FULL RECOMMENDATION
SECTION 29 (1), SAFETY HEALTH AND WELFARE AT WORK ACTS , 2005 TO 2014 PARTIES : COVIDIEN IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - DAVID HOGAN (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Haugh Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision No: ADJ-00003168.
BACKGROUND:
2. An Adjudication Officer's hearing took place on 6 December 2017 and a Decision was issued on 27 March 2018.
The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 4 May 2018. A Labour Court hearing took place on 29 June 2018.
DETERMINATION:
This matter came before the Court by way of an appeal by Mr David Hogan (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00003168/CA-00004580-002, dated 27 March 2018) under the Safety, Health and Welfare at Work Act 2005 (‘the Act’). The Adjudication Officer held that the Complainant’s claim that he had been penalised within the meaning of section 27 of the Act was not well-founded. The Complainant’s Notice of Appeal was received by the Court on 4 May 2018. The Court heard the appeal in Dublin on 29 June 2018.
The Complainant has been employed by Covidien Ireland Limited (‘the Respondent’) as a General Operator since 18 July 2005. In December 2015 he was assigned to carry out screening checks on two production lines simultaneously. The practice of assigning Operators to two lines simultaneously had been in place for over a year at this stage and none of the Complainant’s colleagues had raised any issues about it. The Complainant refused to carry out the instruction he had received as he believed the practice gave rise to quality issues. The Respondent made a number of attempts to assuage the Complainant’s concerns: for example, it deployed both a process engineer and a quality engineer to address specific quality assurance issues raised by the Complainant.
The Complainant completed the combined task as instructed on 4 ,5 and 6 January 2016. However, on the latter date he submitted a letter to his Supervisor setting out his concerns. The Respondent initiated a disciplinary process in response to the Complainant’s refusal to carry out the tasks assigned to him. This culminated in the Complainant receiving a written warning. The Complainant submits that the initiation of the disciplinary process against him following his having raised concerns on 6 January 2016 about the task he had been assigned to perform from 14 December 2015 amounts to penalisation within the meaning of section 27(1) of the Act.
The Complainant’s submission is grounded in section 27(3)(c) of the Act which 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 of the Authority, as regards any matter relating to safety, health or welfare at work”.
Preliminary Issue
A preliminary issue was raised on behalf of the Respondent at the opening of the within hearing. That issue concerned whether or not the initial complaint raised by the Complainant constituted a protected act for the purposes of section 27(3) of the Act. The Respondent submits that the claim giving rise to the within appeal is misconceivedab intiobecause the Complainant, at no stage, made a complaint “as regards any matter relating to safety, health or welfare at work”.
The following is the kernel of the written complaint submitted by the Complainant to the Respondent’s Quality Assurance and Human Resources departments on 6 January 2016:
- “I wish to have it known that even though I am doing the machines I cannot in good conscience stand over the quality of product coming off both machines while this practice continues and my concerns are not taken into consideration and I am being asked to carry out these duties and find it very disheartening and stressful to be asked to sign grievance forms for quality issues that are at the forefront of my conditions of employment.”
The written complaint submitted by the Complainant to his Supervisor and addressed also to the Respondent’s Quality Assurance and Human Resources departments speaks for itself: it was a complaint in relation to product quality. It cannot be construed as a complaint or representation of the type contemplated by section 27(3)(c) of the Act. That being the case, the issue of whether or not the Complainant was penalised within the meaning of the Act does not arise for consideration by this Court.
The appeal fails and the decision of the Adjudication Officer is affirmed.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
9 July 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.