FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : KEMPIS SALES LTD & KEMPIS ROLLS LTD - AND - ANTHONY BYRNE (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-143065-hs-14/JT.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 6th November, 2014 and a Labour Court hearing took place on 15th January, 2015.
DETERMINATION:
This is an appeal under Section 29(1) of the Safety Health and Welfare at Work Act 2000 (the Act) from a decision of the Rights Commissioner given on the 7thOctober 2014. In the proceedings Mr Anthony Byrne (the Complainant) alleged that that he was dismissed from his employment Kempis Sales Ltd (the Respondent) on the 17thFebruary 2014 and that the dismissal amounted to penalisation within the meaning of Section 27 of the Act. The Rights Commissioner decided that the complaint was not well founded. In his decision he stated: -
- “The Respondent did not dismiss the Claimant by way of penalisation in regard to health and safety issues. The power outages were a unique and unusual event and not an on-going safety issue. I do not find the claims well founded and they fail.”
The complainant appealed against that decision to this Court on the 6thNovember 2014. The case came on for hearing on the 15thJanuary 2015.
The Complainant told the Court that the 17thFebruary 2014 was a particularly cold day in a period of very cold weather that year. As a result of the bad weather power lines to his place of work were out that day. Staff were standing around outside the plant when he arrived. As he was the company’s safety officer they raised their concerns regarding the cold and the lack of light with him. He raised them with the Managing Director. He advised him that they were working on restoring power and that it was expected to come on line in about forty five minutes. He instructed the staff to start cleaning the premises pending the restoration of power. He so advised the staff and cleaning work commenced.
Between 9 and 9:30 a.m. a container arrived at the plant. The Production Director requested the staff to unload it. The Complainant initially refused to do so arguing that it was unsafe to do so. He said that it was both too cold to work and that there was not sufficient light in the warehouse to undertake the work safely. He said that while there was ambient light coming in through the roof there was no other light as the power was off. The ambient light was not sufficient to enable the staff to work safely.
However after a discussion with the Production Director he agreed to unload the container. At that point he was due a morning break. By agreement the staff went on a break and unloaded the container after they returned to work.
He described the conversation with the Production Director as animated. He said that he was threatened with dismissal if he did not commence work on the container.
On his return from lunch he found the staff standing around. They advised him that there were electrical power cables running across the floor. He also stated that there were pools of water on the floor through which the cables were laid. He says that he approached the Production Director on behalf of the workers who had raised the issue with him. However before the conversation could proceed he says he was dismissed from his employment. He requested written confirmation of the reasons for his dismissal. He was given a letter some time later that he was dismissed with immediate effect for “gross misconduct” on his part.
He complains that he was making representations regarding matters of health and safety at work at the time and was penalised for so doing contrary to section 27 of the Act.
The Production Director stated that the Complainant had been employed in the business for 19 years. For the first 17 years he had been a very good employee and had been promoted on a number of occasions. However in 2012 the Company was going through some difficulties and a pay cut was proposed. All staff in the Company, with the exception of the Complainant, agreed to take a cut. The Complainant’s wages were not reduced.
Following the proposed pay cut the Complainant became uncooperative and difficult to manage. He required constant close instruction on each task he was required to undertake. Prior to that he worked on his own initiative and discharged his duties without the need for close supervision or instructions on the work to be performed. He listed 9 examples of the Complainant’s alleged uncooperative behaviour. On one occasion the Managing Director issued the Complainant with a verbal warning for swearing at him when he was asked to clean his work area.
He said that on the 17thFebruary 2014 power to plant was out. The Company was working on installing electric generators to restore power to enable them commence production. This took longer than expected. In the interim the staff were instructed to clean the premises rather than be sent home.
The Complainant was initially assigned duties sweeping his work area. He resisted this in a conversation with the Managing Director but after a heated exchange he agreed to commence work.
At about 9 a.m. a container arrived on site. The Complainant and a number of other staff were assigned to unload it. The Complainant refused to do so arguing that it was unsafe to work in both the cold and poorly lit warehouse. The Production Director told him that he would be dismissed if he did not unload the container which was located in its usual position outside the warehouse. He agreed to do so but requested permission to commence after his scheduled tea break. This was agreed and the container was unloaded when he returned after the break.
Limited power was restored to part of the plant around noon. The Production Director ran extension leads from the offices where power was restored to the warehouse. This enabled the Company to start the computer system in the warehouse offices and thereby facilitate the dispatching of product to its customers. The cables were laid immediately prior to the lunch break.
Lunch break ended at 1:30. The Production Director returned to the floor at 1:45 to find a number of staff standing around. He approached them and asked why they were not working. The Complainant stepped forward and stated that he was concerned that electrical cables were snaking across the floor and posed a serious hazard for staff walking or driving plant or equipment over them. The Production Director stated that he asked the Complainant a number of times to commence work and told him that a failure to do so would result in his dismissal. The Complainant refused to commence work.
The Production Director said that he was not concerned that the Complainant was raising health and safety issues. He was concerned that he was being obstructive and uncooperative and was simply seeking reasons not to carry out his work. He was dismissed for that behaviour and not for raising health and safety issues.
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) 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.
- (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.
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 17thFebruary 2014. 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.
The respondent argues that the Complainant became argumentative and uncooperative following the proposed pay cut in 2012. This, it argues, gave rise to a deep level of frustration with his behaviour leading to numerous incidents that were outlined to the Court. It argues that on the morning of the 17thFebruary 2014 the Complainant was again being uncooperative. He was seeking by every means to frustrate the restoration of a measure of normal working that day. This manifested itself in his constant raising of groundless objections to remaining at work and undertaking duties. He objected to the cold weather in which work was to be carried out. However he was supplied with protective clothing precisely for that purpose. He objected to the level of light in the warehouse whereas the container was parked in its usual position in an open yard that had normal levels of daylight. He finally refused to commence work after lunch when he objected to electrical cables that were necessary to restore power to the computer system that facilitate the commencement of work to dispatch orders to customers.
In this context the Respondent argues that had the Complainant not raised matters of safety and health at work he would have been dismissed for his further refusal to carry out his work. Raising safety and health issues were not a factor in the decision.
The Complainant argues that he was the safety officer, that he was dismissed while raising health and safety issues and that this amounts to penalisation within the meaning of the Act.
The Act is a shield not a sword. It is designed to protect workers from being penalised for raising safety and health issues with their employer. It is not designed to provide cover for a wilful refusal to undertake ones duties or to excuse unacceptable behaviour. One cannot engage in disruptive behaviour and seek immunity in the name of raising safety and health issues. That is an abuse of the Act and does not protect workers in those circumstances. The Act protects workers from penalisation “for” raising health and safety issues and no more.
The Complainant in this case submitted complaints under Sections 27 (a) (b) (c) and ( e) of the Act. The Court considered each of these in turn.
Section 27(a) of the Act states that an employer may not penalise an employee for'acting in compliance with the relevant statutory provisions'.On the basis of the evidence before it the Court finds that the Complainant was not penalised for 'acting in compliance with the relevant statutory provisions.
The Court considered the Complaint under section 27(b) of the Act which states that an employer may not penalise and employee for 'performing any duty or exercising any right under the relevant statutory provisions'. Based on the evidence before it the Court finds that the complaint is not well founded. The Court finds that the Respondent did not penalise the Complainant contrary to section 27(b) of the Act.
The Court further finds that the Respondent did not penalise the Complainant for “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,” contrary to section 27 (c) of the Act.
Finally the Court finds that the Respondent did not penalise the Complainant for “being a safety representative or an employee designated undersection 11or appointed undersection 18to perform functions under this Act”.
Having considered the evidence the Court finds that the Respondent dismissed the Complainant for refusing to take instructions and perform the duties of his post over a prolonged period of time. The matter came to a head on the 17thFebruary 2013 when he again refused to carry out his duties. The Court finds that the while the Complainant raised safety and health issues he was not dismissed for so doing.
The coincidence of timing between the decision to dismiss the Complainant and the raising by him of matters of safety and health at work was given detailed consideration by the Court. Where such events occur in close proximity they raise a prima facie case of penalisation and must be answered by the employer.
In this case the Court finds that the Employer in evidence answered that case. The Court found Mr Molloy, Production Director, an honest and credible witness. He told the Court that he had no difficulties with the Complainant raising safety and health complaints with him. What concerned him was his consistent refusal over a prolonged period of time to carry out his duties. That refusal came to a head on the 17thFebruary 2013 when he could tolerate it no longer. He stated that he was prepared to address any safety issues genuinely brought to his attention. However he was no longer prepared to accept disruptive behaviour on the Complainant’s part no matter what quasi legal justification he advanced for it. He said he formed the view that the Complainant did not wish to work on that day and was doing everything in his power to bring work to an end. He said that his behaviour was symptomatic of his persistent attempts since 2012 to disrupt the business of the company. He dismissed him for that reason and not because he raised safety and health issues.
The Complainant argued that he was raising genuine health and safety issues and rejected the accusation that he had been disruptive at any time. He argued that no evidence of alleged disruption was presented by the Respondent.
The Court considered the evidence of both sides on this point. The Court prefers the evidence of Mr Molloy. The Court finds that the Complainant was, on 17 February 2013, continuing a pattern of disruptive behaviour that had commenced in 2012. He availed of the opportunity presented by the bad weather and the power outage to disrupt the Company’s capacity to supply its customers that day. The Complainant in evidence said that Mr Molloy was a fair and reasonable person who treated staff with dignity and respect. He said that he was approachable and willing to address issues brought to his attention. He said that his behaviour on that day was out of character for him.
Taking that statement into account along with its assessment of Mr Molloy’s evidence and the manner in which he delivered it, the Court finds that, on the balance of probabilities, the Respondent did not dismiss the Complainant “for” performing a protected act under section 27(a), (b), (c), or (e) of the Act. Instead the Court finds that the Complainant was dismissed for attempting, over a prolonged period of time culminating in his behaviour on 17 February 2013, to undermine the capacity of the Company to carry on its business.
The Court notes that the manner in which the Respondent went about dismissing the Complainant raises a number of issues that are proper to another forum. The Court makes no findings on those matters. Instead the Court confines itself to the questions before in accordance with Section 27 of the Act. In that regard the Court determines that the complaints are not well founded. The Court rejects the appeal and affirms the decision of the Rights Commissioner.
Determination
The Court determines that the complaints are not well founded. The Court rejects the appeal.
Signed on behalf of the Labour Court
Brendan Hayes
29th January, 2014______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.