SECTION 29 (1), SAFETY HEALTH AND WELFARE AT WORK ACTS , 2005 TO 2014
BLACKLOUGH CONSTRUCTION LIMITED
- AND -
(REPRESENTED BY MR. O'SULLIVAN B.L.
INSTRUCTED BY KENT CARTY SOLICITORS LLP)
1.Appeal of Adjudication Officer Decision No(s) ADJ-00036294 CA-000474569-002.
The Complainant commenced employment with the Respondent as a licensed Tower Crane operator on the 14thApril 2021. The Complainant states that he was penalised for raising Health and Safety issues. The Respondent disputes the fact that he was penalised. The Complainant lodged his complaint with the WRC on the 02 December 2021. The cognisable period under the Act is 3rd June 2021 to 2ndDecember 2021.
By email of the 3rdJanuary 2023 the Court received from the Respondent’s legal representatives an application for a postponement on the basis that their client was placed in examinership and they were unable to obtain instruction. By email of the 6thJanuary 2023 the Court refused the application for adjournment noting that the Respondent went into examinership on 29thNovember 2022 and the notification of the time and date of hearing had issued on the 30thNovember 2022. No explanation for the delay in seeking a postponement had been advanced. The Court advised that the hearing would proceed as scheduled and that any further postponement request could be made at the hearing if desired.
By email of the 11thJanuary 2023 the Court was advised that the Respondent’s legal representative had come off record, that the Company was in examinership, and that the Respondent would not be attending the hearing. The letter requested that the Court notify the Respondent of the outcome of the hearing or if an adjournment was granted. No request for adjournment was made at the hearing on the 12thJanuary 2023 so the Court proceeded to hear the case.
Summary of the Complainant’s submission and evidence
The Complainant commenced employment with the Respondent on the 14thApril 2021 as a Crane operator. A Crane operator works with a Banks man who directs the Crane driver from the grounds. Both the Crane driver and the Banks man need a license. From the start of his employment an issue arose in relation to the availability of a Banks man. The foreman on the site at the time was a Mr Michael Felle. The Complainant on numerous occasions raised the issue of no banksman being available to work with him with Mr Felle. An incident occurred on the 11thOctober 2021 and the Complainant was instructed to operate the Crane without a banks man. He informed Mr Felle that he could not operate without a banksman. The Complainant went to lunch and while on lunch received a call from Mr Felle telling him not to come back after lunch. The Complainant returned to the site about 15 minutes later but was locked out. The next day the Respondent hired a new Crane driver and banksman through an agency. It is the Complainant’s case that he was penalised by being dismissed and or locked out of the site by the Respondent for making a complaint about Health and Safety issues.
The Complainant in his sworn evidence to the Court stated that on his first day 14thApril 2021 there was no banks man on site. He raised this issue with Mr Felle and was told there would be a banksman the following Monday but that did not happen. The Complainant assisted one of the labourers to get his banks man qualification but he resignment a short time later. Another banks man was hired but he left in August 2021 and from that time on the contractor did not have a permanent banksman on site. Some of the other contractors on site had banks man but the Complainant did not always have access to them as they were doing other work. This was an issue that he was consistently raising with Mr Felle and with the site Health and Safety Officer. He also noted it in the weekly safety forms that they had to complete.
It was the Complainant’s evidence that on the day in question the 11thOctober 2021 there was no banksman on site, and he was asked by a scaffolder to lift scaffolding that had collapsed. He advised the scaffolder that he could not do that work without a banksman. Mr Felle contacted him on his mobile phone and told him to do the job and mind his own business. He informed Mr Felle that he could not do the job without a banksman. He then went on his lunch, while on his lunch he received a phone call from Mr Felle asking where he was. He advised that he was having his lunch, Mr Felle stated that he could have a long lunch as he was not to come back to the site.
It was the Complainant’s evidence that at that point he did not think Mr Felle meant it so about fifteen minutes later he headed back to the site. When he got there, he could see some else was operating the crane and was surprised as no other licensed crane driver was on site. When he went to re-enter the site, Mr Felle closed and locked the gate and would not let him in. Mr Felle also refused to talk to him. The Complainant stated that he walked away from the site and rang the site Health and Safety officer, the phone went to voice mail and he left a message setting out what had happened. He received a text message back to say the Health and Safety Officer was not available but would investigate it the next day. He heard nothing further from the Respondent. On the 1stNovember 2021 he took up another job.
Summary of the Respondent’s submission.
The Court and the Complainant received a written submission from the Respondent which was taken as read at the hearing.
The Respondent in their submission stated that the Complainant and walked off the site without informing the site foreman Mr Felle. There submission states that when Mr Felle rang the Complainant about returning to work after lunch the Complainant was rude and informed Mr Felle that he was jacking the job and hung up the phone. Mr Felle closed the gate to the site after lunchtime as would be normal practise and a subcontractor that was on site and is qualified to do so, operated the crane for the rest of that day. The following day a Crane operator and banksman were hired from an agency. On the day in question the Complainant did not make a complaint about there not being a banksman. The Complainant was not dismissed he walked off the site.
The Act at Section 27 in relevant part provides as follows:
Protection against dismissal and penalisation.
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,
(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,
Subsection 3 of Section 27 prescribes the circumstances in which penalisation is rendered unlawful under the Act. It provides: -
(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) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions
(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.
Discussion and conclusions
The Court’s jurisdiction in the within matter is confined to determining whether, within the meaning of Section 27 of the Act, actions of the Respondent amounted to prohibited penalisation.
The Court has approached the within matter on the basis of first determining whether a protected act within the meaning of the Act at Section 27(3) was committed. The Court having read the submissions of the parties and heard the uncontested sworn evidence of the witnesses concludes that, the Complainant did on a number of occasions make a complaint to his employer or safety representative as regards a matter relating to safety, health or welfare at work, including making a complaint on the 11thOctober 2021 and that these communications constitute a protected act within the meaning of the Act.
The Court having considered the submissions and the uncontested evidence of the Complainant before it, finds that there was a phone call between the Complainant and Mr Felle while he was on his lunch break, the Complainant did return to the site and Mr Felle locked the gates to prevent the Complainant returning to work. After this event the Complainant tried to contact the Respondent’s Health and Safety officer but other than a text response to say the matter would be investigated the next day received no communication from the Respondent.
The Court finds that the actions of the Respondent constitute a dismissal and a penalisation under the Act. The Court determines that based on the submissions before it and the uncontested sworn evidence, that, but for the Complainant having made complaints about Health and Safety issues (in the main being that he could not work without a banksman) he would not have been locked out of the site and his employment terminated. The Court determines that the Complainant was penalised, and the detriment suffered was dismissal. The Court determines that the actions of the Respondent constitute penalisation within the meaning of section 27 (1) of the Act.
The Court determines that the appropriate redress is compensation and awards the Complainant the sum of €20,000 in compensation for the Respondent’s breaches of the Act.
The appeal succeeds. The decision of the Adjudication Officer is set aside.
The Court so determines.
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.