Complainant

Respondent

Anonymised Parties

A Business Development Executive

A Service Company

Representatives

Simon Donagh B.L. instructed by Peter Connolly Solicitors

Des Ryan B.L. instructed by Matheson Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00022230-001

28/09/2018

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

CA-00022230-002

28/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00022230-003

28/09/2018

The complainant had been employed by the respondent from July 3rd 2017 until May 14th 2018 on a gross salary of €3750 per month.

The complainant makes three complaints.

The first is that he was penalised for raising a complaint under the Safety, Health and Welfare at Work Act, 2005.

He makes a related claim on the same facts under the Industrial Relations Act.

Finally, he says that he is owed four and a half days annual leave.

Respondent Submission

The respondent raises a preliminary point on jurisdiction and says that the respondent has not been correctly identified.

The respondent’s corporate legal status is defined using the appendage ‘Ltd’ following its name.

The complainant has referred to the respondent using the appendage ‘DAC’ and this is not the correct legal name of his former employer.

This should be known to the complainant as this is how the company is described on his own contract. It was also pointed out to his legal representatives, but this was not acknowledged.

The respondent relied on the authority of the Labour Court in Travelodge Management Ltd v Sylvia Wach (Labour Court Determination No 1511) in which the court held that, following the practise of the Superior Courts there is no power to add or substitute a party to proceedings where the limitation period in the action has expired against that party, even where the mistake is a bona fide error.

The respondent also says that the complainant should not be permitted to pursue a complaint grounded on the same facts under two statutes as it is in breach of the common law rule in Henderson and Henderson (1843) Hare 100 and also in breach of public policy.

Complainant submission.

The complainant says that the Adjudicator has the authority to amend the respondent name or extend the time.

In relation to the former it relied on the decision of the Labour Court in Ballarat Clothing v Ann Aziz. In that case the Court followed the decision in O’Higgins v UCD & Anor [2013]21 MCA where Hogan J. held;

Even if the wrong party was, in fact, so named, no prejudice whatever as caused by reason of that error (if indeed, error it be)…..In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the Court.

The Labour court continued;

In light of this acknowledgement [that the respondent would suffer no prejudice] the Court adopts the reasoning set out by Hogan J. cited above and allows the appeal. Not to allow the appeal for such a technical reason where the correct respondent was aware from the commencement of the case that an error had been made and acknowledges it would suffer no prejudice by being named as the correct respondent would amount to a grossly disproportionate response and deprive the appellant of the substance of her right to have the complaint heard and decided on its merits.

Findings and Conclusions on Preliminary Point

In the Sylvia Wach case (above) the Labour Curt noted, in reviewing the authorities that that ‘there are some apparently divergent decisions on this subject’; an observation lent further support by the contrasting decisions above.

However, it is worth noting that in the Wach case, the correct name of the complainant’s employer bore no resemblance to that under which the complaint was made, was an existing and separate legal entity and the respondent which had been identified had not been the complainant’s employer at the time the complaint was made. These are three significant considerations.

And this was a decisive consideration in the Court’s conclusion; It stated;

It is clear on the only evidence available that Travelodge Management Limited, the respondent herein, was not the complainant’s employer at any time material to this claim…..

The Court cannot substitute Smorgs (Ireland) Limited or Smorgs ROI Management Ltd for the respondent against which the case was taken.

In that case, there were two existing, trading entities which while related were legally separate and the one against whom the complaint was made was demonstrably the wrong party.

A clear act of substitution would have been required.

That is not the situation in this case. The respondent as described in the complaint does not exist. There is no legal entity with the respondent’s name as described on the complaint form with the appendage DAC. However, the actual respondent (which was in attendance at the hearing) was the complainant’s employer, save only for the incorrect appendage.

In Wach, the Labour Court would have had to make a substantial change and actually substitute one party, a known legal entity with another, separate legal entity.

That is not the position in this case and I prefer the general reasoning in Ballarat referred to above for the reason that there is no substitution of one party for another.

I further rely on the dicta in County Louth VEC v Equality Tribunal [2009] IEHC 370 considered by the Labour Court in Wach.

‘If it is permissible in court proceedings to amend pleadings where the justice of the case requires it. Then, a fortiore, it should also be permissible to amend a claim as set out in such a form, such as an originating document before a statutory tribunal, as long as the general nature of the complaint remains the same’.

Per McGovern J.

The Labour Court followed this excerpt with the following;

‘The ratio of that case [County Louth VEC] appears to be that the procedures adopted by statutory tribunals in relation to the amendment of non-statutory forms used in the initiation of claims should not be more stringent than those that apply in the ordinary courts. That is in line with the generally accepted principle that statutory tribunals should operate with the minimum degree of procedural formality consistent with the requirements of natural justice. On that point, the decision of the Supreme Court in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal [1990] ILRM 293 is relevant. Here Walsh J stated;

‘This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather ironic turn in history that this Tribunal, which was intended to save people from the ordinary courts would themselves fall into rigidity comparable to that of the common law before it was modified by equity'.

In addition to these considerations the ‘respondent’ suffered no prejudice of any sort. It attended the hearing with written submissions and witnesses and robustly defended its position in respect of the complaints to which, having found that the respondent name can be amended to substitute Ltd for DAC I now turn.

The complainant makes three complaints.

The first, under the Safety, Health and Welfare at Work Act, 2005 alleges that the respondent ‘s conduct was unsafe and had an adverse impact on his health. Further, no steps were taken by the respondent to have him medically assessed.

This arose from a change in the complainant’s commission arrangements which were communicated to him early in January 2018. He responded on January 16th, 2018 expressing his concern over the proposed changes.

The complainant was the company’s top sales performer and therefore earned considerable commission. He always met his sales targets.

There was renewed correspondence in March and on March 8th he met with his manager and says that he had previously had ‘many meetings’ with another manager about the commission.

He sought another meeting and this took place on March 14th. He was dismissed at that meeting.

Under cross examination the complainant accepted that he was absent for a large number of days.

He says the termination of his employment was the act of penalisation on which the complaint is based.

He insists that he did bring his health concerns to the attention of his manager, and as the company did not have a tradition of applying procedures in a strict way the complainant was entitled to do like wise.

Whether or not he was suffering from stress is irrelevant to the question as to whether a complaint had been made.

The complaint under the organisation of Working Time Act, 1997 relates to the non-payment for annual leave.

The respondent disputes the complainant’s claim about his stress.

In his correspondence with the company the complainant made only occasional references to being stressed which he attributed to delay in the payment of commission due to him.

His requests to see the company doctor were made against the background of high levels of absence and lateness. The complainant had twelve days absence on sick leave from January to April 2018, and seventeen and a half days in the previous nine months.

Emails submitted in evidence show continuing performance related issues involving the complainant.

There is no basis in any of this to ground the requirements in the Health, Safety and Welfare at Work Act for a complaint to have been made under the Act. No such complaint was made.

Witness A was the complainant’s immediate manager.

He said that from January 2018 there were issues with the complainant’s performance and attitude. By February his attendance was an issue. He says he told the complainant on February 1st of his disappointment at his performance (although the complainant does not recall this).

Witness A was monitoring the complainant’s performance on a continuing basis. Apart from the absences referred to above he could be up to one hour late for the star of the working day and he could not rely on the complainant. In general, he summarised the complainant as having poor attitude and performance in addition to the attendance issues.

Significantly, the medical certification for absences made no reference to stress, in particular his absence in April.

Regarding the change in commission this was a result of the company introducing a new product. It did not reflect in any way on the complainant.

Finally, witness A confirmed that he was not aware of any Health and Safety related complaint having been made by the complainant.

Witness B, the HR Manager likewise confirmed that she had received no Health and Safety related complaint from the complainant.

Regarding the termination of the complainant’s employment, he had been given ample opportunity to improve and had failed to do so. These included conversations with his manager (witness A).

The complainant has defined the termination of employment as the detriment and retaliation he suffered as a result of his claim that he made a complaint. But, there is no evidence of any complaint and even if there were, there is no nexus to the termination.

In this regard the respondent relies on the well-known determination of the Labour Court in O’Neill v Tony & Guy Blackrock [2010] ELR 1, which imposed the ‘but for’ test for determining whether the any alleged detriment as imposed for having committed the protected act.

The dismissal of the complainant was soundly grounded on performance issues as described earlier. It was not related to his having raised a complaint about his health, which was not in any event a protected act within the meaning of the 2005 Act, or at all.

Regarding the claim under the Organisation of Working Time Act, 1997 there is no basis to this complaint. A minor administrative error resulted in a delay in the payment in question, so the situation was fully rectified.

There is no basis to the complaint under the Industrial Relations Act. The reasons for the termination of the complainant’s employment were described above and related exclusively to his conduct and performance, and failure to address these.

Finally, the complainant is seeking redress under two Acts for the same set of facts and has duplicated his complaints under the Industrial Relations and Health, Safety and Welfare at Work Acts.

As noted above the complainant makes three complaints.

The first is that he was penalised for raising a complaint under the Safety, Health and Welfare at Work Act, 2005 and he makes a related claim on the same facts under the Industrial Relations Act.

Finally, he says that he is owed four and a half days annual leave.

This is a complaint that is almost entirely devoid of merit.

There was no evidence that the complainant made any complaint under the Act.

It seems clear throughout the complainant’s submission and his evidence that the root of the problem, and the staring point for the events giving rise to the complaints was the change in the commission payment system.

The complainant reacted negatively, and understandably to this as it would adversely affect his earnings. He gave evidence as to how this caused him worry and stress over the Christmas period 2017. This, or conduct related to it was referred to on the complaint form as conduct that was ‘unsafe and affected my mood and health’.

The purpose of penalisation, or victimisation provisions is to ensure that workers who make a complaint under relevant employment legislation do not subsequently suffer any detriment for having done so. Those pillars are inextricably linked and must be present to ground a successful complaint.

Neither is present in the current case. There are two issues; the complainant’s objections to the proposed change, and the adverse impact on his health.

There were options open to the complainant in respect of each of these. In relation to the former he could have pursued a grievance but did not do so. (This is especially relevant to his complaint under the Industrial Relations Act).

If he was not feeling well, it is not clear why he did not consult a medical practitioner.

To ground a complaint under the Act (on the facts in this case) he would first of all have to show that the change in the company’s commission system is, of itself, a breach of its duty of care under Health and Safety requirements, or that it represented a failure to provide a safe place of work.

According to his own submission the trigger was the change to the commission system.

It was that which caused the stress. Then, he says, the failure of the company to do anything about the stress breached its health and safety obligations.

Finally, it was the termination of his employment that was the penalisation for having complained about it.

None of this has any merit.

I accept from the evidence that the commission change was driven solely by business considerations; it was not something specifically targeted at the complainant.

On this alone this aspect of the complaint fails.

In addition, the evidence of his having raised any complaint about it is scant. He referred on the complaint form to a failure to address his grievance; yet there was no grievance of a type that would be recognisable in the sense in which it is used in industrial relations.

And finally, the connection to the termination is even more scant and is not credible.

His assertion that his sick leave absences can be attributed to this stress are contradicted by the fact that some of them preceded the announcement of the change and a number were clearly related to social activities (a rugby match, in one case).

More tellingly, none of them were medically certified as being due to stress.

As touched on above, it is a matter of strict jurisprudence for many years that a complaint coming to the adjudication service (and the Rights Commissioner service etc before it) under the Industrial Relations Act must have been fully processed at the level of the workplace first, and all available steps in the process exhausted. There was no evidence of the complainant having done so.

In conclusion, none of the complaints succeed for the reasons fully set out above and which I summarise as follows.

The complainant made no valid complaint under the Health, Safety & Welfare at Work, and therefore the primary requirement for an act of penalisation is not activated.

I find that the termination of the complainant’s employment was for cause and was related to his performance and conduct. It had no connection to the earlier commission issue, however the complainant sought to represent it.

For clarity I confirm that it cannot be regarded as a breach of a health and safety obligation to change remuneration arrangements on these facts.

Finally, the complaint under the Organisation of Working Time was resolved before the hearing.

For the reasons set out above, complaints CA-00022230-001, 002 and 003 are not upheld and are dismissed.