ADJ-00018723

Complainant

Respondent

Anonymised Parties

A Glass Blower

 A Manufacturing Company

Representatives

Reidy Stafford Solicitors

Peninsula Group Limited

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-00024162-001

14/12/2018

The Complainant was employed by Company A as a Glass Blower from 2006 until it was taken over by the Respondent in February, 2011. The Complainant claims that he was subjected to penalisation by the Respondent contrary to Section 27 of the Safety, Health & Welfare at Work Act, 2015. The Complainant’s partner is also employed by the Respondent as a Quartz Technician and she has referred a separate complaint to the WRC claiming penalisation contrary to the Act of 2015. Both complaints were heard at the same hearing and the decision in relation to the complaint by the Complainant’s partner has been dealt with under Reference No. ADJ-00018724. The Respondent disputes the claim of penalisation under the Act of 2015.

The Complainant submits that he is an experienced Glass Blower and had not encountered any performance related difficulties in his employment with the Respondent prior to the appointment of a new Manager (Mr. A) in November 2016. The Complainant states that his previous Manager had once described him as “the best Glass Blower in Europe”.

The Complainant submits that his workplace is a highly dangerous environment on the basis that he is required to work with hydrogen and oxygen gas which is highly flammable; he works with ovens that reach a temperature of 1170 degrees Celsius; he works with hot glass which is liable to break suddenly and parts are transported at dangerously hot temperatures. The Complainant works in an area called the hotfab and is required to wear protective clothing and safety glasses which carrying out his duties.

The Complainant submits that the new Manager, Mr. A, had a very poor regard for health and safety, and in particular the Complainant’s health and safety, from the beginning of his tenure. The Complainant states that from December 2016 to May 2017 the fire escape in the hotfab was locked and he expressed his serious concerns to his Manager, Mr. A who failed to take any action to address the matter and responded that “it’s easily opened and stop over reacting”. The Complainant reported this matter to the Production Manager, Mr. B, and the slide bolts were subsequently removed from every fire escape in the factory at that time.

The Complainant submits that from 2017 to the present day, his fire escape route in the hotfab has been blocked many times with hydrogen multi cylinder tanks and other materials. The Complainant has brought this matter to the attention of his Manager and the Production Manager on several occasions. Whenever a complaint was made the materials blocking the fire escape would be removed. However, despite the Complainant asking for the fire escape route not to be blocked it was a continuous problem and would reoccur frequently. The Complainant raised this matter again in December 2018 and the fire escape route has not been blocked since.

The Complainant and his partner had a meeting with the General Manager and HR Manager in April, 2017 and impressed upon both of them verbally and by way of a subsequent e-mail their continued concerns regarding health and safety within their dangerous working environment. They expressed their grave concern for the risk of serious injury if the unsafe practices from the Manager, Mr. A, continued. They highlighted to the General Manager and the HR Manager some very close calls regarding the installation of inadequate hosing for the lathe machine. This hose should not have been fitted to the lathe without confirmation that it met the required specifications. The Complainant expressed concerns about this matter to Mr. A but was instructed “to push on with the job” and was assured the safety specification was matching. The Complainant proceeded with the job, but the hosing transpired to be defective and began to melt as he proceeded with the job.

The Complainant contends that this melting hose would have caused an explosion which almost certainly would have resulted in a serious accident with a risk to the Complainant’s life. The Complainant states that Mr. A appeared to show no concern and another hose was fitted after the incident without a data sheet, which would have shown the detailed specification. Mr. A assured the Complainant and his partner that the hose was safe, but they were sceptical and given his cavalier attitude, they researched the new hose only to find that it was for domestic use and did not meet with requirements needed. The Complainant and his partner insisted that an appropriate hose would be purchased meeting the specifications required.

The Complainant states that a further issue occurred in April, 2017 about the safety of using damaged stools in the hotfab. The Complainant and his partner explained to Mr. A that it was dangerous to keep using these stools and asked for replacements over a number of weeks. They were informed by Mr. A that new stools “could not be got” and that there could be some surplus chairs which they could use. The Complainant thought that this was a good idea to use these surplus chairs until such time as replacements could be obtained. However, the Complainant was shocked to find out that these surplus chairs were subsequently thrown into a skip by their Manager, Mr. A as he allowed them to continue using the dangerous ones. The Complainant found this behaviour bordering on irrational and felt that he was being deliberately punished for raising a health and safety issue. The Complainant raised this issue both verbally and by e-mail with the General Manager and the HR Manager on 27 April, 2017.

The Complainant states that he raised a further health and safety concern with Mr. A in or about April, 2017 while maintenance work was being carried out on a high voltage oven within the hotfab. The Complainant was told by Mr. A not to concern himself by it but just to continue doing his work. The Complainant was accused by Mr. A of trying to make excuses to avoid doing his work. Once again, the Complainant reported this matter to the General Manager and the HR Manager.

The Complainant states that two further incidents of a health and safety nature occurred in or about May, 2017. The first incident occurred when Mr. A instructed a Maintenance Technician to carry out maintenance work on hydrogen gas lines as the Complainant and his partner worked with naked flames in close proximity to them. The Complainant states that this incident could easily have resulted in a fireball which could have killed all present in the hotfab had the gas ignited. The second incident occurred when the Manager, Mr. A, and the Production Manager, Mr. B attempted to carry out some maintenance work using a powered pallet truck while the Complainant and his partner were working in the hotfab. The Complainant states that this incident had the potential to cause a major accident which could have seriously injured or killed all in close proximity to the over stretched hydrogen and oxygen gas lines, quite apart from the risk of the risk of the machine falling on him or his partner.

The Complainant and his partner were shocked in relation to both incidents and brought their occurrence to the attention of the General Manager and the HR Manager. There was an investigation into the latter incident by Mr. A (who was the subject matter of the complaint) and no report was produced in relation to the matter. The Complainant was extremely concerned about the cavalier attitude of Mr. A and in particular to health and safety matters and the fact that his life had been put in danger on several occasions. The Complainant and his partner decided that there were seriously unsafe practices that needed to be formalised and reported to Senior Management. The Complainant completed a Safety Report Form on 9 May, 2017 in relation to the unsafe practices but nothing was ever done about the complaint.

The Complainant adduced evidence in relation to the chronology of events that occurred thereafter in relation to his interaction with management. These events are summarised hereunder:

·         15 June, 2017 – the Complainant had a meeting with his Manager, Mr. A, where a number of safety issues were highlighted, and he requested that these matters be addressed as soon as possible.

·         24 October, 2017 – the Complainant slipped on a wet surface against a glass door, sustaining a back and ankle injury. It was reported to Mr. A who laughed uncontrollably at the Complainant’s misfortune.

·         7 November, 2017 – There was a serious incident when Mr. A was very aggressive and intimidating towards the Complainant and this matter was brought to the attention of the General Manager and the HR Manager. After reporting this matter, Mr. A approached the Complainant and aggressively asked “why did you report me” and warned him “if you cross me, you won’t find a job like this that pays high wages so be careful now”.

·         22 November, 2017 – The Complainant contacted Senior Management to complain that this matter was being brushed under the carpet and he was assured that “this awful uncomfortable situation would be dealt with swiftly”. The Complainant asked the HR Manager for this issue to be resolved as quickly as possible.

·         30 November, 2017 – the Complainant received a copy of the minutes and conclusions in relation to the investigation of his bullying complaint against Mr. A. The complaint of bullying was not upheld. The Complainant tried his best to get on with his work thereafter and did his work. However, Mr. A kept trying to intimidate and harass him by shouting and invading his space and the situation regressed in the early months of 2018.

·         5 April, 2018 – the Complainant emailed the HR Manager to advise her that the minutes of the meeting (from 23 November, 2017) did not describe the true purpose of the discussion and that he had raised issues and safety concerns which were not noted. He informed the HR Manager that he had seen a lot of bad practice relating to safety and work instruction and found Mr. A’s instruction methods intimidating and demotivating.

·         5 April, 2018 - the HR Manager replied to the Complainant and indicated that as a result of the meeting “we had two outcomes, they were to try and resolve the issues with [Mr. A] and to try and work together for the sake of the company or participate in the services of a Mediator which we would arrange for you both. If you are not willing to do either of these, you have to think about your future with the company and what was best for you”.

·         13 April, 2018 – the Complainant e-mailed the HR Manager to say that both he and his partner felt that they had been isolated and it was causing a lot of unnecessary stress. The Complainant stated “in relation to safety, I spoke to you and [Mr. A] on numerous occasions about the dangers of lifting top plates, you both assured me that something would be done about it. I did up a proposed design to aid in lifting this awkward and heavy product to try and prevent further injury. We have heard nothing about it since. As I am sure that you are aware that [the Complainant’s partner] has now injured herself lifting this product too. I ask you where do we go when we have no faith in our HR to look after us”.

·         5 May, 2018 – the Complainant and his partner attended a meeting with the General Manager, the HR Manager and the Production Manager, both were asked what did they expect management to do, to which they replied “we just want to be left alone to do our work”. They were told that was not going to happen, that Mr. A was their Manager and that they would have to deal with him. The Complainant replied that they didn’t mind dealing with him but that he had to respect them. They reiterated that they were happy to continue working. The meeting was closed by the General Manager saying: “There is the door, I won’t stand in your way”. Shortly after that the Complainant was offered a financial inducement by the Respondent to resign from his position with the company.

·         11 May, 2018 – the Complainant was offered a severance package of €27,100 in full and final settlement of all claims but he informed the Respondent on 15 May, 2018 that he did not wish to accepted the proposed termination agreement as it wasn’t in his best interests.

·         28 May, 2018 – the Complainant and his partner attended a meeting with the General Manager and the Production Manager and were informed that senior management had put together some guidelines in respect of the manner in which he and Mr. A should communicate with each other. The Complainant accepted this initiative and agreed to do his best to cooperate in the circumstances. Over the summer in 2018, the Complainant and Mr. A were on holidays and there were some improvements. The Complainant was due a pay review in February, 2018 and on twenty occasions over the summer, Mr. A was asked to carry out the review but the Complainant was fobbed off by saying it would be done shortly or next week. When the Complainant returned from holidays the premises had been changed and the manner in which he had laid out his tools in the hotfab to deal with safety issues had been changed without any discussion. The Complainant engaged with Mr. A in relation to this matter but there was no give from him whatsoever.

·         10 October, 2018 – the Complainant completed his own performance review.

·         14 November, 2018 – the Complainant e-mailed Mr. A to say that following direction from the HR Manager he was notifying him of his intention to proceed with a formal grievance under the internal procedures. He advised Mr. A that he could not deal with the stress of the constant conflicts and wished to resolve the matter without his presence. He also advised Mr. A that he previously discussed these issues with him many times over the past two years and that he was well aware of the problems within their working relationship.

·         19 November, 2018 – the Complainant sent an e-mail to the HR Manager raising a formal grievance against Mr. A and set out details of the treatment in respect of which he had been subjected by him.

·         20 December, 2018 – the Complainant was informed that his grievance against Mr. A had not been upheld. The report of the findings in relation to his grievance stated that “disciplinary proceedings could and should have commenced against [the Complainant] for his attendance record in 2018”. The Complainant did not accept the findings in relation to his grievance and submitted an appeal to the HR Manager.

The Complainant submits that he was subjected to penalisation by the Respondent in relation to the following matters as a result of having made numerous complaints and representations relating to health and safety issues:

·         The Complainant was followed around by his Manager when he goes to the canteen at break time or goes to the toilet and has been told in an aggressive manner that he has no business being in the canteen or a toilet and should return to work.

·         The Manager (Mr. A) gives the Complainant dirty looks and sighs when he is asked for safety equipment and when he is asked how long a part will take.

·         The Complainant has been socially excluded in that the Manager (Mr. A) invited the entire team out to dinner but excluded him and his partner.

·         The Manager has been demanding towards the complainant by saying that he earns a very high wage for the work he does and that he needed to be careful because he wouldn’t get that sort of money anywhere else. The Complainant is consequently belittled by saying that the work he does is easy and that he is “taking the piss”.

·         The Complainant has been denied overtime on many occasions.

·         The Complainant’s last annual performance review has been denied.

·         The Complainant’s salary increase has been denied.

·         The Complainant has failed to receive management support.

·         In May 2017 as a result of making representations to his Manager concerning health and safety issues, the Complainant and his partner asked management to “do something” to stop their lives being put at risk. In response, the Respondent offered a termination package to the Complainant and his partner.

·         The Respondent has coerced the Complainant into resigning by offering a financial package.

In summary, the Complainant claims that he has been subjected to penalisation by the Respondent as a result of having made a number of complaints in relation to health and safety matters in the workplace.

The Complainant is currently employed by the Respondent as a glass blower. Mr. A commenced employment as the Complainant’s supervisor/manager in early November, 2016 and prior to this the Complainant was self-managed.

In November, 2016, the Complainant requested a pay rise for him and his partner (Ms. Y), a meeting was held where the Complainant raised concerns regarding health and safety. The Complainant was advised that once the Quartz Department was “in the black for 6 months” pay increases would be considered. It is believed that the Complainant entered into a relationship with Ms. Y (who is also employed by the Respondent as a glass blower) in or about December, 2016. In January, 2017, the Complainant and Ms. Y accused Mr. A of bullying them, the matter was dealt with informally and was resolved. The Complainant complained to the HR Manager about the incidents and an Incident Report was compiled. In January, 2017 the Complainant requested a 3 day working week.

On 26 April, 2017, the Complainant and Ms. Y retrieved two chairs from the skip location that ad been removed from the Boardroom and brought them to the “hot area” where they worked. Mr. A advised them that the chairs were not suitable for the work area as they were office executive chairs with a wood structure which is a contaminant in the area and the chairs were damaged. In response to this the Complainant advised that if the chairs were removed, he was going home with a pain in his back. The stools were repaired by the Respondent shortly after the Complainant had raised this issue.

On the same day the Complainant and Ms. Y sent an e-mail to the General Manager alleging that: the incorrect hosing had been put on the lathe on a previous date; having a Manager (i.e. Mr. A) in place who had no experience whatsoever in the industry; and the lack of a salary review for the previous 7 years. The General Manager replied explaining that the issue with the hosing pipe occurred as a result of a mistake made by the suppliers and detailed over €46,000 that had been spent on the Quartz area in the previous six months since the parties’ last meeting in November, 2016. He further explained that Mr. A had over 20 years’ experience in the industry with a leading glass manufacturer in the world. In relation to salary, the General Manager explained that since the Complainant and Ms. Y joined in 2011 they received a small increase in salary and that the Complainant was the third highest paid worker in the factory.

The Complainant and Ms. Y replied complaining that:

·         They had not been consulted in the upgrades and money was being spent inefficiently;

·         Alleging that Mr. A locked the fire escapes. However, as soon as the Complainant raised this issue the locks were removed – the locks had been put on because the fire escapes were not secure at closing hours;

·         Alleging that the “CNC machines were ideal for the Asher Jars’ but instead unsafe practice continues while doing a job inefficiently and causing unnecessary rework after work”.

·         Ovens did not have safety guards on.

·         They had been using the same polishing PPE for the previous 5 years. The Respondent submits that the PPE for the polishing equipment is not used every day and is intended to last for over 5 years, however after the Complainant raised this issue the PPE was replaced as a cost of €2,000 per suit.

·         Work was being done on equipment while the Complainant worked and this represented a danger and the previous week a hydrogen leak occurred while work was being done on equipment.

In August, 2017, the Complainant received a 5% pay increase backdated to 1 July, 2017 and a €500 voucher and he requested a reduction in his working week to a 4 day week on a trial basis. In September, 2017, the Complainant complained that he couldn’t leave early on a Thursday like another employee could. It was explained to the Complainant that each employee is on different terms and conditions and the company had accommodated his request for a 32 hour working week over four days per week.

In early November, 2017, a number of discussions took place between the Complainant and Mr. A regarding the task of verifying a specific process related to his job using a polariscope. Initially the Complainant alleged that he could verify the process visually without using the polariscope and then alleged that it was not his job to verify this process and was Mr. A’s job. On 7 November, the Complainant became aggressive and accused Mr. A of bullying him. The Complainant reported the matter to the General Manager who conducted a report into the alleged bullying and conflict. There was no health and safety issues reported.

In or around the 17 November, 2017, the Complainant contacted the HR Manager regarding the following issues:

·         He queried the time management system. It was explained that the time management system was rolled out for all employees, the implementation of the system would not affect employees who were attending work on time however after the system was implemented it became apparent that the Complainant was late attending work and not working a 32 hour week in accordance with his contract. Therefore, his pay was reduced in line with his reduced working hours.

·         He questioned his balance of holiday hours from 2016, he wanted to use his holiday hours on occasions that his pay had been reduced because he was late for work. This request was declined as the purpose of annual leave is not to retrospectively compensate for tardiness.

·         He queried what was happening with the lifting tool for the top plate. The top plate weighs approx. 19 kg and was lifted manually. The Complainant wanted a tool for lifting it. The Respondent made inquiries with the company that supplies them with lifting equipment, and they were advised that there was no tool available for lifting the top plate. It was agreed between Management and the Complainant that Management would lift the top plate as required.

·         He requested an appointment for an eye-test and this was arranged and paid for by the company.

·         He queried the status of his complaint made on 7 November in relation to alleged bullying by Mr. A. The HR Manager advised that she was doing up a report which would remain confidential. By way of e-mail of 30 November, 2017 the Complainant was provided with a 3 page summary of the report.

A meeting took place between the Complainant and the General Manager to discuss the outcome of the investigation. The allegations of bullying were not upheld. The Complainant declined to avail of mediation as he would only engage in mediation reluctantly if Mr. A apologised. In early December, 2017, the Complainant requested to revert to a 5 day working week and this request was acceded to by the Respondent.

In or about 19 October, 2018, the Complainant approached the Production Manager and asked a number of questions regarding his pay entitlement. On 8 November, 2018 the Complainant complained about not getting paid sick pay entitlements.

On 16 November, 2018, the Complainant raised concerns in relation to an oven door being left open while maintenance work was being carried out on it. Due to the Complainant’s concerns, an incident investigation form and an incident report were completed in relation to the opening of the door. Following this incident, the senior specialist QSL completed an investigation and found that the sensors were 3 years old and still within warranty. It was decided to replace and upgrade all sensors an advice was sought from the senior specialist QSL regarding leaving the oven doors open in the workshop. They advised that the chances of a reaction occurring after the alarm had sounded was zero. The Complainant was provided with a copy of the said report on 19 December, 2018.

After a chain of correspondence regarding the process for taking a grievance the Complainant sent an e-mail to the HR Manager on 19 November, 2018 setting out the “general idea” of his grievance as follows: Being given contradictory instructions by Mr. A; Lack of respect by Mr. A; He was unhappy with the response given to him and Ms. Y regarding “equal opportunities with [the company] regarding overtime and bank holidays”; Mr. A trying to belittle the Complainant; Lack of salary increase; Being given incorrect information regarding earned holiday hours; Being “docked a sick day despite it being only the third day in a year” and not being allowed to use holidays to cover sick days. The Complainant did not raise any health and safety issues in this grievance.

The Complainant’s grievance was investigated by Mr. X (Director). Mr. A was interviewed during the investigation and refuted the allegations made by the Complainant in his grievance. The Complainant attended a meeting on 17 December, 2018 to discuss his grievance and brought 33 pages of additional documentation with him. This documentation made complaints about Mr. A and reiterated previous complaints in relation to safety issues. The Complainant indicated at the meeting that he felt as if he was being penalised by Mr. A for having raised issues relating to health and safety. A further meeting was held with Mr. A to take his responses to the allegations and a further meeting was held between the investigator and the Complainant on 20 December, 2018.The investigator highlighted to the Complainant at this meeting that if Mr. A had wanted to punish him or “get rid of him” then Mr. A could have disciplined him for his tardiness and poor attendance record in 2018 but didn’t.

By e-mail dated 18 December, 2018, the Complainant lodged a further grievance against Mr. A. The Complainant alleged that after the meeting with the investigator, Mr. A shook his hand in a hard and aggressive way. The Respondent’s HR Manager investigated this further grievance and did not uphold the Complainant’s grievance.

Mr. X did not uphold the Complainant’s grievance following the completion of the investigation and the Complainant was forwarded the findings in respect of this matter by e-mail on 24 December, 2018. The Complainant appealed the findings of this investigation to the HR Manager by e-mail dated 4 January, 2019. The appeal was not upheld and the Complainant was informed of the findings by e-mail dated 11 January, 2019 which included that:

·         There was a conflict between Mr. A and the Complainant and the Complainant should accept Mr. A’s instructions;

·         The Complainant was urged to “sit down with Mr. A” and sort matters out between them by Mr. A;

·         In relation to performance reviews the Complainant alleged that his review was due since February, 2018. However, he received a pay increase effective from July, 2017 and his next performance review was due to take place in September, 2018.

·         In relation to overtime and bank holidays – every department has different operational needs and it is at each department’s discretion whether to allow overtime. The Complainant was offered on numerous occasions.

·         The time management system showed multiple lates and absences for the Complainant and he could have been disciplined for that.

·         All of the Complainant’s allegations in relation to health and safety had been actioned and closed off.

The Complainant’s contract of employment allows for a further appeal to the Board of Directors and the he availed of this opportunity by e-mail dated 18 January, 2019. The Complainant’s grievance was reviewed by a member of the Board of Directors and was not upheld.

In summary, the Respondent disputes the claim of penalisation for having made a complaint about health and safety matters. The Respondent submits that the Complainant has failed to specify what protected act he performed to result in the alleged penalisation and also that he has failed to specify which of his many complaints resulted in the alleged penalisation. The Respondent further submits that in order for the Complainant to avail of the protections available in Section 27(3) of the Act it is essential that the detriment complained of be causally connected to one or more of the matters referred to in subsection 3 of Section 27 of the Act. The Complainant must show that “but for” having made a protected act under the subsection the detriment would not have happened. The Respondent submits that the Complainant has failed to satisfy this test.

The Complainant relied upon the case of Paul O’Neill -v- Toni & Guy Blackrock Limited [2010] ELR 21 in support of its position on this matter.

Section 27 of the Safety, Health and Welfare at Work Act, 2005, states:

“(1) In this section “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.

(2) Without prejudice to the generality of subsection (1), penalisation includes –

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 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.

(3) 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 or herself or other persons from the danger.”

In the instant case, the Complainant claims that he was subjected to penalisation by the Respondent in relation to his conditions of employment contrary to Section 27(2) of the Act for having made a series of complaints to management in relation to matters concerning health and safety issues in the workplace.

The Respondent disputes the Complainant’s claim that he was subjected to any act of penalisation contrary to the Act. The Respondent submits that the Complainant did not commit an act protected by subsection (3) of Section 27 and that it did not impose a detriment on him because of, or in retaliation for having committed a protected act. The Respondent contends that there is no causal link between a protected act and the alleged penalisation, and therefore, the claim under the Act is without foundation.

The Act is silent on the question of who the burden of proof should be allocated to as between the parties. In the case of Toni & GuyBlackrock Limited -v- Paul O’Neill[1] the Labour Court held that: “it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus, the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.”

I am satisfied that the aforementioned test as outlined by the Labour Court in relation to the shifting of the burden of proof is applicable to the present case. 

There issue of whether or not the Complainant committed a protected act within the meaning of Section 27(3) of the Act was in dispute between the parties. The Complainant adduced evidence that he raised concerns, both orally and in writing, regarding health and safety matters with the Respondent on several occasions following the appointment of Mr. A as his Manager in November, 2016. In this regard, I have taken cognisance in particular to an exchange of e-mails between the Complainant and the General Manager dated 26 April, 2017 which clearly relates to concerns previously raised by the Complainant relating to health and safety matters and the Respondent’s response in relation to the measures and initiates which it had put in place to address these concerns. I note that the Respondent’s General Manager indicated to the Complainant in his response on this date that the company had spent over €46,000 in respect of the implementation of maintenance and upgrading measures since the parties meeting some six months previously. In the circumstances, I am satisfied that the Complainant had raised concerns and made complaints pertaining to health and safety matters in the workplace with the Respondent both prior to, and following, the appointment of Mr. A as his Manager in November, 2016.

Having considered the evidence adduced by both parties on this matter, I find that, in the course of events submitted to have occurred between November, 2016 and the date of referral of the instant complaint, the Complainant did, in accordance the provisions of Section 27(3) of the Act make a number of complaints to his employer as regard matters relating to safety, health or welfare at work. Accordingly, I find that the Complainant’s actions in this regard constitute a protected act within the meaning of Section 27(3) of the Act.

The Labour Court has held in the case of Toni & Guy case that: “It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested 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 Claimant 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 determent.”

Therefore, in order to make out a complaint of penalisation contrary to the Act, it is necessary for the Complainant to establish not only that he suffered a detriment of a type referred to at subsection (1) but that the detriment complained of was imposed because of, or was in retaliation for, having committed a protected act.

The Complainant referred the instant complaint to the Workplace Relations Commission on 14 December, 2018. By application of the time limits provided for at Section 41(6) of the Workplace Relations Act, 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 15 June, 2018 to 14 December, 2018. Accordingly, I only have jurisdiction to consider the alleged acts of penalisation that occurred during this period.

The Complainant contends that having made a protected act that he was subjected to a number of different detriments which constitute acts of penalisation within the meaning of Section 27(3) of the Act. I have considered the alleged detriments which occurred during the cognisable period under the following categories:

a)       Bullying, harassment and social exclusion by his Manager, Mr. A.

b)      Attempt to coerce him into resigning his position.

c)       Failure to receive Management support.

d)      Denial of salary increase, overtime and performance review.

I have examined each of these complaints in turn and make the following findings.

Bullying, harassment and social exclusion by his Manager, Mr. A.

The Complainant contends that his Manager, Mr. A, had a very poor regard for health and safety matters in the workplace. The Complainant claims that he was subjected to bullying, harassment and social exclusion by Mr. A as a result of having raised complaints with him in relation to health and safety matters in the workplace. The Complainant adduced evidence that the bullying and harassment by Mr. A manifested itself in various forms such as using aggressive tones, following him around the workplace, dirty looks, provocation and exclusion from social events.

The Respondent disputes the Complainant’s position on this matter and Mr. A gave detailed evidence at the hearing in which he refuted the claims of bullying and harassment. Mr. A gave evidence that the Complainant had been self-managed prior to his appointment as a supervisor in the Quartz Department and that the Complainant had difficulty in taking direction and instruction from the outset of their working relationship. Mr. A accepts that the Complainant did raise a number of issues in relation to health and safety in the workplace but emphatically denied that the difficulties that occurred in his working relationship with the Complainant were in any way connected to such matters. Mr. A adduced evidence that management engaged with the Complainant in a proactive manner in relation to the concerns raised in relation to health and safety and resolved these issues as they arose.

In considering this issue, I note it was common case that the Complainant made complaints to senior management in relation to the alleged bullying and harassment by Mr. A on a number of occasions, including in November, 2017 and 19 November, 2018, and that the complaints were not upheld by the Respondent on either occasion following an investigation in accordance with the internal grievance procedures. I note that the investigation arising from the complaint in November, 2017 concluded that there was “conflict” between the Complainant and Mr. A because the Complainant was not used to being managed and didn’t believe that Mr. A was sufficiently qualified to manage him. It was recommended that both parties should try and work together to resolve the conflict and failing which it would be necessary to appoint an external mediator to resolve the conflict. It was agreed by both the Complainant and Mr. A that they would try and resolve the situation without the assistance of an external mediator. Notably, the investigation cleared Mr. A of all accusations of bullying. It is clear that the Complainant and Mr. A were unable to resolve the workplace conflict in an amicable manner thereafter and the Complainant subsequently made a further formal complaint of bullying and harassment against Mr. A on 19^th November, 2018. I note that the allegations of bullying were not upheld following the conclusion of an internal investigation and two subsequent appeals in relation to this complaint.

I have considered the extensive evidence adduced by both parties in relation to the manner in which the investigations of these complaints were conducted and I am satisfied that the process adopted by the Respondent complied with fair procedures and that the complaints of bullying were ultimately not upheld on conclusion of the process. It is clear that the Complainant and Mr. A have had a very difficult and fraught working relationship and that there has been a significant amount of conflict between them during the course of their interaction in the workplace. However, the only question that I must decide in the instant case is whether the alleged bullying and harassment was an operative cause in the sense that “but for” the Complainant having committed the protected act he would not have suffered the detriment claimed. Having regard to the totality of the evidence adduced, I am satisfied that the operative cause for the breakdown in the working relationship between the Complainant and Mr. A was not attributable to concerns which the Complainant has raised in relation to health and safety matters but rather has emanated predominantly as a result of the inability of the parties to conduct a normal functioning working relationship.

In relation to the issues concerning social exclusion, the Complainant contends that Mr. A invited the entire team out for a dinner but excluded both him and his partner. I note that the Respondent did not dispute that the Complainant and his partner were not invited to attend this dinner but contends that this fact was not in any way connected to him having made a complaint in relation to health and safety matters. Mr. A adduced evidence that this dinner was a business-related event and invitations were extended to staff members from the team that were participating in a training course. Mr. A stated that the Complainant, his partner and another member of the team did not participate in the training and that was the reason why they were not invited to attend the dinner. On balance, I have found the Respondent’s evidence more compelling in relation to this matter, and I find that the reason the Complainant was not invited to the dinner was not in any way attributable to concerns which he had raised in relation to health and safety matters.

In the circumstances, I am unable to find a causal connection between the alleged detriment in relation to bullying, harassment and social exclusion and the fact that the Complainant had committed a protected act within the meaning of the Act. Accordingly, I find that the Complainant has not established that he suffered any detriment that constitutes penalisation within the meaning of Section 27 of the Act in relation to this matter.

Attempt to coerce him into resigning his position

The Complainant claims that the Respondent attempted to coerce him into resigning his position by offering him a financial package to leave the company. He argues that the Respondent’s attempts to force him out of his position occurred in response to him having raised concerns in relation to health and safety matters in the workplace. The Respondent did not dispute that the Complainant was offered a severance package of approx. €27,000 in May, 2018 but denies that there was any attempt to coerce him into resigning his position. The Respondent contends that this issue arose in the context of the Complainant having sought a redundancy package during the course of discussions between the parties in relation to attempts to seek a resolution to the workplace conflict between the Complainant and Mr. A.

In considering this matter, I have taken cognisance of the evidence adduced by the Respondent’s Production Manager that the Complainant was a highly valued and experienced employee and that the company could ill afford to lose his services at the material time in question given the highly skilled job that he performed. I have found the Production Manager’s evidence on this matter to be very compelling, and on balance, I accept the Respondent’s evidence in relation to the context that the discussions occurred between the parties regarding the offer of a severance package.

Having considered the totality of the evidence adduced on this matter, I cannot conclude that there was an attempt by the Respondent to coerce the Complainant into resigning his position or that the interaction that took place between the parties in relation to the offer of a severance agreement was in any way related to the protected act that had been undertaken by him. Accordingly, I find that the Complainant has not established that he suffered any detriment that constitutes penalisation within the meaning of Section 27 of the Act in relation to this matter.

The Complainant claims that there was a failure by management to provide him with the appropriate levels of support in relation to the issues that occurred with Mr. A. He contends that the reason for management’s failure to provide support was related to him having raised concerns in relation to health and safety matters in the workplace.

Having regard to the totality of the evidence adduced, I cannot accept the Complainant’s position in relation to this matter, and contrary to his assertions, I am satisfied that management engaged with him in a proactive manner in relation to the issues which were occurring in the workplace. In particular, I note that senior management actively engaged with the Complainant in relation to the concerns that he raised in relation to health and safety matters and put measures in place to try and resolve the issues raised. As I have already stated above, I am satisfied that there was interaction between the Complainant and the Respondent in relation to such matters both prior to, and after, the appointment of Mr. A as his supervisor. The Respondent adduced evidence, which I note was not contested by the Complainant, that the company had expended approx. €46,000 in the six-month period prior to 26 April, 2017 in the implementation of maintenance and upgrading measures to address health and safety issues raised by him.

I have taken cognisance of the Respondent’s undisputed evidence that management acceded to the Complainant’s request to reduce his working week to three days per week in August, 2017 and that he was subsequently allowed to revert to a five day week at a later juncture.

I have also taken cognisance of the manner in which senior management interacted with the Complainant in response to the grievances which he raised concerning the allegations of bullying and harassment by Mr. A. I am satisfied that the Complainant’s grievances were dealt with in an appropriate and fair manner in accordance with the internal grievance procedures.

Having regard to the totality of the evidence adduced, I cannot conclude that the Complainant has suffered any detriment during the cognisable period in relation to the alleged failure by management to provide him with support or that there was a causal connection between the alleged detriment and the fact that he had earlier committed a protected act within the meaning of Section 27 of the Act. Accordingly, I find that the Complainant has not established that he suffered any detriment that constitutes penalisation within the meaning of Section 27 of the Act in relation to this matter.

Denial of salary increase, overtime and performance review

The Complainant has also claimed that he suffered a detriment in relation to the Respondent’s failure to failure to provide him with overtime, to carry out his performance review and the denial of a salary increase. The Complainant contends that the alleged detriments in relation to these matters occurred as a result of him having made complaints in relation to health and safety matters in the workplace.

Having regard to the totality of the evidence adduced, I cannot accept the Complainant’s position in relation to these matters or that has established that he suffered any detriment that constitutes penalisation within the meaning of Section 27 of the Act in relation to such matters.

In relation to the alleged denial of a pay rise, I accept the Respondent’s uncontested evidence that the Complainant received a 5% pay rise in August, 2017 which was backdated to 1 July, 2017 and a €500 One-for-All voucher.

In relation to the issue of overtime, I accept the Respondent’s evidence that the Complainant was offered overtime on a number of occasions during the cognisable period but declined to take up this offer.

In relation to the issue of the performance review, I note that the Respondent did not dispute that the Complainant’s performance review for 2018 was overdue and had not been carried out within the stipulated timeframes. I heard evidence from Mr. A on this matter and he accepts that the performance review was overdue but stated that he was not in a position to sit down with the Complainant at the material time in question to conduct the review as a result of the breakdown in their working relationship. It is clear that the conflict between Mr. A and the Complainant has resulted in a breakdown in the normal working relationship that one would expect to exist between an employee and supervisor. However, I am satisfied that the operative cause for the breakdown in this working relationship, and by extension the failure by Mr. A to carry out the performance review in a timely manner, was not attributable to concerns which the Complainant has raised in relation to health and safety matters but rather has emanated predominantly as a result of the inability of the parties to conduct a normal functioning working relationship.

In the circumstances, I am unable to find a causal connection between the alleged detriment in relation to the denial of a salary increase, overtime and performance review and the fact that the Complainant had committed a protected act within the meaning of the Act. Accordingly, I find that the Complainant has not established that he suffered any detriment that constitutes penalisation within the meaning of Section 27 of the Act in relation to this matter.

I find that the Complainant did undertake a protected act but that the alleged detriments suffered by the Complainant do not constitute penalisation within the meaning of Section 27 of the Act. Accordingly, I find that the complaint is not well founded.

Safety, Health and Welfare at Work Act 2015 – Section 27 – Protected Act – Penalisation – Detriment – Conditions of Employment - Bullying and Harassment – Complaint not well founded