ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000081

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 03/02/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 28 of the Safety, Health and Welfare at Work Act, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

1: Summary of Complainant’s Submission and Presentation:

1:1 I raised an issue with my employer in relation to myself and staff working excessive hours:

1:2 I stated to management that this was a Health and Safety issue.

1:3 I was signed off sick from work after falling asleep at the wheel, due to exhaustion from excessive hours, on my way home from work.

1:4 When I returned to work I was dismissed, management used probation period clause in contract in a non transparent and exploitative manner. My dismissal was unfair and outside of all fair procedures.

I was not informed in advance of the dismissal /probationary review meeting of the nature of the meeting. I was not given any rights to be represented and not afforded the opportunity of an appeal

1:5 Prior to my raising the H&S issue no issues were raised in relation to my work performance and no formal reviews were ever carried out. I was sent on a Company Training course in Texas in the USA and a “First response” three day course with Dublin Fire Brigade.

These courses did not indicate an employer who was unhappy with an employee’s performance.

There was no offer, as mentioned in my contract, to extend my probationary period and carry out a later review.

1:6 The Employer did not elaborate on what “not suitable for the role” meant.

1:7 It is my opinion that the company dismissed me for raising the H &S issue and for being off work. It is my opinion that I have been penalised under the safety, health and welfare at work act 2005 section 27 protection against dismissal and penalisation

2: Summary of Respondent’s Submission and Presentation:

2:1 The Complainant was first employed on the 16^th February 2015 and the employment ended on the 28^th May 2015 following a Probation review.

2:2 The Respondent strongly contested that the Complainant had ever raised a Health and Safety complaint of the nature required to satisfy the Safety, Health and Welfare at Work Act 2005. As a senior Manager he was fully conversant with all H&S procedures and would have known how to raise a formal complaint had he chosen to do so.

2:3 The Respondent’s business went through an exceptional period of difficulty for approximately 8 to 10 days in April 2015, related to the introduction of a new IT system and the commissioning of a very large new warehouse.

The IT system did not perform as expected and all staff, especially Managers of the Complainants grade, had to work exceptional hours in the Go Live period.

The complainant did raise at meetings during this period the very long hours being worked by all staff during this initial period but as an expected managerial issue not a formal H&S complaint.

2:4 It was acknowledged that the complainant had a period of Sick Leave in May 2015. The Respondent did not feel that the Sick Leave period had any causative link to the ending of the employment at the Probation review.

2:5 The Respondent stated that the Company had formed the view that there was a mismatch between the team performance, skill set and style of the complaint and the requirements of the position. Accordingly the employment was terminated under a probationary review.

The Respondent was perfectly within its rights to conduct a probationary assessment and bring the complainant’s employment to a conclusion as a result.

2:6 In summary the Complaint’s employment ended as a result of a valid Probationary Review process and had no linkage to any other issues either Sick Absence or alleged Health and Safety complaints.

2:7 The Complainant has failed to satisfy the requirements of Section 27 of the Safety, Health and Welfare at Work Act 2005 and the claim is misconceived.

3: Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 28 of the Safety, Health &Welfare at Work Act, 2005 requires that I make a decision in relation to a complaint of a contravention of Section 27 of that Act.

4: Issues for Decision:

The key issue involved is whether or not the dismissal of the Complainant was in contravention of Section 27 of the Safety, Health and Welfare at Work Act 2005.

Protection against dismissal and penalisation.

5: Legislation involved and requirements of legislation

5:1 The Labour Court in Determination no HSD095 has given clear guidance for cases of this nature.

This matter is a complaint of penalisation within the meaning ascribed to that term by s. 27 of the Act of 2005.

My sole function is to establish whether or not the dismissal was caused by the Claimant having committed an act protected by s.27 (3) of the Act. The relevant statutory provision is as follows: -

(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.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a). (5)[not relevant] (6) [not relevant] (7) [not relevant]

5:2 The Court in HSD095 went on to state that

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 determent 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 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.

5:3 The Court above pointed out that 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 dismissal. 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 dismissal.”

6:        Conclusions of Adjudicator

6:1          The evidence reviewed pointed to the fact that the Complainant was a middle Manager at the Respondent’s new premises. Records presented showed that he had received full Health and Safety training.

6:2 The situation at the Company became fraught between the 26th April and the early days of May 2015 as the “go live” of the new warehouse encountered significant difficulties especially with the IT system.

All staff were placed under considerable pressure and required to work exceptionally long hours during this period (approximately 8 days) to maintain the output /deliveries for the Respondent’s customers.

In evidence the Complainant stated that he did raise with his superiors during Management meetings the difficulties he and his staff were being faced with as a result of the IT difficulties. A crucial management meeting of all departments took place on the 3Oth April with the Corporate Vice President. As the Night Shift Manager the Complainant was effectively close to the eye of the storm and in evidence it was clear he gave a clear management report of the crisis situation and the huge efforts he and his staff had to make.

It was alleged in evidence by the Complainant that direct shop floor language was used at this meeting but I found this this was hardly surprising as the entire operation was in a crisis management /recovery situation.

6:3 The Respondent pointed out in evidence that the Complaint was only one of a wide number of staff having to perform exceptionally during the “Go Live” crisis.

The evidence pointed to the fact that the Complainant was a Manager in a crucial role who gave an unvarnished account of the situation from his Department’s point of view. It was what was expected of him in a meeting that was taking place in the middle of a severe Company crisis.

Oral evidence was given by the Complainant and the Respondent Managers in relation to these meetings and other discussions around the “Go Live” crisis period.

I found no evidence that at the time these Management reports by the Complainant were a specific safety complaint as required by Section 27 (3) (detailed above) of the Safety Health and Welfare at Work Act. At no other time during his employment did the complainant raise any safety issues.

On the evidence I cannot accept that the management reports/status updates given by the Complainant can be retrospectively made into Section 27(3) qualifying reports.

The two bar test referred to by the Labour Court in HSD095 has to apply

Firstly: Was there a legitimate qualifying complaint?

I could not find evidence to support this.

Secondly: Did the making of the Qualifying Complaint lead to Victimisation / dismissal. ?

I could find no evidence of a Qualifying Complaint so this leg of the test does not apply.

Additionally applying the “but for” test referred to by the Labour Court (HSD095) above I could not find evidence to support the necessary linkage as required by Section27 (3) of the Safety, Health and Welfare at Work Act 2005.

6:4 As stated by the Court in HSD095 the function of the Court or an Adjudicator operating under this H&S 2005 legislation is not to review the dismissal decision but to establish to a required level whether or not penalisation as defined by Section27 applied.

In the evidence given by the Respondent regarding the Probationary Review and the dismissal decision arising from this it was clear cut that they had a Probationary Review issue with the Complainant – as quoted above

“that there was a mismatch between the team performance, skill set and style of the complainant and the requirements of the position”

6:5 In conclusion and having carefully reviewed all the evidence I could not find evidence of any direct linkage between a Safety issue and the dismissal decision as required by Section 27 of the Act.

6:6          Accordingly the claim under Section 28 of the Safety, Health and Welfare at Work Act, 2005

is dismissed.

Dated: 20^th April 2016