HSD202

DETERMINATION:

Background

The Complainant, Mr. Quinn, is a glass blower in this employment since 2006. The company was taken over by the Respondent, MSR-FSR Ireland Limited, in 2011. The Complainant states that he had no difficulties in his employment until a new manager, Mr. Clem Fanning, was appointed in 2016, after which he states that health and safety in the area where he works was neglected, giving rise to a series of complaints by him that, he says, were not treated with the seriousness that was warranted and that he was penalised, contrary to s.27(3) of the Safety, Health and Welfare at Work Act 2005 (‘the Act’), for having made these complaints.

The Respondent refutes these allegations and states that all safety concerns were addressed and that the Complainant was not penalised for having raised safety concerns. The Respondent states further that issues raised by the Complainant regarding his manager were the subject of an investigation that did not uphold the complaints.

The Complainant referred a complaint to the Workplace Relations Commission, (‘the WRC’) alleging penalisation contrary to s. 27(3) of the Act. The Adjudication Officer, (the AO’), decided that the Complainant had made a protected act under the Act in raising safety concerns but that he had failed to establish that he had been penalised for having done so. The Complainant appealed to this Court.

The Court found it necessary to clarify certain matters at the outset. This dispute is one of a number between the parties. In addition, the Complainant’s partner has made similar complaints. The Court clarified that this case was being dealt with in its own right and that extraneous issues relating to other matters and another individual would not arise for consideration in this case. Furthermore, the Court clarified that the cognisable six-month period was from 15 June 2018 to 14 December 2018 and that only penalisation measures alleged to have occurred in this period arose for consideration by the Court. In this regard, the Complainant’s representative identified two alleged occurrences of penalisation suffered by the Complainant i.e. the failure to implement a pay review in that period and the failure to meet the safety needs of the Complainant, who was working in a highly dangerous environment but was made to feel isolated by management when he raised legitimate safety concerns.

Both parties provided detailed statements regarding alleged safety issues and also regarding how these issues, when raised by the Complainant, were handled. The Court clarified that it was not its role to investigate claims of safety breaches but, rather, the complaint being heard concerned alleged penalisation contrary to the Act. It is not necessary, therefore, in this Determination to list the various incidences nor is it necessary to determine if the complaints made were valid. It is sufficient to note that it was accepted by the Respondent that the Complainant had raised safety issues. This disposes of the first requirement of the Court to establish if the Complainant had made a protected act. Although the Respondent argued that the Complainant had failed to specify what protected act he had performed to result in alleged penalisation, both parties acknowledge that safety concerns were raised by the Complainant. These clearly constitute a protected act within the meaning of the Act,(see ‘Deliberation’ below for a fuller examination of this point).

This narrowed down the issue for consideration by the Court. The issue is whether the Complainant suffered penalisation in the cognisable period for having made a protected act.

Complainant’s arguments.

The Complainant has legitimate concerns regarding the safety of his workplace, which is a very dangerous environment. He has raised many issues of concern and these have not all been addressed adequately. As a result of having raised these concerns, the Complainant is treated less favourably than his colleagues. He is accused of ‘taking the pxxs’ and made to feel isolated because he has raised legitimate concerns. The Respondent has attempted to coerce the Complainant into resigning by offering him a financial package.

The Complainant’s colleagues received a performance review in the cognisable period. Despite raising the matter with management on numerous occasions, he did not receive his review. His partner and himself are the only employees to be treated in this way. In ten years, he has received only one salary increase, of 5% in 2017. As all other employees received a performance review in the cognisable period, it is apt to infer that his safety complaints were an operative consideration leading to the failure to complete his review and to provide for a salary increase. This is confirmed in an e-mail in which the HR Manager connects the two matters explicitly, stating, ‘I have discussed your Performance Review with Clem and it will be completed and backdated accordingly after the WRC hearing has been concluded’.

In the case of Paul O’ Neill v. Toni and Guy Blackrock Ltd, (2010) 21 ELR 1 the Court had noted that the motive for alleged penalisation was to be found in the mind of the decision maker and that this was within the peculiar knowledge of the decision maker, so that it would be unfair to expect the Complainant to produce direct evidence to show that the Respondent was influenced by earlier complaints. Therefore, applying this to the facts of the instant case, it is reasonable to require the Respondent to establish that the failure to undertake the Complainant’s performance review was unrelated to his complaints under the Act.
The Complainant is seeking compensation for penalisation as provided for in s.28 of the Act.

Respondent’s arguments.

The AO was correct in finding that in the application of the ‘but for’ test, the Complainant had not established that he had suffered detriment for having committed a protected act. In Paul O’ Neill v. Toni and Guy Blackrock Ltd (2010) 21 ELR 1 the Court stated that ‘The detriment giving rise to the complaint must have occurred because of, or in retaliation for, the Claimant having committed a protected act.’

The AO was correct in finding no causal connection between any alleged detriment and a protected act.
The AO recognised that offering a financial package did not amount to an attempt to coerce the Complainant to leave his job.

The AO was correct in recognising that there was no causal connection between an alleged detriment in the denial of a salary increase and any concerns raised regarding health and safety.

The AO was correct in recognising that no penalisation occurred within the meaning of s.27(3) of the Act.
The Respondent takes safety responsibilities seriously as evidenced by the responses to concerns raised by the Complainant. The Respondent has invested heavily in the relevant department over the years to meet the high standards of safety required.

Witness evidence.

Mr. Jason Quinn
Mr. Quinn is the Complainant.
The witness gave evidence that the Respondent was obliged to conduct performance reviews and that these usually occurred in January or February each year. He stated that he approached three managers, Mr. Fanning, Mr. Walsh and Mr. Lynch throughout 2018 to seek his review but it had not happened.

The witness stated that after he returned from holidays in July 2018, he had raised a lot of safety issues and he felt that these had not been handled appropriately. He outlined examples, including the change made to a fire proof table, which he felt was unsafe and which had not been dealt with properly. He also instanced the fact that the appointment of a safety officer was agreed in September 2018 but this had not happened. He said that he felt he was not given the support required.

In the second half of 2018, he had raised the issue of his performance review regularly and was told constantly that it would happen ‘next week’. He was then advised that, because of issues between them, his line manager, Mr. Fanning was ‘not comfortable’ about carrying out this review. He stated that, despite his difficulties with Mr. Fanning, he had no difficulty in conducting a performance review with him.

The witness stated that he had filled in the relevant performance review form in September. However, the review had not taken place at that time. The witness said that he was out of work when reviews were carried out for all of his colleagues and that he had never had his review done since.

In response to cross examination, the witness disputed that out of 12 health and safety issues raised by him in 2016, all but one was acted upon. He stated that the two most important issues were not acted upon. The witness also stated that while he accepted that he got correspondence back from HR and senior management when he raised issues, this did not amount to support and that Mr. Lynch, the senior manager had simply shrugged when he approached him.

The witness accepted that nobody in his department had received a performance review while he was in work in 2018 but noted that his colleagues had been reviewed while he was off work and just three days before he had been requested to return.

Under questioning from the Court, the witness reiterated his view that the responses that he received did not amount to the support that he sought. He noted that his colleagues’ reviews took place when he was out of work, in circumstances that were the subject of contention between the parties.

Mr. Michael Walsh
Mr. Walsh gave evidence that he is a Production Manager in the Respondent company.
The witness referred to safety concerns raised by the Complainant in the second half of 2018. He pointed to email exchanges between the Complainant and himself regarding an alarm going off, into which incident the witness had conducted an investigation. The witness had determined that the alarm was faulty and that there had not been a hydrogen leak nor was there a risk of ignition. This had been conveyed to the Complainant. The same correspondence responded to the Complainant’s request for an up-date regarding the appointment of a safety officer and the witness had advised that the post had been advertised but that it had not been possible to find a suitable candidate at the time.

The witness stated that health and safety concerns were treated with utmost seriousness and that any issues raised by the Complainant had always been treated accordingly. He cited examples in support of this assertion.

Mr. Clem Fanning
Mr. Fanning gave evidence that he was a Production Manager with the Respondent company. He said that he had no recall of the issue regarding a performance review being raised in early 2018 but he acknowledged that the matter had been raised by the Complainant in September 2018. While he accepted also that the matter had been raised on a few subsequent occasions by the Complainant, he denied that it had been raised as often as claimed.

The witness stated that he had not conducted such reviews previously and that, prior to conducting them, he wanted to satisfy himself that he was doing them correctly. To this end he had got a book from HR in October and had waited to discuss with Mr. Lynch, the General Manager, what exactly was required before undertaking the reviews, which had been undertaken on 12 December 2018, at which time the Complainant was not in work. When asked why he had not done the review of the Complainant a few days later when he returned, the witness outlined that he had experienced ongoing difficulties with the Complainant. Despite these, he stated that he shook the Complainant’s hand when he returned to work and was willing to move on. However, just fifteen minutes later the Complainant made a complaint against him, suggesting that he had squeezed the Complainant’s hand forcefully and had sought to hurt him. He stated that he had serious concerns for his own safety if he had to do such a review of the Complainant. He noted that he had conducted reviews of all other staff in the area, with the exception of the Complainant and his partner and said that he would have reviewed the Complainant if he had been in work at the time in question. He noted further that all staff had been promised that they would suffer no detriment due to any delay in the conduct of the reviews and that all had been promised that any pay increase would be back-dated to September 2018. He noted also that a commitment had been given to the Complainant that a review would be undertaken after the WRC process was completed but that had not happened as the Complainant had not returned to work.

Under cross examination, it was put to the witness that minutes of a meeting of managers refer to the fact that he did not undertake the Complainant’s review due to grievances having been submitted to management.The witness reiterated that he had been willing to move on upon the Complainant’s return but had been put in a position where he had safety concerns due to the Complainant’s behaviour.

The applicable law

Safety, Health and Welfare at Work Act 2005
27.—(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

28.—(1) Without prejudice to section 27 (4), an employee may present a complaint to a rights commissioner that his or her employer has contravened section 27 .

(2) Where a complaint under subsection (1) is made, the rights commissioner shall—
(a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint,
(b) give a decision in writing in relation to it, and
(c) communicate the decision to the parties.
(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:
(a) declare that the complaint was or, as the case may be, was not well founded;
(b) require the employer to take a specific course of action;
(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances.
(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of the contravention to which the complaint relates or such further period not exceeding 6 months as the rights commissioner considers reasonable.
(5) (a) A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.
(b) A copy of a notice under paragraph (a) shall be given to the other party concerned by the rights commissioner concerned.
(6) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public.
(7) A rights commissioner shall furnish the Labour Court with a copy of any decision given by the commissioner under subsection (2)

Deliberation

The requirements to establish that penalisation under s. 27 of the Act has occurred were set out most clearly in Paul O’ Neill v. Toni and Guy Blackrock Ltd (2010) 21 ELR 1

Firstly, it is necessary to establish that there has been a protected act. While the Respondent argued that the Complainant did not specify the protected act being claimed, it was not disputed that the Complainant had raised a series of complaints regarding the health and safety of his workplace. Extensive evidence was given in the submissions of both parties as to the nature of these complaints and the responses by the Respondent. Indeed, the Respondent’s own witness was at pains to provide evidence to the Court of the thoroughness of response to complaints made. There was also extensive e-mail correspondence, included in the submissions, to substantiate the fact that these complaints were made and that the Respondent treated them as health and safety concerns, going back to 2016. As set out in ‘Background’ above, the Court discussed this matter with the parties at the outset of the hearing and having done so and having heard from the parties, the Court expressed the view that, on the basis of the submissions presented, it was clear that there had been a protected act. The whole purpose of the Act is to improve the safety of workplaces. The purpose of s.27 is to ensure that workers are not inhibited by apprehension regarding possible detriment for having raised safety issues of concern and that, should such a detriment be imposed for this reason, they have a means of redress. No argument was made to the Court that could suggest that the concerns raised by the Complainant were anything other than safety concerns that are protected by the Act.

In Paul O’ Neill v. Toni and Guy Blackrock Ltd (2010) 21 ELR 1 the Court set down that the requirement in this regard is that ‘…the claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety.’ The Court is satisfied, in the instant case, that this has been established.

The second requirement is that a worker must have suffered a detriment for having raised a concern protected by the Act. This requires that a Complainant must show that there was a detriment. The Complainant cited two detriments that he claimed to have suffered in the cognisable period and it is necessary for the Court to give consideration to each of these.

The Complainant states that his safety concerns were not taken seriously and that he was isolated and made to feel that he was a nuisance for having raised safety concerns. However, in the period in question there is evidence of extensive inter-action between the Complainant and the Respondent regarding his concerns. A potentially serious matter raised by the Complainant was investigated and the outcome was communicated to him. It may be that this did not allay fully his concerns and the Court does recognise that he worked in an environment that required the utmost attention to safety and that, equally, he may have been unhappy with how the outcome was conveyed to him but, in the view of the Court, that does not substantiate claims that his concerns were not taken seriously nor does it substantiate claims of isolation. Similarly, the Complainant was unhappy that a promised appointment of a Safety Officer did not occur but, again, the reasons for this were explained to him and no evidence was produced to the Court that contradicted the reasons given. Therefore, the Court does not find that the Complainant suffered the detriment of not being taken seriously or of isolation, as claimed.

The second detriment alleged was that the Complainant was singled out and did not receive a performance review that was due, unlike his fellow workers. It is a fact that the Complainant did not receive this review and that most of his colleagues were reviewed. It is also a fact that these reviews offer potential for pay increases. Therefore, it is clear to the Court that the failure to conduct a performance review of the Complainant is a detriment suffered by him.

In the case of Paul O’ Neill v. Toni and Guy Blackrock Ltd the Court held that where there was a protected Act and where there was a subsequent detriment imposed, in that case a dismissal, the burden of proof shifts to 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’.

In applying this to the instant case, the Court had to consider if the reasons given for the non-conduct of the performance review provided a rational justification unrelated to the fact that there was a protected act.

It is very evident that the relationship between the Complainant and his supervisor broke down completely. There is complete distrust between them. There is no doubt that this was a factor in the chain of events that led to this case. The question for the Court is, simply, whether the fact of a protected act led to the detriment.

Mr. Fanning, the Supervisor in question, gave evidence that the delay in conducting performance reviews was due to his unfamiliarity with the process and the need for him to acquaint himself with what was involved. This is a claim that carries some credibility and it was not seriously disputed. He also noted that an assurance was given to staff that any increases in pay that fell due would be backdated to September 2018, so that nobody would be at a loss due to the delay. In any event, the delay in conducting reviews was equally applicable to all staff working to Mr. Fanning up to the point when he conducted these reviews in December and no detriment specific to the Complainant was imposed on him in this period. It is not for the Court, in the instant case, to tell the employer when these reviews ought to have been conducted.

Of more concern to the Court is the fact that, while the Complainant was out of work at the time the reviews were conducted for his colleagues, he did return just days later but never received a review. Mr. Fanning advised the Court that he had concerns for his own safety in conducting such a review of the Complainant because, on the day of the Complainant’s return to work, he shook the Complainant’s hand, which then led to a further complaint against him by the Complainant that he had squeezed the Complainant’s hand too tightly. It is not necessary for the Court to judge which of the men concerned is telling the truth about that particular handshake. What the Court does recognise is that such circumstances made it difficult for Mr. Fanning to conduct the review at that time. Whatever the rights or wrongs of the behaviour of either or both parties in those circumstances, the fact that this complaint was made by the Complainant offers a credible reason for the review not being conducted at that point; a reason that is unrelated to the fact that the Complainant had made a protected act. For reasons that are not directly relevant to the facts of this case, the Complainant left work again relatively soon after these events and has not returned since. It is not necessary, therefore, for the Court to delve further into the reasons for the subsequent failure to conduct the review.

In summary, the Court accepts that there was a protected act and that there was a detriment suffered by the Complainant. However, on the evidence presented, the Court finds that there was no causal connection between the protected act and the detriment suffered by the Complainant. Therefore, the Complainant has not established his case that he was penalised in accordance with s.27 of the Act.

Determination

The decision of the Adjudication Officer is upheld.

Signed on behalf of the Labour Court



Tom Geraghty
CR______________________
16 April, 2020Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.