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-00008267-001

18/11/2016

Preliminary issue.

1.Re: WRC request for witnesses to attend.

Legal representative for respondent first stated that WRC had merely invited witnesses to attend, that the loss of 4- 5 craftsmen (the witnesses) was too much and that their absence might present a difficulty for the complainant.

Adjudicator advised that both the March 22nd 2017, and 14/12/17 notice to respondent requiring named witnesses to attend the hearing, stated that Adjudicator was acting in accordance with S. 41.(10) of Workplace Relations Act, 2015 which requires witnesses to attend. The respondent ‘s legal representative then said he only saw the March 22nd notice this morning.

2.Respondent’s legal rep stated that he was seeking a postponement of the hearing as one of the respondent’s witnesses in attendance at the hearing in Gorey was the subject of defamation proceedings, served on Friday 15/12/17, by the complainant, and that this witnesses’ evidence might overlap with whatever material arises in the defamation proceedings. He also referred to the immunity which witnesses enjoy from having to give evidence in a case, some of the substance of which might be played out in another action before another court. The cause of the defamation proceedings is an internal email sent by the witness to his superiors on 5/1/16 suggesting an agenda on the part of the complainant to manufacture a further injury.

The complainant’s barrister advised that the witness would not be required to give evidence. The complainant’s case is that he took a personal injury claim against his employer for an injury sustained in the course of his work in 2014, he sustained a further injury in 2016 and raised this matter with his employer. He received a reprimand from his employer shortly after this for doing something for which he was not yet qualified but maintains that 5 other named employees (the witnesses whom the adjudicator requested to attend the hearing but who were not permitted to do so) did likewise and were not sanctioned. He defines the sanction of a severe reprimand as the act of penalisation

The complainant’s legal rep also stated that evidence given at this quasi-judicial hearing would not be admissible in the defamation case.

The adjudicator advised that she intended to proceed. The respondent advised that he was withdrawing from the hearing and reserving the right to judicially review the decision of the adjudicator to proceed.

When asked if the respondent wished to defend the case, the respondent’s legal rep stated that it was up to the adjudicator to decide if and how she might factor the preliminary submission into her deliberations.

The respondent and legal rep then withdrew from the hearing..

Background

The complainant is an electrician employed with the respondent, a transport provider, since 2001.

In or about December 2012 the complainant suffered an injury at work through what he describes as an unsafe system while carrying out maintenance work. The complainant instituted legal proceedings against the respondent which were ultimately settled. The complainant returned to work following sick leave on 13/10/14. He states that on his return he was subject to continuous snide commentary and degrading remarks by 2 managers. Their behaviour caused him psychological injury. He went out on sick leave suffering from work related stress om 12/12/14. He submitted a complaint to the Respondent Equality Officer in December 2014. He met one of the regional managers with a view to resolving the natter locally.

He returned to work on 5/2/15.

The complainant sustained a further injury at work on 22 July 2015.He attempted and failed to secure injury at work benefit.

The complainant attempted to return to work on 4 and 5 January 2016. The respondent   refused him access to the workplace though the CMO, in December 2015, had approved his return to work.

The complainant was subject to a disciplinary process and issued with a severe reprimand on 14/6/16 for undertaking a task which the respondent contends he was neither qualified nor assessed as competent to perform.

The complainant’s representative contends that this reprimand constitutes an act of penalisation contrary to section 27(3) of the Safety, Health and Welfare at Work Act, 2005 in response to the complainant undertaking a protected act.

The complainant submitted his complaint to the WRC on 18/11/16.

The complainant is an electrician employed with the respondent since 2001, engaged in maintenance work on the transport infrastructure.

Up until December 2012 the complainant had no issues with the respondent. The complainant alleges that in or around December 2012, he sustained extensive personal injuries to his back while carrying out maintenance on what he says is an unsafe system. He went on sick leave and received physiotherapy and pain management treatment including lumbar injections for his injuries. The complainant brought legal proceedings against the respondent as a result of these injuries.

He returned to work in October 2014 and states that he was subjected to continuous snide and derogatory remarks regarding to his absence from work, legal proceedings and his then fitness to work by two middle management superiors. This behaviour caused the complainant to become unwell due to work -related stress.

On 12 December 2014, the maintenance supervisor became aggressive with the complainant about what tasks the complainant could and could not do notwithstanding that the CMO had advised a restriction in the duties which the complainant should do. On the same day, he went out on sick leave. His doctor prescribed stronger medication for stress and anxiety The complainant submitted a complaint to the Equality Officer in December 2014 about the behaviour of the maintenance supervisor’s behaviour.

He returned to work on 5th February 2015. The regional manager on foot of complaint submitted in December 2014 by the complainant urged both the complainant and the maintenance supervisor to shake hands. This the complainant did.

On 22 July 2015, the complainant sustained a further back injury. He was travelling as a passenger in the respondent’s van, crossing some rails which caused the van to jolt: he felt back spasm. The incident reports compiled by two colleagues dated 22/7/15 indicate that the complainant made a noise, appeared to be in a lot of pain and discomfort, complained of back pain, and was taken to a nearby hospital. The complainant contends that the respondent failed to put protective material or barriers on the rails and that this is a standard feature on all such structures in Ireland. The complainant advises that the injury he sustained resulted in further treatment and pain management and a further absence from work. The complainant instituted a fresh set of proceedings against the respondent for failing to have protective material or buffers(strails) in place on such structures.

The complainant sought a copy of the accident report from his line manager on27/7/15. He had been advised by the Health and Safety Authority to secure same. In October 2015, the complainant asked why the respondent had refused to enable him to apply for injury benefit when they had accommodated him in a previous injury. Injury benefit yields 100% of salary, illness benefit only 60%. The manager stated that the respondent’s safety personnel had investigated the incident and spot where the complainant had allegedly injured himself in July 2015 and concluded that the area was acceptable and that any impact was comparable to a car hitting a pothole and that he must have sustained the injury elsewhere and therefore it was not a workplace accident.

The complainant submitted a grievance complaint to the respondent chief engineer contending that the line manager was not qualified to make an assessment as to the cause of the injury. He sought an apology from the line manager for what he described as insulting and degrading insinuations that he was manufacturing the injury. The chief engineer did not uphold the complainant’s complaint. The investigation found that there was no evidence to support the complaint.

The complainant continued to receive treatment between July and December 2015. On the 22 December2015 the respondent Chief Medical Officer confirmed that the complainant was fit to resume normal duties as did his GP. These reports were submitted to the respondent on the 24/12/2015.

The complainant obtained documentation which demonstrates that the line manager disagreed with the medical statement concerning the complainant’s fitness to return to work saying in an email dated the on 24/12/15 to the HR manager

“I had and continue to have grave concerns over (the complainant’s) ability to discharge the duties of (his role) an x notwithstanding his physical fitness.

You were to explore alternatives as I do not see him returning to x Department as being a satisfactory position”

The complainant attempted to return to work on 4 and 5th January 2016. The complainant was refused access to the workplace by the maintenance supervisor. On the 6th January, the HR department wrote to the line manager confirming that the CMO was

“More than happy that (the complainant) was medically fit to return to the full duties of his role” and that this was supported by an Orthopaedic Consultant.”

The complainant obtained an email from the line manager to senior management stating that

“I find it hard to believe that (the complainant) can be returned to work on full unrestricted duties given how restrictive his previous return to work was with periods of work hardening and restricted duties requested by the CMO. My hypothesis is that being out sick as opposed to average earnings has expedited his return as sick cover has been exhausted….. My feeling tells me that if returned to duty he will either trip, slip or fall without a short period of time and will ensure that it is both witnessed and results in associated injury to his pre-existing condition. He will then claim average earnings. It will be far more difficult to refute than his previous incident of 22 July 2015”.

The complainant returned to work on the 6 January.

On 24/3/2016 the complainant signed a Development Plan in accordance with safety and technical standards. This plan was designed to last 6 months. This prohibition/limitation on the complainant’s work was not contained in the Development Plan per se but was included in an email from his line manager to the complainant and to management on 24/3/16 that he was not to undertake a lead role or act independently in asset maintenance or fault repair. This was not discussed at a y point with the complainant. After signing the plan the complainant returned to previous duties

In April 2016, he was assigned to and attended a fault with a colleague, who was not an electrician. He took the leading role as he was the only electrician present for that repair operation. He signed off on that job card and this was delivered to the maintenance supervisor who made no comment.

The complainant advises that his legal proceedings were settled on 4/5/16.

The incident which the complainant states is a protected act and which triggered the act of penalisation contrary to the provisions of the Act of 2005.

On the 17/5/16 the complainant and a colleague were instructed to attend and repair a fault in the transport system- a barrier fault. The relevant training, assessment of competence for this repair work fell within the category of “Barriers” which was within the remit of the complainant’s grade and function. The complainant advised that he had found, identified and repaired the fault in accordance with the agreed standard and as part of a team. After this they tested the mechanism and established that it was in good working order. The report document on the repair contains both his own and the colleague’s name. He signed off on the work as he felt it was unfair to ask the colleague to sign off on the work – the fault-which he had found, identified and repaired. He had the previous week signed off on electrical work without any response from the same line manager.

On May, 18th the complainant filled in a report card on the barrier.

The maintenance supervisor called him to a meeting on19/ 5/18 and asked him for a written explanation as to why he had taken a lead role in the repair operation on 17/5/18 contrary to what was in the agreed development plan. The complainant advises that he postponed giving him a written response until he could make contact with his union representative (he attempted to contact him twice) as he found the maintenance manager’s tone to be threatening and he had experience of frequent instances of conflict with him. The maintenance manager asked him 4 times to explain why he took the lead role. On the next day, the union representative made contact with the complainant and the complainant did respond in writing to the maintenance manager.

The complainant did advise that he understood that not taking the lead role meant that his colleague should have signed off on the fault.

The complainant submitted that no electrician in the respondent company had undergone a competency assessment in barriers. Complainant states that his union representative told him this. Nobody else to his knowledge has been prevented from taking a lead role. This was the basis for the summons of the 5 witnesses.

On the 23 May, the line manager emailed the complainant advising him that his position was untenable ad took exception to the complainant involving his union rep and regional manager.

On 31/5/16 the complainant was put through a disciplinary process on for the incidents of 17 and 19 May. He was charged with

1.       failure to carry out the maintenance manager’s instruction to supply a written explanation on 19 May as to why complainant took lead role in the repair of a fault when requested not to do so by your supervisor.

And

2.       for taking a lead role in a repair operation on the transport system when he had not been      trained and assessed on his competency to perform this function contrary to the development plan of 24/3/2016

On 14/6//16 he was issued with a severe reprimand to remain on his file for 12 months.

He appealed this sanction but his appeal was not upheld.

The complainant advised that though he had experience in working on assets, the respondent required that after December 2014, all employees must be trained and assessed as competent to work on these assets . He argues that staff members who had not been trained and assessed (and therefore not competent for the purpose of IM-SMS-018 standard) routinely signed off on work on the barriers: to date none of these staff have been warned, reprimanded or punished in any way whatsoever in relation to this issue.

Since taking the complaint to the WRC the regional manager has allowed him to work alone on the barriers. He still has had no training but has worked on these structures over the years.

The complainant’s representative sought the following;

The respondent to cease forthwith any behaviour designed to upset embarrass or cause hardship to the complainant,

Uphold the complaint that a breach of section 27 of the Act of 2005 occurred.

Declare the severe reprimand to be invalid;

Award damages for the loss, inconvenience, damage and expense caused to the complainant

Further … or … damages for breach of duty including statutory duty:

Award Costs

An order to the respondent to expunge all records disciplinary action from the complainant’s and respondent’s records

The respondent to take all reasonable steps to facilitate a transfer away from the section managed by the current supervisor and having regard to the complainant’s place of residence.

The respondent and his representatives withdrew from the hearing.

The respondent’s preliminary submission, provided to the adjudicator and to the complainant’s representative, contains the following points:

1.The complainant’s complaint that act of taking a lead role contrary to an agreed plan in a safety critical activity on the barriers on the transport system when his competence to perform same had not been assessed, and in circumstances where his peers operated under no such constraints

And

Refusing to provide a written report to his supervisor

were not acts which come within section 27(3) of the 2005 Act.

2. The reprimand for these actions which do not attract the protections of section 27(3) cannot therefore be seen as a penalisation.

The reliefs sought by the complainant are outside of the Adjudicator’s jurisdiction

This is a complaint of penalisation contrary to section 27(3) of the Act of 2005.

The statutory provisions dictate that I must decide if the activities for which the complainant was disciplined by way of a severe reprimand are activities which come within the protections laid out in section 27 (3) of the 2005 Act. Should these activities come within the ambit of section 27 (3), I must then decide if the reprimand was a retaliatory action and an act of penalisation connected to these activities.

Section 27(3) of the Act of 2005 states that an employee is protected from penalisation for

“1) Acting in compliance with the relevant statutory provisions,

2)performing or exercising any right under the relevant statutory provisions,

c) making a complaint or representation to his/ her safety representative,

d) giving evidence in proceedings in respect to the enforcement of the relevant statutory provisions,

e) being a safety representative,”

The complainant’s representative asked that the actions taken by the complainant and which should enjoy the protection of the Act should be seen in the context of the factual background. The proceedings instituted by the complainant against the respondent in 2015 and settled in April 2016 were presented as part of the factual matrix driving the respondent to issue a severe reprimand.

The act which the complainant’s representative specifies should enjoy the protection of the Act was the performance of a safety critical task done on 17/5/16 and in accordance with agreed standards. There is no dispute about the quality of the work done. The safety critical task was repairing a defective barrier. This was critical to the safety of the respondent’s transport system and all who travelled on it. Its performance did not endanger the safety and health of the complainant. Nor did its non-performance endanger the safety and health of the complainant. The fact that the complainant repaired a safety critical barrier, a task, assigned to him by the respondent but in a manner contrary to the specific provision of the agreed Development Plan that disallowed him to take a leading role until his competency to perform such operations was assessed was, in the complainant’s own evidence, the trigger which prompted the activation of the disciplinary code and the subsequent severe reprimand. Hence it is difficult to see how the repair of a barrier comes within the provisions set out in the above section. For example, subsections 27(3)(1) and (2) cited above, state that the protected act must be done in compliance with or in exercise of the “relevant statutory provisions.” Section 2 of the Act statesthat

“relevant statutory provisions mean existing enactments and this Act and any instrument made under this Act for the time being in force.”

Section 2, again states that “existing enactments means the enactments specified in part 1 of schedule 2”. Schedule 2 lists the relevant statutes. The evidence presented by the complainant does not support the contention that the protected act (the repair of the barrier) was done in compliance with or in exercise of the relevant statutory provisions set out in schedule 2 of the Act. Therefore it cannot enjoy the status of a protected act.

Hence the retaliatory action, allegedly triggered by the performance of an act which does not fall within the acts protected by section 27(3) of the 2005 Act cannot be seen as penalisation. Penalisation is defined in section 27(1) and (2) of the 2005 Act as

“Any act or omission by an employer or a person acting on behalf of an employer that effects to his or her detriment, an employee with respect to any term of condition of his or her employment.

(2) Without prejudice to the generality of sub-section (1), penalisation includes

…………..

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

coercion or intimidation.”

But the instances of penalisation must be in response to a protected act as opposed to the mere exercise of a management function which the complainant might believe was exercised unfairly. The complainant identifies the act of penalisation as the application of the disciplinary process and the issuing of a severe reprimand. It is a sanction identified as penalisation when applied in response to a protected act.

The connection between the institution of proceedings against the respondent and the application of a sanction is separated in time. But that was not the protected act identified by the complainant. The relationship between the complainant and his supervisors is troubled and there was clear and uncontested evidence that they did not respect his right to institute proceedings and that furthermore he was not wanted back in the line manager and supervisor’s department. On the uncontested evidence of the complainant’s representative the complainant was treated differently to his colleague electricians who, though their competency in repairing faults on barriers had not been assessed, were permitted to take a lead role and were never disciplined to the complainant’s knowledge for so doing while he alone was singled out and punished. But while this uncontested evidence of difference in treatment was put to the adjudicator, the protected act identified by the complainant does not come within the list of protected acts laid out in section 27(3). The complainant cannot draw on the protection against penalisation which applies to protected acts only.

The connection between a protected act and penalisation was not made in a way to satisfy the statutory requirements.

I do not uphold this complaint.

I do not uphold the complaint that the respondent infringed the rights of the complainant contrary to section 27 of The Safety, Health and Welfare Act, 2005

Protected act must comply with definitions in section 27(3) of the Act of 2005; Penalisation;