ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007866
Parties:
| Complainant | Respondent |
Anonymised Parties | A Broadband Technician | A Broadband Company |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00010474-001 | 23/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00010474-002 | 23/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00010474-003 | 23/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00010474-004 | 23/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00010474-005 | 23/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00010474-006 | 23/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00010474-007 | 23/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006 | CA-00010474-008 | 23/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Employment Permits Act, 2006 | CA-00010474-009 | 23/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00010474-010 | 23/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00010474-011 | 23/03/2017 |
Date of Adjudication Hearing: 16/06/2017
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant commenced employment on 26th May 2016 as a Broadband Technician. On 30th May 2016 he was injured on the job. He resigned his position on 16th January 2017. The complainant has submitted a number of claims detailed below: CA-00010474-001 The respondent objected to an Adjudication Officer investigation of this claim and the complainant did not wish to proceed to the Labour Court in relation to this claim. CA-00010474-002 The respondent objected to an Adjudication Officer investigation of this claim and the complainant did not wish to proceed to the Labour Court in relation to this claim. CA-00010474-003 The respondent objected to an Adjudication Officer investigation of this claim and the complainant did not wish to proceed to the Labour Court in relation to this claim. CA-00010474-004 The respondent objected to an Adjudication Officer investigation of this claim and the complainant did not wish to proceed to the Labour Court in relation to this claim. CA-00010474-005 The respondent objected to an Adjudication Officer investigation of this claim and the complainant did not wish to proceed to the Labour Court in relation to this claim. CA-00010474-006 The respondent objected to an Adjudication Officer investigation of this claim and the complainant did not wish to proceed to the Labour Court in relation to this claim. CA-00010474-007 The respondent objected to an Adjudication Officer investigation of this claim and the complainant did not wish to proceed to the Labour Court in relation to this claim. CA-00010474-008 This claim was withdrawn on the day of the hearing. CA-00010474-009 This claim was withdrawn on the day of the hearing. CA-00010474-010 The complainant wished to proceed with this claim. CA-00010474-011 The complainant wished to proceed with this claim. |
Summary of Complainant’s Case: CA-00010474-010
The complainant detailed that he had a very serious accident while working on a job for the respondent a few days after starting work as a Technician.
He described that he put up with a lot of abuse from Mr A, the worker who shadowed him. Despite a meeting held with the manager Mr B to try and settle the matters between the complainant and Mr A, the complainant had to go out sick again. He advised that he had made informal complainants on 3rd August 2016 regarding harassment and misleading information and that the environment was very stressful when he was working with Mr A.
He outlined details of his interaction with Mr A and how this interaction impacted him, including that he was accused of stealing money and it was very stressful working with Mr A and that he felt his manager Mr B showed no interest in the accident that he had. He advised that jobs that he should have been doing were not explained to him, that there was much time wasting and blaming and excuses being made by Mr A. He found Mr A rude and unprofessional and that Mr A should have just got on with the job in a more professional manner.
He highlighted that Mr B called to his house on 8th August 2016 and that Mr B confirmed that Mr A was very stubborn and had an attitude but that Mr B would sort out something. Before he left, Mr B collected the company van. He expected that things would be sorted out but they were not and he continued to attend his physio appointments and updated his manager on his treatment as he was still unfit for work. The complainant outlined his surprise that Mr B never got back to him and that he had incurred significant expenses as a result of the injury at work. He described how upset he felt when his company phone was blocked.
He wrote to the respondent outlining his concerns but received no response. He felt he had to resign as he was so unhappy with how he had been treated. |
Summary of Respondent’s Case: CA-00010474-010
The complainant commenced employment and was shadowed by Mr A at the start of his employment. A few days after starting he was injured on a job and advised to attend the company doctor to assess the extent of the injury and the supervisor finished the job alone. The following day the complainant returned to work and advised that he had no injuries just some soreness and that he was fit to work and expressed no concern or issue in relation to his shoulder. On 2nd June the complainant worked on his own without Mr A and he did not report any issues.
On Friday 15th June the complainant indicated that he had been taking painkillers for pain and he was advised by to seek immediate medical attention which the complainant did. At no stage did Mr B know of the shoulder injury and would not have allowed him to continue working if he had been aware of the shoulder injury and that he was on painkillers. A sick cert was issued up to 23rd June 2016 which was extended to 29th June 2016, then to 4th July and the complainant was advised to keep in touch with regard to his progress.
On 13th July the complainant advised that he wished to return to work in some phased capacity which Mr B was happy to facilitate. While back at work, the complainant and Mr A were brought together but both agreed that it was best if they would not work together. As the complainant was unfit for working on his work doing physical work he went out sick. During his absence the complainant had not been replaced. Throughout September 2016 there were text messages from the complainant advising that he was not fully fit for work. On 18th November an eight page letter, with very few paragraphs, making it extremely difficult to read, was received by the respondent from the complainant. It was very difficult to understand this letter as it provided very general and somewhat incoherent criticism of the company. As the complainant was still deemed unfit to work, the respondent made a decision to await until he was fit to return to work to address these issues but in hindsight advised that they should have met with him earlier and were sorry for that. On 16th January 2017, the respondent received notification of the complainant’s resignation by email which made no reference to any issues.
The respondent outlined that in relation to the specific complainant regarding penalisation in relation to health and safety that the complainant has failed to demonstrate that the respondent engaged in a act listed in Section 27(3) and secondly the complainant has not demonstrated that an act of penalisation occurred and thirdly the complainant did not demonstrate that “but for” the actions they took, they would not have been penalised.
It was denied that the letter of November 18 2016 provided any basis for any penalisation claim as it does not identify any specific safety issue but is in fact just general complaints about the whole company. However, even if the letter was to meet the standards required, nothing arose from this in relation to the employer’s treatment of the complainant and while constructive dismissal can amount to an act of penalisation, the “but for” test falls to be considered and the letter of resignation makes no reference to health and safety issues. |
Findings and Conclusions: CA-00010474-010
While the complainant made reference to numerous complaints, he advised that he did not wish to pursue many of these and was aware that this claim before me was specifically in relation to Penalisation as defined by s. 27 of the Safety, Health & Welfare at Work Act, 2005. This details: -
(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.
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—
(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.
In order for the Complainant to avail of the protections available in Section 27(3) it is essential that a 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.
In Paul O'Neill v Toni & Guy Blackrock Limited [2010] ELR 21, the 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 icurred because of, or in retaliation for, the Claimant havingcommitted a protected act. This suggests that where there ismore 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" theClaimant having committed the protected act he or she would not have suffered the detriment. This involves a considerationof the motive or reasons which influenced the decision makerin imposing the impugned detriment.’ I found that the Complainant had great difficulty in particularising his complaint both orally and in writing. Indeed his written submissions appeared to be an expression of his emotions regarding how unhappy he was working with Mr A and it was very difficult to ascertain the actual nature of the penalisation under health and safety which he was claiming for. Significant effort was made to facilitate the complainant to outline what his complaints actually were but he spent most of this time expressing how upset he had been without detailing facts around these emotions. It was clear that his experience working with the respondent was an extremely negative experience but the specifics around this experience were unclear in relation to this specific claim. I notice that he made a similar type of written submission to the respondent who advised that they struggled to decipher the document and thought it more appropriate to await his fitness to return to work before engaging with him. While I would have expected that they would have engaged with the complainant in relation to his letter, I find that the complainant has not met the three-fold test with regards to his claim, namely he has not established that he made one or more of the acts set out in Sect 27(3), and he has not established that penalisation occurred and that he has not established that ‘but for’ the action he would not have been penalised. His claim is, therefore, not well founded and is therefore, dismissed. |
Decision: CA-00010474-010
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Pursuant to the findings made above, I find that the complaint is not well founded and is therefore, dismissed. |
Summary of Complainant’s Case: CA-00010474-011
The complainant detailed that he had a very serious accident while working on a job for the respondent a few days after starting work as a Technician.
He described that he put up with a lot of abuse from Mr A, the worker who shadowed him. Despite a meeting held with the manager Mr B to try and settle the matters between the complainant and Mr A, the complainant had to go out sick again. He advised that he had made informal complainants on 3rd August 2016 regarding harassment and misleading information and that the environment was very stressful when he was working with Mr A.
He outlined details of his interaction with Mr A and how this interaction impacted him, including that he was accused of stealing money and it was very stressful working with Mr A and that he felt his manager Mr B showed no interest in the accident that he had. He advised that jobs that he should have been doing were not explained to him, that there was much time wasting and blaming and excuses being made by Mr A. He found Mr A rude and unprofessional and that Mr A should have just got on with the job in a more professional manner.
He highlighted that Mr B called to his house on 8th August 2016 and that Mr B confirmed that Mr A was very stubborn and had an attitude but that Mr B would sort out something. Before he left, Mr B collected the company van. He expected that things would be sorted out but they were not and he continued to attend his physio appointments and updated his manager on his treatment as he was still unfit for work. The complainant outlined his surprise that Mr B never got back to him and that he had incurred significant expenses as a result of the injury at work. He described how upset he felt when his company phone was blocked.
He wrote to the respondent outlining his concerns but received no response. He felt he had to resign as he was so unhappy with how he had been treated |
.
Summary of Respondent’s Case: CA-00010474-011
The complainant commenced employment and was shadowed by Mr A at the start of his employment. A few days after starting he was injured on a job and advised to attend the company doctor to assess the extent of the injury and the supervisor finished the job alone. The following day the complainant returned to work and advised that he had no injuries just some soreness and that he was fit to work and expressed no concern or issue in relation to his shoulder. On 2nd June the complainant worked on his own without Mr A and he did not report any issues.
On Friday 15th June the complainant indicated that he had been taking painkillers for pain and he was advised by to seek immediate medical attention which the complainant did. At no stage did Mr B know of the shoulder injury and would not have allowed him to continue working if he had been aware of the shoulder injury and that he was on painkillers. A sick cert was issued up to 23rd June 2016 which was extended to 29th June 2016, then to 4th July and the complainant was advised to keep in touch with regard to his progress.
On 13th July the complainant advised that he wished to return to work in some phased capacity which Mr B was happy to facilitate. While back at work, the complainant and Mr A were brought together but both agreed that it was best if they would not work together. As the complainant was unfit for working on his work doing physical work he went out sick. During his absence the complainant had not been replaced. Throughout September 2016 there were text messages from the complainant advising that he was not fully fit for work. On 18th November an eight page letter, with very few paragraphs, making it extremely difficult to read, was received by the respondent from the complainant. It was very difficult to understand this letter as it provided very general and somewhat incoherent criticism of the company. As the complainant was still deemed unfit to work, the respondent made a decision to await until he was fit to return to work to address these issues but in hindsight advised that they should have met with him earlier and were sorry for that. On 16th January 2017, the respondent received notification of the complainant’s resignation by email which made no reference to any issues.
The respondent outlined that this claim comes within the complainant’s range of Penalisation claims and that he claims that he was victimised for taking an action set out in section 74 of act but that no other form of equality claim under any of the 9 grounds has been raised or referenced within either the complaint form or accompanying documentation.
The respondent rejects the complainant’s claim on the basis that he failed in its entirely the three-fold test that arises namely that the complainant must demonstrate that he took one of the actions listed in the Act, that an act of victimisation occurred and that “but for” the alleged equality relation action they would not have been victimised in the manner alleged. Furthermore, the respondent rejects that that the complainant has established facts from which it may be presumed that there has been discrimination in relation to him. |
Findings and Conclusions: CA-00010474-011
While the complainant made reference to numerous complaints, he advised that he did not wish to pursue many of these and was aware that this claim before me was specifically in relation to a claim for Victimisation under Section 74 of the Equality Act which is defined in the following manner: victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith— a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment), (b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment, (c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or (d) given notice of an intention to do anything within paragraphs (a) to (c). The Labour Court has detailed in Tom Barrett v Department of Defence [EDA] 116 the three components for a claim of victimisation under the Acts to be made out such that:
Elsewhere in Monaghan County Council v Mackaral EDA 13/2012 the phrase ‘as a reaction to’ is considered and the meaning was further refined to require it to be an ‘influencing factor’ in the decision. I found that the Complainant had great difficulty in particularising his complaint both orally and in writing. Indeed his written submissions appeared to be an expression of his emotions regarding how unhappy he was working with Mr A and it was very difficult to ascertain the actual nature of the victimisation which he was claiming for under the Acts. Significant effort were made to facilitate the complainant to outline what his complaints actually were but he spent most of this time expressing how upset he had been without detailing facts around these emotions. It was clear that his experience working with the respondent was an extremely negative experience but the specifics around this experience were unclear in relation to this specific claim. I notice that he made a similar type of written submission to the respondent who advised that they struggled to decipher the document and thought it more appropriate to await his fitness to return to work before engaging with him. While I would have expected that they would have engaged with the complainant in relation to his letter, I find that the complainant has provided no evidence under which of the nine grounds which the complaint felt he had been victimised against could be identified. For the reasons referred to above the complainant has not established a prima facia case of victimisation and this complaint, therefore, must fail and is therefore, dismissed. |
Decision: CA-00010474-011
Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The complainant has failed to establish a prima facie case of victimisation and I dismiss the complaint. |
Dated: 7.11.2017
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
IR Act, penalisation, health and safety, equality |