Complainant

Respondent

Anonymised Parties

Outreach Officer

Non-Governmental Organisation

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00018710-001

25/04/2018

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

CA-00018710-002

25/04/2018

The Complainant commenced his employment with the Respondent on 23rd October 2017 and his employment was terminated on 20th March 2018. The Complainant claims that he was dismissed for making a complaint under the Safety, Health & Welfare at Work Act, 2005 and that he was denied natural justice and fair procedures.

The Respondent rejects the claims.

The Respondent raised two preliminary issues. Firstly, the Respondent submits that the Complainant is seeking to vent the same claims under multiple pieces of legislations in breach of well-established doctrine of res judicata. In this regard, the Respondent refers to Henderson v Henderson (1842) 3 Hare 100.

Secondly, the Respondent submits also that the Complainant has taken a claim under the Safety, Health & Welfare at Work Act, 2005 alleging penalisation. Section 27(3) of the Act provides that “(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.”

The Respondent submits that the Complainant has not stated which of the six forms of penalisation he is alleging in this instance. Given that the burden of proof rests with the Complainant in this regard, the Respondent submits that this must be set out prior to the Respondent giving evidence in relation to same.

The Complainant rejects the Respondent’s assertion that he is precluded from pursuing both claims. The Complainant argues that his complaint under the Safety, Health & Welfare at Work Act, 2005 is in respect of penalisation and the dispute under the Industrial Relations Act, 1969 relates to the breach of natural justice and fair procedures during the disciplinary process.

In respect of the matter of the alleged penalisation the Complainant at the hearing outlined that he was penalised for: (a) acting in compliance with 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,

(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.

I note that in common law the doctrine of res judicata normally prohibits a party from seeking to litigate the same issue twice. The Labour Court in EDA1326 Jahan Company T/A Irema Ireland v Anne Power considered the matter in detail. The Court held:

“The underlying rationale for the doctrine was explained by Keane J (as he then was) in Dublin Corporation v Building and Allied Trades Union [1996] 2 I.L.R.M 547 as follows: “The justification of the doctrine is normally found in the maxim interestrei publicae ut sit finis litium and it is important to bear in mind that the public interest referred to reflects, in part at least, the interest of all citizens who resort to litigation in obtaining a final and conclusive determination of their disputes. However severe the stresses of litigation may be for the parties involved — the anxiety, the delays, the costs, the public and painful nature of the process — there is at least the comfort that at some stage finality is reached. Save in those exceptional cases where his opponent can prove that the judgment was procured by fraud, the successful litigant can sleep easily in the knowledge that he need never return to court again.”

Hedigan J. in Intel held “…all matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances”.

The Court notes further that

“the rule in Henderson v Henderson [1843] 3 Hare 100 provides that if a point of law or fact should have been raised in the first case and was not, it cannot be raised in the second case. The rule applies to prevent abuse of process by fragmenting litigation and re-litigating the same issue by relying on different facts or points of law. It was described by Dowes B in Russell v Waterford and Limerick Railway Company [1885] 16 IR 314 as follows:- “Where cause of action is the same and the plaintiff has had an opportunity in the former suite of recovering that which he seeks to recover in the second, the former recovery is a bar to the latter action”.

Having considered the evidence before me and the Parties’ submissions I am satisfied that the issues raised in the case before me have not been introduced at another forum. I note that, following the receipt of the Complainant’s claims the Workplace Relations Commission wrote to the Respondent on 22nd May 2018 as follows: “In so far as the request for an investigation by a Workplace Relations Commission Adjudicator under Section 13 of the Industrial Relations Act 1969, into the above trade dispute is concerned, please note that under Section 36(1) of the Industrial Relations Act 1990, any party has the right to object to an investigation of this dispute by an Adjudication Officer (…) Please indicate whether you wish to object to an investigation by an Adjudication Officer by completing the enclosed form and returning it to Information and Customer Services (…) Failure to reply to this enquiry form within the period specified will be regarded as consent to an investigation by an Adjudication Officer under Section 13 of the Industrial Relations Act 1969, and the dispute will proceed for a hearing on the earliest date.”

No communication has been received from the Respondent in response to this letter. The Respondent could have but chose not to object to an investigation of the dispute referred to the WRC under the Industrial Relations Act, 1969. I am satisfied that although both claims relate to the same set of events they address two separate issues: (a) penalisation under the Safety, Health & Welfare at Work Act, 2005 and (b) the fairness and the appropriateness of the disciplinary process.

For the reasons set out above I am satisfied that the Complainant is not precluded from pursuing both claims.

The Worker submits that through the disciplinary process he was denied natural justice and fair procedures and the Employer refused to act in accordance with S.I. 146 of 2000. The Worker submits that the allegations against him leading to his dismissal were both frivolous and vexatious. He argues that the Employer failed to produce any evidence of wrongdoing at either the disciplinary hearing which was held on 14th March 2018 or during the conclusion of the hearing on 20th March 2018 when the CEO Ms K issued her decision in writing.

The Worker alleges the following:

(i)      Failure to adequately inform him about the disciplinary meeting. Lack of notification and clarity with regards to the stage of the disciplinary process and lack of information regarding potential sanctions.

(ii)    Lack of investigation – there was no investigation to the alleged incidents. The Employer immediately proceeded with the disciplinary hearing.

(iii)   Obstructing trade union representation – the Worker submits that despite the request to be represented by his trade union representative and providing the dates of the availability of the representative the Employer deliberately scheduled the meeting on the date that his representative was unavailable to attend.

(iv)   The Worker argues that Ms K, CEO acted as judge, jury and executioner. Ms K initiated that disciplinary meetings, without investigation, based on her own alleged concerns that were frivolous and vexatious and then she issued her decision as the decision maker in the process to terminate the employment. The Worker cited Young v Castle Durrow Country House Hotel in that regard.

(v)     The Worker submits that the Employer failed to comply with S.I. 146 of 2000 when initiating the disciplinary process, throughout the process and when issuing the decision failing to comply with natural justice and fair procedures. In that regard the Worker relies on Irish Postmasters Union v A Worker.

The Worker argues that in addition to failing to comply with the S.I. 146/2000 the Employer has breached its own ethos and values. Furthermore, the Worker submits that in disciplining him the Employer breached its own disciplinary procedures:

(i)                  No fairness in the process and failure by the Employer to provide requested information during the disciplinary process.

(ii)                Lack of potential sanctions identified in initiating disciplinary procedures.

(iii)               Lack of investigation.

(iv)               Misclassification of the alleged category of offences under the Employer’s Staff Handbook.

(v)                Failure to provide the Worker with the decision of the appeal within the timeframe allowed by the Employer’s policy.

The Worker requests that he is awarded compensation equal to two years’ pay in that regard.

The Employer submits that the Worker was employed from 23rd October 2017 on a salaried basis of €28,886 pro rata for a 28-hour week. This was explained to the Worker by email and was duly accepted on the same date. The Worker was issued with his terms of employment on 23rd October 2017 by the CEO of the Employer’s organisation. The Contract was signed by the Worker on this date. However, the Worker subsequently amended the terms of employment to remove the pro-rata clause by crossing it out and signing the amendment. For the avoidance of doubt, this amendment was not agreed with the Employer at the time of signing the contract. On 13th November 2017 the Worker issued correspondence setting out various concerns in relation to his reference check. On 14th November 2017 a meeting was held between the Worker and the CEO Ms K where the pro-rata issue was discussed. Following the meeting, it was agreed that the Worker would work five days per week for the full salary. On 15th November 2017 an amendment was made to the Worker’s terms of employment stating that “This is to confirm that with effect from 14th November 2017 your rate of remuneration will be €28,886 for a five day working week.” This was signed by the Worker and Ms K on 20th November 2017. The Worker then emailed Ms K stating that he had “signed the amendment out of goodwill” and stated that “I would expect to be paid according to our original contract, and the amendment stipulates working 5 days as opposed to 4 days going forward”.

The Worker raised his first grievance on 12th February 2018 where, amongst others the issue of working alone arose.On 14th February 2018 the Worker attended a grievance meeting with Mr J, Chairperson of the Board who pointed towards the Employer’s policy in respect of the working alone. The Employer submits that the outcome of the grievance was appealed by the Worker, and the appeal hearing was held on 6th March 2018. By correspondence date 9th March 2018 the appeal of the grievance was dismissed.

The Employer submits that Ms K had intended to commence the disciplinary procedure prior to the Worker lodging his grievance. However, when the grievance procedure was initiated, it was decided to put the disciplinary process on hold pending the outcome of the grievance procedure. On 7th March 2018, given that the grievance procedure was finalised, the Worker was invited to a disciplinary meeting in respect of numerous issues in relation to his employment. The CEO Ms K sent an email inviting the Worker to disciplinary hearing. The Worker was informed of the allegations against him, namely: 1. Alleged failure to follow reasonable management instructions. 2. Alleged continuous insinuation that the amendment to the Worker’s contract signed on 20th November 2017 is not genuine. 3. Allegedly not presented to a meeting arranged with the CEO and not recording appointments in a shared online calendar. 4. Alleged unauthorised absence on 2nd March 2018.

Copies of relevant documents were provided to the Worker.

The disciplinary hearing was scheduled on 8th March 2018. This was then rescheduled to 12th March at the Worker’s request. The Employer submits that on 12th March the Worker attended the hearing to inform the Employer that he would not be participating in the hearing. The Employer submits that the Worker was then invited to a subsequent disciplinary hearing on 14th March 2018 as per his request and was accompanied by a fellow employee. By correspondence dated 20th March 2018 the Worker was informed that he was being dismissed. The Employer submits that SIPTU on behalf of the Worker duly submitted an appeal on 21st March 2018. The appeal hearing was held on 4th April 2018. By correspondence dated 18th April 2018 the Worker was informed that the decision to dismiss was upheld.

The Employer submits that, notwithstanding the fact that the Worker was within his probationary period at the time, he was afforded the full rights of natural justice thorough the disciplinary process.

The Worker claims that he was denied natural justice and fair procedures in respect of the disciplinary process conducted by his Employer. The Employer denies the claim and argues that the Worker was afforded the full right of natural justice thorough the disciplinary process.

I note that the Employer considered disciplinary action prior to the Worker raising a grievance. The Employer argued that a disciplinary procedure was considered and Ms K sought an advice from HR advisers on 11th February 2018. The Employer provided a copy of email communication with its HR advisers dated 11th February 2018. The Employer presented what was indicated to be an attachment to the email in form of a template of a letter inviting an employee on a probationary period to a review meeting due to the concerns with his/her performance. Following the Worker’s grievance being highlighted on 12th February 2018 the Employer made a decision to postpone the disciplinary process and instigate it when it believed the grievance process was concluded.

It was not disputed that the Worker commenced his employment on 23rd October 2017. As per the Handbook the Worker was initially on probation: ”you join us on an initial probationary period of six months. This does not prejudice our right to dismiss in accordance with the notice provisions contained in your individual statement of main terms of employment (form SMT), or without notice for reasons of gross misconduct, should this be necessary. During this period your work performance and general suitability will be assessed and, if it satisfactory, your employment will continue. However, if your work performance is not up to the required standard or you are considered generally unsuitable we may either take remedial action or terminate your employment, without the recourse to the disciplinary procedure.”

I find that the probationary period is the opportunity for an employer to assess the suitability of an employee and for an employee to assess the suitability of the company. I accept that where an employee is considered unsuitable for permanent employment an employer has the right, during the probationary period, to decide not to retain that employee in employment. However, this can be only carried out with adherence to fair procedures. It is essential that an employer must not only show that there were substantial grounds justifying the dismissal but also that fair procedures were followed before the dismissal takes place.

I note that on 7th March 2018 the Worker was invited to a disciplinary hearing by email. The email informed the Worker of the allegations against him. Copies of relevant documents were provided to the Worker.

I note that by email of 7th March 2018 the Worker responded that he would not be attending the meeting, expressing his concerns in terms of parallel grievance process and requesting adequate notice. The Employer replied on 8th March by postponing the hearing and requesting the Worker to attend on 12th March 2018. The Worker replied by requesting further information and a postponement of the hearing until 14th March 2018. There was an exchange of correspondence thereafter and, following the Worker’s request the hearing was re-scheduled for 14th March 2018. The Worker then requested another postponement alleging that the Employer denied him the right to natural justice and relying on S.I 146 of 2000. This was despite his previous request to have the hearing scheduled on 14th March. The hearing was held on 14th March but the Worker did not engage with the exception of addressing the matter of his absence on 2nd March 2018. The Worker was accompanied by a work colleague. The Employer informed the Worker in writing on 20th March 2018 that the decision was made to dismiss him. The Worker was informed of his right to appeal and SIPTU on his behalf appealed the decision to dismiss on 21st March 2018. The appeal hearing was held on 4th April 2018 and the decision to dismiss was upheld on 18th April 2018.

I find that throughout the disciplinary process the Worker was advised that failure to follow a reasonable management instruction may be deemed to be gross misconduct and lead to the summary termination of employment. He was informed of his right to representation. The allegations against him were listed in the letter inviting him to the meeting and further details were provided to him as requested. The Parties confirmed that the Worker was provided with the Employer’s disciplinary procedures. I note that under the “Rules covering gross misconduct” the Handbook states: “n. gross insubordination and/or continuing refusal to carry out legitimate instructions”. My main concern in the circumstance of this dispute relates to the role of Ms K in the process. Ms K, the CEO of the Employer’s organisation Worker was the line manager of the Worker. From the extensive correspondence and the parties’ submissions it is clear that there was a difference of opinions between the Worker and the CEO in some, if not most aspects of his work. The CEO had expressed her views and communicated her instructions to the Worker. It appears that from the outset the Worker questioned and challenged her instructions. The grievance outcome notes outline clearly that MS K felt frustration at not having her instructions followed and that the parties were finding it difficult to interact by way of verbal communication. Despite that Ms K ultimately took on the role of judge and jury in the Complainant’s case. There was no investigation process and Ms K invited the Worker to a disciplinary hearing, which she conducted. Subsequently, she made a decision to dismiss the Complainant.

For that reason, I find that the dismissal procedures applied to the termination of employment of the Worker were, in my view, flawed.

In the circumstances I am satisfied that the dismissal was procedurally unfair. Having regard to the length of service involved and the Worker’s contribution to the dismissal I recommend that the Worker be paid €1,000 as a once off ex-gratia payment.

The Complainant submits that he was penalised for initiating formal grievance in accordance with the Respondent’s policy in relation to contractual matters and health and safety ay work. The Complainant submits that his complaint related to working alone in the building and meeting clients alone on the premises of the Respondent. The Complainant claims that the Board of Management agreed that working alone was against the policy of the Respondent. However, he argues that the CEO used the genuine concerns of the Complainant as being obstructive in his role and penalise him in interfering with his work and finally disciplining him.

The Complainant submits that when he initiated a complaint regarding his contractual matter and more importantly safety regarding working alone, the CEO as a result of the complaint changed the Complainant’s work duties and restricted the Complainant to engage in other work duties. Further, as a result of this complaint the CEO initiated disciplinary procedure against the Complainant. The Complainant submits that under the Respondent’s Handbook he was obliged to report the grievance to the CEO and then the CEO took full advantage of the complaint to intimidate and discipline the him.

The Complainant submits that Section 27 of the Safety, Health & Welfare at Work Act, 2005 outlines:

“(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…”

The Complainant submits that the Respondent penalised him for obeying written instructions from the employer in the case of emergency or serious and imminent danger during the Red Code Alert occurring on 2nd March 2018. The Complainant submits that he was disciplined and dismissed for obeying written instructions from the Respondent to not put himself in danger and not to come to work during the biggest snow storms ever recorded.

The Complainant submits that the Act specifies employer’s responsibility as follows:

“managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk.”

The Complainant submits that Section 3 of the Act says:

“(3) An employer shall not penalise or threaten penalisation against an employee for–       (a) acting in compliance with the relevant statutory provisions…”

In addition, the Complainant submits that the Handbook required him to make reasonable care for health and safety for himself and the employer would provide a safe environment for customer and clients. The Handbook states:

“It is the duty of every individual employee to take every reasonable care for health and safety for himself and the employer would provide safe environment for customers and clients”.

The Complainant submits that his concerns were legitimate due to safety risks posed to the Complainant and the clients. The Complainant submits that he was disciplined and dismissed for obeying direct instructions under the Act.

The Complainant requests that, due to the severity of the breaches, the compensation awarded is fair, adequate and acts as a deterrent for the employer to stop blatant disregard for safety and welfare at work in the future.

The Respondent submits that the Complainant was dismissed for the reasons set out in the dismissal letter of 20th March 2018. The Respondent submits that these allegations are completely separate to the Complainant’s allegations of unsafe work practices. Further to this the Respondent submits that the Complainant’s grievance in relation to same was fully dealt with and that the Respondent’s policies provided solutions in that regard that were already in place.

The Respondent cited Paul O’Neill v Toni & Guy Blackrock Limited [2010] ELR 21, where 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 Respondent submits that in order for the Complainant to avail of the protection 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 subsection 3 of Section 27 of the Act. The Complainant must show that “but for” having made a protected act under the subsection the detriment would not have happened.

The Respondent submits that the Complainant raised a grievance on 12th February 2018. The issue of working alone arose with the Complainant stating: “I am the only person that works upstairs in [the Respondent organisation] on Fridays, and the conditions are poor as the building is extremely cold when there are no other people working there. I am aware that [Mr A] is working downstairs in another part of the building but he has also meetings away from the office, I should point out that the employee manual states that persons should not work along [sic] in the office unless strictly necessary. I also have no choice but to meet with clients who make their way up the stairs which is a regular occurrence on a Friday. The [Respondent’s] handbook states there should be no face to face client contact when working alone in the building.”

On 14th February 2018 the Complainant attended a grievance meeting with Mr J, Chairperson of the Board who pointed towards the Employer’s policy. The Respondent submits that the Complainant should lock the doors as per the policy, wear warmer clothes on a Friday and use the extra radiators provided. If a client visit is needed, the Complainant is to have it in a nearby café which is the normal practice. The Respondent submits that the outcome of the grievance was appealed by the Complainant, and the appeal hearing was held on 6th March 2018. By correspondence date 9th March 2018 the appeal of the grievance was dismissed. The Respondent refers to its lone worker policy which states:

“WORKING ALONE ON OUR PREMISES

You should ensure that all visitors to our premises sign the visitor’s book when entering and leaving the building. Employees should only be alone in the building when necessary. There should be no face-to-face client contact when working alone in the building. During any telephone contact when working alone, you should not disclose the fact that you are alone. All doors should be locked at all times when you are working alone. You should check that the building is empty when you leave. You should notify a colleague of the time you expect to leave the building and inform them of this differs. Any problems re: building, alarm etc. must be reported to the CEO.”

The Respondent submits that the Complainant raised a grievance regarding his own omission to follow the policy and the outcome to this grievance was to remind him of these policies, which are there for his own safety. The Complainant then refused to work on Fridays stating that he was no longer available so the issue of working alone was effectively resolved.

The Respondent denies the Complainant’s assertion that he was dismissed for non-attendance on 2nd March 2018 due to the Red storm alert. The Respondent exhibited an email confirming that the Complainant informed the CEO on 27th February, prior to the alert being issued that he would not attend work on Friday 2nd March due to a personal matter. The Respondent submits that following the alert the Complainant, like all other staff members was off work and paid for the day. However, the Respondent submits that it believed that the non-attendance on Friday was becoming a pattern and it formed a view that the Complainant is reverting to 4 day working week despite the agreement reached in November 2017.

The Respondent submits that the Complainant was dismissed for numerous breaches of the employer’s rules and procedures. Notwithstanding the fact that the Complainant was within his probationary period at the time, the Complainant was afforded the full rights of natural justice thorough the process.   The Respondent argues that the dismissal of the Complainant had absolutely no connect, causal or otherwise, to any alleged penalisation under the Act. The Respondent submits that the invocation of the Act is merely an incorrect and inappropriate substitute for a claim under the Unfair Dismissal Act.

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.

Subsection 3 of Section 27 sets out 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 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 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.”

There had been a large volume of correspondence exchanged between the Parties. Whilst I will not be referring to every email I have taken into account all of the submissions oral and written made to me in the course of this investigation.

In the instant case the Complainant argues that he was dismissed for initiating formal grievance in relation to health and safety at work and for not attending work on the 2nd March 2018 during the RED code alert.

The Complainant raised a number of grievances on 12th February, 2nd March, 12th March and 13th March 2018. He raised several matters varying from the matter of differing views in relation to the Complainant’s salary, the delay by the Respondent in checking his references, possible extension of his contract, the CEO access to the Complainant’s work email, to his belief that the CEO and another employee of the Respondent had a discussion about him in the local coffee shop, being asked by the CEO to sign a blank sheet of paper, his unhappiness with the way his payslips are calculated. The issues relevant to this complaint refer to the matter of working alone on Fridays and the allegation that the disciplinary hearing called by the CEO was intimidation resulting from the fact that he was in the grievance process. The matter of non-attendance on 2nd March does not seem to have been raised by the Complainant at the grievance process.

In relation to the working alone matter the Complainant argued that “I am the only person that works upstairs in [the Respondent organisation] on Fridays, and the conditions are poor as the building is extremely cold when there are no other people working there. I am aware that [Mr A] is working downstairs in another part of the building but he has also meetings away from the office, I should point out that the employee manual states that persons should not work along [sic] in the office unless strictly necessary. I also have no choice but to meet with clients who make their way up the stairs which is a regular occurrence on a Friday. The [Respondent’s] handbook states there should be no face to face client contact when working alone in the building.”

I note that a grievance meeting was arranged and all the matters raised by the Complainant were addressed and no sufficient grounds were found to substantiate his grievance. The Complainant was provided with a written outcome of his grievance dated 26th February 2018. In respect of the matter of working alone on Fridays, which is the subject of this complaint the Respondent noted that: “The [Respondent’s] Staff Handbook recognises that the nature of the work will require employee to work alone. Nonetheless there is normally another officer in the [Respondent’s] office on Fridays (downstairs form [the Complainant]). As [the Complainant] points out, it is against [the Respondent’s] policy to see a client when working alone. The policy also states that all doors must be locked at all times when working alone. This should eliminate the possibility of clients making their way up. But if someone does make their way up to the office, the normal practice in [the Respondent’s organisation] is that a staff member will explain that the organisation is closed to the public, and the person is asked to come back another day. It is recommended that [the Complainant] does this; since he works every day of the week, he can see clients on other days. However, if it is urgently necessary for [the Complainant] to see someone on a Friday, the recommended practice is for him to arrange to meet them in a café or public space convenient to the client. The conditions of the building are the same every day of the week and the quality of insulation means that, at this time of the year, the building is cold. All staff are advised to dress appropriately and extra radiators are made available at all times.”

I note that due to the nature of services provided by the Respondent and as a precautionary measure it is a standard practice for the employees not to schedule any meetings when alone in the office but rather arrange them in a public place such as a café. It is also accepted that employees work from home.

The Complainant was informed of his right to appeal and grievance appeal meeting was held on 6th March 2018. At the meeting, in respect of the working alone matter the Complainant admitted to seeing clients on his own and it was pointed out to him that it was against the policy. The Complainant noted also that sometime people make their way upstairs even when he hasn’t let them into the building. The Complainant was asked if he would consider meeting Friday clients off the premises or to work from home. At the appeal stage the Complainant made no request on the matter and the appeal board issued no recommendation.

The Complainant’s concerns related to his belief that he had been penalised by the CEO for engaging in the organisation’s grievance procedure were investigated and addressed and the Complainant was informed of the outcomes in writing on 12th and 18th March 2018. The investigator found that there are no grounds for believing that his work plan was being changed or that he was being penalised or impeded from carrying out his job because he raised a grievance.

The disciplinary process, as outlined in my findings in respect of CA-00018710-001 above was initiated on 7th March 2018.

There had been a large volume of correspondence between the Parties and significant number of meetings. Based on the evidence before me I find that the Complainant did raise the health and safety issue of working alone on Fridays. However, any safety concerns in this regard had been addressed by the Respondent by firstly, specifically addressing the matter in the Staff Handbook prior to the Complainant joining the organisation and secondly by offering the Complainant’s option of working from home and requesting him to meet clients off the premises, both were a standard practice. I note that the Parties confirmed at the hearing that the Respondent put appropriate measures in place to ensure that the office is not accessible to clients on Fridays i.e. there are three doors in the office, one is fitted with a coded lock and the other two with standard locks, all should be locked on Friday. From the evidence adduced I am satisfied that the issue raised by the Complainant regarding the working alone on Fridays was investigated and the Respondent was of the belief that there was no risk to the health and safety of the Complainant provided that he adheres to the Respondent’s policies.

In respect of the second health and safety concern raised by the Complainant I note that the Complainant informed the Respondent on 27th February 2018 that he would not be attending work on 2nd March 2018 as he needed to travel to London for personal matter. This was prior to any weather alert and prior to the CEO issuing instruction to the employees not to attend work. Therefore, I am satisfied that his decision not to attend work cannot be linked to the weather warning and therefore it does not constitute a protected act under the Safety, Health & Welfare at Work Act.

Having considered the evidence before me, I am satisfied that the Complainant has made a protected act i.e. raising concerns due to the matter of working alone on Friday. However, I find that the Complainant’s decision not to work on 2nd March 2018 was not a result of a health and safety concern but his personal arrangements. The Complainant has sought to link the disciplinary action taken against him and the dismissal as the detriment to him due to penalisation under the Act. The Complainant argued also that the Respondent prevented him from carrying out his job as a result of him making the protected act. The Respondent maintained that the Complainant was dismissed due to other, unrelated matters and pointed out that the Complainant was on probationary period. The Respondent argued also that there are no grounds to believe that the Complainant’s work plan was changed or that he was penalised or impeded from carrying out his job as a result of his grievance. For a claim of penalisation under the Act to succeed I need to be satisfied that the Respondent acted in a manner of bad faith because the Complainant raised a complaint. I do not believe this is the case.

Having considered the Parties’ submissions and the evidence before me, I do not find that the Complainant has established any causal link between the alleged protected acts and and the termination of his employment while on probation.

I do not find that the Complainant has established any causal link between the alleged protected act and the alleged penalisation. His claim is, therefore, not well founded and is therefore, dismissed.

Safety, Health & Welfare Act-penalisation- fair procedure