ADJ-00013465

Complainant

Respondent

Anonymised Parties

A Motorcycle Technician

A Motorcycle Dealership

Representatives

Terry Gorry, Solicitor

Siobhán Gaffney, BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00017661-001

26/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00017661-002

26/02/2018

The respondent company is a motorcycle dealership established by the two directors in 2010.   They employed two other people and the complainant was their third employee. In 2017, the company was preparing to import a motorcycle described in a job advertisement on February 3rd 2017, as “an iconic and well-known motorcycle brand.” For the remainder of this document, when referring to these motorcycles, I will refer to them as the “iconic motorbikes.”  

Evidence submitted by the respondents show that the complainant carried out work for them in a self-employed capacity until May 9th 2017, when he commenced as a direct employee in their workshop as a motorcycle mechanic / technician.

The complainant’s contract of employment shows that his annual salary on commencement was €30,000 and that it increased to €35,000 when he completed his probation in September 2017. On January 16th 2018, he was given a week’s notice of the termination of his employment, which ended on January 23rd. He claims that he was dismissed because he made a protected disclosure. He also complains that he did not receive a statement of his terms and conditions of employment within two months of the date that he started work.  

Starting in the Job

In the early part of 2017, the new workshop wasn’t yet set up. An e-mail submitted at the hearing shows that the complainant worked for himself while he also carried out work for the respondents. Another document, an e-mail in the form of an invoice from the complainant dated Saturday, May 6th 2017, shows that from March until that date, he did 88 hours’ work for the respondents on a self-employed basis, preparing for the move to the workshop. He put together schedules of equipment and he created template documents for the start-up of the facility. He took training on how to service the iconic motorcycle and he attended the Dublin Motorcycle Show on behalf of the company. In March, he carried out pre-delivery inspections on new motorcycles, he processed the paperwork and ensured that each one had an NCT certificate. In April, he went to England on a training course and he was certified to service the iconic motorcycles.

The workshop was ready for occupation in May 2017, and shortly afterwards, the complainant said that he became concerned about health and safety issues. As an enclosed space, he thought it wasn’t suitable for working on motorbikes, where there was a potential for petrol and oil to leak. He said that he raised his concerns at that time with the directors.

In his submission at the hearing, on behalf of the complainant, Mr Gorry said that as nothing had been done, the complainant raised the health and safety issue again between September and December 2017. During this time, Mr Gorry said that the complainant was fearful of going to work every day because he worked alone in a workshop which, in his view was unsafe.   He said that the complainant had difficulty sleeping and that he was anxious going to work every day. When he was out sick on December 9th 2017, he offered to resign. A copy of a text message was submitted in evidence in which he said;

“I know we don’t have a contract and (sic) but I’m happy to hand in my notice come Tuesday…I can work until the end of the month to give you guys a chance to try and source another mechanic / technician!”

Making a Protected Disclosure

The complainant’s submission notes that on December 15th 2017, he met the directors and made a protected disclosure about health and safety issues in the workshop. He said that he complained about the difficulties he had doing his job and his fears due to the safety shortcomings. He said that he told the directors that their insurance would be invalid if the insurers were aware of the health and safety breaches in the unit. The complainant said that he prepared a written note for this meeting and he left a copy with the directors. A copy of this note was submitted in evidence.

At this meeting, the directors said that they told the complainant that they had contacted a health and safety consultant and asked him to do a review of the workshop. He was due to assess the premises on January 18th. In the meantime, they asked the complainant to take extended leave. He refused, and it was agreed instead that he would go on temporary standby and that he would be paid €180 per week for from December 18th 2017 until January 15th 2018, when his normal hours of work would be reinstated.

Termination of Employment

January 16th 2018 fell on a Monday and the complainant reported for work. He said that he was called to a meeting with the directors and given a statement of his terms and conditions of employment.   This document was produced in evidence at the hearing. However, he said that he was also given a week’s notice of the termination of his employment. The reason given for his dismissal was lack of funding, although the directors suggested that the complainant could continue to work for them on a sub-contracting basis.

It is the complainant’s case that he was dismissed for making a protected disclosure, specifically in breach of sections 5(3)(b) and (d) of the Protected Disclosures Act 2014 (“the Act”), which provides that a protected disclosure is the disclosure of relevant information made by a worker,

“(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,”

and,

“(d) that the health or safety of any individual has been, is being or is likely to be endangered.”

For the complainant, Mr Gorry argued that the conclusion that complainant was dismissed for making a protected disclosure is “the reasonable inference that can be drawn from all the circumstances, particularly the timing of the meeting of 15th December 2017 and placing the complainant on ‘standby’ and dismissal soon thereafter.” He claims that the reason given for his dismissal was not lack of funding, as submitted by the directors, and his replacement by another mechanic demonstrates this.

In his evidence, the complainant said that at his interview in February, he asked the directors to put health and safety policies in place. At the hearing, we learned that, in a previous job, he and a colleague were engulfed in a fireball when the fuel in a motorcycle they were working on ignited. The complainant was concerned that an incident like this could happen in the new workshop.   He said that he wanted a safety assessment carried out, a procedure for extracting fumes and fire blankets and extinguishers. He said that he was not given a copy of a health and safety statement.

In cross-examination by Ms Gaffney, the complainant said that he couldn’t assume that fire safety certificates had been obtained for the workshop. When he was asked why he didn’t bring his concerns to the attention of the directors before December 2017, the complainant said that he didn’t put anything in writing until he sent a text message on December 9th, but he expressed his concerns to the directors several times. At the meeting on December 15th, he agreed that he was informed by the directors that they had contacted a health and safety consultant who was coming in to do an assessment in January.   It is his view that they did this “begrudgingly.”

Around the time he was dismissed, the complainant said that Facebook posts show that the workshop was advertising for a motorcycle mechanic and referred to the workshop being extremely busy. The week after he was dismissed, the complainant learned that another technician had been hired.

On behalf of the respondent, Ms Gaffney submitted that the complainant’s disclosure is not a protected disclosure within the meaning of the Protected Disclosures Act 2014 (“the Act”). If the complainant made a protected disclosure, Ms Gaffney said that his dismissal was not penalisation for having done so. The directors say that the complainant was dismissed because, from December 9th 2017, he refused to work on motorcycles other than the iconic brand of bikes. As a result, the company lost a significant amount of business.

Commencement of Employment

On May 9th 2017, the complainant began to work from Tuesday to Friday for the respondents.   An e-mail was submitted in evidence dated February 13th 2017, which shows that it was agreed that he would for 32 hours per week, although he may have been required to work on Saturdays also. This mail refers to a health and safety policy in the following terms:

“Once the workshop is up and running we will have a Health and Safety policy drawn up in line with legal requirements, and training will be provided on the equipment you are using.”

In his evidence, one of the directors, who I will refer to as “Mr A,” said that they had a health and safety statement drawn up when they started the business in 2010. In 2017, they were in negotiations to rent the unit adjacent to their workshop and they intended to re-configure the entire space with the new equipment and to draw up a new health and safety policy.   In the end, they didn’t acquire the second unit.  

From September 2017 Onwards

By September 2017, the complainant had been employed for six months and he was due to be considered for a salary increase. On September 1st, he sent an e-mail to the directors with the subject header, “Six Month Meeting.” In the mail, the complainant reviewed the previous six months’ business and he set out his priorities for the coming months.   He made no reference to health and safety matters in this mail and most of the focus was on personnel and his concern to employ another mechanic.

On December 7th 2017, Mr A said that the complainant was asked to bring a motorcycle out to a customer’s house and to collect the customer’s second bike. He said that the battery was flat on the bike the complainant had to bring back to the workshop and he was annoyed at having to do this job. The following day, he sent a text message to say he was sick. On December 9th, he sent a similar message and there was some back and forth then between the complainant and Mr A about the lack of heat in the workshop. In a text message on December 9th, the complainant said:

“My health and safety in the workshop will no longer be up for debate…we need to set times / dates for an actual workshop to be set up and arrange health and safety certification for the current work station and for the new workshop, including fire safety cert and well as guide-lined (sic) ventilation for employees and extraction for vehicle fumes.   Also, proper heating for current and new workshop…

“It’s been 9 months now and nothing in regards (sic) has been done. I thought the 6-month meeting would bring this matter to the forefront but procrastination has set in once again.”

In response, Mr A said that he would source a heater and that they could “have a good chat next Tuesday.”

Mr A said that on foot of this text message, he contacted a health and safety consultant and made an appointment for him to attend the workshop to ascertain its compliance with health and safety regulations. The consultant visited the workshop on January 18th 2018. He found no issues and made one recommendation, that an additional fire blanket be purchased. On the day he was dismissed, the complainant submitted a complaint to the Health and Safety Authority (HSA) and, some time later, an inspector visited the workshop. He was provided with a copy of the health and safety statement that had been drawn up by the consultant who carried out the assessment on January 18th.   No issues were raised by the HSA with regard to the health and safety statement or about any non-compliance matter in the workshop.

On December 15th, the complainant attended a meeting with the two directors. He read from a script he had prepared in which he referred to the requirement for risk assessments and safety statements and he alleged that the directors had breached the terms of their own insurance policy. He said that he would not work on motorcycles other the iconic make and that he agreed to go on temporary standby at a rate of €180 per week and to attend the workshop if he was required to work on these specific motorcycles only. He also said that he would not attend the workshop until after it had been assessed by the health and safety consultant.

Following this meeting, the directors contacted their insurers and established that they were in compliance with the terms of their insurance policy. A copy of the policy was submitted in evidence.

From mid December 2017 and into January 2018, motorcycles other than those that the complainant said he would work on were brought to the workshop for servicing. The directors got a mechanic in to do this work, but he was only available on Saturdays, and as a result, they lost business. In effect, they said that their repair business was “ground to a halt” due to the complainant’s actions.

On January 16th, the complainant attended a meeting at which he was informed that he was being let go, due to the lack of income being generated by the workshop, because of his refusal to work on motorcycles other than the “iconic” brand.   He was offered the work on the iconic bikes on a sub-contracting basis.

Section 11 of the Protected Disclosures Act 2014 amends the Unfair Dismissals Act 1977 – 2015.   The effect of this amendment is to protect employees from penalisation for making a protected disclosure by making dismissal for so doing an automatically unfair dismissal. In such circumstances therefore, the complainant is not required to have completed 12 months’ service to bring a complaint under the Unfair Dismissals Act.

For the respondent, Ms Gaffney submitted that the complainant’s statements about health and safety in the workshop were not protected disclosures and she referred to the case of Donegal County Council v Liam Carr PDD161, (7 June 2016) to support this position. Finding against Mr Carr, the Court decided that the matters he complained of were within his function to detect and did not relate to any alleged omission by the employer. The Court found that this complaint was misconceived and that a protected disclosure had not been made.

In the complaint under consideration here, Ms Gaffney said that the issues that the complainant raised as an alleged protected disclosure were merely “bald allegations” which do not form the subject of a protected disclosure.

Protection of Employees from Dismissal

The case of Dougan and Clark v Lifeline Ambulances Limited (unreported, Circuit Court) was the first case to come before the Circuit Court under the Protected Disclosures Act 2014, where the claimants were granted injunctive relief pending a hearing of their complaint of unfair dismissal. Here, Mr Justice Comerford considered what would amount to substantial grounds for a Court to conclude that a dismissal may have resulted from having made a protected disclosure. Justice Comerford concluded that the factors which show this connection are;

The temporal proximity between the making of the protected disclosure and the dismissal;

If there was any animosity between the parties as a result of the protected disclosure;

Whether fair procedures and natural justice were afforded to the employee in the dismissal process;

Whether any such procedures were a mere “window dressing;”

Whether the employee who made the disclosure was treated less favourably compared to other employees.

Ms Gaffney 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. Ms Monaghan, who was a care assistant, made allegations of wrongdoings regarding patient care at her appraisal meeting and by letter and in phone calls to the Health Information and Quality Authority (HIQA). Following allegations by colleagues that her complaints may have been motivated by malice, she was suspended for several months. In its findings, the Labour Court decided that Ms Monaghan had informed her employer about alleged wrongdoings regarding patient care which she reasonably believed was occurring in the nursing home where she worked and which had come to her attention in the course of her employment. The Court also found that these concerns related to health and safety risks to residents within the meaning of section 5(3)(d) of the Protected Disclosures Act.

The Court then considered if Ms Monaghan had been penalised for having made such a protected disclosure. Reference was made to the provisions regarding penalisation under the Safety, Health and Welfare at Work act 2005 and to the Labour Court decision in the case of O’Neill v Toni and Guy Blackrock Limited, [2010] ELR 21. While the Toni and Guy case was a complaint under the Safety, Health and Welfare at Work Act 2005, the Court maintained, that “the general principle enunciated in that case remains valid in the case under consideration.”

To make out a case of penalisation, the Court remarked that a complainant must establish that the detriment of which he or she complains was imposed for having committed a protected act. Referring to the Toni and Guy case, the Court found that to show that he had been penalised, the complainant, Mr O’Neill, had to 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.”

In the Toni and Guy case, the Court stated:

“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 complainant 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 detriment.”

The final precedent referred to by Ms Gaffney was a decision of the adjudication officer, Mr Kevin Baneham, in A Senior Official v A Local Authority, ADJ-00001721. Here, the complainant alleged that his employer had made what he claimed were “disguised payments” and that accounting irregularities had occurred on a project he was involved in as a board member. The complainant reported his concerns to the Chief Executive officer of the local authority, and in 2015, following the passing of the Protected Disclosures Act, he reported them to a government minister. In 2016, the complainant was transferred to a new role where he claimed he had “little to do in a non-job.” He claimed that he had established a link between his protected disclosures and his job transfer.

Finding that he had made a protected disclosure about his employer’s failure to comply with a legal obligation and the improper use of funds, Mr Baneham went on to consider if he was subjected to penalisation for having made the disclosures. Mr Baneham referred to the “but for” test set out in the Aidan and Henrietta McGrath and the Toni and Guy cases and he determined that the transfer of the complainant was too remote to meet that test.   Finding against the complainant, he also concluded that the respondent was entitled to re-organise and re-assign senior managers, that the complainant’s line manager was also transferred and that there was potential for growth in the complainant’s new role.

In the case under consideration here, Ms Gaffney submitted that there is insufficient evidence to conclude that the “but for” test has been met and that a case of penalisation has not been made out. The complainant was not dismissed for making a protected disclosure but was let go for economic reasons because he refused to work on motorcycles other than the iconic brand.

Health and Safety at the Workshop

In his evidence at the hearing of this complaint, Mr A said that the workshop is in a unit in an industrial estate which is shared by other businesses. Fire safety inspections are carried out twice a year in their workshop and in the surrounding units. He said that there are five fire safety certificates on the walls of the office and workshop. A health and safety statement was drawn up in 2010, when the company was set up.

Mr A said that the workshop is difficult to heat, as it comprises 1,100 square feet of space with a big open door. Two heaters were purchased after the complainant went absent due to illness in December 2017.

Mr A was questioned about insurance at the premises. He said that unless the fire safety certificates are provided to the insurance company, along with the safety statement, their insurance would not be renewed. These documents were provided to the insurance company and the workshop, equipment, public and employee liability was insured at a cost of €10,500 in 2017.

In cross-examining by Mr Gorry, the second director, “Mr B,” agreed that there was a highly flammable chemical in use in the workshop. Mr Gorry said that the health and safety statement of 2010 did not cover this chemical, but Mr B disagreed and said that this chemical was referred to in the 2010 statement and that safety precautions were drawn up about its use.

Dismissal

In their written submission prior to the hearing, the respondents said that it was regrettable that they had to let the complainant go. They said that this had “nothing to do with the concerns raised about insurance, health and safety and fire safety.” Mr A said that, in September, they discussed future work with the complainant and he was under the impression that they would close the workshop in December and January, as work tapers off in the winter. Mr A said that the complainant offered to work on an on-call basis for those months. However, around €5,000 worth of servicing was booked in, but the complainant refused to work on any bike other than the iconic brand. The respondents paid a mechanic over the odds to work for them on Saturdays and Sundays, as well as paying the complainant his agreed retainer of €180 per week, plus an hourly rate when he was at work. Their case is that the complainant was dismissed for financial reasons because they lost business because of his refusal to work on any brand of motorcycle.

On the day his employment was terminated, the respondents offered the complainant contracting work on an “as needed basis.” In a mail dated January 23rd 2018, the complainant responded to this offer saying,

“I am hoping to have a brief outline of contractor terms to you, by this day week. This would include all makes and models for service and repair. It would include health and safety on your part for your workshop / site and insurance for business activities therein. Please let me know if this is still an option on your part.”

There is no evidence that the complainant submitted an outline of contractor terms and he did no further work for the respondents.

The Relevant Law

The complainant in this case alleges that he was dismissed for exercising his rights under the Protected Disclosures Act 2014. In advance of any consideration of whether his dismissal was unfair, I must first explore the nature of the information he disclosed to his employer and decide if the provision of this information meets the definition of a protected disclosure.   The definition of “protected disclosure” is set out at section 5(1) of the Act:    

“For the purposes of this Act ‘protected disclosure’ means, subject to subsections (6) and (7A) and sections 17 and 18, a disclosure of relevant information … made by a worker in the manner specified in section 6, 7, 8, 9 or 10.”

Sub-sections (6) and (7A) respectively address the disclosure of trade secrets and legally privileged information and these are not relevant for this complaint.   Sections 17 and 18 refer to law enforcement and international relations and are also not relevant here.   Sections 6 to 10 set out a tiered disclosure process and provides that information related to wrongdoings may be provided to a prescribed person, an employer, a government minister, a legal advisor or to another person.

A “protected disclosure” therefore, is the disclosure by an employee to his or her employer, or another person, of relevant information. Section 5(2) of the Act provides that,

“information is ‘relevant information’ if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.”

Section 5(3) from (a) to (h) sets out a list of “relevant wrongdoings” and, in this respect, on behalf of the complainant, Mr Gorry referred to subsections (b) and (d) which, he argued, show that the complainant’s actions come within the scope of the Act:

“The following matters are relevant wrongdoings for the purposes of this Act—

“(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,”

and,

“(d) that the health or safety of any individual has been, is being or is likely to be endangered.”

Section 5(5) sets out what a relevant wrongdoing is not and states that,

“A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.”

Section 5(8) provides that in these proceedings at the WRC, “involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.”   For the complainant, Mr Gorry said that, based on this provision, a reasonable inference can be drawn that the complainant’s requests for “health and safety remedies” were the reason for his dismissal.

Has the Complainant Made a Protected Disclosure?

My first task is to consider if, by reporting his concerns about health and safety matters, the complainant made a protected disclosure within the meaning of the Act.

Section 5(2) provides that information provided to an employer is “relevant information” if, a worker has a “reasonable belief” that a wrongdoing occurred and that the information regarding this wrongdoing came to his attention during his employment.   The wrongdoing that the complainant alleges occurred was his belief that his employer did not comply with specific legislation in relation to health and safety and that this could have led to him being injured.

The operative clause here is “reasonable belief.” In the Q & A material included as an appendix to the “Statutory Review of the Protected Disclosures Act 2015,” the reviewers note that,

“…all that is required is a reasonable belief that the information disclosed shows or tends to show that the wrongdoing is occurring.   This is a deliberately low threshold designed to ensure that most reports are made to the person best placed to correct the alleged wrongdoing – the employer.”

It is apparent therefore that the Act intends that “relevant information” concerning an alleged wrongdoing is provided to an employer so that the employer can correct it and, that the employee does not have to be convinced that a wrongdoing has occurred but that the lower threshold of reasonable belief applies.

Disclosure of Information

I have considered the information related to health and safety matters that was submitted by the complainant as evidence that he made a protected disclosure.

Text Message of December 9th 2017

On December 9th 2017, when he was absent due to illness, the complainant sent Mr A a text message in which he said:

“My health and safety in the workshop will no longer be up for debate…we need to set times / dates for an actual workshop to be set up and arrange health and safety certification for the current work station and for the new workshop, including fire safety cert and well as guide-lined (sic) ventilation for employees and extraction for vehicle fumes.   Also, proper heating for current and new workshop…

“It’s been 9 months now and nothing in regards (sic) has been done. I thought the 6-month meeting would bring this matter to the forefront but procrastination has set in once again.”

It is my view that this statement communicates the complainant’s reasonable belief that there were problems with health and safety in the workshop. While it is lacking in specifics, and it does not refer to any specific breache of health and safety legislation, it meets the “deliberately low threshold” of reasonable belief intended by the legislation.

Note for the Meeting of December 15th 2017

When he returned from sick leave on December 15th, the complainant brought a hand-written note to his meeting with the directors. This refers to the Terms of Employment (Information) Act 1994 and the Health, Safety and Welfare at Work Act 2005. The first page of the note summarises the responsibility of employers regarding their obligation to provide employees with a written statement of their terms and conditions of employment, but its main focus is on the obligation of employers under the Safety, Health and Welfare at Work Act 2005.   In this respect, most of the information is available on the website of the Health and Safety Authority.   The second page has a heading, “Clarification of Personal Cover / Employer Cover” and deals with insurance matters. On the same page, the complainant states:

“The workstation I put in place was as a temp measure to PDI (pre-delivery inspection) and carry out primary first / second service requirement on (iconic) motorbikes to give you guys an opportunity to get the ball rolling, and to open a proper workshop while growing customers and sales.

“To continue further we now need to meet current legislation via the state and common employee law. This is also stated as regulated guidelines under code of conduct for all IMEI members of who you are a member of.”

Page 3 of this note is also headed, “Clarification of Insurance Cover.” Here, the complainant requests a “headed letter from the insurance company clearly stating that they understand the below concerns and that they are happy to provide insurance cover in full knowing that these items are not in place.”

The complainant then lists his concerns about matters that he alleges the insurance company may not be aware of:

No health and safety certification, no risk assessment has been carried out, no safety statement is available for employees;

A fire safety audit has not been carried out, fire prevention measures are not in place;

There is no direct general ventilation and no vehicle fume extraction;

The workshop is a place where hand tools, electrical and pneumatic tools and hazardous materials are in use;

The vehicle lift has not been installed by a registered / certified installer or certified as safe by a qualified installer / service technician.

At the hearing of this complaint, evidence was presented that the workshop is insured for fire, use of equipment and public and employer’s liability insurance. In correspondence on January 23rd 2018 to the complainant from the Society of the Irish Motor Industry, we learned that insurance cannot be obtained without a valid safety statement. The directors said that certificates regarding fire safety are posted on the walls and a document was also submitted which shows that fire extinguishers were tested, filled and serviced in April 2017. The vehicle lift was new in 2017 and was installed by an employee of the distributor or manufacturer, who was qualified to carry out the installation. On the date of the meeting on December 15th, the directors had contacted a health and safety consultant and he was due to assess the workshop on January 18th 2018. An earlier health and safety statement was in existence since 2010.

Relevant Information About a Wrongdoing  

I have examined the documents presented by the complainant that he sent to his employers, and I have considered what he said to them in meetings. I am satisfied that he communicated his concerns about health and safety in his workplace and his belief that a risk assessment and a safety statement was required and that specific measures needed to be put in place to extract fumes. I agree with Mr Gorry that, in the way he communicated his concerns, the complainant made a protected disclosure in accordance with section 5(3) (b) and (d) of the Protected Disclosures Act:

“(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation…, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,”

and,

“(d) that the health or safety of any individual has been, is being or is likely to be endangered.”

I note that at the same meeting on December 15th at which the complainant raised these matters, the directors told him that a health and safety consultant was booked to do an assessment on January 18th 2018. In his evidence, Mr A said that the consultant recommended that they install one additional fire blanket in the workshop. While the directors responded appropriately to their employee’s concerns, that fact remains that he raised these matters before he was dismissed and I am satisfied that his contention that he made a protected disclosure can be upheld.

Penalisation

Section 3 of the Protected Disclosures Act defines “penalisation” as,

“any act or omission that affects a worker to the worker’s detriment, and in particular includes—

(a) suspension, lay-off or dismissal.”

The complainant claims that he was dismissed for making a protected disclosure. It is the respondent’s case that he was let go because he refused to work on any vehicle other than the motorcycle referenced in the advertisement that he responded to when he applied for his job.   Because he confined himself to working on these motorbikes, the respondents had to recruit another mechanic, but this person was only available on Saturdays. As a result, they said that their repair business was effectively eliminated.  

For the respondents, Ms Gaffney referred to the Labour Court case of McGrath Partnership v Monaghan, PDD 162, where the Court considered the provisions regarding penalisation to be “broadly similar to those provided in the Safety, Health and Welfare at Work Act 2005.” Applying this benchmark, the Labour Court referred to O’Neill v Toni and Guy Blackrock Limited [2010] ELR 21, and the “but for” test which requires the complainant to show that the detriment he complained about was imposed because he made a complaint about health and safety and, “but for” having made such a complaint, he would not have been penalised. In the instant case, to determine if penalisation occurred for making a protected disclosure, I must consider the reason given by the employer for dismissing the complainant.

The respondents said that the complainant was let go was because their repair business was reduced to such an extent that they had no resources to continue to employ him, in circumstances where he was unwilling to do the work on offer. It is apparent therefore, that there was more than one causal factor resulting in the complainant’s dismissal and I am required to determine if the fact that he made a protected disclosure was the operative cause.

Having considered all the evidence presented at the hearing, I find that the complainant’s dismissal does not meet the “but for” test set out above, for the following reasons:

The response of the directors to the complainant’s concerns about health and safety was to engage a consultant to assess the health and safety requirements of the workshop. I find that they responded reasonably to his communications and there is no evidence of animosity or resentment towards him for raising these matters.

In December 2017, the complainant refused to carry out certain work with the result that the respondents had to recruit another mechanic, but they could only source a person who was available at weekends. As a result, they lost business and they could not afford to continue to retain the complainant in permanent employment.

The respondents offered to continue to employ the complainant as a sub-contractor, to carry out the work he was willing to do. This again demonstrates that the respondents were positively disposed towards the complainant. On January 22nd, in an e mail confirming his final payments, Mr B wrote to the complainant and said, “With regard to doing contract work …I would be happy to offer you this work once we can agree a rate for it.” The complainant replied the following day, saying, “I am hoping to have a brief outline of contractor terms to you, by this day week.” In the end, the complainant did not send on an outline of terms and the respondents did not get in touch with him about a new contract.

I acknowledge the “temporal proximity” referred to by Mr Justice Comerford in the Lifeline Ambulances case and the closeness in time of the complainant’s protected disclosure in December 2017 and his dismissal in January 2018.   However, I am satisfied that the complainant was dismissed because he refused to do the work that was available and this resulted in a loss of business to the respondent. On this basis, I have reached the conclusion that his complaint of penalisation is not upheld.

I have concluded that the complainant has not established that he was penalised by being dismissed for making a protected disclosure. I decide therefore that his complaint under the Unfair Dismissals Act is not well founded and is not upheld.

This is a complaint about the fact that, for the duration of his employment with the respondents, until the date of his dismissal on January 16th 2018, the complainant did not receive a statement setting out the terms and condition of his employment.

At the hearing, the complainant said that between September and December 2017 he looked for a statement of his terms and conditions of employment. Evidence was submitted which has been referred to in the previous section which shows that on December 15th 2017, the complainant met the directors and requested a statement of his terms and conditions of employment. At that stage, he had been employed for seven months.

At the hearing, Mr A said that the complainant should have been given a contract of employment and that this was an oversight. Mr A referred to the e-mail dated February 3rd 2017 which provided some basic information to the complainant in relation to pay, hours of work, holidays and training, but this does not comply with the requirement for a written statement of terms and conditions and the respondents accepted this.

It is apparent that, until his last day at work, the complainant did not receive a proper statement of his terms and conditions of employment and, as a result, I find therefore that the respondents have failed to comply with their obligations to him under the Terms of Employment (Information) Act 1994.

I decide in favour of the complainant in respect of this complaint and I order the respondent to pay compensation of €2,000 which is equivalent to approximately three weeks’ pay.

Protected disclosure, statement of terms and conditions of employment