FULL RECOMMENDATION
SECTION 29 (1), SAFETY HEALTH AND WELFARE AT WORK ACTS , 2005 TO 2014 PARTIES : DESLEND LTD - AND - MARK CLARKE DIVISION : Chairman: Mr Foley Employer Member: Mr Marie Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer Decision No. ADJ-00002456.
BACKGROUND:
2. The employee appealed the Decision of the Adjudication Officer to the Labour Court on the 25 January 2017 in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts 2005-2014. A Labour Court hearing took place on the 24 May 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mark Clarke (the Appellant) against the decision of an Adjudication Officer in his complaint that Deslend Limited (the Respondent) had penalised him within the meaning of Section 27 of the Safety, Health and Welfare at Work Acts 2005-2014 (the Act). The Adjudication Officer, in a decision dated 20thDecember 2015, decided that the complaint of the Appellant should fail.
Background
The Appellant was employed as an Apprentice by the Respondent from 10thNovember 2015 until 10thMarch 2016. The Appellant was working on the Respondent’s Talacare site in January 2016. The Appellant contended that his foreman on that site shouted at him on 11thJanuary 2016. An incident occurred on 21stJanuary 2016 which the Appellant regarded as a matter of Health and Safety. The Appellant photographed the affected area of the workplace and caused those photographs and a textual narrative to be sent to the Health and Safety Authority on that date. No report of the matter to the Respondent was made on that date.
The Appellant advised the Respondent by e-mail on 9thFebruary that he had reported the incident of 21stJanuary to the Health and Safety Authority ( the HSA).
The Appellant was assigned to a different site on 22ndFebruary 2016. The Appellant was further assigned to another site on 7thMarch 2016. The Appellant was further assigned to another site on 9thMarch 2016. The Appellant was advised by the Respondent on 10thMarch 2016 that his employment was being terminated.
Preliminary issue – Protected Disclosures Act, 2014
The Appellant at the hearing asked the Court to hear his appeal under the Protected Disclosures Act, 2014. The Court clarified to the Appellant that no such appeal had been received by the Court and no such matter was before the Court at its hearing.
Preliminary issue – Complaint to HSA
The Appellant clarified to the Court at the hearing that he had not directly made a complaint to the HSA on 21stJanuary 2016. He confirmed that he had taken photographs and sent them to his wife together with a text to be issued to the HSA. The Appellant, in his appeal, had contended that he had been penalised as a result of his making a report to the HSA. The Court at the hearing asked the parties to address by further submission the question of whether the Appellant had, on 21stJanuary 2016, taken a protected action in accordance with the Act at Section 27(3)(c) which identifies a protected act as follows:
- (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,
The Respondent submitted that the Appellant had not himself made a complaint or representation to the HSA.
The Court has considered the parties’ submissions on this preliminary point and concludes that the Appellant’s wife acted as his authorised agent in forwarding a report to the HSA on 21stJanuary 2016. The Court therefore concludes that the Appellant had made a complaint or representation to the authority on 21stJanuary 2016. The Court consequently accepts that the actions of the Appellant on 21stJanuary constituted a protected act within the meaning of the Act at Section 27(3).
Summary of the submission of the Appellant
The Appellant contended that he had been laid off in December 2015 and that prior to the layoff he had been advised by his foreman, MD, that a ‘glowing reference’ had been sent to management. He contended that on 11thJanuary 2016 he returned to work and was sworn at and shouted at by a new foreman, MK. He detailed an incident which occurred on 21stJanuary which he regarded as a Health and Safety concern and he submitted that he had, that day, sent photographs of the area where the incident arose together with a narrative to the HSA.
The Appellant contended that he had believed that an employee of the HSA was on site when the incident occurred and that he had decided as a consequence of that and because he was reluctant to raise the matter with MK, to make the report to HSA.
The Appellant contended that he had approached MK on 22ndJanuary and advised him of the incident. The Appellant acknowledged in his submission that the Respondent’s Safety Statement required that “All accidents or incidents whether causing injury or notMUSTbe reported to the project manager”.
The Appellant submitted that on 2ndFebruary 2016 he had been asked by MK to show him the location of the incident. The Appellant submitted that on that date he had been advised by MK that the matter had been reported to the HSA and that MK had asked him ‘Was it you?. The Appellant submitted that MK had also asked him if he knew who had made the report. The Appellant submitted that he felt very intimidated on this date by MK. The Appellant submitted that on that date the Respondent had caused the Appellant to complete a ‘near miss’ form.
The Appellant submitted that a ‘toolbox talk’ was convened by MK on 3rdFebruary 2016 at which MK advised other staff of the incident and that somebody had reported the matter to the HSA. The Appellant submitted that he felt embarrassed and alienated at this ‘toolbox talk’.
The Appellant submitted that he attended a doctor on 9thFebruary 2016 and was subsequently absent through illness. He submitted that on that date he advised the Respondent that he had reported the incident of 21stJanuary to the HSA.
The Appellant submitted that on 9thFebruary 2016 MK had completed an assessment form relating to the Appellant which stated that the Appellant ‘lacked initiative and awareness’.
The Appellant attended a meeting with the Managing Director of the Respondent and the Respondent’s Health and Safety Officer on 12thFebruary 2016. The Appellant submitted that procedures as regarding the reporting of Health and Safety concerns were the subject of discussion at that meeting. In addition the Appellant submitted that his absences were discussed at that meeting.
The Appellant submitted that he advised management at that meeting that MK had been swearing at him and causing trouble for him and that he had been harassing him.
The Appellant submitted that he was assigned to a new site on 22ndFebruary 2017 and that he was late reporting to the site foreman because of parking issues. The Appellant worked with MD on this site.
The Appellant was further assigned to another site on 7thMarch 2013. The Appellant was assigned to a further site on 9thMarch 2016 and was asked at the end of that day to report to the Respondent’s office on 10thMarch 2016. At that meeting the Appellant was supplied with a letter advising him that he had not been successful in his probation and that as a result his employment was terminated from that date.
The Appellant submitted that as a result of his making a report to the HSA the Respondent had been responsible for unacceptable behaviour by MK, re-assignments to different sites and ultimately the termination of his employment. The Appellant submitted that these events amounted to penalisation within the meaning of the Act.
Summary submission of the Respondent
The Respondent submitted that the termination of the Appellant’s employment arose from his failure to pass his probation. The Respondent submitted that poor assessments of the Appellant during his probationary period taken together with what the Respondent assessed as an unsatisfactory absence record led to the decision to terminate the employment of the Appellant.
The Respondent submitted that it was unaware of the Appellant’s contact with the HSA until 9thFebruary 2016 and that any events occurring before that date could not therefore be regarded as a penalisation arising from the alleged protected act of 21stJanuary 2016.
The Respondent submitted that only the Respondent’s Managing Director, Contracts Manager, Safety manager and Project Manager on site were aware from 9thFebruary 2016 of the Appellant’s report to the HSA.
The Respondent submitted that the Appellant was fully aware of the procedures of the Respondent as regards Health and Safety reporting but chose not to follow them on 21stJanuary 2016. The Respondent contended that the matter raised by the Appellant with the HSA was of no significant consequence and that a visit by an inspector from the HSA to the site occurred on 28thJanuary 2016 and no recommendations for action were made by the HSA.
The Respondent submitted that it had a very comprehensive approach to safety and that no consequences arose for the Appellant as a result of his report to the HSA.
Evidence
Evidence of the Appellant
The Appellant stated in evidence that:
He was advised at his recruitment interview by the Respondent’s Managing Director of the importance of timekeeping, attendance and Health and Safety.
He understood at the commencement of that employment that his employment was probationary for a period of six months.
He received and signed for a copy of the Respondent’s Health and Safety Statement on the first day of his employment which set out that he must report health and safety incidents to his supervisor on site.
‘Toolbox’ meetings were normal methods on site for communication and information
That he felt intimidated by MK
That he was intimidated by a toolbox meeting which was called after the incident to discuss the health and safety matter
That he was given ‘basic’ work to do on the ‘Workday’ site
That he was assigned to ‘lone working’ on the ‘Workday’ site
That there were other electricians on the ‘Workday’ site and that he was not alone on the site.
That he thought that his site manager on the Smithfield site, DG, was aware of his reporting of an incident to the HSA.
That he was aware of the Respondent’s policies as regards Bullying and Harassment and that he never made a complaint under the procedures contained therein as regards Bullying or Harrassment.
Evidence of Respondent’s Managing Director – LC
Mr LC stated in evidence that:
The first indication that the Respondent had that the Appellant had made a report to the HSA was via his e-mail to LC on 9thFebruary 2016
Safety is a priority for the company and is a constant focus of communication. The Company is committed to the ongoing delivery of training in safety matters and has comprehensive policies which are communicated to all employees.
He is readily available to all employees to discuss any matter of concern at all times and that all employees have his mobile ‘phone number and e-mail address.
Termination was as a result of unsatisfactory performance by the Appellant during his probation and his unsuitability for the role of apprentice electrician.
Assessments by the Appellant’s supervisors to the effect that his performance was poor were relied upon by the Respondent in coming to a conclusion as regard performance and suitability.
The Appellant had a relatively high degree of absence in a probationary period and that this was also a factor in the decision to terminate.
The employments of two other apprentices were terminated by the Respondent in similar manner on 24thNovember 2015 and 11thDecember 2015.
The fact of a notification to the HSA was a minor matter for the Respondent. The most significant aspect of concern for the Respondent was the imperative of ensuring that safety incidents are notified on site as soon as possible.
No reprimand was given to the Appellant at the meeting of 12thFebruary 2016.
The Appellant made no mention of bullying, harassment or threatening behaviour at the meeting of the 12thFebruary.
No mention of absences or performance took place at the meeting of the 12thFebruary
No further action was taken after 12thFebruary and that the matter was closed at that point.
At fortnightly labour meetings involving management of the Respondent the Appellant’s name ‘came up’ regularly where managers gave the opinion that the appellant was not performing well.
Moves of the Appellant before and after the safety incident to different sites occurred as a normal part of assignment of resources and was a common experience for all staff. The first move of the Appellant in 2016 occurred before the Respondent was aware that he had made a report to the HSA.
No matter related to health or safety formed a part of the decision to terminate the employment of the Appellant during probation.
Evidence of Respondent’s Health and safety manager (JD)
Mr JD stated in evidence as follows:
His attendance at a meeting on 12thFebruary 2012 was to emphasise to the Appellant the importance of reporting incidents on site as soon as they occur.
No reprimand was given at the meeting of 12thFebruary.
No reference was made to bullying or harassment at that meeting.
Lone working is a term used to describe a situation where a person works alone in a building.
Evidence of RM – qualified electrician
Mr RM clarified that he was a qualified electrician working with the Appellant at the time of the safety incident.
Mr RM stated in evidence that:
The Appellant took no initiative in his work
He himself was moved from site to site regularly
Cable tying is a normal part of the work assigned to first year apprentices.
The appellant did not seem interested in ultimately working as an electrician
Evidence of MK – Site manager on the site where safety incident occurred
Mr MK stated in evidence that:
He may have used robust language in a manner not unusual in the construction industry to and in the presence of the Appellant before and after the safety incident.
The appellant made no report to him on the date of the safety incident.
He had no knowledge of the fact that the Appellant had made a report to HSA until after 9thFebruary 2016.
It was his normal practice to hold a ‘toolbox’ meeting after a safety incident.
He performed an assessment on the work of the Appellant in line with normal practice for staff on probation.
The assessment he completed on 9thFebruary reflected his view that the Appellant was not performing to a standard expected of apprentices.
The appellant appeared to be struggling with the work of an apprentice electrician.
Five people moved from the site at the same time as the Appellant. All moves were normal and reflective of work needs.
Evidence of Mr MD – Electrician and site supervisor
Mr MD stated in evidence that:
He did not give the Appellant a reference in December 2015 and never had cause to give a ‘glowing reference’.
Cable tying was a normal part of the work of an apprentice electrician.
He knew nothing about a report to HSA when he supervised the appellant on the ‘workday’ site.
Evidence of Mr DG – Site supervisor – workday site
Mr DG stated in evidence that:
The appellant was slow in the performance of his work and did not take instruction well
He was late on his first day on the site
An assessment was completed for the Appellant as part of normal procedure and that assessment was poor.
The Appellant displayed no interest in the trade of electrician
Movement from site to site was a normal feature of the work of an electrician or apprentice with the Respondent.
The appellant was never assigned to lone working.
The Law
Penalisation is defined by s. 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—
(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 under section 11 or appointed under section 18 to 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.
- (b) performing any duty or exercising any right under 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.
The Court must consider whether there was a causal connection between the termination of the Appellant’s employment as an apprentice while on probation and the fact of the Appellant having made a report to the HSA on 21stJanuary 2016. That report was undoubtedly a protected act as described at Section 27(3) of the Act. It is for the Court to determine whether the termination arose because ofthat act. In essence the Court has to determine whether, but forthe protected act, the Appellant’s employment would not have been terminated.
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:
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 Court has heard evidence from a wide range of persons with direct knowledge of the work of the Appellant as an apprentice electrician. Qualified electricians who worked alongside and supervised the Appellant together with site supervisors all agreed in evidence that the Appellant did not appear to have the skills or interest to become an apprentice electrician. The written assessments of two separate supervisors accord with the evidence proferred by these persons to the Court.
The Court has heard evidence that the factors which led to termination were the assessments completed by supervisors and the absence record of the Appellant.
Having considered the evidence the Court finds that the Respondent dismissed the Complainant for failing to perform at a level which gave confidence that he had the capacity to advance through his apprenticeship and because the Respondent was not satisfied with the absence record of the Appellant.
The Appellant has failed to establish a causal link between his reporting of a safety incident to the HSA and the termination of his employment while on probation. The Court finds that the Appellant did make a report to the HSA but that he was not dismissed for so doing.
In this case the Court finds that the Employer in evidence has answered the case made by the Appellant and in particular that the supervising electricians gave credible evidence of the appellant’s failure while on probation to perform to the level expected of apprentice electricians.
The Court finds that the complaint is not well founded.
Determination
The Court determines that the complaints are not well founded. The Court rejects the appeal and affirms the decision of the Adjudication Officer.
The Court so determines.
Signed on behalf of the Labour Court
Kevin Foley
LS______________________
30 August 2017Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.