ADJ-00011905

Complainant

Respondent

Anonymised Parties

A Supermarket Chargehand

A Supermarket

Representatives

Michael Meegan, Mandate

John Barry, Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 6 of the Consumer Protection Act, 2007

CA-00015810-001

15/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 (Complaint withdrawn at the hearing)

CA-00015810-002

15/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00015810-003

15/11/2017

The respondent is a supermarket and the complainant worked there from November 2011 as a delicatessen (deli) chargehand. He resigned in January 2018, having been absent due to illness for several months.   He complains that he was penalised for reporting what he considered to be out of date food products to his employer.

On June 1st 2017, the complainant said that he found two products in a fridge in the delicatessen area of the store, one of which, a container of pasteurised egg, he claimed was out of date by seven years and the other, a cake, which he said was “infested with worms.” In his booklet of evidence submitted at the hearing, the complainant included a photo of the container of egg product, alongside the box in which he found the container. The box has part of a label with part of a barcode and the word “By” and the digits “10.” The complainant alleges that the use-by date of the egg product was 2010.

In his submission, the complainant said that he brought the liquid egg and the cake to the HR Manager who is also responsible for health and safety. He alleged that the products were placed in the fridge in his section of the store by a member of the bakery staff.

The following day, June 2nd, the complainant had an altercation with the chargehand of the “par baked” area who challenged him about the way he was speaking to a member of staff in the deli. Following an investigation which was carried out by an independent HR consultant, the managing director held a disciplinary hearing and the complainant was issued with a written warning. He appealed against the decision to issue this warning and his appeal was heard by another HR consultant. This is the person who attended the hearing of this complaint.

Summarising his case, Mr Meegan said that, by issuing the written warning, it is the complainant’s “strong belief that he was penalised by management for raising a protective disclosure regarding out-of-date products that could have had a serious implication for the protection of and the health of consumers.”

On behalf of the respondent, Mr Barry said that on June 2nd, the complainant was suspended following a complaint by the par baked chargehand that he had cursed at her and was aggressive when she challenged him about his conduct towards another colleague. An investigation was carried out in accordance with the respondent’s disciplinary procedure, the outcome of which was a written warning. This was sent to the complainant on July 27th 2017. Details of the investigation, the meeting notes and the evidence that was considered were submitted in the respondent’s booklet at the hearing.

At the investigation, the complainant outlined what occurred on June 1st, the day before the incident with his chargehand colleague, when he brought what he said was out of date product to the health and safety manager. He claimed that the reason the other chargehand reacted to him was because the out of the date products were from the bakery section of the supermarket which, he alleged, she was responsible for.

During the investigation, a manager from the store confirmed that he was informed by the health and safety manager that the complainant had brought what he claimed were out of date products to her office. He said that he removed a box with a container of liquid egg from the office of the health and safety manager, but there was no cake in the office.   It is the respondent’s position that no cake “infested with worms” and in fact, no cake of any description, was brought to the office of the health and safety manager.

It also emerged at the investigation that the egg product was not from the area of responsibility of the chargehand who made the complaint about the complainant’s conduct, but from a different section, referred to as the “scratch bakery.” The investigator concluded that the chargehand who complained about the complainant’s conduct was not aware that the out of date products ahd been reported the day before their altercation.

On August 2nd 2017, Mr Meegan sent notice of the complainant’s intention to appeal the decision to issue him with a written warning.

In his note of the appeal meeting, the HR consultant stated that the complainant “has appealed the disciplinary sanction on the basis that it is a direct consequence of his having made a ‘protected disclosure’ on the day prior to the alleged incident for which he was disciplined.”

The findings of the appeal meeting are set out in a report dated October 27th 2017. In summary, the findings were:

The box brought by the complainant to the office of the health and safety manager on June 1st 2017 contained a minimum of one container of liquid egg;

The consultant discovered that the liquid egg is a product only produced for sale in 2013;

The date stamp on the box was incorrect or the box in which the complainant brought the liquid egg to the health and safety manager was not the original box for that product;

The complainant did not record the date stamp on the bottle containing the liquid egg;

The two managers who handled the product did not check the date stamp;

During the investigation into the complainant’s conduct on June 2nd, and at the disciplinary investigation, the complainant made no mention of a protected disclosure;

The consultant hearing the appeal concluded that there was no protected disclosure prior to the initiation of disciplinary action.

The complainant maintains that he has been penalised by his former employer because he reported to management that he found out of date stock in one of the fridges in the store.   However, it is the respondent’s position that the complainant did not actually know if the stock was out of date as his contention was based on a date on the side of a box in which he said the product was stored. It has been established that the product did not exist in 2010, which is alleged to be the date on the box.

If the respondent is to accept that the complainant made a protected disclosure in good faith, then, Mr Barry stated, in accordance with section 87 of the Consumer Protection Act 2007, the disclosure must have been submitted to the National Consumer Agency.   At no time has the complainant suggested that he made a complaint to this Agency and, the respondent has no information that a complaint has been made. For this reason, Mr Barry said that section 87 of the Act, which prohibits penalisation of an employee for making a complaint to the Agency, cannot apply to the disciplinary sanction issued to the complainant on July 27th 2017.

Mr Barry referred to a case heard by the Labour Court, under section 12(2) of the Protected Disclosures Act 2014, that of Aidan and Henrietta McGrath Partnership v Anna Monaghan, PDD 162. Here, the Court referred to an earlier case of O’Neill v Toni and Guy Blackrock Limited, [2010] ELR 21, which was a complaint under the Safety, Health and Welfare at Work Act 2004. The Court maintained however, that “the general principle enunciated in that case remains valid in the case under consideration.”

In the Toni and Guy case, the Court found that to show that he had been penalised, the complainant, Mr O’Neill, must show that the detriment he complained about was imposed for having committed one of the acts protected by section 27(3) of the Safety, Health and Welfare at Work Act 2005. This includes, at sub-section (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.”

Mr Barry submitted that the complainant in the case under consideration must show that, but for reporting the allegedly out of date food, he would not have been issued with a written warning.   The warning in question was issued after an investigation into a complaint by a colleague about the complainant’s conduct. It was established at the investigation that this colleague had no knowledge about the complainant making a report about out of date product.   In conclusion, Mr Barry argued that, if the “but for” test is applied to these circumstances, it is clear that the warning was issued because of the complainant’s conduct and not for any reason related to his report about out of date product.

The Relevant Law

This complaint was submitted under the Consumer Protection Act 2007, which at section 87, under the side heading, “Protection of persons for reporting breaches” states:

“(1) A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication, whether in writing or otherwise, by the person to the Agency of the person’s opinion that—

(a) an offence under any of the relevant statutory provisions has been or is being committed, or

(b) any of the relevant provisions that prohibits a person from doing a particular thing or things has not been or is not being complied with,

unless it is proved that the person has not acted reasonably and in good faith in forming that opinion and communicating it to the Agency.”

Findings

The legislation is clear that penalisation of an employee for reporting a breach of any aspect of the Consumer Protection Act 2007, is prohibited. It is also clear that the reporting of a breach of the Act must be a report, “in writing or otherwise,” to the Consumer Protection Agency.

Before any consideration can be given to the question of penalisation, it must be established that a report has been made to the Consumer Protection Agency. As this preliminary requirement has not been met, I can proceed no further with my enquiry and I must find that this complaint fails.

To make an award of redress under schedule 6 of the Consumer Protection Act 2007, the complainant must establish that he has made a report to the Consumer Protection Agency under section 87 of the Act. As it is apparent that the complainant in this case did not make any such report, I have decided that his complaint fails.

The summary of the complainant’s case under section 28 of the Safety, Health and Welfare at Work Act 2005 is the same as that submitted under his previous complaint under the Consumer Protection Act 2007.

Section 27 of the Safety, Health and Welfare at Work Act 2005 (“the Act”) deals with protection for employees against dismissal and penalisation for taking certain actions in relation to health and safety. Subsection (3) provides that,

“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,

Sub-sections (d), (e) and (f) are not relevant to this complaint.

On behalf of the respondent, Mr Barry submitted that the complainant must show that a complaint was made as defined under section 27 of the Act in relation to the relevant statutory provisions. He argued that the subject matter of his report to the health and safety manager “does not fall within the confines of this Act.” He said that the complainant, in his role as a chargehand with the company, has a responsibility to report out of date stock, and to record the use-by dates of the items he identified. Mr Barry suggested that a person who is concerned that their employer is in breach of safety legislation in a manner that might cause a threat to others, as alleged by the complainant, would be careful to preserve the evidence and document the facts to support their claim. The complainant did not do this, although he is supposed to record any out of date items he might come across in the chill storage cabinet under his control.

Mr Barry went on to argue that, if the report does fall within the confines of the Act, then, like the complaint under the Consumer Protection Act, the “but for” concept applies here also. The complainant must show that, “but for” the fact that he reported allegedly out of date product, he would not have been issued with a written warning.

Like the argument in defence of the respondent’s position under the Consumer Protection Act, Mr Barry said that the first time the complainant referred to a protected disclosure was in his letter notifying the company of his intention to appeal against the disciplinary warning.

The respondent’s position can be summarised as follows:

A colleague of the complainant made a written complaint about his conduct;

This person was unaware that he had brought what he thought was out of date stock to the health and safety manager;

The product was not from the section of the supermarket that the colleague who made the complaint had responsibility for;

An investigation concluded that the complainant’s conduct towards his two colleagues was unacceptable;

The complainant did not raise the issue of a protected disclosure until he appealed against the written warning;

The warning was issued because of the complainant’s conduct and for no other reason.

The Relevant Law

The relevant sub-sections of section 27(3) of the Safety, Health and Welfare at Work Act 2005 were referred to by Mr Barry. These set out the actions of an employee which must not be subject to penalisation:

Acting in compliance with a statutory provision;

Carrying out a duty or exercising a right under a statutory provision;

Making a complaint about health, safety or welfare at work.

Is the Complainant’s Action Protected by the Legislation?

On June 1st 2017, the complainant brought what he alleged was out of date food product to the office of the health and safety manager. He said that he brought to her office a bottle of liquid egg and a cake. Other than his own recollection, no other person saw the cake. The complainant’s evidence is that he brought the products to the attention of the manager because in his view, the use of this product “could have had a serious implication for the protection of and the health of consumers.” An investigation arising from the complainant’s appeal against the warning issued to him on July 27th 2017, found that the complainant “clearly did not check the date on the bottle itself. He made no proper record of it as required by established protocol. He therefore cannot succeed in his contention that the product was in fact out of date.”

I find myself in agreement with this conclusion. The complainant is evidently a competent and successful employee and has won awards for his work as a deli chargehand. Having considered his demeanour at the hearing, I think that he could have determined the use-by date on the actual product, which was properly labelled in the photo that he presented in evidence. I accept the evidence of the respondent that the product in question did not exist in 2010 in the form it is now presented. I also accept their evidence that the product in the size of the container brought to the office of the health and safety manager was not in use in the supermarket bakery at the time that it was found by the complainant.

It is my view therefore that the complainant did not act in contemplation of complying with a statutory provision, or carrying out a duty or exercising a right under a statutory provision. I am also satisfied that the evidence shows that there was no substance to his suggestion that an out of date egg product was in use in the supermarket or that there was a worm-infested cake in the deli chill cabinet.

As he did not carry out any of the protected actions prescribed at 27(3) of the Safety, Health and Welfare at Work Act 2005, I have to conclude that, the issuing of a written warning on Jly 27th 2017, was not an act of penalisation by his former employer.

I have concluded that the complainant’s actions as he described in his submission, are not governed by the protections set out at Section 27(3) of the Safety, Health and Welfare at Work Act 2005. On this basis, I have decided that his complaint fails.  

Penalisation