Complainant

Respondent

Parties

Edward  Doyle

Freightspeed Transport

Representatives

Barnaba Dorda SIPTU

John Keenan JRK Business Support & Employee Advocacy Services

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-00053581-012

04/11/2022

The Complainant submitted two Complaint Forms and his complaints were recorded under two ADJ reference numbers – ie ADJ-00045436 and ADJ-00045288 which were received by the WRC on 4/11/2022 and 6/4/2023 respectively. This decision is made under ADJ-00045436.

The Complainant was employed by the Respondent as a delivery driver on 8 October 2018 and was dismissed from his position with effect from 30 December 2022. Prior to his dismissal the Complainant had been suspended from his position.  

The Complainant outlined the following incidents which he stated constituted penalisation pursuant to the Safety, Health and Welfare at Work Act [2005-2023]:

·        His being accused of orchestrating a petition of workers concerning alleged bullying in the workplace in or around March 2022 when in fact the Complainant maintained he was just one of the signatories.  The Complainant referred to a meeting he had with the Respondent’s CEO in March 2022 but stated that no process was put in place to address the workers issues of concern. The Complainant also stated that he was not furnished with the Respondent’s Employee Handbook until December 2022;

·        The re-assignment of his driving route to the Dublin area from in or around 6 May 2022 which the Complainant stated was in response to his signing the petition in March 2022;

·        The failure of the Respondent to deal with the Complainant’s grievances outlined in his letters of 25/7/2022 and 17/10/2022 or deal with the grievances raised on his behalf by his union. The Complainant stated he sought union representation for a meeting on 19 August 2022 but that contrary to the Respondent’s assertions, the latter did not organise a follow up meeting to address his complaints and that a meeting held in December 2022 was an off the record settlement meeting.  The Complainant stated that the Respondent’s failure to deal his grievances acted to his detriment and was in sharp contrast to the Respondent’s response to the complaint which led to his dismissal;

·        His suspension on 28/10/2022 which the Complainant maintained was not a neutral act and was based on a hearsay complaint.

The Respondent stated that the Complainant had not provided any specific evidence of a breach of the Safety, Health and Welfare at Work Act [2005-2023] and that his complaints in this regard were misconceived and without foundation. The Respondent stated that the Complainant’s driving route was re-assigned with effect from 6/5/2022 “because of ongoing friction” and a genuine business need for the move. The Respondent stated that the re-assignment protected both its business and the Complainant and that notwithstanding the Complainant’s “bad behaviour” at the time, no disciplinary action was instigated. The Respondent further stated that such re-assignment was provided for in the Complainant’s contract of employment, that the contract was not breached as a result and that the Complainant’s working hours remained unchanged.

In  relation to the petition, the Respondent stated this was sent to the Respondent’s customer in the particular location and not directly to the Respondent and that the alleged bullying complaints did not fall to be considered under the Safety, Health and Welfare at Work Act [2005-2023].

The Respondent stated that in response to the Complainant’s letter of 25/7/2022, it’s representative met with the Complainant and his union representative in early September 2022 but there was no resolution. The Respondent further stated that the Complainant did not invoke the Grievance Procedure.

In relation to the Complainant’s suspension, the Respondent stated it was obliged to investigate the customer’s complaint of 27/10/2022, that the Complainant was paid throughout his suspension and that the suspension did not constitute penalisation.

 The parties questioned each other’s evidence and submissions on the complaints of alleged penalisation. In the course of the questioning the Complainant rejected that he had demonstrated “bad behaviour” and disputed that the reason for his re-assignment was because of a business need. The Complainant stated that he was never furnished with an Employee Handbook prior to December 2022 which assertion was disputed by the Respondent who referred to the Complainant’s contract of employment signed on 23/11/2018. The Respondent also maintained that the Complainant had failed to link the incidents cited by him with any alleged breach of the Safety, Health and Welfare at Work Act [2005-2023].

Section 27 of Safety, Health and Welfare at Work Act [2005-2023] provides as follows:

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,

I 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

I 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,

I 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) ……

(e) ……

(f)…….

(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 anemployee 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.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them”.

Penalisation generally requires a direct causal link between the making of a complaint and any detrimental treatment that followed. The Labour Court in O’Neill v. Toni and Guy Blackrock Limited [ELR21] considered in detail the matter of a causative link as follows:

“It is clear from the language of this section that in order to make out a complaint of penalisation 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 detrimentcomplained 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”.

Therefore, a Complainant needs to establish not only that s/he suffered a detriment but that the detriment complained of was imposed because of, or was in retaliation for, having committed a protected act.

In the present case the Complainant has identified a number of incidents – related to the petition, his re-assignment, the failure to deal with his grievances and his suspension – which he has stated constituted penalisation. However, having considered all the evidence and submissions, I consider the Complainant has not identified a detriment within the meaning of the Act that is sufficiently or at all linked to those issues. Specifically, I find the Complainant has not sufficiently particularised a detriment arising from his signing the petition or raising grievances. In relation to his re-assignment, this was done with no financial loss to the Complainant and further the re-assignment was within the parameters of his signed contract of employment which provided at paragraph 3 that the Complainant’s place of work “….may change from time to time and [he] may be required to attend at any location linked to the organisation..…”. In relation to the Complainant’s suspension, I consider that in light of the potential impact on the Respondent’s business, it was not unreasonable to have suspended him pending an investigation and disciplinary process. These actions in my view did not constitute penalisation within the meaning of Section 27 of the Act.

CA-00053581-012

For the reasons outlined this complaint is not well founded.

Penalisation