Complainant

Respondent

Anonymised Parties

{A Complainant}

{A Laundry Company}

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00019654-001

08/06/2018

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

CA-00019654-002

08/06/2018

The Complainant is a non-national who commenced work on 2 November 2017 as a General Operative with a Laundry.

CA-00019654-001

The Complainant claims that he has been discriminated against by the Respondent on the grounds of age and race, discriminated against and victimised in his conditions of employment. The most recent act of discrimination took place on 2nd January 2018. The Complainant was feeling very unwell at work on 2nd January 2018. He informed his supervisor he was feeling unwell, he had pain from his stomach to his neck and shoulder. He was not able to work. His supervisor did not believe him. He had been moved from his usual location of work in the building. He was in a distressed state white in the face and sweating profusely.

Despite informing the supervisor of his concerns and asking to be allowed to go home, he was ordered to remain at work carrying out his duties and was not offered any first aid. The supervisor said he did not believe him, that he was only complaining as he had been moved from his normal workstation. He did not have staff to cover the Complainant if he left work.

The Complainant could barely walk. He returned to his workstation and began to feel more pain and weakness. He asked the supervisor again could he go home. Another Romanian member of staff explained to the supervisor that the Complainant felt ill and needed to leave. The Complainant walked up to the changing area and fell on his knees. The supervisor came up with another Romanian worker. The Romanian worker translated for the Complainant about the pain and sweating so heavily. The supervisor again refused to let the Complainant leave.   The Complainant called his son who picked him up from work. He was helped by the Romanian worker. He was too ill to change from his dripping wet clothes. He was later diagnosed that he suffered a heart attack and had 2 stents implanted.

The Complainant was very frustrated by the actions of the Respondent on the day and while this was not the root cause of his heart attack believes the actions of the Respondent contributed to this and caused him more distress on the day.

The Complainant has not worked since the incident.

CA-00019654-002

The Complainant was feeling very unwell at work and was not allowed leave work. The employer failed in its duty to take appropriate action or any action at all in the best interest of the safety and health of the Complainant.

The Complainant says he is an employee and signed a contract of employment on 20th November 2017. The Complainant claims the Respondent breached S8 of the Safety Health and Welfare at Work Act 2005 in not ensuring his safety health and welfare and breached S27 (1) of the 2005 Act which provides:

“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”.

As per S27 (e) this may include coercion or intimidation. The Complainant says he was coerced and or intimidated from leaving work while a danger persisted. The Complainant seeks compensation.

The Complainant is a non-national and is employed with the Respondent since 2 November 2017. He completed a wide range of training courses including Health & Safety. The Respondent were more than happy with the Complainant’s performance.

On 2 January 2018 the Complainant texted a manager seeking a holiday that day. Unfortunately, the manager did not see this until the following day. The Complainant came in for his shift that day. The Complainant was requested to move to the floor production area with another member of staff. This is not a physically demanding role. The Supervisor is a Croatian national. He did not understand the Complainant and asked another Romanian national worker to translate.

The Complainant then went upstairs. The translator then told the supervisor that the Complainant was angry because this work position changed and wanted to go home. The Complainant told the supervisor he was angry because his position changed and he wanted to go home. During the conversation the Complainant pointed to his stomach and said he was not feeling well. He wanted to go home and would ring his son. The supervisor said he was free to go home if he was ill. The Complainant left unaided when his son arrived.

The Respondent accepts the medical evidence provided but says when the Complainant was on its premises he did not display these symptoms. There was no evidence of profuse sweating or inability to climb stairs. The Complainant did not go to the hospital until some hours after he left work.

The Complainant did not ask for assistance nor did he ask for an ambulance to be called. The Respondent employs a fully trained First Aid person on each shift. The Respondent has previously brought staff members to hospital on a few occasions.

CA-00019654-001 The Complainant withdrew his complaint at the hearing.

CA-00019654-002

I have heard the evidence at the hearing and considered the submissions of the parties in relation to this complaint.

The Complainant alleges a breach of S27 (e ) of the Safety Health and Welfare at Work Act 2005 in that he was penalised by being coerced or intimidated in accordance with S27 of the 2005 Act .

S27(3) of the Act provides :

An employer shall not penalise or threaten penalisation against an employee for-

(a)    Acting in compliance with the relevant statutory provisions,

(b)    Performing any duty or exercising any right under the relevant statutory provisions,

(c)     Making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d)    Giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e)    Being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f)      subject to subsection (6) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving   (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work , or taking (or proposing to take) appropriate steps to protect himself of herself or other persons from the danger…..

The facts of what occurred on the 2nd January 2018 are disputed.

The Complainant claims that he was not allowed leave the premises although he was ill and he was subject to coercion and intimidation by the Respondent when he sought to leave. This potentially contributed to his heart attack and caused huge extra stress.

The Complainant gave evidence that after the shift commenced he was moved with another member of staff to another area. Some time, later he began to feel very unwell and met his supervisor. He is a non-national and tried to explain in English to his supervisor that he was not able to work and wanted to go home. The Complainant says another Romanian worker was asked to translate for the supervisor. The Complainant said the supervisor did not believe him and said the Complainant only wanted to leave due to the change in his work location that day. The Complainant said he had to leave and went to the changing room. The supervisor arrived with another translator who said the supervisor said he did not believe he was ill. The Complainant called home to get collected. The other worker helped him to get dressed and he left. The supervisor did not assist him to get home.

Later that evening the Complainant was diagnosed as suffering from a heart attack and has not returned to work. Neither the supervisor nor other member of staff translating involved were present at the hearing as they no longer work for the Respondent.

The Labour Court in O Neill v Toni & Guy Blackrock Ltd [2010] 21 ELR 1 held that in order to make out a complaint of penalisation under the Safety Health and Welfare at Work Act 2005 it is necessary for a claimant to establish that the detriment complained of was imposed “for” having committed one of the acts protected by S27(3). The detriment must have occurred because of, or in retaliation to the claimant having committed a protected act.

The Complainant alleges a breach of the general duty of care of an employer pursuant to S8 of the 2005 Act to ensure as far as is reasonably practicable, the safety health and welfare at work of his or her employees. I accept the Complainant sought to leave work as he was feeling unwell, which is a protected act.

The Complainant alleges he suffered a detriment in that he was coerced or intimidated by the Respondent’s supervisor due to exercising his rights under the Act. There was no evidence of coercion or intimidation of the Complainant by his supervisor adduced at the hearing or any detriment from the protected act arising for the Complainant. In fact, from the Complainant’s own evidence he said the supervisor did not accept that he was ill initially as he thought it was due to another reason. In any event the Complainant told the supervisor he was leaving work, and subsequently did so.

In the circumstances, I do not find there has been a breach of the Act and find the complaint of penalisation under S27 of the Safety Health & Welfare at Work Act 2005 is not well founded.

The complaint of penalisation is not well founded.

Penalisation, general duty of care, protected act, detriment, Safety Health & Welfare at Work Act 2005.