Complainant

Respondent

Anonymised Parties

A Senior Technical Officer

A University

Representatives

An Employee Relations Consultant

Act

Complaint 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-00011929-001

16/06/2017

The complainant has been employed with the University since 1st September 2003 and is currently a Senior Technical Officer. He claims that he was penalised by being redeployed and not promoted when he reported concerns to do with safety, health and welfare.

The complainant was happy to proceed unrepresented. He detailed that in 2010 he was working in another location where there were many disputes including bullying allegations which made it very difficult for him to stay working there. He was employed at the time as a Chief Technical Officer (CTO) with the respondent.   He received a transfer and was demoted to the role of Senior Technical Officer (STO). His bullying concerns were investigated.

His transfer was subject to a Labour Court Recommendation in 2012 under the Industrial Relations Act (LCR 20399) which detailed that “neither party in this complaint should suffer any diminution in reputation or opportunities as a result of engaging in this process”.

He believed that following the LC Recommendation his role was changed regularly disproportionate to anyone else and that his duties went beyond that of STO. He brought a claim to a Rights Commissioner in September 2015 under the Industrial Relations Act (r-152923-ir-15) where the rights commissioner detailed “he retains a priority right to revert to his former position” but that the rights commissioner was not in a position to make a “recommendation favourable to the claimant”. He detailed that following this complaint to the Rights Commissioner his role continued to be changed and he was instructed to commence duties categorized as high risk allergenic exposure in a unit where the respondent knew he was asthmatic.

He raised health and safety concerns on 18th December 2015 to the Head of HR, Mr A, as he was required to commence high-risk allergenic work which he was unsuitable for (due to asthma) and detailed that this was in breach of the respondent’s own code of practice on laboratory acquired allergies. There were no opportunities for promotion to the role of CTO until 2016 when two posts were advertised - Post 1 and Post 2.

He applied for both roles and received notification that he was unsuccessful albeit secured first reserve for Post 1. He believed he was more qualified than those who secured Post 1 and Post 2 and made repeated reference to the unsuitability of Mr B who secured Post 1.  

He believed there was bias in terms of the interview panel which amongst other things was subject to a claim by him under the Industrial Relations Acts at a hearing which was heard in June 2017. In the copious amount of correspondence that was sent through following the hearing, the complainant made reference that he had withdrawn this claim.

The complainant details that the instant complaint differs to previous complaints, including the most recent one in June 2017, under the Industrial Relations Act, as the instant complaint is that he was penalised for raising health and safety concerns in December 2016 by being redeployed and not being promoted.

He detailed at the hearing that he would have brought a claim under Section 28 of the Safety Health and Welfare at Work Act 2005, earlier if he had been made aware of the legislation and that the fault for this lay with his union representative but that he was unable to get confirmation from his union that they failed to advise him appropriately. Following the hearing he outlined ongoing difficulties he had with the respondent’s delay in releasing information to him.

Case law cited by the complainant during the hearing included DEC-E2014-078, HSD171 and DEC-E2014-039.

The respondent disputed the allegations made.

Preliminary Issues:

As a preliminary issue the respondent submitted that there were no alleged acts of penalisation within the cognisable period covered by the claim.

A second preliminary was raised by the respondent that the submission for this instant case mirrors the one made under the Industrial Relations Acts, heard by an Adjudicator on 1st June 2017 and the issues raised are therefore sub-judice and that in any effect many aspects of his current claim have been dealt with previously.

Substantive Issue:

Without prejudice to the above, the respondent outlined that they were unclear what were the specifics of the complainant’s complaints as in his submissions he brought up matters that had been dealt through previous investigations including through the auspices of the then Labour Relations Commission and Workplace Relations Commission.

The respondent outlined that the complainant was shortlisted for interview and was not ranked first by the Board of Assessors. The 1st ranked candidate Mr B was deemed to have marginally, higher capacity/competency to fulfil the role and he had met the criteria to be interviewed as he had been an Experimental Officer in his previous role which was a post equivalent to STO. The weighting was agreed on by the board through consideration of competencies required for the role and there was no relationship between the weighting and scoring at interview and the complainant’s record of ‘complaints on safety’.

It was unclear whether and to whom the complainant’s formal health and safety concerns had been raised as they had not been raised with the Dean or the Director of the union.   The university refuted the statement that they are non-compliant with safety regulations and that there was no evidence to support this allegation

With regard to the claim that the complainant was redeployed, it was outlined that it is the norm to reallocate employees to better co-ordinate provision of technical support and that was the reason for the complainant’s redeployment.

The respondent was requested to forward information following the hearing confirming that Mr B had held the required post to qualify for applying for the role of CTO.   They detailed that they could provide this to the adjudicator but not to the complainant as it could be in breach of data protection. They were advised that as the hearing was private all information would be treated as confidential by both the complainant and the adjudicator. The respondent then provided a one page document which appeared to indicate positions ‘a person’ had held at the university.    

There have been various complaints brought by the complainant against the respondent during the course of his employment, many of which have been decided upon by previously issued decisions/recommendations or indeed being withdrawn. They are referenced in this decision, as indeed are his comments on the suitability or otherwise of Mr. B for a post, purely by way of background to the complainant’s level of dissatisfaction. In this claim the submissions from the complainant were substantial with copious volume of documentation and oral evidence heard over the day of the hearing and following it which were copied to both sides; with both sides given an opportunity to respond. Whilst I will not be referring to every email, incident, witness or event, I have taken into account all the submissions including oral and written made to me in the course of my investigation as well as the evidence presented at the hearing relevant to this instant complaint.

The complainant at times had difficulties articulating what his specific complaint was as it was clear that he remained upset with the outcome of previous disputes. He also had to be regularly reminded to limit his submission to that which was relevant to the complaint in front of me, namely under Section 28 of the Safety, Health & Welfare at Work Act, 2005. His specific claim, was that he was penalised by being redeployed and not promoted when he reported concerns relating to safety, health and welfare.

Section 27 of the Act details penalisation as .— (1)

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—

( a) 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,

( 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—

( 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 11or appointed under section 18to 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.

Preliminary Issue:

As a preliminary issue, the respondent detailed that the claim was out of time. The complainant submitted his claim to the Workplace Relations Commission on 16th June 2017. The complainant details that he made a number of protected acts including that on 18 December 2015 he emailed the then HR Director Mr. A outlining his safety concerns of being required to do high risk activities in the unit. With regard to the time limits for submitting a claim under the Act, section 41(6) of the Workplace Relations Act 2015 provides a six-month time-limit within which a complaint in respect of an alleged penalisation can be made. This is the six-month period from 17th December 2016 until 16th June 2017. This can be extended for a further six months if it is reasonable to do so.

In the large volume of correspondence received after the hearing and exchanged; the complainant submitted that his failure to submit his claim within the six-month period was owing to repeated failures of the respondent. However, I note that in his submission on the day, he outlined that he only submitted this instant claim when he became aware of this specific legislation on the day of the hearing brought by him under the Industrial Relation Acts in June 2017. He furthermore, outlined his annoyance that his union representative had not made him aware of this piece of legislation. Taking into consideration all the evidence, I therefore, find that by his own admission it was not the fault of the respondent that the complainant did not submit this claim earlier and I do not find it reasonable to extend the time limit from six to twelve months. Therefore, the cognisable period is December 17th 2016 – 16th June 2017.

With regards to the second issue raised namely that the issues raised are “sub-judice”, it was detailed at this hearing and indeed considerable time was spent on this issue, that the complaints before me were specific to alleged penalisation which had not been the subject of the complainants previous claims. Therefore, I shall allow that specific complaint to proceed.

Substantive Issue:

As the complainant received notification of being unsuccessful for Post 1 and Post 2 in June and July 2016, which are outside the cognisable period, I find I do not have jurisdiction to hear this aspect of his complaint.  

In relation to his other complaint that he was penalised by being redeployed; 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 occurred 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 find that it was not unusual to redeploy employees, including the complainant, at various time as the needs of the university required and there was nothing to suggest that the complainant’s redeployment was in any way related to his health and safety claim. The Complainant has not established any causal link between the alleged protected acts and the alleged penalisation. His claim is, therefore, not well founded and is therefore, dismissed.

The claim is, not well founded and is therefore, dismissed.

Safety, health and welfare at work