HSD182

Mr Robert Brennan works as a postman in An Post. From the time he commenced work in 2007 until the events that give rise to the instant complaint he had an exemplary employment record.

On Monday 20 July 2017 he was given a parcel/packet by a van driver in his local An Post depot, to deliver to a customer. He decided that the parcel, which was long and narrow, was oversized and could not be safely delivered on his bicycle without infringing An Post’s safety and health rules.

Appendix N: An Post Safety Guide for Staff-Collections and Deliveries Manual, Section 6, STP 06-01 (Issue 3) state

“loads must be secure and not sick out”

He submits that he is not allowed to transport items on his bicycle that tick out or that cannot be secured.

He further states that section 13(1) (a) of the Safety Health and Welfare at Work Act 2005 states

13.—(1) An employee shall, while at work—

• 
  (a)comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee's acts or omissions at work,

(h) report to his or her employer or to any other appropriate person, as soon as practicable—

(i) any work being carried on, or likely to be carried on, in a manner which may endanger the safety, health or welfare at work of the employee or that of any other person,

He submits that he notified his local manager of the parcel/packet and advised him that he could not deliver it safely on his bicycle without infringing An Post’s own procedures and the 2005 Act. He says that he was instructed by his manager to take the parcel out. He states that the Manager made no reference to his health and safety concerns. Concerned for his safety he left the parcel behind him.

As a result of that decision he was issued with a first level written warning which remained on his file for one year.

He appealed against that decision through the internal grievance procedure. The appeals procedure provides for escalating levels of appeals. He went through both of those appeals. However, at each successive level he was unsuccessful partly because each manager held that he had not raised any safety and health issue when the matter was first dealt with by his immediate supervisor.

The Complainant submitted a complaint to the Workplace Relations Commission in which he claimed that he had been penalised for raising a safety and health grievance with his employer.

The adjudication officer decided that the complaint was not well founded.

The Complainant appealed against that decision to this Court.

The matter came before the Court on 3 August 2018. The case was listed for a second day at which the evidence of additional witnesses was heard. That hearing took place on 20 August 2018.

Respondent’s Position

The Respondent told the Court that the Complainant had been given a packet to deliver to a customer on 10 July 2017. Packets are distinguished from letters, large envelopes and parcels all of which have clearly defined characteristics. A packet applies to smaller three dimensional items like boxes, tubes and envelopes that are under 2kgs in weight. The 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 exceed those dimensions or weight are classed as parcels and are delivered by motorised transport.

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

It submits that the Complainant argued that the packet was outsized and too big for his bike. A meeting took place the following day between the Complainant accompanied by his Union representative and his manager at which he repeated his assertion that the packet was outsized and was unsafe to deliver on his bicycle. This was disputed by his manager.

A disciplinary meeting took place at which management decided that the Complainant had refused to carry out his duties and issued him with a first level warning. That decision was upheld on appeal.

It submits that the Complainant had not been asked to act in a manner that infringed the Company’s health and safety policies or the Law. It submits that the Complainant refused to carry out his duties for which he was properly subjected to disciplinary sanctions by the Company.

The Evidence

The Complainant gave evidence to the Court. In it he stated that he received the packet from a van driver on the morning in question. In the conversation between them the van driver stated that this item was for him to deliver. He said that he tried to place the packet in the satchel on his bicycle but that it was too big and protruded from the bike in such a manner as would constitute a safety risk to both himself and to other road users. He said that he brought the packet to his supervisor and raised his health and safety concerns regarding the size of the packet and its affect on his capacity to carry it safely on his bicycle. He said that he was instructed to carry the packet without further engagement. He said that he decided not to do so as it was a safety risk and would have brought him into conflict with both the Company’s policies and the law. He said that he was summoned to a meeting the next day at which he reiterated his safety concerns. He said that he was subsequently sanction for refusing to deliver the packet.

He contends that this amounts to penalisation for refusing to undertake an unsafe practice and thereby infringes the law and the Company’s procedures.

Mr Andrew Kiely gave evidence to the Court. He stated that the complainant had notified him that he was refusing to take the impugned packet on his round on the 10 July 2017 on the grounds that it was too large to carry on the bike and constituted a health and safety risk.

He said that he instructed him to take the packet and reported the refusal to his manager Mr Liam Kelly.

Mr Liam Kelly gave evidence to the Court. He said that the complainant refused to deliver the packet. He said that he assessed the packet and was satisfied that it could be delivered on the bike. However he said he made arrangements to have it carried to a drop box some 200 yards from the customer’s home. He said that the packet could have been carried by hand to the customer’s home by the Complainant who could have then returned to the drop-box and collected his second mailbag. He said that the packet was returned to his office and was not delivered to the customer.

He said that he was satisfied that there was no health and safety risk involved in delivering the packet but even if there was an alternative means of effecting deliver had been put in place to facilitate the Complainant. His refusal to deliver the packet amounted to a refusal to carry out a legitimate instruction and the action taken against him arose out of that refusal.

The Law

Section 27 of the Act states

27.—(1) In this section “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) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(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.

In Toni and Guy Blackrock Limited v Paul O’Neill HSD095 2009 the Court preconditions that must be met for a complaint of penalisation to succeed. It stated: -

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 determent 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 suggested 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.

Findings of the Court

Based on the evidence before it and the documents submitted by the Respondent the Court finds that the complainant initially refused to deliver the packet citing health and safety concerns he had about its size and capacity to be safely carried on his bicycle. However, when Mr Kelly arranged for the packet to be delivered to the drop-box some 200 yards from the Customer’s address any safety concerns the complainant had were addressed. From that location it was possible for the Complainant to deliver the packet to the customer by hand without compromising his own or the safety of any other person. By refusing to undertake that delivery the Complainant was in effect refusing a legitimate instruction that was not a health or safety related matter. In those circumstances the Respondent was entitled to treat the refusal to effect the delivery as an industrial and not a health and safety issue.

The Complainant states that the packet was not placed in the drop-box as claimed by Mr Kelly. However, when asked by the Court whether he would have delivered it were it there he said that he would not have delivered it by hand and would not have carried it on his bicycle as it was oversized.

Having heard the evidence the Court finds that the Complainant’s refusal to deliver the packet was an industrial relations matter masquerading as a health and safety issue. Whatever merit there was in the Complainant’s initial refusal to carry the packet on his bicycle, it evaporated when the Respondent arranged to have it carried to and deposited in a drop-box close to the customer’s home. At that point any safety concerns had been addressed.

The method of transport from the drop-box to the customer’s home was thereafter an industrial relations issue rather than one related to safety and health. As the Act does not provide protection against a refusal to discharge ones contractual duties on industrial as opposed to safety and health grounds, the act provides no protection to the Complainant against his decision not to deliver the packet by hand to the customer’s address.

Based on this reasoning the Court finds that the complaint is not well founded and affirms the decision of the adjudication officer.

Determination

The complaint is not well founded. The decision of the adjudication officer is affirmed. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
LS______________________
31 August 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.