FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : HEALTHY BUILDINGS (IRELAND) LTD (REPRESENTED BY LEMAN SOLICITORS) - AND - ANDRZEJ GORZELAK (REPRESENTED BY MAGUIRE MC CLAFFERTY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Decision R-060919-HS-08/EH
BACKGROUND:
2. The Employee appealed a Rights Commissioner's Decision to the Labour Court on the 11th August 2008, in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act, 2005. A Labour Court hearing took place on the 18th February, 2011. The following is the Determination of the Court:-
DETERMINATION:
This is a complaint by Mr. Andrzej Gorzelak (“the Complainant”) alleging that his employer Healthy Buildings (Ireland) Limited (“the Respondent”) contravened Section 27 of the Safety Health and Welfare Act, 2005 (the Act). The Complainant referred a complaint of penalisation by way of dismissal by his former employer contrary to Section 27 of the Act in circumstances where he had made a complaint to his employer relating to safety, health and welfare at work.
The Rights Commissioner found against the Complainant. The Complainant appealed to this Court.
Background
The Respondent has been established for over 15 years, it provides services in building hygiene, environmental consultancy and monitoring services.
The Complainant was employed as a technician with the Respondent from 25th November 2006 until 24th July 2007 when he was dismissed. The Complainant contends that his dismissal resulted from having raised health and safety issues with the Respondent. The Respondent denies that the decision to dismiss the Complainant was influenced by the complaints which he made. It contends that he was dismissed due to his poor work performance and attitude to work which disimproved considerably after his probation period expired.
The Complainant’s Case
Mr. Diarmuid Murphy, B.L., instructed by Maguire McClafferty Solicitors, contended that the Complainant was dismissed shortly after he refused to carry out a task which he considered unsafe.
On 2nd and 3rd July 2007 he was scheduled to work on a site in Portumna to clean two large cylindrical water tanks. He was instructed to enter each tank and clean them from the inside, he was provided with equipment to carry out the task. He cleaned the first tank on the first day and on the second day he refused to descend into the second tank citing safety reasons.
The Complainant was dismissed on 24th July 2007. Mr. Murphy told the Court that the Complainant could not recall ever being warned, cautioned or disciplined prior to his dismissal. Between the 3rd and 24th July 2007 the Complainant only worked 4 days, the rest of the time he was on annual leave. He said that no disciplinary issues arose during that time.
The Respondent’s Case
Mr. John Hogan, Solicitor, Leman Solicitors, on behalf of the Respondent, denied that the decision to dismiss the Complainant was influenced by the complaint he made. Moreover, senior managers who presided over the dismissal contended that they were not even aware of the safety complaint made by the Complainant when they dismissed him. The initiating matter that lead to the Respondent to institute disciplinary proceeding against him arose because of a complaint by another client (Client X) in respect of the Complainant's conduct at Client X 's site.
Witnesses Evidence
The Complainant
The Complainant gave evidence to the Court of a complaint he made on 3rd July 2007 regarding the safety of the job he had been instructed to carry out at the Respondent's client firm based in Portumna. He said that when he brought the complaint to the attention of Mr. Joyce, Operations Manager he was told that if he did not complete the job he would be fired. He said that he did not complete a risk assessment for the job involved and was not aware of the necessity to do so.
When questioned about the incident at Client X,’s site which occurred in late June, the Complainant told the Court that at that site he needed to hire pumps to undertake the job, therefore he had to leave the site on a number of occasions that day. At one point in the day when he was returning to the site there was a confrontation with a security guard who seemed to be frustrated at having to let him in and out of the gates so often that day. The Complainant said that he brought the issue of the confrontation to the attention of Mr. Conlon, his Supervisor, who advised him not to mention the incident to the Respondent, due to the importance of Client X to the Respondent and Mr. Conlon assured him that he would deal with the matter.
The Complainant told the Court that on 9th July 2007, as he was about to commence his annual leave, Mr. Joyce, Operations Manager, instructed him to bring his van to the Respondent’s premises and he told him that they would speak to him after his holidays.
On his return from holidays a meeting was set up for 24th July 2007. The Complainant recounted details of that meeting. He said that Mr. Byrne, Managing Director, Mr. Joyce and Mr. Conlon were present at the meeting. He said that he was informed by management that they were not satisfied with his performance and he was dismissed there and then. In cross-examination, he accepted that no reference was made by anyone present to the incident at the Portumna when he refused to clean the tank.
Mr. Adrian Byrne, Managing Director
Mr. Adrian Byrne, Managing Director gave evidence. He told the Court that he is mostly based in Belfast. He is made aware via weekly operations meetings of any issues involving staff, jobs or customers. He said that as he was receiving very positive feedback on the Complainant’s work he decided to make his position permanent from April 2007. Shortly afterwards, he began to receive negative feedback on the Complainant regarding his poor attitude to both his work and his colleagues. The Complainant's first line manager reported significant difficulties in managing the Complainant due to his complete disregard for taking direction or advice.
Mr. Byrne told the Court that in June 2007 he received a phone call from one its biggest clients (Client X) advising him that the Respondent would not be receiving any further work from them. The reason cited was an incident involving the Complainant and his use of abusive language towards one of its security team. Mr. Byrne was told that the Complainant was asked to leave the premises because of his verbal attack on the security person. Mr. Byrne told the Court that as the Complainant was about to commence his annual leave it was decided not to take any action at that time and await his return before inviting the Complainant to a disciplinary meeting.
Mr. Byrne said that as the Client X incident was so serious, it was the critical reason for the decision to dismiss the Complainant. Mr. Byrne told the Court that immediately prior to the disciplinary meeting on 24th July 2007 he spoke to his managers in the Dublin office and they recounted other incidents concerning the conduct and performance of the Complainant. It was at that point that he decided to terminate the Complainant's employment.
Mr. Byrne denied that he knew about the safety complaint made by the Complainant regarding the cleaning of tanks at the Portumna site when he dismissed the Complainant and told the Court that he only learnt of the complaint after the Complainant had been dismissed. Indeed, he told that the Court that it was not until the Complainant referred a claim under the Act to the Rights Commissioner on 16th February 2008 that he became aware of the incident in Portumna or that the Complainant had made any representation to the Respondent concerning safety matters. Mr. Byrne told the Court that the only incident he knew about concerning the Portumna site was the Complainant’s breach of the smoking rules at the site and he said that this was one of the contributory factors for the termination of his employment.
Mr. Tony Joyce, Operations Manager
Mr. Tony Joyce, Operations Manager, was the Complainant’s supervisor. He told the Court that the work at the Portumna site is carried out on an annual basis and involved the cleaning and disinfection of four cooling towers and two cylindrical site tanks in accordance with best practice and guidelines. The Complainant and another colleague were assigned the work and a job file for the work was given to the Complainant on the previous Friday evening detailing the work involved and the equipment required for the job. He told the Court that the Complainant telephoned him several times during the day on 3rd July 2007, to tell him that the work could not be completed in the time allocated. During that afternoon the Complainant telephoned to say that he would not get into the tank to clean it as required as he felt it was unsafe to do so.
Mr. Joyce checked the matter out with its client who agreed that it was safe to proceed into the tank. In any event he said that he managed to contact an alternative technician who agreed to undertake the work. Mr. Joyce said that at no point was the Complainant given an ultimatum to complete the work. He said that all staff, including the Complainant are given confined space training to work in such conditions.
Mr. Joyce said that the Complainant worked out the remainder of the week and went on holidays on 9th July 2007.
Mr. Joyce said that as the work at the Portumna site had been successfully completed and the risk assessment carried out, he did not see any necessity to report the Complainant’s complaint regarding the safety of the job.
Mr. Joyce refuted the allegation that he told the Complainant that he would be fired if he did not undertake the work. He said that he would not have the authority to fire a worker and he had never spoken to anyone like that in his life.
Mr. Joyce recounted several incidences where the Complainant was uncooperative or disruptive at his work, including an occasion when the Complainant verbally abused him at a site in Tullamore in June 2007; another occasion when the Complainant failed to take instruction from his senior technician at a site in Newbridge in May 2007 and operated a barrier on that site despite a specific warning from the client not to do so as it was off limits. He also recounted an incident at Portlaoise when the Complainant inappropriately confronted him about his finishing time, in front of the client’s staff. Another difficulty related to the Complainant’s smoking at the Portumna site despite it being a no smoking area and having been warned not to do so.
Mr. Ollie Conlon, Supervisor
Mr. Ollie Conlon, Supervisor told the Court that during the Complainant’s probationary period, management were very happy with him. However, after that period his performance and attitude detoriated. Mr. Conlon said that at the commencement of the Complainant's employment they had been so impressed with him that they gave him the newest van in the fleet and gave his son a job. He also said that the Complainant was even allowed to take holidays during the busiest time of year.
Mr. Conlon recounted the details of the Client X incident and told the Court that Mr. Byrne had contacted him about it before he had had an opportunity to bring it to Mr. Byrne’s attention. He accepted that he had assured the Complainant that he would deal with the matter; however, he did not do so as it became well known about within the Respondent’s organisation.
Mr. Conlon said that he witnessed the incident in Tullamore (mentioned above in Mr. Joyce’s testimony). His recollection was that the Complainant had exploded in front of Mr. Joyce who was at the time talking to clients. Mr. Conlon told the Court that the Complainant's behaviour was so inappropriate that he issued him with a verbal warning, this was prior to the Client X incident.
Mr. Conlon said that Mr. Joyce had mentioned the Portumna incident to him in a casual way and as there was no complaint from the customer he felt that there was no need to mention the incident at the following weekly operations meeting. Those meetings were designed to discuss the scheduling of work going forward.
In relation to the Newbridge incident Mr. Conlon stated that the Complainant had refused to abide by both the client’s and the Respondents instructions not to lift a barrier This action not only left Mr. S. B., the respondents manager who had given the instruction, open to being expelled from the site as the officer who had signed off on the clients rules but also left the Respondent vulnerable to the possibility of losing the contract altogether.
Finally, Mr. Conlon submitted that due to the Complainant’s lack of respect for both his colleagues and the Respondent’s client, he made the recommendation to Mr. Byrne, Managing Director that the Complainant should be dismissed. He told the Court that at the dismissal meeting, on 24th July 2007, the Portumna incident concerning the Complainant’s refusal to work in the tank, was never mentioned. The only reference made to the Portumna site was in relation to the Complainant’s breach of the smoking rules.
Mr. Pat McDonald, Sales Director
Mr. Pat McDonald, Sales Director told the Court that he received a telephone call from Client X on 11th June 2007, suspending the Respondent from the site and threatening to remove it from their supplier list. He said that the client was a very important client and was very irate telling him that the Complainant had not adhered to the schedule of work agreed, had caused water loss on site, had problems with time keeping and had been confrontational and argumentative with the security staff on site. As a result they had to apologise profusely to the client and prohibit the Complainant permanently from the clients’ site. Mr. McDonald relayed the details to the management team.
Mr. McDonald stated that the safety complaint had no bearing on the Complainant's dismissal and told the Court that he had only become aware of the problem the Complainant had with the tank at the Portumna site, after the Rights Commissioner Service supplied details of his claim under the Act.
The Law Applicable
Statutory provisions
The Act came into operation on 1st September 2005. Section 27 provides in relevant part 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,(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.
- (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.
Findings of the Court
The only issue for consideration by the Court is whether the Respondent’s decision to terminate the Complainant’s employment was influenced by the complaint he made concerning his safety while working in the tank at the Portumna site. The Court is not required to decide on the fairness or otherwise of the Complainant’s dismissal. If the Court was concerned with this question, by the application of normal standards of reasonableness, the Respondent might have some difficulty in justifying the manner in which the Complainant’s employment was terminated.
As was pointed out by this Court inO’Neill v Toni & GuyBlackrock21 ELR 1, 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 Complainant having committed a protected act. This suggested 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.
In the instant case the Complainant submitted to the Court that as a result of a complaint regarding the safety of the tasks allocated to him at the Respondent’s site in Portumna he was threatened with dismissal if he did not carry out the duties and shortly afterwards his employment was actually terminated.
The Court is satisfied from the evidence given that on 3rd July 2007 the Complainant made a complaint which can be considered as coming within the terms of Section 27(3)(c).
In theToni & Guycase the Court found that what was at issue was the motive or reason for the Complainant’s dismissal, which it held was to be found in the thought process of the decision makers at the time the decision to dismiss the Complainant was taken. The court held that
- “That is something which is peculiarly within the knowledge of the Respondent. It would be palpably unfair to expect the Complainant to adduce direct evidence to show that the Respondent was influenced by his earlier complaints in deciding to dismiss him. Conversely, it is perfectly reasonable to require the Respondent to establish that the reasons for the dismissal were unrelated to his complaints under the Act.”
The Court has considered the evidence of both the Complainant and the Respondent. Both the Managing Director and the Sales Director told the Court that the first time they learnt about the safety complaints made by the Complainant on 3rd July 2007 was when they received the letter from the Rights Commissioner Service on 16th February 2008, almost seven months after the dismissal.
There were a number of incidents which the Respondent relied upon as the reasons for his dismissal. There was a conflict of evidence on much of the facts of these incidents, however, the Court notes that the Complainant’s evidence did not always stand up. He told the Court that he did not smoke, yet when challenged about it he accepted that he may have had one cigarette with Mr. Conlon at some stage. This breach of rules was considered so serious that it was one of the incidents cited by the Respondent for his dismissal.
Furthermore, the Complainant accepted that the security person at Client X site was outraged when he asked him if he spoke German when he could not understand him. The Court accepts from the evidence given by each member of management that the Client X complaint was a very serious matter for the Respondent and it almost resulted in the loss of their contract with them.
In these circumstances the Court is satisfied, as a matter of probability, that there were a number of difficulties with the Complainant’s work performance which resulted in his eventual dismissal. However, there is no evidence to substantiate the case that it was related to the complaint he made concerning the safety of his job at the Portumna site on 3rd July 2007.
Therefore, the Court finds that the aforementioned complaint was not an operative reason for his dismissal and that his complaint of penalisation has been not made out.
Determination
The Court upholds the Rights Commissioner Decision and rejects the Complainant’s appeal.
Signed on behalf of the Labour Court
Caroline Jenkinson
11th March 2011______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.