Complainant

Respondent

Anonymised Parties

An Employee

A Charity

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 28    of the Safety, Health & Welfare at Work Act, 2005

CA-00008755-001

13/12/2016

The complainant stated that   during the course of his work with the respondent, he was subjected to   aggressive behaviour by the respondent’s service users. There was a specific   incident on the 20^. 07.2016   with a service user where there was an altercation and the service user got   aggressive and swore at the complainant. This incident was not the first of   its kind. The complainant reported the   incident, however, he bypassed the normal process and went straight to senior   management. He did so because he felt that the respondent’s process didn’t   actually work. He felt he was entitled   to ignore policy that he felt did not work. He then received an e-mail from the service   manager which stated that they didn’t have the resources to deal with every incident. He replied expressing concerns about his   safety and the safety of the other employees. A few days after that he spoke   to another member of management who told him that he should not have gone   directly to senior management, that he should have followed the procedures.   She reminded him that he should be careful because he was still under   probation.

Following that there was   another incident. The complainant was not present for it. He felt that the   respondent did not deal with this situation adequately.

A meeting was then called   between the Council and the Respondent. Measures were invoked in relation to   the troublesome service user. From that point onwards he was only allowed two   visitors, two nights per week. A few   days after that the complainant spoke with the housing manager and stated   that in his opinion the measures put in place were totally inadequate. He   asked for the name of the respondent’s health and safety officer. He was the   health and safety officer for that particular project, and as such he felt   that he had a responsibility to the other service users and the staff.

The complainant accepted that   the respondent did raise concerns about his performance before he raised the   health and safety issue on the 03.08.16. One of the concerns was his use of   the PASS system, specifically the logging of data.

Two weeks later he was asked to   attend at a performance review. Issues in relation to his logging of data   were highlighted together with his non-engagement with a service user. The   complainant accepted that he did have a number of meetings with the   respondent in relation to his performance. He did not agree with their   assessment of his work and proffered explanations as to why he couldn’t do   what they say he should have done. Following that meeting he was told that he   did not pass is probationary period and he was being let go. He did not   appeal the decision. He did write to the Board however he did not receive a   reply.  

The respondent stated that the complainant commenced   working with them on the 29^th February, 2016. He was placed on a   six month probationary period.

The complainant was asked to attend at several supervision   meetings which said meetings form part of the respondent’s procedures. At   these meetings, the complainant’s performance was discussed. The complainant   never mentioned any issues he was having with the PASS system. He was trained on PASS.

The issues that were highlighted to the complainant during   the meetings were:

-            Rent issues in relation to two specific   service users.

-            Petty cash shortfall and notification system.

-            Logging of data onto the PASS system.

The respondents’ funding is directly related to the   information on PASS. That is why it is crucial that all information is logged   and logged on time. The complainant   was reminded of the importance of logging the information.

On the 20.07.2016 the complainant’s manager received a   call about the incident involving the complainant. She spoke to him and asked   him for his account. She asked him to follow the respondent’s policy. She   explained that the service users are mostly from very dysfunctional   backgrounds and this type of incident was not that unusual. The complainant   ignored her instructions and reported the matter directly to senior   management on the 03.08.2017. Senior   management were not happy and requested an explanation as to why policy was   not being followed.

Following receipt of the complaint he was informed that if   he felt unsafe in the future he could either leave the building or lock   himself in the office and call the gardai. The respondent had a policy in   relation to such incidents and they requested that the policy be followed.   They explained the need for consistency of management of these events.

On the 23.08.2017 the complainant had his performance   review. He was informed that he had not passed his performance review and   that he would not be kept on. He was shocked at the decision.

The complainant was dismissed due to poor performance,   which said poor performance was identified and disclosed to the complainant   prior to the 03.08.2017.  

The initial burden of proof is   on the complainant to establish a protected act and a detriment. If and only   if the complainant established a protected act and a detriment does the   burden shifts to the respondent to put forward evidence that the detriment   suffered was not due to the protected act being an operative cause. Toni   & Guy Blackrock v. Paul O’Neill [2010] 21 E.L.R. 1 established that the burden of proof is on a complainant to   establish that on the balance of probabilities (a) he committed a protected   act, and (b) that having regard to the circumstances, it is apt to infer from   subsequent events that the protected act was an operative consideration   leading to the detriment imposed. The Labour Court held that if both limbs   were satisfied, the burden shifted to the employer to show, on credible   evidence, on the balance of probabilities, that the protected act did not   influence the detriment imposed.

Section 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.

The acts protected from   penalisation are set out in s. 27(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.

The scope of what can be a   protected act is broad. The mere request for a copy of a bullying and   harassment policy was sufficient for the Labour Court in In Board of Management of St. David’s CBS Secondary School Artane v.   Siobhan McVeigh (HSD 118, 8th July 2011), to find that it a protected   act.  It is also well established that   an employee does not have to use the respondent’s grievance procedure for their   act to amount to a protected act. In Stobart   Ireland Driver Services v. Carroll [2013] IEHC 581, a truck driver asked   that he not to be rostered due to his fatigue. This act was held to be a   protected act by the Labour Court and the High Court, on appeal. Kearns P.   spoke to the broadness of the Act of 2005 by stating, at paragraph 26:-

“There is no   requirement in the Act to report any complaint via a grievance procedure. The   Act specifically states "report…as soon as practicable". Thus the   respondent in this case can be deemed to have made his complaint when he   reported that he was too tired to drive”

It is clear, that the subject   matter of a protected complaint or representation is not relevant to   determination of claims pursuant to s. 27. In St. John's National School v Jacinta Akduman [2010] 21 E.L.R. 301,   the Labour Court held that it was making no finding in relation to the   veracity of the complaint of bullying, in making its determination pursuant   to s. 27.

I find that the protected act   was, notifying the respondent, albeit in breach of their procedures, of the   Health and Safety issue on the 03.08.2017

I find that the relevant detriments imposed were as   follows:

-              Dismissal  

I must now establish if there   is a link between the protected act and the detriment. In a case stated   above, Toni & Guy Blackrock v.   Paul O’Neill [2010] 21 E.L.R. 1 it also sets out the “but for” test. ‘But for’ the complainant having committed   the protected act he would not have suffered the detriment. The accepted   method of analysing a situation where there is a protected act, but some   other reason proffered by the employer for the detrimental act, is to require   both a deviation from fair procedures and proximity in time to the protected   act.

I not am satisfied that ‘but for’   the complainant’s grievance he would not have been dismissed. The complainant   accepted that he had several reviews of his performance prior to the making   of the protected act. Whilst he didn’t agree with the respondent appraisal of   him, he accepted that the respondent took issue with several aspects of his   performance. The respondent set out in evidence details of why, in their   opinion, the complainant’s performance was not up to the standard they   expected. I am satisfied that it was   the complainant’s poor performance that led to his dismissal and that there   is no nexus between the protected act and the dismissal itself.

The complaint fails.  

Penalisation, dismissal, health and safety complaint.