FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : TESCO IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MARIUSZ KOWALSKI (REPRESENTED BY PHILIP HANNON, SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decisions r-113694-hs-12/JC & r-119940-hs-12/JC.
BACKGROUND:
2. The Worker referred his case to the Labour Court on the6th December 2012, in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act 2005. A Labour Hearing took place on 15th March 2013 and was resumed on 16th August, 2013. The following is the Labour Court's Determination:-
DETERMINATION:
Mr Mariusz Kowalski (“the Complainant”) submitted a complaint to the Rights Commissioner under Section 28 of the Act to the effect that his employer Tesco Ireland Ltd (“the Respondent”) had contravened Section 27 (a) and (c) of the Safety Health and Welfare at Work Act 2005 (“the Act. “) The Rights Commissioner, in accordance with Section 27(2) of the Act, conducted an investigation into the complaints. She met with the parties on the 6thFebruary, 10thApril and 16thJuly 2012. On the 8thNovemberr 2012 she decided that the complaints were not well-founded. The Complainant appealed against that Decision to this Court under Section 29(1) of the Act.
BACKROUND
The Complainant commenced working for an Agency in 2007 and was assigned to work for the Respondent in its warehousing operation. In January 2008, after six months working with the Agency in the Respondent’s premises, he was offered and accepted direct employment with the Respondent. He was employed to work as as a General Operative.
The Claimant initially presented a complaint to the Rights Commissioner in August 2010 under the Act. Subsequently the Complainant presented two further complaints to the Rights Commissioner under the Act as follows: Case reference r-113694-hs-I2/JC presented on 4’ August 2011, which covers the period commencing 5thFebruary 2011 and Case refrence r-119940-hs-I2/JC presented on 10th Februay 2012, which covers the period commencing 11thAugust 2011. The Claimant also has an appeal of a Final Written Warning issued to him in April 2011 before the Labour Court under the Industrial Relations Acts. Both parties agreed that the issue before the Labour Court was not the same issue as that before the Rights Commissioner under the Safety, Health & Welfare at Work Act 2005. The Respondent’s position was that that issue related to the Claimant's refusal of a reasonable request from his superior. That disciplinary sanction was for conduct as opposed to performance and was applied to the Claimant’s disciplinary record in a separate strand from and unconnected with the disciplinary sanction for performance. The Claimant has a personal injuries claim before the High Court and also had a case before the Equality Tribunal against the Respondent.
Both parties made written and verbal submissions to the hearing.
Summary of the Complainant’s Position
The Claimant’s position was that over a period of time since his return to work in June 2010, following a workplace injury, which he argued was caused by excessive targets set by the Respondent, he felt that it was unsafe to work at the levels required. He voiced his concerns at every opportunity to the requisite authority as required by Section 27 (3)(c) emphasising that he was working as hard and fast as he could but that to work any harder or faster would put his health and safety in jeopardy. He made a number of representations to the Respondent that the Pl rates of 84%-100% that he was being asked to achieve were putting his health and safety at risk. He argued that as a result of his representations about the health and safely implication of the Company’s required Pl he was penalised by the Respondent. He argued that in September 2010 the Respondent, for the first time, threatened him with disciplinary action if he continued to fail to meet the levels demanded. The threat of sanction was followed by further such threats on 2nd,10th, 16th and 23rd November and 2ndDecember 2010. Finally, on 23 July 2011 the Claimant received written confirmation of a verbal warning given on 8thJuly 2011 regarding his conduct and performance. That was the first instance that the Claimant’s conduct had been called into question. That official warning was then followed by a similar process whereby the Claimant would attend meetings to discuss his Pl levels. Tesco would ask why he was not reaching the targets they set and he would say that in order to achieve the said targets he would have to jeopardise his health and safety and that that was not something that he was prepared to do. He argued that Tesco did not look for any expansion on his specific concerns or in any way attempt to engage with him but would rather sanction him repeatedly and more severely. He listed the meetings that took place and the sanctions imposed on him as follows:
First Written Warning - 19” September 2011;
Second Written Warning 18thOctober 2011,
Final Written Warning 29thNovember 2011
Final Written Warning (received on 6thDecember 2011
Final Written Warning and 3 day suspension without pay — 5thDecember 2011
(received on 6thDecember 2011); and
23rdJanuary 2012 beginning of further disciplinary action.
He argued that a plain reading of the legislation means that where an employee is acting in accordance with said provisions any sanction imposed as defined by Section 27 (2) of the 2005 Act constitutes penalisation. He argued that he was acting in compliance with the Safety Health and Welfare at Work (General Application) Regulations 2007 — Regulation 69 sets out the duties of employees with regard to the manual handling of loads. He referred to the provisions of Schedule 3 (4) of the Regulations. He argued that the complaints and representations that he made concerned the rate at which he was being required to work, stating on numerous occasions that the performance expected is too high to be achieved safely. It was further submitted that the Respondent had a duty to ensure that his obligations under the Safety Health and Welfare at Work (General Applications) Regulations 2007 were adhered to. He argued that he was exercising his rights under the Regulations when he refused to comply with the rate of work demanded by the Respondent a rate of work set by a computer system over which employees have no control. He argued that the Respondent failed to meet with its statutory duties under the Regulations and has not had any (or has had insufficient) regard for the risk factors identified in Schedule 3 of the Regulations and in particular Section 4 of Schedule 3. He argued that once he began exercising his rights under the said Regulations any punitive sanctions imposed by Tesco on foot of same constituted penalisation. Tesco failed to adjust their work practices or to comply with their obligations but rather placed the onus squarely on the Claimant. The meetings between the parties took a very formulaic structure. If he failed to reach the targets set he would be asked for the reasons as to why. He would continually give health and safety as the reason with the Respondent maintaining that their process was in compliance with all health and safety requirements. The Claimant quoted from an open letter from SIPTU to the Company in support of his position that the Tesco process was not in compliance with all health and safety requirements. He argued that the pick rate required or him was a full 12% above the industry average. Had the Respondent observed its obligations under the Regulations then the level of performance demanded would have been altered and it was submitted that it would have been altered to a level attainable by the Claimant, which in turn would have meant that he would not have been subjected to disciplinary sanction/penalisation. He argued that while it was possible for him to achieve the Pl targets required by the Company, to do so would have been in breach of the Regulations and where he refused to do this any sanction imposed on him falls foul of Section 27(3)(a) of the 2005 Act. He referred to Labour Court Decision in Toni & Guy Blackrock Limited v Paul 0’Neill and argued that his case met the criteria set out by the Labour Court i.e. he made representations and complaints with same being recorded in the Respondent’s own notes of meetings between him and the Company; and that following his complaints or representations the Company implemented, as was found in the Toni & Guy case, a formulaic approach to procedures culminating in him being formally sanctioned. At no time did the Company give any real consideration to the complaints he made but proceeded from one meeting to the next knowing what the outcome of each would be until they arrived at the point where formal sanctions could be implemented.
He argued that it was for Tesco to show that the complaints and representations regarding health and safely were not operative considerations in their decision to discipline the Claimant He argued that he was treated in a different manner to other employees of Tesco who did not achieve their Pl targets and he named two other employees i.e. a Mr. ML and Mr. GK in support of that argument. He argued that, in addition to the disciplinary action taken against him by the Respondent, there were other issues that constituted penalisation e.g. an incident on the 26thSeptember 2011; his application in October 2011 for Carer’s Leave; Paternity Leave and Annual leave request in January 2012. He identified a number of occasions during performance review and disciplinary meetings when he raised the matter of health and safety implications of Pl targets. He also argued that Company Trainers were also saying that the P.I. targets could not be achieved and that witnesses were available to address that matter. He argued that Regulation 89 of Safety Health & Welfare at Work (General Application) Regulations 2007 in relation to the Manual Handling of Loads’ placed a mandatory duty on employers. He argued that there was no HSA examination of the matters in dispute. He presented a report by Safety Consultants - OHSS- commissioned by him. He argued that while he lodged his complaint with the Rights Commissioner on 4 August 201,1 following the verbal warning given to him on 23 July 2011, the entire process from the first sanction to his eventual dismissal forms part of the same chain of events.
He then lodged a subsequent complaint in February 2012 regarding the disciplinary sanctions up to the end of January 2012. The formulaic approach followed by the Respondent from the first verbal warning to the dismissal followed the same pattern and he submitted that his ultimate dismissal was always the intention of Tesco once they had paid lip service to the process of fair procedures.
He argued that he was penalised for acting in compliance with the relevant statutory provisions (reference Section 27(3)(a)) and for making a complaint or representation to his employer regarding matters relating to safety, health and welfare at work (reference Section 27(3)(c)).
Summary of the Respondent’s Position
The Claimant was employed with the Respondent Company in the position of General Operative in the Company’s Distribution Centre in Donabate. The Distribution Centre employs approximately 280 employees. The Claimant was employed initially through an agency commencing in July 2007. His employment in this capacity lasted for six months. After six months he was employed directly by Tesco in 2008. The Claimant was ultimately dismissed for poor performance in early 2012. In addition to the two instant claims the Claimant previously took a claim under the Safety, Health and Welfare at Work Act 2005, in respect of a similar issue. That case was heard in January 2011 and the Rights Commissioner Decision, issued in April 2011, found that there was no penalisation. It is the Company position that the Decision of the Rights Commissioner should apply to the herein claims as the facts are the same. They argued that the claim from (August 2011) seemed to indicate that the Claimant was using the Safely, Health & Welfare at Work Act 2005 to appeal a verbal warning, which was issued for the Claimant’s performance, and they argued that the Claimant had taken his complaint under the incorrect legislation. Section 27 deals with penalisation and as such the claim should fail immediately. To be successful in moving from agency employment to direct employment by the Company an agency worker must have had at least 84% Pl. The Claimant did have at least that rate of Pl at the time and so was successful in being directly employed by the Company. The primary duties of general operatives are order assembly or picking. This involves the use of ride-on- long legged platforms (LLOPs) to assemble and transport orders for specific stores. In addition to that, general operatives, as a second skill, if they have been trained to do so, may be required to drive fork lift trucks (FlTs). The primary function of the Distribution Centre is to assemble orders for stores throughout the country and the general operatives in the warehouse perform that function. The flexibility between functions is set out in the Company Union agreed “Donabate Procedural Agreement’. The Company set performance targets for all general operatives who work in the distribution centre. The targets or PIs are set by independent specialists who take into account the health and safety of the employees and the systems and training in place which makes the targets achievable. The Tesco “Distribution, Donabate Procedural and Operating Agreement”, which is agreed with the Union, specifically details “Performance Standards and Work Measurement.” That document provides that daily efficiency of 84 Pl be achieved on all working days and that any individual or team that cannot achieve at least a minimum 84 Pl efficiency will have their work reviewed by management to determine how its performance levels can be improved. Management reserves the right to take appropriate action to rectify any situation where efficiency below 84 Pl applies.
The document also stipulates that a work measurement study is carried out every 2-3 years to monitor the existing operations. That study is carried out by specialist industrial engineers and is signed off by the Union. The last one was carried out in 2010 by two separate companies, Scott and Thornton, and was signed off by John McCarthy of SIPTU. The average Pl in the Distribution Centre is currently 96-98 Pl and in the first week of January 2012 was IOO PI. Any employee who is failing below the minimum required 84 PI is provided with a training plan to help them achieve the targets. That consists of extra training and a weekly targets meeting. If after the training plan an employee is not reaching the expected and agreed Company/Union standard the Company has the right to invite the employee to a disciplinary meeting regarding performance. That is the agreed procedure and is applied consistently to all general operatives. Previously in June/July 2010, when the Claimant returned to work following a period of long term absence, the Claimant sought light duties. The Company did not have light duties to offer the Claimant in the Distribution Centre. There is a dispute between the parties as to whether the Company offered the Claimant light duties in one of its stores. The Claimant, however, subsequently provided the Company with a medical certificate that he was fully fit for work.
Despite the fact that the Claimant was medically certified fit for work by his own Doctor the Company formulated a training and rehabilitation plan to help him achieve the required level of performance. During that plan the Claimant first stated that he would work at all times in a manner that complied with health and safety standards but did not raise any particular issue of concern to his Manager or draw his attention to any specific health and safety risk. It was following that plan that the Claimant took his first claim for penalisation against the Company. The Rights Commissioner found that the actions of the Company “conformed to good practice norms". In April the Claimant was not reaching the required and agreed, level of PI 84. The Company initiated a ‘training plan’ for the Claimant with weekly incrementally increasing targets to bring the Claimant up to 80 Pl which is actually lower than the required minimum standard expected of his colleagues That plan commenced with the first target set for 27th Apri1 2011, his Pl was 65 in week one. The Company then commenced a second training plan initially looking for a 4% increase to 69 P1 to be achieved by 31 May 2011, the Claimant achieved 66.2. Over the course of the Training Plan the Claimant’s P1 remained between 66 and 69. The Claimant was given every opportunity to achieve the required minimum PI. This included being provided with individual training on the methods of work. The Claimant’s performance did not improve to the required standard over the course of two four-week training plans. He had an average PI of 65.2 over the eight weeks prior to receiving the disciplinary sanction of verbal a warning on 23” July 2011.
The Claimant submitted his next complaint to the Rights Commissioner on 4 August 2011. The Claimant’s performance did not improve to the required standard over the following weeks and months and the Clamant was subsequently issued with disciplinary sanctions for poor performance:
Written Warning — 26 September 2011;
2nd Written Warning — 18 October 2011;
Final Written Warning — 29thNovember 2011; and
Final Written Warning and 3 day suspension— 5 December 2011
The Claimant submitted his second claim to the Rights Commissioner on 8thFebruary 2012 that the Respondent had penalised him contrary to the provisions of Section 27 of the Safety. Health & Welfare at Work Act 2005. The Company argued that it had not penalised the Claimant within the meaning of the Act or in any other way. It referred to the Labour Court Decision in the case of Patrick Kelly t/a Western Insulation & Algridas Gladziu HSD 081. It argued that the Claimant was not penalised with respect of any term and or condition of his employment, because of or in retaliation for having acted in a manner defined under subsection 3. The Claimant’s performance has at all times been managed in the same way as any other employee. The Company was attempting to assist the Claimant to reach the Company/Union- agreed target and could in no way be said to be punishing or penalising him as defined in the legislation. It argued that the process has been performed consistently and has been accepted by the Union. The Claimant has not been asked to perform any duty or task that is outside of any ‘term and condition of his employment’. He was subject to the disciplinary procedure as he was not performing to the level expected of him. It argued that this was not as a result of raising any issue that would constitute an issue as defined in Section 27 (3) (a-f) in retaliation for any action of his. All of the Respondent’s actions were in furtherance of assisting the Claimant in reaching the required level of performance. This commenced in the summer of 2010 following the Claimants return to work when he was certified as fully fit to work. As the training did not lead to an improvement in performance this was then followed by the performance management process which ultimately led to disciplinary sanctions. As that process started in 2010 and was ‘unconnected to any of the Claimant’s complaints about health and safely matters’, it cannot be said to constitute penalisation.
The process was initiated by the Claimant’s performance and he was ultimately disciplined for his poor performance as a result of his lack of performance levels. At no stage did the Claimant raise any specific health and safety concern other than it was his opinion and / or belief that the targets expected of him were too high. The performance targets were set by independent specialists taking account of health and safety obligations. This was done in consultation with staff and the Union.
Representatives of the HSA have visited the Company site on a number of occasions and have no issue with the rate at which the general operatives were being asked to pick. The Claimant at no time raised any issue of health and safety with either the Company Health and Safety Committee or his own Health and Safety representative during his time with the Company.
They rejected the Claimant’s claim that as he was acting in compliance with the Act in refusing to comply with the P1 targets ‘automatically’ constitutes penalisation as per section 27. They argued that it was for the HSA to determine that a working environment may not be in compliance with the relevant statutory provisions and it has the option of penalising the Company summarily or prosecuting the Company in the Courts. It is not for the Rights Commissioner to make a subjective decision on the safety or otherwise of the Company’s work practices. They argued that the circumstances of these complaints were different than those in the Toni & Guy case It is the Company’s position that the disciplinary sanctions that the Claimant received were the continuation of the performance improvement process that was initiated in 2010. In this case the Claimant was already involved in a performance improvement plan prior to the instant complaints, which the Rights Commissioner found did not constitute penalisation. The Claimant, as he has stated, does not want to achieve the targets being set for him by the Company. These are targets that are set for all employees. They argued that the Claimant was not penalised as per section 27 of the Act and that the claim should be dismissed in full.
DECISIONSection 27 of the Act states:
- 7.—(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 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.
(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 an employee 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.
- (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,
On the basis of the evidence presented to the hearing the Court finds as follows: -
For the purpose of clarity this decision covers the two complaints presented by the Claimant i.e r.113694-ha-12 & r-119940-ha-12. The Court agrees with the Rights Commissioner that the question of whether or not the Respondent's work practices comply with the provisions of SI No. 29912007— Safety, Health and Welfare at Work (General Application) Regulations 2007 and/or specifically whether the respondents Pl targets and related manual handling procedures comply with the Regulations is not a matter that it has jurisdiction to decide. The Court has no jurisdiction under these Regulations.
The Court’s sole function under the Safety Health & Welfare at Work Act 2005 is confined to complaints of penalisation or threatened penalisation by an employer of his/her employee contrary to the provisions of Section 27. Accordingly, the Court has no jurisdiction to determine whether or not the Respondent's PI targets are a risk to the Claimant's health and safety at work.
In the context of the two instant complaints the Court concurs with the Rights Commissioner’s findings that the Claimant made representations regarding health and safety matters at the meeting held on 2 February 2011 in relation to his Pl targets. On that occasion he informed Management that he ‘was working health and safety’ and that he was concerned for his health were he required to achieve the PI targets required by the Respondent.
The Court further finds that the Claimant suffered a discipline that could amount to penalisation within the meaning of the Section 27(2) of the Act. Accordingly the question for the Court to decide is whether the disciplinary action taken by the Respondent against the Claimant amounts to “penalisation” within the meaning of the Act and if so whether he was so penalised for
- (a)acting in compliance with the relevant statutory provisions,
(b)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,
undertake work in the Respondent’s at a level of performance that had been
established by way of a collective agreement, on the advice of experts, between
the Company and the Trade Union involved. The Court further finds that the
great majority of staff employed in the warehouse had no difficulty meeting that
target. When the Claimant was not in a position to meet the agreed performance
targets, the Company provided him with training and support to enable him to
bring his performance up to acceptable levels. When he failed to meet or sustain
those levels of performance the Company eventually terminated his employment.
On the basis of the evidence presented to it the Court finds that the Claimant was not penalised within the meaning of Section 27 of the Act. He was disciplined for failing, following support and training, to meet the collectively agreed standards of performance expected of him. The Court finds that the action taken against him was unrelated to the representations he made regarding safety and health issues. The Court further finds that the disciplinary action taken against him, including termination of his employment, was not in retaliation for his “acting in compliance with the relevant statutory provisions. It was simply because he failed to meet an acceptable level of performance at work and consistently failed, despite support and training from the Company, to achieve the collectively agreed performance standards. The Court accepts the Company’s position that its objective was to enable the Claimant achieve the required standards of performance rather than to discipline or dismiss him from its employment.
From the evidence presented the Court finds that other employees that similarly failed to meet the collectively agreed performance levels were moved through a similar process of support and discipline in order to enable and encourage them to meet those levels of performance. Those members of staff responded differently at different times to the various interventions the Company made in each of those cases. Where their performance improved the pace at which they were processed through the disciplinary procedure was correspondingly adjusted. Where they achieved the required targets they were removed from the disciplinary/ support processes. Where they failed to achieve them they were moved through the disciplinary procedure and ultimately dismissed where performance did not meet the required targets and showed prospect of so doing.
On the basis of the evidence therefore the Court finds that the Respondent did not penalise the Claimant for acting in compliance with the relevant statutory provisions or for making a complaint or representation to his employer regarding safety and health at work. The Court finds that he was disciplined for failing to meet the collectively agreed standards of performance expected of all employees.
Determination
The complaints are not well-founded. The Decision of the Rights Commissioner is upheld. The appeals are not allowed.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
29th October, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.