ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00015349

Parties:

Complaint(s):

Date of Adjudication Hearing:  17/12/2018

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 28 of the Safety, Health & Welfare at Work Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant is employed as a Material Handler and has raised a complaint of penalisation under the Safety, Health and Welfare At Work Act 2005 for raising a concern regarding a machine that was out of certification and where she alleged she was subject to coercion and intimidation.

Summary of Complainant’s Case:

The Complainant submitted that she was subject to unnecessary coercion on 28^th June 2017 after she raised a grievance with regards to lack of an adherence to safety rules and regulations relating to the operation of a lifting hoist machine.

The Complainant maintained that on 27^th June 2017 she inspected a lifting hoist machine and locked out the machine as its safety certification was out of date after the machine had undergone repairs.

The Complainant submitted that the following day she was subject to a disciplinary process where she was subjected to heavy arguments from two managers due to her locking out of the machine and that the managers tried to convince her the machine was in good working order and that she should use machine. The Complainant submitted that she has 20 years’ experience, maintained she knows her job, and submitted that another member of staff had lost his job for not following health and safety policy. Whilst she was not sanctioned for closing out machine she stated she had to robustly defend her actions with the managers who should have known better.  As a consequence of this she submitted a grievance in relation to the behaviour she was subjected to and where the outcome of that grievance did not address her concerns.

The Complainant was of the belief that had she used the machinery without its certification and if there had been any subsequent malfunction she would have been found liable. She also advised that the site health and safety leader did not give a direction and stated the machine should only be put back into service.  The Complainant believed this shifted the duty of care to her.

The Complainant maintained that the established policy was side-lined for operational reasons and she was placed in a precarious position. She advised she was being put under pressure to operate machine that she felt was unsafe and where she was brought into the office to managers for a difficult meeting and where she was told a certificate was not needed. The Complainant advised that the certificate on the machine was six to seven  days outside of time and by raising this issue she had been told she was uncooperative. She maintained the Respondent failed to address the matter and where as a consequence of her actions she had been penalised.

Summary of Respondent’s Case:

The Respondent submitted a preliminary issue stating that the complaint was out of time. The Respondent advised that the events subject to the complaint occurred on 27^th/28^th June 2017 but that the complaint to the Workplace Relations Commission (WRC) was not submitted until 25^th June 2018, almost one year later. The Respondent therefore maintained that the complaint was not submitted within six months of the occurrence of the issue.

At the hearing it was acknowledged that the Complainant’s grievance of the issue had not ended until 13^th April 2018.

In response to the complaint of penalisation the Respondent submitted that on 27^th June 2017 the Complainant was completing a weekly safety check of the hydraulic lifting equipment and she noticed that an inspection date of the sticker on the lifting equipment was overdue by six days. She also observed some other minor defects with the equipment and recorded them in the inspection sheet. The Respondent acknowledged that the Complainant immediately informed the manager and she locked out the equipment. The Respondent further acknowledged this is the relevant procedure when a safety issue relating to machinery is identified by a staff member. The Respondent maintained that the defects to the machine were repaired by trained fitter on 28^th June 2017, but the equipment was locked out again by the Complainant due to an expired inspection date sticker still affixed to the machine.

The Respondent maintained the lifting equipment was a unique piece of equipment and the implications of the equipment being unavailable on the second day would cause the production lines to stop and this would place the operations department under pressure.  It was therefore important that the matter was resolved quickly.  To address the matter the Warehouse Manager, the Health and Safety Manager, and the Facilities Manager worked together where they consulted with an Inspection and Test Subcontractor who advised over the phone that the lift equipment was safe to use.  It was also decided that as the date on the sticker was based on an internal six months inspection frequency it did not fall short of the legal requirement for the lift to be tested every 12 months. As such the Respondent advised that whilst the lift was outside of its internal precautionary frequency inspection, it was well within the 12-month legal requirement. 

The Respondent submitted this information was shared with the Complainant however she refused to use the equipment despite assurances from the various managers. The Respondent acknowledged that during a meeting with the Complainant the discussion became heated where the Complainant advised she was not comfortable to work on the machine until the inspection had taken place. The Respondent called the inspection and test subcontractor to the site to immediately inspect the lift equipment. Soon after they arrived on site the equipment was certified for use the and normal warehouse activities resumed immediately. The Complainant resumed work on the machine.

The Respondent submitted that over the next few days the Warehouse Manager tried to apologise to the Complainant about the heated discussion, but the Complainant refused to discuss the matter. The Respondent advised that on 4^th July 2017 the Complainant raised a grievance about the incident where she submitted she was asked to use equipment where the statutory inspection and certification was overdue, and she felt bullied and manipulated and subjected to inequitable treatment. The Respondent submitted that the Complainant’s grievance was heard by the Operations Department Manager and the Finance Manager on 11^th July 2017 where the Complainant was represented by her Trade Union shop steward. A HR support person also attended the meeting. The outcome of the grievance which was issued on 10^th August 2017 concluded that the Complainant did the right thing in raising the issue and followed all safety standards; that the standard inspection sticker label on the lift was out of date; that the managers involved at no time put anyone in danger by instructing the lift to be used; and that the Warehouse Manager’s behaviour at the meeting with the Complainant was unacceptable. Recommendations were made which included a need to develop a clear standard for inspection status; the purchase of new lift equipment; the Warehouse Manager apologise to the Complainant or the mediation should take place between the parties if an apology was not acceptable; and that the warehouse team and management team were to meet together to talk through issues and rebuild trust.

On 14^th August 2017 Complainant appealed the outcome from the initial grievance as she did not accept the recommendations stating she felt the investigation did not establish certain facts. An appeal was heard in November 2017 by the site QA Manager and the Operations Manager. The Complainant was represented by her Trade Union shop steward and HR support also attended the meeting. The conclusions and recommend of the appeal were that the Complainant was deemed to have operated in a standard that was correct; that the Warehouse Manager was below the company expected standard in how he behaved towards the Complainant at the time; and that the behaviour experienced by the Complainant was not bullying as it was a once off behaviour. The review also concluded that there was a clear lack of ownership of exactly who owns the inspection and certification of the equipment and this should be reviewed. The review recommended an apology from the Warehouse Manager to the Complainant or mediation if the Complainant would not accept the apology, the purchase of another lift, and a need for clarity regarding the ownership of the inspection certification process.

On 8^th December 2017 the Complainant submitted a second appeal disagreeing with the outcome of the first appeal. The Respondent submitted that whilst allowing for a second appeal is not strictly part of the company’s grievance process it was decided to provide a second appeal to ensure that all the concerns of the Complainant were dealt with appropriately, and in order to seek to resolve the issue for the Complainant. It was decided to bring in management external to the site and who were knowledgeable in the operations of health and safety to review the matter, and where that this process would be a final review. In March 2018 the second appeal was heard and the outcome of the appeal was communicated to the Complainant on 13^th April 2018. The appeal team found that responsibility for testing the lift sat squarely with the warehouse line manager; that while the inspection date may have expired from an internal standard perspective it had not expired from a legal perspective under health and safety legislation; that a health and safety risk did not actually arise in respect of the machine; and that better communications with the inspection and test subcontractor was identified.  Recommendations were made on how the situation should operate going forward.

The Respondent therefore submitted that despite the assurances given to the Complainant throughout the grievance process that she had taken the right approach and was supported in her actions by the Company she still brought a complaint to the WRC for reasons of penalisation under section 28 of the Safety, Health and Welfare at Work Act 2005. The Respondent argued that following the outcome of the final appeal the Complainant did not bring any further concerns to the Respondent or suggest any further ways in which the matter could be resolved for her. It advised that the element of complaint where she stated she was subjected to coercion and intimidation for highlighting that the machine not certified had been fully addressed in the appeal processes and in the conclusions and recommendations made to her grievance and her to appeals.

In response to the specific complaint to the WRC which was submitted on 25^th June 2018, the Respondent denied that the Complainant was ever penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act 2005 (the Act).  The Respondent referred to the relevant sections of the Act which provide, at Section 27 (1) that ‘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. The Respondent submitted no such penalisation occurred.

The Respondent referred to jurisprudence in the case of Toni & Guy Blackrock Limited v. Paul O’Neill (HSD095). The Respondent submitted that in this case the Labour Court held that a causal connection must be established between the employee exercising their rights under Section 27(3) and the employer’s alleged subsequent ‘penalisation’ actions under Section 27(2), if any. The Court stated ‘This matter is before the Court by way of a complaint of penalisation within the meaning ascribed to that term by s.27 of the Act of 2005. Hence, the Court is not concerned with the fairness of the dismissal per se. Its sole function is to establish whether or not the dismissal was caused by the Claimant having committed an act protected by s.27 (3) of the Act.’

The Respondent submitted that the Complainant has not been penalised for raising a health and safety concern and that in fact the Respondent has sought to resolve any concerns the Complainant had arising out of the dispute with her manager. The Respondent further maintained that the Complainant would have to prove that the detriment to her terms and conditions she claims to have suffered must haveoccurred because of, or in retaliation for having committed a protected act. That is, the alleged detriment would nothave arisen "but for" the employee having exercised one of the six actions under Section 27 (3).

Furthermore the Respondent referred to the approach of the Labour Court in the case of Citizens Information Board v. John Curtis (HSD101)which stated: ‘It is clear that redress under the Act is only available where (a) an employee commits an act protected by subsection (3)of s.27, and (b) the employer imposes a detriment on the employee because of, or in retaliation for, having committedthe protected act.’’  In this regard the Respondent contended that the Complainant was at all times correct in her approach when the potential certification issue arose and that while it is unfortunate that her manager was agitated in dealing with the Complainant where his communication approach was inappropriate, this was not an act of penalisation where the Complainant has suffered a detriment from this heated discussion. The Respondent maintained it had sought to resolve the issue between the Complainant and her manager where her manager has sought to apologise but the Complainant has refused these reasonable means of resolution without suggesting the manner in which she feels it should be resolved.

The Respondent maintained that the Complainanthas suffered no detriment, financial or otherwise, as a result of raising the issue with the machine certification.

Findings and Conclusions:

The Complainant submitted that she had been penalised as a consequence of raising a concern regarding the safe operation of a lift.

With regard to the any matter that the complaint is time, having reviewed the evidence I am satisfied that the complainant was informed of the outcome of the grievance appeal on 13 April 2018. Her complaint was raised submitted to the WRC on 25^th June 2018 I am satisfied that it has been submitted within the time prescribed under the Workplace Relations Act 2015.

In accordance with Section 27 (1) of the Safety, Health and Welfare at Work Act 2005 (the Act), “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.

Section 27 (2) of the Act states that  penalisation includes a) suspension, layoff or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977-2001)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.

Section 27 (3) of the Act stats that an employer shall not penalise or threaten penalisation against an employee for (a) acting in compliance with the relevant statutory provisions,(b) performing any duty or exercising any right under the relevant statutory provisions,(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,(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.

Having considered the written and oral evidence presented I am satisfied that the Complainant had raised a concern with regards to the safe operation of a lift at her place of work. Due to her concerns she decided that she would shut down the operation of the lift until her safety concerns were addressed. Accordingly, I find she had protection under S 27(3) three of the act.

I am also satisfied that when she raised her concerns management did not view the ongoing operation of the lift as a breach of health and safety. They sought advice from an independent safety tester and took that advise in dealing with the safety issues.  There was a heated discussion between the Complainant and one of her managers when matters were being discussed.  In light of her experience the Complainant raised a grievance and the company adhered to its grievance procedures in order to address the Complainant’s concerns. The grievance substantially found in favour of the Complainant.

It is noted that the Complainant was unhappy with the outcome of the grievance and the Respondent made an exception to allow her to make two appeals to that outcome. Therefore, I am satisfied that whilst there was a dispute between the Complainant and one of her managers with regards the decision to shut down the operation of the lift, I find the Respondent acted reasonably in seeking to address the Complainant’s concerns.  I acknowledge the Complainant may have felt coerced and/or intimidated by the reaction of her manager at the time of the discussions, however under the circumstances I do not find this amounts to an act of penalisation.  Of significance is the manner the Respondent sought to address the Complainant’s concern’s once they were brought to her attention; the decision of the Respondent to acknowledge the manager’s behaviour; and where both an apology and an option to mediate the matter was provided to the Complainant.

I do not find that the Complainant has experienced any detrimental actions by the Respondent, and to the contrary it is evident the Respondent made every reasonable attempt to resolve the matter without any disadvantage to the Complainant.  It is evident the Complainant feels strongly about how her manager behaved towards her on the day, and it appears she has not found his apology addresses her concerns.  Whilst the manager’s behaviour in this case is associated to a single event, albeit relating to the operation of a lift, taking all issues into account I conclude the issue is more related to dignity at work rather than an act that warranted a complaint under Section 27 of the Act.  Section 27 of the Act provides an important protection for employees who experience penalisation and detrimental acts from their employer for raising a health and safety concern in good faith.  In relying on this section complainants have an obligation to consider the reasonableness of their employers’ actions in handling their concerns.  Whilst I am satisfied the Complainant in this case made her complaint in good faith, enacting Section 27 of the Act places an obligation on the Complainant to consider the proportionality of the alleged behaviour based on all the circumstances.  It is clear in this case that unpleasant and inappropriate as the Complainant’s managers actions were perceived to be on the day, neither his not the Respondents actions could be reasonably regarded as an act of penalisation.

Under these circumstances I do not find the Complainant was penalised.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 28 of the Safety, Health and Welfare at Work Act 2005, requires that I make a decision as to whether a complaint under Section 27 of the Act is upheld.

Having considered the evidence presented I declare the complaint is not well founded.

Dated:   1^st August 2019

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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