ADJ-00004027

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004027

Parties:

Complaints:

Date of Adjudication Hearing: 11/05/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Location of Hearing: The Ardboyne Hotel

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 28 of the Safety, Health & Welfare at Work Act, 2005 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 was employed as a tyre fitter from 24^th September 2015 on a weekly wage of €347.70.

He maintained that he was injured in a workplace accident and was subsequently dismissed in January 2016 due to raising health and safety concerns. He therefore complained that he was penalised for raising a health and safety concern.

The Complainant also alleged that he was discriminated against due to a disability he received as a result of a workplace accident.

The Complainant was seeking compensation as a remedy.

Summary of Complainant’s Case:

CA-00005812 001: Complaint seeking adjudication under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Complainant alleged that when he was working on a car lift on 10 October 2015, that a fellow operator lowered the car lift which was carrying a car onto his hand, and where he received an injury to his hand. The Complainant maintained that the car lift was faulty and was unsuitable and unsafe to work with. He outlines that a safety buzzer was faulty, that a safety function on the lift did not operate properly, and where hoses to drive the lift would fall off on a regular basis.

The Complainant maintained that he raised his concerns verbally about the car lift on a number of occasions but that his concerns were not addressed.

He outlined that due the faulty car lift to his hand was trapped when the lift was lowered on his hand. He received a fractured finger finger where is hand was swollen and he had to take a number of weeks off work.

The Complainant argued that when he returned to work he observed that none of the safety concerns he had raised about the car lift were addressed. He therefore refused to work on the lift due to his safety concerns. The complainant maintained that the car lift was unsafe to operate and therefore he would not operate it until it had been repaired, but the Respondent failed to carry out the repairs.  

The Complainant argued that he was left to do general tidying tasks, and on 21^st January 2016, as he was still refusing to operate the lift due to safety concerns, he was he was told at the end of the day that he was being let go on the basis there was no further work for him. The Complainant maintained that there was plenty of work available at that time but in effect he was penalised by being dismissed as a consequence of raising a health and safety concern.

CA-00005812 002: Complaint seeking adjudication section 77 of the Employment Equality Act, 1998

With regard to the complaint of discrimination due to a disability, the Complainant stated that when he returned to work following a period of certified sick leave after the accident at work, he could not engage in heavy lifting or in fixing the tyres due to the injury, and the subsequent disability in his hand. As a consequence, he was deployed on general sweeping and tidying work, and in an area where truck tyres were fitted.

The Complainant maintained that when he returned from his sick leave he was advised by his doctor that he was to be involved in no lifting and that due to the injury received his finger would never heal. He was advised to relax for a while in order to allow for a recovery to the injury.

The Complainant advised that on 13^th October he provided medical reports to the Respondent which certified him for three weeks’ sick leave. On 26^th November 2016, he returned to work.

The Complainant advised that he was not treated fairly as a result of his injury, and he was not reasonably accommodated with his disability. He therefore maintained that he was discriminated by the Respondent due to his disability.

Summary of Respondent’s Case:

CA-00005812 001: Response to Complaint seeking adjudication under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Respondent acknowledged that an accident did take place and that the Complainant was injured. The Respondent advised this matter was dealt with properly, and at the time of the accident the Complainant carried on working and returned to work for a number for days before reporting sick.

The Respondent maintained that it facilitated the Complainant taking sick leave, and where the Complainant returned to work on 26^th November 2015.

The Respondent submitted that the car lift being operate had a full certificate of operation at the time and it was not faulty. The Respondent provided an in-date certificate for the time of the accident.

The Respondent further argued that the Complainant was not in fact dismissed in January 2016, but he was let go in April 2106 due to a down turn in the business. The Respondent maintained that the work was seasonal and the Respondent presented evidence that it does have to let people go in April due to a drop in work. The Respondent maintained that it provided the Complainant with proper notice at that time and it therefore did not dismiss the Complainant as a penalisation for refusing to work on the car lift.

The Respondent maintained that the Complainant had been a good worker where there had been no issues between them. As the Complainant had been the most recent employee to join, the last in first out principal applied when it came to letting the Complainant go.

The Respondent acknowledged that a personal injury claim had been made on 4^th March 2016 but it denied this was the reason for the dismissal stating that to do so would only bolster the Complainant’s case and it would not have been the basis for its decision. The Respondent maintained the basis for the dismissal was a downturn in the business.

CA-00005812 002: Response to Complaint seeking adjudication section 77 of the Employment Equality Act, 1998The Respondent maintained that the Complainant did not have a disability. The Respondent advised that following the accident the Complainant remained at work for a number of days. It acknowledged that the Complainant did go on sick leave for a number of weeks but returned with a certificate to say he was fit to work. The Respondent argued that the Complainant never advised that he remained injured or sought reasonable accommodation. The Respondent also maintained that the Complainant was not redeployed to other areas or to work with truck tyres as this was a specialist job that the Complainant was not qualified to do.

The Respondent maintained that the termination was due to a downturn, and as the Complainant did not have a disability he does not have protection under the Equality legislation.

Findings and Conclusions:

CA-00005812 001: Findings in Relation to Complaint seeking adjudication under Section 28 of the Safety, Health & Welfare at Work Act, 2005

Based on the evidence presented I am satisfied the Complainant did experience an injury at work. He sought medical assistance some days after the accident and he was given a number of week’s sick leave to recover. He returned to work in November 2015.

Evidence presented by the Respondent supported their position that the car lift was certified safe to operate, and where it is subject to an annual safety check and certification. It had been certified some months earlier.

There is a conflict of evidence between the parties regarding the state of the lift, but the accident is not in dispute. The Respondent maintained it was operator error and not due to a faulty lift.

The evidence provided by the Complainant that he was dismissed in January 2016 was incorrect. He was dismissed in April 2016, a month after the Respondent was put on notice regarding a personal injury claim. The Respondent maintained that the dismissal it was due to a downturn in the business, where it provided evidence that this does occur, and where again in April 2017 another operative was being let go in another of its sites due to a seasonal downturn.

In accordance with Section 27 of the Safety, Health and Welfare at Work Act 2005,

1. “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—

1. 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, demotion or loss of opportunity for promotion…

(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.

(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) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts…

Based on the above requirements, and the case within, it must be proven by the Complainant that the Respondent’s decision to dismiss him was inter alia, an act based on the Complainant’s compliance with a statutory provision, or the Complainant making a complaint with regard to a safety, health or welfare at work issue.

The Complainant has submitted that by his reporting a faulty car lift, and refusing to work with the car lift, has amounted to a penalisation of dismissal. However, other than oral evidence, the Complainant could not present any material evidence that he had reported safety concerns regarding the car lift. I must also consider the fact that whilst the Complainant had alleged he was dismissed in January 2016, it is clear that his dismissal did not take place until April 2016.

There was no material evidence presented by the Complainant to support that he had in fact continued to raise concerns about the car lift after his return to work between November2015 to April 2016. Similarly there was no evidence presented that the Complainant had in fact formally raised a complaint about this issue.

On the other hand, the Respondent did acknowledge an accident did take place and that it was dealing with that matter. It provided evidence that the car lift was certified in working order; and it further provided evidence that its business was subject to seasonal variation.

On that basis, and on the balance of evidence presented including the remarkable difference in the actual date of dismissal compared to that alleged by the Complainant, I am satisfied that the evidence presented does not support the Respondent has been penalised the Complainant. Accordingly this complaint is not upheld.

CA-00005812 002: Findings in relation to Complaint seeking adjudication section 77 of the Employment Equality Act, 1998

The Complainant has alleged that he had a disability following an injury he received at work, and he was discriminated at work due to this disability.

The Employment Equality Act 1998 as amended, defines under S6 that discrimination shall be taken to occur when a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which— with reference to the case within, is where one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”).

In addition, Section 8(1)(b) of the Act, an employer shall not discriminate in relation to conditions of employment.

Having considered the evidence, it is clear that the Complainant experienced a workplace injury, and where the Complainant’s hand was injured. The injury required medical treatment and a period of sick leave. The evidence further supports that the Complainant returned to work and where he had been certified fit for work. In his evidence, the Complainant confirmed that he did not require further medical treatment, nor had he been advised by his doctor to seek any reasonable accommodation.

The Disability Act 2005 defines a disability in relation to a person, to meaning a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment.

Based on the evidence provided, I am satisfied that the Complainant does not have a disability. Therefore, I do not find that Respondent has discriminated against the Complainant on the disability ground.

Decision:

CA-00005812 001: Decision in Relation to Complaint seeking adjudication under Section 28 of the Safety, Health & Welfare at Work Act, 2005

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 28 of the Safety, Health and Welfare at Work Act 2005, requires that I make a decision as to whether a complaint under Section 27 of the Act is upheld.

Having considered the evidence presented I declare the complaint was not well founded and therefore decide that the Complainant was not penalised contrary to Section 27 of the Act.

CA-00005812 002: Decision in relation to Complaint seeking adjudication section 77 of the Employment Equality Act, 1998Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

As the evidence does not support that Complainant had a disability I do not find in favour of the Complainant. Therefore the complaint fails.

Dated:   25^th September 2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: