FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : STOBART IRELAND DRIVER SERVICES LTD (REPRESENTED BY PURDY FITZGERALD SOLICITORS) - AND - MR KEITH CARROLL (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-116072-hs-11/DI.
BACKGROUND:
2. This dispute concerns the Worker's claim that he was unfairly dismissed after making a health and safety complaint to the Company, in contravention of Section 27 of the Safety, Health & Welfare Act, 2005. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 29th August, 2012 the Rights Commissioner issued the following Recommendation:-
- "I find the [Worker's] complaint to be well-founded. I require the [Company] to reinstate the [Worker] with effect from 20th October, 2011 ... on his previous terms and conditions of employment ... [and] to compensate the [Worker] in full for his loss of wages from 20th October, 2011 to the date this decision is implemented. His loss of wages is to be calculated using the average weekly wage earned from 1st January to 12th October, 2011"
- "I find the [Worker's] complaint to be well-founded. I require the [Company] to reinstate the [Worker] with effect from 20th October, 2011 ... on his previous terms and conditions of employment ... [and] to compensate the [Worker] in full for his loss of wages from 20th October, 2011 to the date this decision is implemented. His loss of wages is to be calculated using the average weekly wage earned from 1st January to 12th October, 2011"
DETERMINATION:
This is an appeal by Stobart Ireland Driver Services Limited against the decision of a Rights Commissioner in a complaint of penalisation made by Mr. Keith Carroll. The complaint was made pursuant to Section 27 of the Safety Health and Welfare at Work Act 2005 (hereafter referred to as “the Act”). Mr. Carroll was employed from 22ndOctober 2010 until his dismissal on 14thOctober 2011. Mr. Carroll contends that in consequence of the discharge of his duty under Section 13 of the Act in taking reasonable care of his own safety and the safety of others he was dismissed and such dismissal constituted penalisation of him within the meaning of Section 27 of the Act.
For ease of reference the parties are given the same designation as they had at first instance. Hence Stobart Ireland Driver Services Limited will be referred to as “the Respondent” and Mr. Keith Carroll will be referred to as “the Complainant”.
Background
The Complainant was employed by the Respondent on the Ballymun site driving a
heavy goodsvehicle. He had previously been employed for seven and a half years at the same site by a different distribution company and was made redundant when the Respondent took over the contract. The Complainant then immediately took up employment with the Respondent on a new contract of employment.
The custom and practice within the company is for Management to inform drivers of their starting times the day before they commence their shift. On 13thOctober 2011 the Complainant was informed by the Manager on duty to commence his shift that night at 23.55. On being given his start time,the Complainantsought to be rostered off work due to the excessive hours he had already worked that week.This request was refused. Management stated that having checked the records they showed that he had 47 driving hours that week and ashe had not yet reached his maximum working hours the Respondent informed him that he should present himself for work that evening.Later on in telephone conversations with a different manager the Complainant explained that he was too tired to drive, as his roster for that evening required him to drive all night until 7am the following day.Although the Complainant initially declined the start time he was given by the Manager on duty, he later called the transport office looking for a different start time. He was informed by the Manager that his run had already been covered.The Respondent informed him that there was nothing else available. The following day the Complainant received a letter from the Respondent delivered to his home advising him of the termination of his employment.
Summary of the Complainant’s Case
Ms. Karen O’Loughlin, SIPTU on behalf of the Complainant stated that the Complainant in seeking to be relieved of his duty was complying withSection 13 of the Act which places an obligation on every worker to ensure they are fit for work and do not endanger themselves or others. She stated thatan analysis of the Complainant’s hours of work and driving time from August to October 2011 demonstrate that he
regularly worked eithervery close to,at, or in excess of the maximum hours permissible under the Organisation of Working Time Act, 1997.Ms. O’Loughlin stated that on the evening in question, according to the Complainant’s own log, he had already been rostered for 53 hours in that week. She submitted that the consequences of these hours lead him to bevery fatigued on the day in question and she submitted that for him topresent himself for work in an unfit state to drive a heavy goods vehicle through the night from Dublin to Ballinasloe and back would have been completely irresponsible in the circumstances.
Ms. O’Loughlincontended that the dismissal of the Complainant was inappropriate, she submitted that it was a matter that could have been resolved by proper dialogue, particularly where the Complainant had an exemplary record with the company. She said that the Respondent’s failure to afford him an appeal was contrary to all normal procedures.
Summary of the Respondent’s Position
Mr. Alastair Purdy, Purdy Fitzgerald Solicitors, on behalf of the Respondent denied that the Complainant was penalised within the meaning of Section 27 of the Act and he stated that the Complainant’s employment was terminated on the 14thOctober, 2011 for gross misconduct.
Mr. Purdy stated that when periods of availability, break times and rest times were excluded, as per the statutory regulations the Complainant had not exceeded his maximum working time that week or during the appropriate reference period. The Manager checked the Complainant’s hours and told him that as he had not reached his maximum working hours he should therefore present himself for work. Furthermore, the Complainant was informed that should he have a grievance with regard to his start time that he should initiate the internal grievance procedure.
Mr. Purdy said that on 13thOctober,2011 the Complainant was at week 11 of a 17 week reference period. His average worked hours to that date were 49.09 per week. The Respondent had in place a work force agreement which allows for a reference period of 17 consecutive weeks in accordance with section 4 (1) (c) (ii) of Statutory Instrument No. 36/2012 - European Communities (Road Transport) (Organisation)of Working Time of Persons Performing Mobile Road Transport Activities) Regulations.
Mr. Purdy stated that had the Complainant continued in employment, it was without doubt that the Respondent would have ensured full compliance with the Regulations and his hours would have averaged 48 over the reference period. Therefore, he submitted that the Respondent was working within the law and there was no basis for him to refuse his start time. In such circumstances he submitted that the Complainant’s dismissal for gross misconduct was entirely appropriate.
Without prejudice to the above, Mr. Purdy held that the Complainant had not in any event invoked Section 27of the Act, as he had not acted in compliance with therelevantstatutoryprovisions; he made no representation or complaint to the employer and had not performedanydutyorexercisedanyright under therelevantstatutoryprovisions. He said that the Complainant mayhave complained about being tired but he never raised an issue of Health and Safety. Mr. Purdy said that the Respondent disputed that the Complainant’s contention that when he made his call to the Company he mentioned his tiredness. Mr. Purdy submitted that this reference to tiredness only came to light in the later telephone calls he made that evening to management.
In support of the contention thatthe Complainant had not invoked Section 27of the ActMr. Purdy cited the case ofMargaret Basley T/A Vanness BeautySalons and Lisa FarrellDetermination No. HSD 104 where the Court found that the detriment must result primarily from a complaint or representation made bythe employee about a health and safety issue/protected activity.
The Law
Penalisation is defined by Section. 27 of the Act 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) 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,
- (2) Without prejudice to the generality of subsection (1), penalisation includes—
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 undersection 11or appointed undersection 18to 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.
- (a) acting in compliance with the relevant statutory provisions,
In order for the Complainant to avail of the protections available in Section 27(3) it is essential that the detriment complained of be causally connected to one or more of the matters referred to in that subsection. The Complainant must show that ‘but for’ having made a protected act under the Subsection the detriment would not have happened.
Conclusions of the Court
Having considered the positions of both sides the Court must consider whether there was a causal connection between the Complainant’s dismissal and events which occurred on 13thOctober 2011. Did the dismissal arise'because of'an act protected by subsection (3) or'but for'the protected act the employee would not have been dismissed.
InPaul O'Neill v Toni & Guy Blackrock Limited[2010] ELR 21, this 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 detriment. "
In the instant case the Court notes that both sides accepted that on previous occasions when the Complainant had worked excessive hours he was accommodated by Managementby giving him the night off at his own discretion. On this occasion Management said that they were prepared to offer him a shorter run at a later starting time, however the Complainant said that he feared that this could result in him working a full shift as had happened in the past. He said that he toldManagement several times that day/evening that he was too tired to drive as his next shift would require him to drive all night until 7am for the first part of the run without knowing if a second part would be added on as was often the case. He said that he advised Management that he could not guarantee his fitness to drive later that night as he was exhausted by the end of his shift that morning.
The Court notes that according to the records furnished by the Respondent and the submissions of the Complainant including details taken from a log of hours which he kept on a daily basis, that he had completed a roster (inclusive of meal breaks) in excess of 15 hours from Wednesday evening to the morning of Thursday 13thOctober 2011; he was due to recommence work 9 hours later and by the morning of 13thOctober 2011 he had been on duty (inclusive of meal breaks) for 51 hours since the Sunday evening beforehand.
In such circumstances the Court is of the view that it was reasonable for the Complainant, a heavy goods vehicle driver, to seek to be relieved from duty on the evening of 13thOctober 2011 and that such decision is capable of being encompassed by the provisions of Section 13 of the Act.
13.—(1) An employee shall, while at work—
- (a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee's acts or omissions at work,
The Court notes that the decision to dismiss the Complainant followed immediately after exchanges took place concerning the Complainant’s request not to be scheduled for duty on evening of 13thOctober 2011. The Court notes that the dismissal was carried out in a very precipitous manner; it did not follow the Company’s disciplinary procedures and was a departure from the company’s normal practice. In such circumstances the proximity of the dismissal following the raising of a health and safety matter raises a causal connectionbetween the detriment complained of and the invoking of the Act. Having considered all the relevant details the Court is satisfied that but for the representations he made about being too tired to work the Complainant would not have been dismissed as these were the reasons for his refusal to work the shift on 13thOctober 2011. Therefore, the Court is satisfied that the Complainant’sdismissal amounted to an infringement of the provisions of Section 27 (3) (c) of the Act.
Determination
For the reasons set out above the Court finds the Complainant’s claim to be well-founded. The Rights Commissioner required the Respondent to reinstate the Complainant with effect from 20thOctober 2011, on his previous terms and conditions of employment, including where those terms and conditions were changed in the interim by a collective agreement. The Court upholds this part of the Rights Commissioner’s Decision and concurs with the direction of the Rights Commissioner to the Respondent as outlined above. Therefore, the Court directs the Respondent to reinstate the Complainant with immediate effect.
Furthermore, the Court directs the Respondent to compensate the Complainant for loss of earnings incurred from 20thOctober 2011 up to the date of his reinstatement. His loss of earnings should be calculated based on the Complainant’s average weekly earnings between 1stJanuary 2011 and 13thOctober 2011. In this respect the Court varies this part of the Rights Commissioner’s Decision accordingly.
Therefore, the Respondent’s appeal is disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th January, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.