FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : G4S SECURE SOLUTIONS LTD T/A G4S - AND - COLM WOGAN (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-130608-hs-13/MH.
BACKGROUND:
2. Mr Colm Wogan (the Complainant) was employed by G4S Secure Solutions ltd (the Respondent) as a security officer with effect from 30 October 2009. Under his contract of employment he is subject to assignment to any premises in which the Company carries on business. At the time of the instant complaints he was assigned to work on the Cadbury site which attracts the payment of an allowance in excess of his normal contractual rate of pay.
In September 2013 the Company proposed changes to the work rosters on the Cadbury site. The security guards affected had a discussion on the proposed changes and decided to query them.
The Complainant, along with a colleague working the same shift, was delegated to pursue the matter with the Company. He queried the rosters, by email, initially with the Site Supervisor and subsequently with the Area Manager. When neither responded to the email he raised the matter, again by email, with the National Control Centre, the Health and Safety Officer and the Human Resources Manager.
In the email to the Site Supervisor and the Area Manager he complained that the roster was unworkable as it contained a morning start time that could not be met using public transport. He also queried the legality of a roster that did not make provision for an 11 hour break between shifts. Finally he raised health and safety concerns regarding a 14 hour shift set out in the new roster.
He subsequently requested his trade union representative to write to the Health and Safety Officer regarding the possibility that the proposed new rosters breached the Organisation of Working Time Act.
There followed an exchange of emails with the roster scheduler in which the Complainant raised a number of practical issues regarding the revised working arrangements. The scheduler responded to the effect that the complaints were matters for discussion with the Supervisor and Area Manager.
At that point the Complainant wrote to the National Control Centre, the Health and Safety Officer and the Human Resources Manager alerting them to the earlier emails to the Site Supervisor and the Area Manager and to their failure to respond or engage with him on the issues raised. He sought their intervention in the matter.
The following day the Area Manager sent an email to a Mr Eddie Mooney seeking the identity of the authors of the emails that were sent to the Human Resources Manager and Health and Safety Officer. Having identified them the Area Manager notified the Complainant along with his colleague who was also on duty when those emails were sent, that he was being moved from the site as a result of his refusal on 13/14 August 2012 to train a new officer on site procedures who had been assigned to them for that purpose.
He raised a grievance regarding the decision to move him. The Respondent investigated the grievance and upheld the original decision to move him from the site.
The Complainant then submitted a complaint to the Rights Commissioner under the Safety, Health and Welfare at Work Act, 2005.
The substance of the complaint is that he was transferred from the Cadbury site with a consequent loss of income for making a complaint under the Act. He argues that these acts amount to penalisation within the meaning of the Act and are contrary to Section 27 of the Act.
The Rights Commissioner investigated the Complaints and decided that they were not well founded.
The Complainant appealed this decision to this Court.
The case came on for hearing on 21 March 2014.
DETERMINATION:
Complainant’s Case
The Complainant argues that, on 14 September 2012, he raised a grievance regard a health and safety at work matter by email with Mr Darragh Mc Nicholas, his Area Manager. In that email he also raised concerns regarding the short notice of some proposed changes to his work roster and the legality and safety and health implications of a shift of 14 hours duration.
He states that, as he had not received a response to that email, he followed it up with a further email to Mr Mc Nicholas on 19 September 2012. When this was ignored and the revised rosters issued he raised the matter with the Work Scheduler. He argues that he was referred back to Mr Mc Nicholas by the Scheduler. At that point he raised the matter with Human Resources and the Health and Safety Officer.
He argues that the day after he raised the matter with the Health and Safety Officer Mr Mc Nicholas took steps to identify who had sent the emails to the Human Resources Department and to the Health and Safety Officer. He identified those involved, including the Complainant. The following day he notified the two officers involved, including the Complainant, that they were being moved from the Cadbury site with a consequent loss of a site specific allowance. He justified the move on the grounds that they had, on 13 August 2012, refused to train a new officer assigned to the site for induction purposes.
He argues that this matter had not been raised with him in a disciplinary context at any time. He argues that the Respondent did not conduct a hearing into the matter and that he had no opportunity to address any charges or to make representations in his defence. He argues that the co-incidence of timing suggests that the complaints he made to the Health and Safety Officer and to the Human Resources Manager were the real reason for the decision to transfer him to another location.
He argues that the Roster that was introduced required him to work consecutive shifts separated by a break of less than 11 hours. He argues that such a requirement is contrary to section 11 of the Organisation of Working Time Act, 1997.
He argues that the decision to transfer him from the Cadbury site was taken because he made a complaint to his employer and to the Health and Safety Officer regarding a matter of safety and health at work. He argues that this constitutes penalisation within the meaning of the Safety, Health and Welfare at Work Act, 2005.
Respondent’s Position
The Respondent argues that commercial circumstances affecting its contracts with the client required that it take cost saving measures in order to retain the contract on the Cadbury site. This necessitated a change to the rosters and to the manner in which security services were provided, giving rise to the rosters that were the subject of the Complainant’s concerns.
The Respondent argues that it submitted the rosters to the affected staff for consideration and when problems with them were identified they were adjusted to accommodate those concerns.
It argues that the Complainant was not penalised for making a representation regarding a matter of health and safety. It argues that he was relocated because he refused to carry out a legitimate instruction to train a new employee in site specific procedures.
The Respondent acknowledges that there were shortcomings in the manner in which the matter was dealt with but argues that the fundamental point is that he refused to carry out a legitimate instruction and was moved as a consequence.
It notes that the Complainant did not suffer a loss of pay. His hourly rate of pay in the new location has not been reduced. It does accept that he does not receive a site specific allowance. However it argues that he has no entitlement to insist on an assignment to any location. It argues that his contract of employment expressly states that he may be moved to any site operated by the Company.
It argues that site specific allowances are paid to staff while assigned to particular sites. It is a common occurrence to move staff to meet the needs of the business. Such a movement does not amount to a penalisation or a reduction in terms and or conditions of employment. Rather it is designed to ensure that the Company can meet the needs of its clients. To that end staff can be assigned to any site at which the Company operates.
Findings of the Court
Section 27 of the Safety Health and Welfare at Work Act, 2005 states:
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.
(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,
(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.
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 performed a protected act.
Where there is more than one causal factor in the chain of events leading to the detriment complained of the performance 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.
Burden of Proof
The Act is silent on the question of how the burden of proof should be allocated as between the parties. This question was considered by this Court inDepartment of Justice Equality and Law Reform and Philip Kirwan(Determination HSD082). Here the Court held as follows: -
- It is clear, however, that in the absence of any contrary statutory provision, the legal burden of proof lies on the person who asserts that a particular fact in issue is true (seeJoseph Constantine Steamship Line v Imperial Sheltering Corporation[1942] A.C.154 where this rule of evidence was described by Maugham V.-C. as “an ancient rule founded on considerations of good sense and it should not be departed from without strong reasons”)
Later, inFergal Brodigan T/A FB Groundworks and Juris DubinaDetermination (HSD0810) the Court qualified the statement made in theKirwancase as follows: -
- It is, however, settled law that in civil matters there is an exception to this rule known as the peculiar knowledge principle. This is a rule of evidence which provides that where it is shown that a particular fact in issue is peculiarly within a defendant’s knowledge the onus of proving that fact rests with the defendant (seeMahoney v Waterford, Limerick and Western Railway Co.[1900] 2.IR 273, per Palles C.B.)
In the instant case what is at issue is the motive or reason for the Claimant’s transfer from the Cadbury site. That is to be found in the thought process of the decision makers at the time the decision to relocate the Complainant was taken. That is something which is peculiarly within the knowledge of the Respondent. It would be palpably unfair to expect the Claimant to adduce direct evidence as to why he was transferred from the Cadbury site on the day in question. Conversely, it is perfectly reasonable to require the Respondent to establish that the reason for the transfer was unrelated to his complaints under the Act.
The Court accordingly adopts the reasoning set out by this Court inTony and Guy Blackrock Ltd v Paul O’Neill [HSD095].
Accordingly having regard to these considerations, it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his transfer and consequent loss of earnings. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s removal from the site.
It is common case that the Complainant made a complaint to Mr Darragh Mc Nicholls, his Area Manager, on the 14thand 19 of September 2012 in which he expressly raises health and safety concerns. It is also common case that he notified the Safety Officer and his employer by email on 25thSeptember 2009 of those emails.
It is common case that on the 26thSeptember 2012 Mr Mc Nicholls made enquiries by email of Mr Eddie Mooney seeking to establish the identity of the person that had sent those emails.
It is not disputed that on the 27thSeptember Mr Mc Nicholls told the Complainant that he was being transferred from the Cadbury site for refusing to train a new security officer assigned to him for that purpose on 13 August 2012.
Bot sides agree that matter had not been raised with the Complainant after 14thAugust 2012 until he was moved from the site at short notice on 27thSeptember 2012.
Finally it is common case that the Complainant was given no explanation for the delay in making the decision to move him from the Cadbury site or for the delay in giving effect to it on 27thSeptember.
The Respondent gave no reason to the Complainant or to the Court as to why it was necessary at short notice to transfer the two people who made the complaint to the Health and Safety Officer on the 25thSeptember. The Court notes that the short notice transfer took place two days after that complaint was lodged and one day after Mr Mc Nicholls had established the Complainant's involvement in making a complaint under the Safety Health and Welfare at Work Act 2005.
In those circumstances the Court finds that the Complainant has discharged the burden of proving that he made a complaint under the Act to both his employer and to the Health and Safety Officer. He has also established that he was transferred from the Cadbury site and that he suffered the loss of a site specific allowance as a result of the transfer.
The Respondent did not offer a compelling or indeed reasonable explanation for the short notice transfer imposed on the Complainant. It states that it arose as a consequence of his failure to carry out a specific training duty on 13 August 2012. However it showed no connection between those two events. It did not explain the delay in dealing with the matter. Neither did it explain the alleged need to effect the transfer at such short notice. Finally it failed to explain why it did not put to the Complainant details of his alleged infringements and give him an opportunity to offer a defence for his actions.
On that basis the Court finds that the most likely explanation for the decision to transfer the Complainant from the Cadbury site is to be found in the safety and health complaint he made on 25thSeptember 2009. The sequence of events between the 25thand the 27th September offer a full and complete explanation for the speed at which the transfer was decided upon and effected. The reference to an incident that took place on the 13thAugust that was not pursued further with the Complainant appears to be no more than a cover for that decision.
The Court has examined the events that took place subsequent to the lodging of the complaint. The Court finds that it is apt to infer that the Complainant was moved from the Cadbury site on the 27thSeptember because he made a complaint to the Health and Safety Officer regarding a health and safety matter on the 25thSeptember 2012.
The Court finds accordingly.
Section 27(2) (c) of the Act defines penalisation as 'transfer of duties, change of location of place of work, reduction in wages or change in working hours'.
In this case the Complainant was transferred and as a consequence he suffered the loss of a site allowance.
The Court determines that the action taken against the Complainant constitutes penalisation within the meaning of the Act.
Section 28(3)of the Act states:
- (3) A decision of a rights commissioner undersubsection (2)shall do one or more of the following:
(a) declare that the complaint was or, as the case may be, was not well founded;
(b) require the employer to take a specific course of action;
(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances.
The appeal herein is allowed. The decision of the Rights Commissioner is set aside and substituted with a finding that the within complaint is well founded. The Court orders the Respondent to reinstate the complainant to the Cadbury site. The Court further orders the Respondent to make good any loss of earnings, including the loss of the site allowance, the Complainant incurred as a consequence of the transfer off the site in September 2012.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
11th August 2014______________________
JMCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.