ADJ-00012197

Complainant

Respondent

Anonymised Parties

An Employee

A Wholesale Food Distributor

Representatives

John Duggan, Callan Tansey, Solicitors

Dermot Duignan, D&G Prevent

Act

Complaint/Dispute 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-00016046-001

29/11/2017

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

CA-00016046-002

29/11/2017

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

CA-00016046-003

29/11/2017

The Complainant has worked for the Respondent, a wholesale food supplier, since May 2000. The Complainant’s position is that of a truck loader, in which he works an evening/night shift, commencing at 6:00 pm and concluding at approximately 2:30 am.

CA-00016046-001 – Safety Health & Welfare at Work Act, 2005

The Complainant states that, from July 2015, he has been pressurised on and off to work on his own after normal finishing time. In his evidence, the Complainant stated that this was not in compliance with the Respondent’s Safety Statement. The Complainant stated that he should not have to work in the cold rooms on his own.

According to the Complainant’s evidence, he was given a written warning on 18 August 2017 because he complied with the terms of the Respondent’s Safety Statement, which is prepared under Section 20 of the Safety, Health & Welfare at Work Act, 2005.

It was submitted on behalf of the Complainant that the Respondent’s Safety Statement provides that:

“work in cold rooms out of normal hours should not be undertaken unless a second person in the immediate vicinity of the court room has been informed and will search for the person in the cold room in the event that they do not report in at a prearranged intervals.”

Evidence submitted on behalf of the Complainant shows that his hours of work are from 6:00 pm to 2:30 am.   The Complainant stated that, on a number of occasions, he was working overtime and was working in a cold room, when he was the sole employee remaining at his place of work. The Complainant further stated that, on those occasions, he left work in order to comply with the provisions of the Safety Statement, as set out above. The evidence submitted on behalf of the Complainant suggests that the occasions on which he left work under those circumstances were on 24 May 2017 and 11 June 2017 

According to the Complainant’s evidence, the Respondent commenced an investigation and, subsequently, a disciplinary process alleging that he had left work without permission on the above dates. It was further submitted that this process resulted in the issuing of a written warning on 18 August 2017 

In conclusion, it was submitted on behalf of the Complainant that he was not obliged to work overtime in breach of the provisions of the Respondent’s Safety Statement, which is prepared understand Section 20 of the 2005 Act. The Complainant’s representative also submitted that the Respondent’s issuing of a written warning was in breach of Section 27 (3) of the Act, for which the Complainant was entitled to compensation under Section 28 of the Act.

The Complainant stated that the written warning also referred to his not loading products and parking his vehicle properly. However, the Complainant stated that the Respondent offered no evidence of this and, in addition, he (the Complainant) has been denied access to the Accident and Incident.

CA-00016046-002- Terms of Employment (Information) Act, 1994

The Complainant claims that, when requested, he was not provided with a statement, in writing, of his terms and conditions of employment. In evidence, the Complainant stated that he sought a copy of the contract which had been provided to him following the commencement of his employment on 2 May 2000.

Representation on behalf of the Complainant submitted that, under Section 3 (1) (i) of the Terms of Employment (Information) Act 1994, the statement is required to contain particulars of any term or condition relating to hours of work, including over time 

It was further submitted that, Section 3 (5) of the Act requires that the statement of terms and conditions of employment shall be retained by the employer during the period of the employee’s employment and for a period of one year thereafter. Accordingly, on the basis that the Respondent did not provide a copy of the contract, it was submitted on behalf of the Complainant that the Respondent failed to retain a copy of the contract and is, therefore, in breach of this section of the Act.

According to the Complainant, he sought a copy of the contract in order to clarify whether or not he was obliged to work overtime. The Complainant believes that he is not obliged to work overtime under his contract of employment.

The Complainant submitted that, on a number of occasions, the Respondent had purported to issue a new contract. It was stated, on behalf of the Complainant, that these new contracts contained provisions obliging the Complainant to work overtime. According to the Complainant, these additional provisions in relation to working overtime were not contained in the original contract issued on commencement of his employment in 2000. Accordingly, the Complainant did not accept the change in the terms of his employment as set out in the new contracts and refused to sign same.

CA-00016046-003- Terms of Employment (Information) Act, 1994

This complaint is a duplication of the complaint made under CA-00016046-002 above.

Background:

The Respondent stated that, in 2016, the Complainant made a complaint of bullying and harassment against his Supervisor. The Respondent stated that the complaint was investigated by management. It was further stated that having reviewed the CCTV footage of the incident in question and interviewed the people involved, the only indication of any kind of misbehaviour by the Supervisor was his use of bad language. The Respondent stated that this was brought to the attention of the Supervisor, who was made aware that his behaviour, in this regard, was not acceptable.

The Respondent stated that, following this investigation, there were two occasions when the Complainant walked out of the building following discussions with the Supervisor. It was further submitted that, on both of these occasions, the Complainant complained of bullying. However, the Respondent stated that there was no evidence to support this claim from either witnesses or CCTV footage.

According to the Respondent, the Supervisor subsequently lodged a complaint against the Complainant on the basis that he was not taking instruction and he was making his position as supervisor very difficult. The Respondent stated that, following an investigation of the Supervisor’s complaint, the Complainant was given a written warning and asked to engage in some additional training that will benefit him and also help to resolve any problems.

The Respondent stated that the Complainant challenged the written warning and raised a complaint at the Workplace Relations Commission (WRC) in this regard. According to the Respondent’s evidence, at the WRC Hearing, the Adjudication Officer advised the parties to engage in a mediation process which would identify what each party wanted from the business relationship and, based on that, endeavour to come to some agreement on the way forward. The Respondent stated that when they set up a meeting in this regard, the Complainant walked out.

The Respondent stated, in evidence, that following this failed attempt at mediation, the owner of the business received a telephone call and a letter from a solicitor on behalf of the Complainant. According to the Respondent’s evidence, during the telephone conversation with the Complainant’s solicitor, the owner of the business was advised that the Complainant was looking to be made redundant, as he was unhappy with the thought of working in the business any more.

According to the Respondent’s evidence, the owner met with the Complainant in order to understand what he was looking for. According to the evidence, the Complainant informed the owner that he felt he should be entitled to a full redundancy package and that this is what he would get if you went to a tribunal. It is submitted on behalf of the Respondent that, after this conversation, the owner of the business made the Complainant and his solicitor aware of the fact that the company were not in a position to make the Complainant redundant as his job was still there.

The Respondent stated that it was suggested that the parties should proceed with the mediation but this offer was not accepted.

Respondent’s arguments in response to Substantive Claims:

CA-00016046-001 – Safety Health & Welfare at Work Act, 2005

The Respondent stated that the Complainant never made a complaint under Section 28 of the Safety, Health & Welfare at Work Act.

With regard to the work schedules, the Respondent stated that trucks are loaded every night from Sunday through to and including Friday night. It was stated that work commences at approximately 6:00 pm each evening. However, as there is not the same amount of product to be loaded each night, finishing times can vary. It was further stated that the night of the week and the time of the year impacts on the amount of product to be loaded on any given night. Consequently, on some nights, work will be completed before 2:30 am, while on others it may be after that time. The Respondent stated that the loaders are finished when all the trucks are loaded and that this has always been the case.

The Respondent stated that, while this work pattern/schedule has been the same since the Complainant commenced working with the company in 2000, it only appears to have become an issue for him in the last two years.

The Respondent stated that they engaged with the Complainant on numerous occasions to discuss the situation and his own problems. However, the Respondent stated that they have not been able to satisfy his requirements in this regard. It was further stated that the Respondent has looked for solutions through mediation but this has been to no avail.

In response to the Complainant’s contentions in relation to access to the Accident and Incident Book, the Respondent stated that they never received a request in this regard. In relation to the CCTV footage of the incidents with the Supervisor, the Respondent stated that the Complainant was, at all times, aware of its existence and its availability for perusal.

CA-00016046-002- Terms of Employment (Information) Act, 1994

In response to this element of the Complainant’s complaint, the Respondent stated that his current contract of employment is available as is the previous one.

Conclusion:

In summing up, the Respondent stated that they have endeavoured on every occasion to facilitate the Complainant in his situation and are still willing to engage in these efforts.

Having carefully considered all the evidence adduced in this case, it is clear that issues have arisen in the working relationship between the Complainant and the Respondent.   In particular, there appears to be issues between the Complainant and his Supervisor, which have resulted in both parties raising complaints against the other. The investigation of the respective complaints has led to deepening difficulties in and a fracturing of the working relationship between the Complainant and the Respondent.

Based on the above assessment, I am satisfied that, in considering the specific complaints before me, due cognizance must be taken of the context which gave rise to the complaints.   On that basis, I set out below my considerations and findings on the specific complaints made.

CA-00016046-001 – Safety Health & Welfare at Work Act, 2005

The Complainant’s complaint under the 2005 Act relates to two specific occasions, 24 May 2017 and 11 June 2017. On both of those occasions the Complainant was working, on overtime, in the cold rooms, in circumstances where he was the only remaining employee on the premises. The Complainant contends that the circumstances that existed on both occasions were such that, had he remained at work he would be doing so in contravention of the Respondent’s Health and Safety Statement.

In support of this, the Complainant submitted evidence from the above Safety Statement where it states that:

“Work in cold rooms out of normal hours should not be undertaken unless a second person in the immediate vicinity of the court room has been informed and will search for the person in the court room in the event that they do not report in at a prearranged intervals.”

In relation to the first occasion (24 May 2017), evidence contained in a Clockcard, for the date in question, indicates that the Complainant left the premises at 3:15 am, at which point he had completed 45 minutes over time. Further evidence presented by the Complainant contends that the last employee had left the premises some 28 minutes earlier, at 2:47 am. Evidence in relation to the second occasion (11 June 2017) indicates that the Complainant left the premises at 4:30am, at which point he had worked two hours overtime. On this occasion it is contended that the last employee had left some 29 minutes earlier, at 4:01 am.

According to the Complainant’s evidence he was subsequently disciplined for leaving the premises without completing his work on both of those occasions. The result of the disciplinary process was that the complainant was issued with a written warning. The Complainant contends that the Respondent’s actions in this regard constitute penalisation contrary to Section 27 (3) of the Safety, Health and Welfare at Work Act, 2005,

In that regard, Section 27 (3) states as follows:

“An employer shall not penalised or threatened 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 and welfare at work,

d)      giving evidence in proceedings in relation to 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.

It is clear from the evidence adduced that the only provision of Section 27 (3) which could potentially apply in the context of the Complainant’s claim is that contained at subsection (f). This is based on the Claimant’s contention that he left work because it was potentially in breach of the Respondent’s Safety Statement and, by extension, was placing himself in circumstances of danger which he reasonably believed to be serious and imminent.

The evidence presented by the Complainant, which is, in turn, supported by that of the Respondent, suggests that 24 May and 11 June 2017 were the only occasions on which circumstances were encountered which led to the Complainant deciding that it was unsafe to continue working. In the context of a working career spanning 17 years, it is difficult to accept, as credible, the contention that such circumstances had never arisen before.

In addition, the evidence does not support the Complainant’s contention that he was “pressurised into working compulsory overtime”. Clearly, the time of departure from work is a function of the amount of work to be done and how quickly an employee completes their respective loads.

The application of subsection (3)(f) is further clarified in Section 27 (6) of the Act, as follows:

“for the purposes of subsection (3) (f), in determining whether the steps which an employee took (or propose 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.”

In the light of the above clarification and having carefully considered all of the evidence, I’m strongly of the view, based on the balance of probability, that the Complainant’s decision to leave work on 24 May and 11 June 2017, without having completed his duties, owed more to the emerging difficulties in the working relationship with his Supervisor and, by extension, with his employer, then it did to any specific health and safety concerns.

This view was further underlined by the Respondent’s evidence which clearly indicates that the disciplinary process, which resulted in the Complainant receiving a written warning, was triggered by a complaint lodged by the Supervisor, the basis of which was that the Complainant was not taking instruction and was making it is difficult for the Supervisor to carry out his role.

In addition, I note that there was no evidence presented by the Complainant to suggest that he raised the issue of the potential breach of the Safety Statement with management at any point between 24 May and 11 June.

Consequently, taking all the above into consideration I am not satisfied that the evidence supports the Complainant’s claim that the issuing of a written warning on 18 August 2017 constituted penalisation under the Safety, Health and Welfare at Work Act, 2005 and I find, therefore, that the complaint is not well-founded.

CA-00016046-002- Terms of Employment (Information) Act, 1994

The Complainant’s complaint under this Act contends that, when issues later arose in relation to his terms and conditions of employment, the Respondent failed to provide him with a copy of the contract which had issued following the commencement of his employment on 2 May 2000. The Complainant stated that he was not obliged to work overtime under this contract.   However, he also contends that the Respondent subsequently tried, on a number of occasions, to introduce a new contract of employment which contained a provision obliging employees to work overtime.

However, in a context where the Respondent was not in a position to provide the Complainant with a copy of his original contract of employment, the latter refused to accept any subsequent changes to his terms and conditions and, as a result, refused to sign any of the contracts introduced at a later stage by Respondent.

Section 3 (1) of the Terms of Employment (Information) Act, 1994, states that:

“An employer shall, not later than two months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment……”

Section 3 (1) of the Act goes on to detail the terms of employment which should be contained in the written statement. These include at subsection (i) -” any terms or conditions relating to hours of work (including overtime)”.

Notwithstanding the fact that the Respondent did not provide, in evidence, a copy of the original contract of employment, I am satisfied, from the evidence provided by both parties, that an original contract of employment did issue when the Complainant commenced employment. Consequently, I find that the Respondent had complied with the requirements of Section 3 (1) of the Act.

Section 3 (5) of the Act requires that “a copy of the said statement shall be retained by the employer during the period of the employee’s employment and for a period of 1 year thereafter.” The Complainant contends that failure to provide him with a copy of his effective contract of employment indicates that the Respondent is in breach of this section of the Act.

Having carefully considered the evidence adduced, it appears that the Respondent subsequently introduced amended contracts of employment, which may have differed with regard to some terms from that set out in the Complainant’s original contract. In that context and based on the balance of probability, I find it most likely that the Complainant’s original contract of employment may have been lost or destroyed during the production of subsequent iterations of the document.

However, notwithstanding the view as expressed in the previous paragraph, the fact that the Complainant refused to sign any of the subsequent iterations of his contract does not negate the Respondent’s obligations under Section 3 (5) to maintain a copy of the Complainant’s current contract throughout his employment.

Consequently, taking all of the above into consideration, I find the Respondent to be in breach of Section 3 (5) of the Act.

Having considered all the evidence adduced in relation to the Complainant’s complaint under the Terms of Employment (Information) Act, 1994, I find the Respondent to be in breach of the Act in relation to one of the two elements of the complaint, i.e., the failure to retain a copy of the contract of employment on file.

Section 7 (1) (d) of the Act provides, in effect, that an Adjudication Officer may order an employer to pay the Complainant compensation of such amount (if any) as is just and equitable having regard to all the circumstances. The purpose of compensation is to provide redress to a complainant for some loss or damage incurred as a result of the breach by the employer.

In a sense, the breach in this case could be considered as potentially the less serious of the two complaints and/or to be technical in nature. In Patrick Hall v Irish Water [TED161] and in Component Distributors (CD Ireland) Ltd v Brigid Burns [TED1812] the Labour Court gave extensive consideration to the approach which should be utilised in considering compensation in cases where some technical contravention of the Act has occurred. It is clear from those decisions that the Court gave significant weight to the practical consequences for the Complainant arising from the breach of the Act.

Having carefully considered the evidence adduced in the within case, I am satisfied that the issue of overtime and whether or not the Complainant was obliged to do same, contributed to the difficulties that arose between him and the Respondent and which subsequently led to the submission of a number of complaints to the WRC.   Consequently, the Respondent’s inability to provide the clarification that allegedly existed in the original contract of employment did create some difficulties for the Complainant and, possibly, for the Respondents as well.

In considering this aspect of the complaint, I note that, notwithstanding the Complainant’s contention that there was no obligation on him to do overtime, there is clear evidence that the facility to do overtime existed and that the Complainant availed of this on occasion. Consequently, I am of the view that the Complainant’s complaint in this regard had less to do with doing overtime as opposed to having to work on his own in the cold rooms, which was the matter of his complaint under the Safety, Health and Welfare at Work Act. 

Consequently, taking all of the above into consideration, I find compensation in the amount of €750 to be just and equitable having regard to all the circumstances pertaining to the Respondent’s breach of the Act. 

CA-00016046-003- Terms of Employment (Information) Act, 1994 

The complaint submitted under this reference is a duplication of that submitted under CA-00016046-002.   Consequently, my considerations/findings in relation to the complaint are set out under the CA-00016046-002 claim reference above.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I make the following decisions with regard to specific aspects of the Complainant’s complaints:

CA-00016046-001 – Safety Health & Welfare at Work Act, 2005

The evidence does not support the Complainant’s claim that the issuing of a written warning on 18 August 2017 constituted penalisation under the Safety, Health and Welfare at Work Act, 2005 and, therefore, I find the complaint is not well-founded.

CA-00016046-002- Terms of Employment (Information) Act, 1994

I find the Respondent to be in breach of Section 3 (5) of the Act and award an amount of €750 to

the Complainant in compensation for this breach of the Act.

CA-00016046-003- Terms of Employment (Information) Act, 1994

The complaint submitted under this reference is a duplication of that submitted under CA-00016046-002. Consequently, my considerations/findings in relation to the complaint are set out under the CA-00016046-002 claim reference above.

Safety, Heal tans Welfare at Work Act

Terms of Employment (Information) Act

Penalisation