior Warehouse Coordinator, and the Warehouse Coordinator regarding improper stacking of pallets. The Warehouse Coordinator replied the following day stating that the teams were working to fix the pallets. The Complainant responded with more details and asked if he should proceed with a deviation report. Later that day, the Complainant sent a separate email to the Senior Warehouse Coordinator informing him that log sheets were not updated by the morning shift team in the chill area. The Warehouse Coordinator responded the following day stating that the situation has been flagged and would be monitored. This issue was escalated to the Chief Operating Officer, with the Warehouse Coordinator advising the issue would continue to be monitored, and escalated as required.

On 10 January 2024, the Complainant reported an incident to the Warehouse Coordinator where a liquid nitrogen cylinder had been used as a door stop the previous day, 9 January 2024, and requested that the matter be investigated.

That same day, the Warehouse Coordinator completed a deviation report into the incident, where it was determined that the cylinder had been left in a doorway, but as this was a once off error, which was corrected at the time, once discovered by the Complainant no formal action was required. The Warehouse Coordinator spoke with the relevant employee to ensure this issue did not occur again. The Complainant emailed the Warehouse Coordinator and the Senior Warehouse Coordinator on 11 January 2024 requesting that a further investigation to be undertaken. 

On 12 January 2024, the Complainant, the Warehouse Coordinator and the Senior Warehouse Coordinator met, and the Complainant was advised that the nitrogen cylinder issue did not need to go any further, as it had been appropriately resolved by the Warehouse Coordinator on 10 January 2024. During this conversation, the Complainant requested time off to drop his wife to the bus stop, however the Senior Warehouse Coordinator advised that in line with policy, employees could not leave site during working hours.

On 15 January 2024, the Complainant sent a follow up email on regarding his issue with the liquid nitrogen cylinder seeking an update on the investigation. The Senior Warehouse Coordinator responded and stated the matter did not need to go any further as had been discussed at their meeting on 11 January 2024. The Complainant queried this decision and asked why an investigation was not taking place.

On 15 January 2024, the Complainant emailed the Warehouse Coordinator and the Senior Warehouse Coordinator regarding fixed breaktime slots. He asked him to confirm the break times and if a fixed break policy had been deployed across the company. The Complainant also requested a 5-10 minute break to drop his pregnant wife to the bus stop. He asked if there was a policy stating that employees could not leave the site between their shifts. The Senior Warehouse Coordinator called the Complainant later that day and arranged for a meeting to discuss this further.

On the same day, 15 January 2024, the Complainant emailed the Warehouse Coordinator and the Senior Warehouse Coordinator regarding the log sheets issue he had raised on 10 January 2024. The Senior Warehouse Coordinator advised that as they had discussed this matter it did not need to progress any further for the moment.

Later that day, the Complainant emailed the Warehouse Coordinator and the Senior Warehouse Coordinator about a number of issues he found throughout the day. The following day, the Warehouse Coordinator responded to the Complainant thanking him for the information, and advising they would discuss the pallet storage irregularities, and other topics that day.

On 16 January 2024, the Warehouse Coordinator and the Senior Warehouse Coordinator met with the Complainant via Microsoft Teams at 2.30pm. The Senior Warehouse Coordinator had hoped to discuss a working plan for the coming weeks, and to build a relationship with the Complainant, however he deemed it appropriate to end the meeting as no progress was being made, with the Complainant speaking over him repeatedly and questioning his experience.

On the following day, 17 January 2024, the Senior Warehouse Coordinator emailed the Chief Operations Officer and informed him of the very difficult meeting that he had with the Complainant the previous day. He stated in the email that the Complainant refused to listen to him and repeatedly spoke over him at the meeting.  He also stated that he spoke to the Complainant at the end of the meeting about his behaviour and how disappointed he was with the way he acted.

Later the same day, 17 January 2024, the Chief Operations Officer met with the Complainant at 4pm. During this meeting, the Chief Operations Officer advised that a decision had been made to terminate his employment because of his persistent undermining and refusal to accept instruction from both the Warehouse Coordinator and the Senior Warehouse Coordinator. The Complainant was advised he would receive one week’s pay in lieu of notice and a statement of employment. The Complainant’s employment notional termination date was 26 January 2024.

As all four complaints were inextricably linked with the same facts being at the centre of the actions in the instant case, the Complainant chose to proceed with the complaint under the Protected Disclosures Act, 2014 only.

CA-00062385-004:

The Protected Disclosures Act defines a protected disclosure at Section 5 (1) as follows:

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6)] and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,

(h) that a breach has occurred, is occurring or is likely to occur, or

(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.

The Act at Section 2 clarifies that information is relevant information if

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.

Section 5(5) of the Act provides as follows:

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

Findings:

I must firstly establish if a protected disclosure has been made before I can decide whether the alleged penalisation, in this case dismissal and unfair treatment, was linked to the Complainant having made a protected disclosure.

In deciding if the Complainant made a protected disclosure, I note in the first instance his assertion that he identified 33 instances of improper and dangerous storage of pallets between November & December 2023, which he had brought to the attention of management.

I also note that on 9 January 2024, he identified what he says was a serious health and safety concern in respect of the handling of liquid nitrogen, which he highlighted to his manager on 10 January 2024. Specifically, a liquid nitrogen cylinder was used as a door stop in the chill area of one of the Respondent’s warehouses. Despite having been informed by management that the matter did not need to go any further, the Complainant queried why the incident was let go without investigation and sought a meeting in that regard.

Having regard to the above, I am satisfied that the Complainant made a protected disclosure as defined by the Act, at least by 10 January 2024 given that he reasonably believed that the use of the liquid nitrogen door cylinder as a door stop constituted an act by the Respondent whereby the health and safety of an individual was likely to be endangered.

As outlined above, the Complainant must demonstrate that he suffered some form of detriment as defined within the Act and prove that this was linked to the protected disclosure.

In this regard, Section 2 of the Act defines “penalisation” as,

 any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes—

(a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training,

(j) a negative performance assessment or employment reference,

(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;

Having regard to the list above, the definition of what may constitute “penalisation” is very broad and encompasses almost any form of adverse treatment that leads to a detriment. Regarding the alleged detriments the Complainant suffered, these can be considered under two headings. Firstly, he stated that he was subjected to unfair treatment on 12 January 2024 when his request to drop his pregnant wife, who worked as a consultant with the Respondent, to the bus stop was rejected by his manager. Specifically, the Complainant stated that he was informed that once he was inside of the office gates, he was not permitted leave the site until his shift was over. He stated that this was unfair because other staff members were permitted to do school runs and to leave the site for lunch and coffee.

Secondly, he stated that he was dismissed on 17 January 2024 because of the protected disclosures that he made.

As outlined above however, it is not sufficient for the Complainant to show that he made a protected disclosure and allege that he was subjected to penalisation. He must demonstrate a causal link between the detriment suffered and the protected disclosures.

In this regard Section 12(1) of the Act provides that,

“An employer shall not penalise or threaten penalisation against an employee…for having made a protected disclosure”

In the matter of Aiden & Henrietta McGrath Partnership -v- Ann Monaghan[2017] 28 ELR 8, the Labour Court held that,

“Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the complainant 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 complainant having committed the protected act he or she would not have suffered the determined. This involves the consideration of the motive or reason which influenced the decision maker in imposing the impugned detriment.”

In the case of John Clarke v CGI Food Services Limited and CGI Holding Limited [2021] 32 E.L.R.25 Humphrey’s J. held as follows,

“Decision- makers have to look beyond the mere face value of either side’s arguments in a dismissal dispute given the ease in which a position can be contrived and manipulated Royal mail Group Ltd v Jhuti [2019] UKSC 55 considered.”

Humphreys J. went on to state that,

 “…the evidence here establishes substantial grounds for contending that the performance issues were an attempt, as put in the submission by the employee “to dress up the dismissal as a performance- related dismissal” As put by Lord Wilson in Royal Mail Group Ltd v Jhuti [2019] UKSC 55 at para.60,

“If a person in the hierarchy of responsibility above the employee……determines that, for reason A (here the making of a protected disclosure), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here inadequate performance), it is the Court’s duty to penetrate through the invention rather than to allow it also to infect its own determination”

Having regard to the above, I must therefore assess, in the instant case, if either or both the Respondent’s refusal to allow the Complainant to take his wife to the bus stop during working hours and the decision to dismiss him were connected to the fact that he made a protected disclosure.

In making this assessment, I note firstly that the Respondent refuted the allegation that the refusal by the Senior Warehouse Coordinator to permit the Complainant to leave the site during working hours—following his request to transport his pregnant wife to the bus stop—constituted unfair treatment and was an act of penalisation. The Respondent relied upon the provisions of the Employee Handbook, a copy of which had been provided to the Complainant, wherein it is expressly stated that time off for appointments or other personal matters is subject to the discretion of management. Moreover, the Complainant failed to adduce any direct evidence to demonstrate that other employees were regularly afforded permission, as he sought, to leave the site during working hours.

In considering the circumstances surrounding the Complainant’s dismissal, I have had particular regard to the email dated 17 January 2024 from the Senior Warehouse Coordinator to the Chief Operations Officer, in which the former outlined his dissatisfaction with the Complainant’s conduct during the meeting of 16 January 2024. While the Chief Operations Officer was unable to attend the hearing to give evidence due to ill-health, I found it significant that, during cross-examination, the Complainant conceded that he had been advised by the Chief Operations Officer that the basis for his dismissal was his persistent undermining of, and failure to cooperate effectively with, both the Warehouse Coordinator and the Senior Warehouse Coordinator, as outlined in the email from the Senior Warehouse Coordinator to the Chief Operations Officer earlier that day.

Considering the foregoing points, I find that the Complainant has failed to establish a connection between him having made the protected disclosure and the alleged penalisation, namely either the unfair treatment or the dismissal.  I therefore find that the complaint is not well-founded.

CA-00062385-001 - CA-00062385-003: These complaints were withdrawn.

CA-00062385-004:  I find that the complaint is not well founded for the reasons set out above.