Complainant

Respondent

Anonymised Parties

A Postal Operative

A Postal Company

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-00016045-001

23/11/2017

The Complainant commenced employment with the Respondent, a postal delivery organisation, as a Postal Operative in March 2008. In July 2017, the Complainant refused to take a package on his delivery route, citing safety concerns at the time. The Complainant was instructed to take the package on his round by his manager, he refused. The Complainant was subsequently issued with a warning by the Respondent.  

The Complainant believes that the issuing of this warning constitutes penalisation contrary to Section 27 of the Safety, Health and Welfare at work Act, 2005.

The Complainant provided a written submission

The Complainant submits that he has worked as a Postal Operative since 2005 and up to this issue had an exemplary disciplinary record, he takes pride in his work and does it to the best of his abilities every day.

The issue relates to a parcel the Complainant believes it was unsafe to be delivered by bicycle. The Complainant puts forward that there is a facility for parcels that are too big for a bicycle to be delivered in a van. On Monday 10th July 2017, the Complainant's designated van driver gave him a parcel he deemed too small for him to deliver. The parcel was long and narrow and the Complainant was unable to load it on his bicycle without it sticking out. The Complainant brought this to the attention of his manager, however his response was to insist the Complainant take it out and threatened him with disciplinary action. The Complainant felt he had no option other than to leave the parcel on the sorting bench as he was not prepared to put his or other peoples' safety at risk.

The following day, the Complainant submits, that he was called into a meeting attended by his manager, his team leader and his union representative.   At this meeting, he was asked why he had not delivered the parcel the day before and he re-iterated the fact that he felt it was unsafe to be delivered by him on a bicycle. The Complainant submits that his manager said he was not accepting his answer and went on to say that he had 15 minutes to consider his position or he would be removed from payroll. According to the Complainant the meeting had at that point degenerated into a shouting match with neither party backing down from their positions.

Later that morning the Complainant was informed by his union representative that the parcel was going to be delivered by van. Later that week the Complainant received a first level warning from his manager which appealed to the Operations Manager.

The Complainant contends that an appeal meeting was cancelled by his union but management blamed him for not attending the meeting. A letter written by the Complainant's manager to the Operations Manager was inaccurate. The Complainant submits that his manager did not assist him as he should have, when he raised a matter of health and safety.

Subsequently the Complainant appealed the decision to the Operations Director, again this appeal was turned down.

The Complainant submits that the entire process took more than four months to be completed, even though the Company policy states it should be completed in a matter of days. The Complainant also states that he did not receive all the pertinent paperwork related to the incident and disciplinary process and believes he has not been afforded proper procedures throughout the whole process.

The Complainant is disappointed that the raising of a relatively small health and safety issue, which should have been resolved on the day, has ended up in the WRC. However, he feels he has had to take the matter this far as he firmly believes he has done nothing wrong.

The Respondent provided a written submission.

The Respondent believes the complaint made is unfounded and that the Complainant was not penalised as claimed.

The Respondent submitted that the Complainant is responsible for the preparation and delivery of letters and packets for his delivery route. He delivers mail on his route by bicycle.

All items for delivery are categorised into one of four types: Letter/Postcard, Large envelope, Packet and Parcel. The Packet category applies to smaller three dimensional items like boxes, tubes and envelopes under 2KG in weight. Maximum dimensions for a packet are a combined length, height and depth of 900mm. No individual dimension can exceed 600mm, with a tolerance of 2mm.

Items that are bigger or heavier than the maximum size and weight limits of a Packet are classed as a Parcel and delivered by another company employee using a company vehicle.

On the 10th July 2017, the Complainant refused to take a packet out on delivery that was proper to his delivery route. According to the Respondent the item was comfortably within the maximum dimensions for a packet, being 406mm in length.

The Complainant argued that the packet was outsized and was 'too big for his bike'. At a meeting with his manager the next day to discuss the matter, he again refused to deliver the packet on the basis that 'it was not safe'. In arguing this position, the Complainant appeared to be relying upon an internal company Safety Task Procedure, which states that 'when cycling ….loads must be secure and not stick out'.

Company bikes are equipped with a front basket and paniers (as required).   Additionally, operatives are provided with a satchel. Given the size of the packet and that it was well within the maximum dimensions and that there was no apparent issue with weight, including overall weight of the bicycle load, the company position is that it was wholly reasonable to expect the Complainant to deliver the packet.

In circumstances where the Complainant refused, the matter was addressed with him on a disciplinary basis and disciplinary sanction issued.   The Complainant appealed the disciplinary sanction internally to the Operations Manager and ultimately the Head of Region but his appeal was rejected. The Respondent contends that the Complainant was afforded representation and fair process.

The Respondent believes that the Complainant behaved unreasonably and contrary to his responsibilities as a Postal Operative to deliver all mail items proper to his delivery route.

His actions in refusing to deliver the packet, according to the Respondent, amounted to wilful delay of the item, impacting unnecessarily on the customer and is a very serious disciplinary matter.

The Respondent submits that the disciplinary sanction was very reasonable considering the seriousness of the issue. The Complainant had a sanction of a First Level Written Warning recorded on his personnel file. This sanction is a second-tier sanction in a 5-stage disciplinary process that ranges from verbal warning to dismissal. The warning arose from (i) his failure to deliver an item of mail, proper to his delivery route and contrary to the instruction issued to him by his manager and (ii) the unacceptable way he spoke with his manager in relation to this issue.

The sanction will expire in July 2018, provided the Complainant does not come upon further adverse notice between now and then.

At the Hearing the Respondent pointed out that it is up to the manager to use his discretion as to what category an item for delivery falls into and thus decide what way it is delivered either by van or by Postal Operative.

Section 27 (3) of the Act provides as follows – “ 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 and 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 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 appropriate steps to protect himself or herself or other persons from the danger.”

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—

(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. 

(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) […]

 (5) […]

 (6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

From the evidence adduced I am satisfied that the issue raised by the Complainant regarding the parcel was investigated and his manager was of the belief that there was no risk to the safety of the Complainant. It is interesting to note that in his Complaint Form the Complainant quotes his own union representative as saying, "In fairness, (Complainant’s name), that's a packet." (Meeting with complainant's manager, 11th July 2017).

I note the findings and conclusions in a recommendation of the Labour Court in Determination No. HSD 102 when it sought to reflect on the jurisdiction of the Court in relation to Section 27 where is said:

 “This Section is intended to protect employees who exercise any of the rights referred to at Subsection (3) from retaliatory conduct by their employer. In applying the provision the Court must be careful to recognise the distinction between a detriment which may be suffered by an employee as a result of an employer’s failure to fulfil a duty under the Act and a detriment amounting to “penalisation”. Therefore, the Court must be careful not to claim jurisdiction which it does not have by classifying as penalisation conduct, by act or omission, which is properly classified as a failure to fulfil a general duty imposed by the Act. Accordingly, the Court must now consider if the subject-matter of the within complaints, taken at their height, should properly be classified as penalisation as opposed to a contravention of the general health and safety imperatives of the Act. Subsection (1) of this Section defines penalisation in broad terms and can include a failure to act which results in a detriment to an employee in terms of his or her conditions of employment. Crucially, however, what is rendered unlawful by Section 27(3) is acts or omissions of the type referred to at Subsection (2) directed at an employee for having committed an act protected by that Subsection. Hence the decisive consideration is that of causation. It is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by Subsection (3) and but for the protected act the employee would not have suffered the detriment complained of (see Determination No HSD095, Toni & Guy Blackrock Ltd and Paul O’Neill).”

 The decision in Toni & Guy Blackrock Ltd and Paul O’Neill as referenced above is often quoted by the Labour Court as an authority under the Safety, Health and Welfare at Work Act 2005 it clearly sets the tests that should be applied to the circumstances on each case. It states that,

 “It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant 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 Claimant 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 determent.”

 In the case before me for consideration, I am satisfied that the complainant has made a protected act, raising concerns for his safety due to the size of a package, and has sought to link the disciplinary action taken against him as penalisation under the Act.

For a claim of penalisation under the Acts I need to be satisfied that, put simply, the respondent acted in a manner of bad faith because the complainant raised a complaint. I am not at all convinced that to be the situation.

I believe the Complainant was not disciplined for raising his concerns vis-à-vis the parcel and his bike but firstly, because of his continued refusal to take the parcel after his manger had checked the situation out and was satisfied there was no risk to the Complainant if he carried the parcel on his bike and secondly, because of the manner of his interactions with his manager.

With regards to the allegations of procedural unfairness raised by the Complainant, whereas the process was drawn out I do not believe it was unfair.

Having investigated the above complaint, I hereby make the following decision in accordance with Section 28 of the Safety, Health and Welfare at Work Act 2005,

The Complainant has not established a case of penalisation contrary to Section 28 of the Safety, Health and Welfare at Work Act 2005. Accordingly, his complaint fails.　

Safety, investigation, disciplinary action