ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00011881
| Complainant | Respondent |
Anonymised Parties | Painter and decorator | Painting and decorating contractor. |
Representatives | Self- represented | Self- represented |
Complaint(s):
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-00015760-007 | 13/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011 | CA-00015760-009 | 13/11/2017 |
Date of Adjudication Hearing: 19/02/2018
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, and Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint and dispute to me by the Director General, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.
Background:
CA 00015760-007 The complainant commenced employment with the respondent as a painter and decorator in October 2015. He has 30 years’ experience in the trade. He was contracted to work for 40 hours a week at a rate of €21.49 per hour. The complainant presents a complaint that he has been bullied and harassed by the respondent and the respondent’s foreman since he raised issues concerning payslips, P60, bank payments and health and safety issues. CA -00015760-009. Complainant states that he has been penalised for reporting breaches of the Criminal Justice Act, 2011. He was marginalised. He was given the most hazardous tasks, denied a safe and healthy working environment because he brought health and safety issues to the respondent. He presented his 2 complaints to the WRC on 13/11/2017 |
Summary of Complainant’s Case:
CA 00015760-007 From October 2015 to November 2017, the complainant undertook all tasks asked of him. The complainant was on sick leave from 25/9/17-13 October 2017. He was again on sick leave from 24 – end of October 2017. Prior to his return to work at the end of October 2017, he texted the director to inform him that he would be returning to work. The director asked him to provide a fitness to return to work certificate to the foreman. He asked the director if he could give the cert to him rather than the foreman as he does not have a good working relationship with him. He emailed the medical cert to the director. The foreman halted him and prevented him from going on site on his return to work from sick leave at the end of October 2017 due to the absence of a hard copy of a fitness to return to work cert. Following his return from sick leave at the end of October, the complainant was given more menial tasks than heretofore. Previously he had the job of instructing the other painters and decorators, now he was given the rubbing down jobs. He asked for a mask with side flaps and was refused same. The complainant suffered from dermatitis and needed a stronger form of protection than the paper mask provided to him. A Health and Safety Authority advisor told him that this mask was not adequate for his work and skin condition. The complainant asked to be relieved of the rubbing down job because he was assigned to do it all day, a lot of dust was associated with this exercise and he advises that he has a history of bronchial issues. When he advised the foreman of this, the response was “I don’t care”. He advises that the foreman, a smoker, blew smoke in his face. He asked the respondent director to set up a separate smoking area. He advised the director that the foreman removed the fire alarms so that the cigarette smoke wouldn’t set off the alarm and used fire extinguishers as door wedges. He didn’t respond to this complaint. He was told to climb on to buildings from hoists and the claims that this is prohibited but could not say by what regulation. He was denied access to toilet facilities by the foreman while working in Inchicore. He had difficulty accessing the toilet facilities in another site because of difficulties with the keys. The complainant could not provide dates. The foreman refused to provide a porta cabin; said maintenance would not permit it. The managing director came to C site and told him to clean up splashes on the floor which were not of his making. He submitted a copy of an email after the hearing which does not have a date on it but which he states was given to the respondent on the 9/11/17 and contains the statement that the foreman threatened to” break him”. The same email attributes his absence due to stress to the failure of the respondent to pay him the correct wages, overtime payments, to provide him with pay slips, and an accurate P60. wo Since October 2015, he received no payslips. This was corrected in November 2017 and pay slips issued. He advises that he first raised this matter with the respondent in March 2016. The respondent advised that his accountant was looking at it. On the 9/11/17, the complainant reported the respondent’s methods to Revenue; he showed them the discrepancy between his bank statements and pay slips- greater amount was paid into his bank account than appeared on his pay slip. The respondent provided him with a second set of pay slips in which the gross and net amount displayed was lowered and didn’t refer to overtime or days on which he was absent. He wanted legitimate pay slips and correct tax and PRSI deductions to be made by the respondent. He advised revenue that payment in cash to employees of the respondent meant Revenue were being short-changed. Three days following the hearing on the 19/2/18, the complainant submitted pay slips which revealed lesser amounts that those appearing in the transfers made by the respondent into his bank accounts. He needed pay slips which matched his bank account as he was trying to secure citizenship for his wife and such records were required. The complainant in his evidence to the hearing stated that Issues of toilet access and health and safety concerns predated his complaint to revenue. In November 2017 he asked the respondent for a copy of his anti- bullying procedure. He Was not provided with one. CA-00015760-009. Complainant states that he was penalised for reporting breaches of the Criminal Justice Act 2011 to Revenue. His own evidence is that he reported the discrepancy between what went into his bank account and what appeared on his pay slips to Revenue on 9/11/17. He made a report of bullying to the director in November 2017. Complainant states that the director said to him that if he reported him to Revenue concerning alleged under deductions of pay and PSRI he “would be a very sorry man”. He reported this incident to Blanchardstown Garda Station who stated that they would ring the director. On 6 or 7 of November 2017, on entering an apartment complex in which they were working, the foreman said to the complainant “if you steal from me again, I’ll smash your face in”. A few days previously, around the 6 November, the foreman had texted the director to say that the complainant had stolen a brush. The complainant asked the director to come down to the site and to notify the police of the foreman’s threatening behaviour. He ignored it. The complainant reported this incident to Store St Garda Station who informed me that they would speak to the director about the foreman’s behaviour. On Sunday 12 November the complainant received a txt from the director to advise him to take the following day off with pay as he had to consider a report about the incident on the 6 November and that he would speak to him on the 14 November on site. On 14 November he went into work and the director asked him to sign a blank page which he declined to do. The respondent director mentioned that a sweeping brush was missing from the van. Complainant emailed a report of the incident to the respondent on 6/11/17. One week later the respondent advised the complainant that the respondent’s HR provider was to undertake an investigation. The director texted the complainant on 14 November to say he was dismissed with pay while the investigation was current and that he had refused to supply the director with a written, signed report of the incidents which occurred on 6 November. The complainant’s salary ceased at the beginning of December. |
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Summary of Respondent’s Case:
CA-00015760-007 The respondent has been a provider of painting and decorating services for 14 years. The respondent stated that he was sorry that it had come to this. The complainant was a good worker and he never had any concerns about the quality of his work On 7/11/17 the respondent received a text from the complainant to say that the foreman was after making threats against the complainant again. The respondent went to the site about 2 hours later. The complainant had left. The Respondent states that he was surprised to get text as he was not aware of any bullying behaviour. The complainant texted the respondent to say that he was going to a Garda station. The respondent advises that he never received any contact from the Gardaí. He questioned the foreman who replied that he had words with the complainant about breaking into the van on the 6th and taking the brush. The respondent told the foreman that there should not be any words between them; he would deal with any difficulties and that he the foreman should come to the respondent. He advised the foreman that there was an investigation underway into the matter of the missing brush. The respondent engaged a HR advisor in November who is drawing up an anti-bullying policy The foreman left after Christmas. The respondent disputes that the complainant had limited access to toilet facilities as he had a key for C site. The complainant never advised the director of any difficulties accessing the toilet facilities. He asked the foreman about the allegation concerning him throwing dust on the floor and he states that the foreman said that this was madness. He denied it outright. He advised the complainant that the foreman would provide him with gloves and masks. The respondent advises that he examined the gloves and mask used by the complainant and believed them to be adequate. The complainant had been requesting spraying masks with filters on the side which were not necessary as they are used for spraying. The respondent heard nothing from the Health and Safety Authority. Complainant never advised respondent previously that he had any issues with dusting down or sanding. The respondent emailed him a P 60 for 2016, asked the complainant to identify the discrepancies. The complainant has not reverted to him yet. Revenue contacted the respondent on 6/2/18 re inspection of records. When the complainant stated he was s going to Revenue the respondent replied that he should go ahead, that he had nothing to hide. In reply to a question about reduced responsibilities for the complainant and the transfer of his responsibilities to the new foreman, the respondent advised that the Complainant submitted certs for the period 25/9/17-13/10/17 due to stress and a chest infection. He submitted a further cert for 9/10-13/10/17, then a cert for work related stress on 24/10 and was declared fit to return on 25/10/17. He then advised that he needed a few further days and came back from sick leave end Oct /early November. The respondent needed someone to start on the C site at the beginning of October and the foreman was assigned to work on that site in the first week of October. The respondent’s best guess is that the complainant was paid up to the 2nd week in December. The complainant was observed working for his previous employer on 17/12/17 by two of the respondent’s employees. Witness A for the respondent gave evidence that he saw the complainant, in his car, dressed in work gear, collect a former employee of the respondent at 7.30 am on the 17th December. He advised that he seldom does overtime. Witness B for the respondent gave evidence that he does not do overtime and is paid into a bank account They have safety harnesses, masks and gloves and knee pads
CA-00015760-009. When the complainant stated he was s going to Revenue concerning the alleged under deductions of tax and PRSI the respondent replied that he should go ahead, that he had nothing to hide. The Gardaí did not contact him. The complainant texted the respondent on the 7 November to say that he was going to a Garda station concerning threats made to him by the foreman on the on the 6 or 7 November. The respondent advises that he never received any contact from the Gardaí. The respondent denies that he retaliated against the complainant or penalised him on foot of these reports to the Gardaí. |
Findings and Conclusions:
CA-00015760-007 The complainant’s claim is that he was subjected to bullying behaviour by the respondent director and his foreman and was denied a process to try and rectify matters. He states that this bullying followed on foot of his stated concerns about health and safety issues and his requests about payslips and correct PRSI and tax deductions. The respondent accepts that conflict arose between the complainant and the foreman. The respondent accepts that no process was in place bar his own efforts to address the matter on the 7/11/17, when he went to the site to find that the complainant was gone plus his advice to the alleged perpetrator to come to him, the director, in the event of any more difficulties. The respondent did not deny that the threatening statement of the 7/11/17 and attributed to the foreman had taken place. The issue of demeaning and intimidating statements such as I’ll break you and name calling made by the foreman, and the complainant’s notification of same were not addressed. He has since engaged a consultant to draw up an anti-bullying policy. The denial of a specific type of masks and gloves was referred to the foreman to resolve. The request to be relieved of sanding and dusting and an assignment to what the complainant describes as a amore menial role was not addressed. The email from the HSA dated 3/11/17 signposts the complainant to the publications section of their website but does not state that a particular type of mask is sub-standard. Most of the instances of alleged bullying occurred before the 9/11/17 – the date on which he made the report to Revenue but that does not mean that mean that they did not merit attention. Furthermore, the complainant states that he had mentioned incorrect pay slips to the respondent on many occasions prior to the 9/11/17. The complainant is no longer in the employment of the respondent. I acknowledge that the complainant was entitled to work in an environment free from threat and abuse. He was entitled to work in a smoke -free environment. The respondent offered no processes for the complainant to address these complaints. As the respondent had no avenue open to the complainant to try and rectify these matters, I recommend that he should pay the complainant €2,578 an amount equal to 3 weeks’ salary in recognition of the distress experienced by the complainant.
CA-00015760-009 The complainant draws on the protection of section 20 of the Criminal Justice Act 2011. His complaint on his complaint form is that he was penalised by way of being marginalised and given the dirtiest and most hazardous tasks on foot of him reporting health and safety issues to the respondent and what he calls financial wrongdoing by the respondent in that he does not receive pay slips an, has greater amounts going into his bank account than are declared his pay slips. The Law Section 20 provides that (1) “An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee— (a) for making a disclosure or for giving evidence in relation to such disclosure in any proceedings relating to a relevant offence, or b) for giving notice of his or her intention to do so.” Section 20 (6) of the 2011 Act defines disclosure as “disclosure”, in relation to an employee, means a disclosure by the employee to a member of the Garda Síochána of information which he or she knows or believes might be of material assistance in (a) preventing the commission by any other person of a relevant offence, or (a)(b) securing the apprehension, prosecution or conviction of any other person for a relevant offence So, it is necessary to identify in the first instance if the complainant made disclosures of a nature comprehended by the 2011 Act. Secondly, it is necessary to examine if the respondent’s response to these disclosures amount to penalisation as defined in the 2011 Act and if the disclosures were the operative reason driving the acts of penalisation.
Disclosures Section 20(6) of the Act dictates that I must confine my examination to those disclosures which the complainant states he made to the Gardaí. Disclosure 1 Complainant states that the director said the respondent’s threat that he” would be a sorry man “should he report the alleged infringements in respect of an employer’s obligation to deduct tax and PRSI from all earnings to Revenue. He could not provide the date on which this statement was made to him or the date on which he disclosed it to Blanchardstown Garda station. There is no evidence of contact between Blanchardstown Garda Station and the respondent. The complainant’s email to the respondent which he states was sent on 9/11/17 makes no reference to the threat made by the respondent, a threat which he reported to Blanchardstown Garda Station. His concerns in that email were about pay slips and the behaviour of the foreman Disclosure 2 On 6 or 7 November 2017, on entering an apartment complex in which they were working, the foreman said to the complainant “if you steal from me again, I’ll smash your face in”. A few days previously the foreman had texted the director to say that the complainant had stolen a brush. The complainant asked the director to come down to site. He ignored it. The complainant reported this incident to Store St Garda Station on the 6th or 7th of November. These disclosures match the definition set out in section 20 (6)(a) above. Penalisation. Penalisation is defined in section 20 (6) as “penalisation” means any act or omission by an employer, or by a person acting on behalf of an employer, that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes— (a) suspension, lay-off or dismissal, (b) the threat of suspension, lay-off or dismissal, (c) demotion or loss of opportunity for promotion, (d) transfer of duties, change of location of place of work, reduction in wages or change in Working hours, (e) the imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), (f) unfair treatment, (g) coercion, intimidation or harassment, (h) discrimination, disadvantage or adverse treatment, (i) injury, damage or loss, and (j) threats of reprisal.” What acts of penalisation were identified by the complainant? The complainant cites the following as instances of penalisation following on his disclosures to the Gardaí. Intimidation and harassment by the foreman and notified to the respondent director. The requirement to climb from a hoist onto a roof. The failure to give him the correct masks. Failure to ensure fellow employees are not smoking in the workplace. Demotion in the sense that the new foreman who commenced in October 2017 took on the leadership role formerly undertaken by the complainant. He did not state that there was a loss of salary. The above instances are encompassed within the definition of penalisation set out in section 20(6) (c),(f),(g),(h),(i) but if they occurred must conform to the test for penalisation set out by the Labour Court in Determination no HSD1315, a case taken under a different statute, Safety , Health And Welfare At Work Act, 2005 where the Court pointed out its own definition of penalisation , contained in O’Neill v Toni and Guy Blackrock Limited [2010] E.L.R. 21,” ….in order to make out a complaint of penalisation it is necessary for a complainant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Section 27(3) of the 2005 Act. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant 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 Complainant 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”. Penalisation for disclosure 1 He could not supply a date when he went to the Gardaí about the respondent’s statement that you will be a sorry man – a statement denied by the respondent -were he to report the matter to revenue. By way of copy of email to the respondent, undated, and which he says was sent on the 9/11/17 and submitted to the WRC 3 days after the hearing, the complainant writes “I now wish to bring to your attention that since I returned to work after 1st period of absence for stress, I am being constantly harassed by your foreman”. There is no reference in this email to the threat made by the respondent on foot of the complainant’s declared intention to disclose. The first period of sick leave ended on 9/10/17. The complainant’s own evidence was that the complaints about health and safety concerns and the manner in which the foreman spoke to him preceded the 9/11/17 – the date on which he made the report to Revenue. The onus is on the complainant to make the link between the disclosure to the Gardaí and the retaliatory actions or penalisation by the respondent. The respondent denied that he ever made such a statement. The complainant did not supply the necessary evidence to make the link between his undated disclosure to the Gardaí concerning the alleged undated threat which the respondent made to him that he would be a sorry man were he to go to Revenue about the respondent’s alleged infringements and the acts of penalisation. I do not find that this disclosure if made was followed by acts of penalisation. Penalisation for disclosure 2 This was made on the 6 or 7 November. These instances, which match the instances contained in disclosure 1 above, by his own evidence ,predate his report to the Gardaí on the 6 or 7 November. I do not find that this allegation of penalisation matches the requirements of the 2011 Act.
Later incidents of alleged penalisation The complainant was suspended with pay on 14/11/17 until he provided a signed report for the investigation which was to be conducted by an external HR expert into the incidents of the stolen brush and the threats made to him by the foreman on the 6 or 7 November 17. The complainant did not dispute that this was the reason for the paid suspension. The complainant’s employment ended with the respondent in the first week of December 2017. Both of these last two events took place after the submission of the complaint to the WRC on 13/11/17. |
Decision:
Section 41 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 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
CA-00015760-007. I recommend that the respondent pay the complainant €2578, a sum amounting to 3 weeks wages for the failure to provide mechanisms to process the complainant’s legitimate concerns. CA-00015760-009. Based on the evidence submitted and for the reasons cited above, I do not find this complaint to be well-founded. |
Dated: 1st August 2018
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Failure to provide processes to address health and safety concerns and complaints of bullying. Penalisation and Criminal Justice Act 2011. |