HSD204

1.Appeal Of Adjudication Officer Decision No. ADJ-00018724 CA-00024163-001

BACKGROUND:

2.The employee appealed the Decision of the Adjudication Officer to the Labour Court on 16 December 2019 in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts 2005-2014. A Labour Court hearing took place on 04 November 2020. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Ms Sharon Cummins against the Decision of an Adjudication Officer ADJ-00018724, CA-00024163-001 in a complaint of penalisation made against her employer MSR-FSR Ireland Limited. This claim was made pursuant to section 29 of the Safety, Health and Welfare at Work Act, 2005 (“the Act”) alleging penalisation within the meaning of section 27 of the Act.

For ease of reference in this Determination the parties are referred to as they were at first instance. Hence, Ms Sharon Cummins will be referred to as “the Complainant” and MSR-FSR Ireland Limited will be referred to as “the Respondent”.

The Complainant referred her complaint to the Workplace Relations Commission on 14^thDecember 2018 alleging penalisation contrary to section 27(3) of the Act. The Adjudication Officer decided that the Complainant had made a number of complaints and representations to the Respondent as regards matters relating to safety, health or welfare at work. However, he found that the Complainant had failed to establish that she suffered a detriment constituting penalisation within the meaning of Section 27 of the Act. The Complainant lodged her appeal to this Court on 16^thDecember 2019.

Background

The Respondent is an international-managed engineering service provider that supports businesses operating in the high technology sectors. In November 2011 the Respondent expanded its quartz offering through the construction of a Quartz Processing Operation which enabled the Respondent to manufacture and repair high end quartz parts, predominately for the Semi-Conductor and Solar Energy Industries. This has led the Respondent to be a leader in the field of specialist quartz solutions.

The Complainant has been employed by the Respondent since 2006 and is currently employed as a Semi-Conductor Glass Blower/Quartz Technician. The Complainant has been on sick leave since 29th April 2019.

The Complainant lodged a complaint with the Workplace Relations Commission under the Act citing that she has been penalised due to making numerous complaints about health and safety matters in the workplace. The within complaint was lodged on 14th December 2018, consequently, the cognisable period for the complaint is 15th June to 14th December 2018. The Complainant alleged that by their acts and omissions the Respondent acted in such a way that she suffered detriments as a result. She claimed that she has been denied a pay review and that the impact of workplace changes on return from holidays, was detrimental to her.

The Respondent denies that the Complainant made any complaints concerning matters coming within the scope of the Act at Section 27.

Summary of the Complainant’s Case

The Complainant was represented by Mr Andrew J. Cody, Reid Stafford LLP Solicitors. Mr Cody stated that the location of the Complainant’s employment is a highly dangerous environment for the following
reasons:-

She works with:-

• �hydrogen and oxygen gas which is highly flammable,
  �ovens that reach a temperature of 1170 degrees Celsius,
  �hot glass which is liable to break suddenly,
  �parts transported at dangerously hot temperatures.

• •From December 2016 to May 2017 the Complainant verbally expressed her serious concerns to her new Manager that the fire escape door in the Hot Fab was locked.•In April 2017 the Complainant had a meeting with Donal Lynch, General Manager, and Aisling Glynn, HR Manager and impressed upon both of them verbally and by way of an email dated 26th April 2017 her continued concerns regarding health and safety within her working environment.
  •In April 2017 the Complainant expressed her concern to her Manager Mr. Fanning and by email to Mr Lynch, General Manager and Ms Glynn HR Manager on 27th April 2017, about the safety of using damaged stools to sit on due to the exposure of foam on the stools.
  •In or about May 2017 the Complainant highlighted to the Manager the dangers of maintenance work being conducted in the Hot Fab area while work was being carried out.•On 9th May 2017, the Complainant sent emails to Ms Glynn, Mr Lynch and Mr Fanning enquiring about the procedure to report unsafe practice within the workplace.•On 13th April 2018 the Complainant emailed Ms Glynn regarding unsafe working conditions, which was followed up at a meeting on 4th May 2018 with the General Manager, the HR Manager and the Production Manager.

• •In the summer of 2018, on return from her annual leave, she engaged with her Manager about changes to her workstation which she considered were unsafe.•On 3rd December 2018, the Complainant emailed Mr Walsh, Mr Lynch and Ms Glynn regarding unsafe oven temperature.

• �She did not have a performance review since 2017, contrary to the Respondent’s policy that each employee will have the performance appraisal at least once annually. She maintained that all other employees in the factory received a performance and pay review in 2018 securing minimum salary increases of 5%. The Complainant is one of two who were denied either a performance or a salary review.

• �When she returned from annual leave in the summer of 2018, her workplace had been changed and her tools and the manner in which she had laid out the Hot Fab, to deal with safety issues had been changed without any discussion whatsoever. Despite engaging with her Manager, he refused to engage with her, this the Complainant alleged amounted to isolation and in the circumstances amounted to a detriment.

• Performance & Pay Review:

In any event, Ms Weatherstone submitted that the Complainant was given multiple opportunities to contribute to this change but refused and or neglected to be involved. The re-design had to occur when the Hot Fab area was closed and owing to the fact that two members of the four-person department were on annual leave, this period presented an ideal opportunity to complete same. The fact that the re-design occurred while the Complainant was on annual leave, in no way precluded the Complainant from offering any input into the re-design prior to the annual leave.

Prior to Christmas 2017, all members, including the Complainant were called into the Quartz Office where Mr. Fanning outlined his plans to implement the 5S programme, which included the redesign of the Hot Fab area. After Christmas, Mr. Fanning approached each member of the Quartz Department individually, including the Complainant, and asked if they wished to make any suggestions on the Programme to which he received no response from the Complainant. Further, in February 2018, the Complainant was again approached for any feedback in respect of the 5S Programme. No feedback was received from the Complainant.

A meeting was called by Mr. Fanning on 20th April 2018, which was attended by all members of the Quartz Department, including the Complainant and Mr. Walsh. At this meeting an information sheet was given to each member and slideshow was presented. No feedback was received from the Complainant.


Causal Connection

Ms Weatherstone submitted that in order for the Complainant to avail of the protections available in Section 27(3) of the Act it is essential that a 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. She referred to the time period between the incidents allegedly reported by the Complainant, which were as far back as November 2016 with the majority of the alleged incidents taking place in April & May of 2017.

Summary of The Complainant’s Evidence

The Complainant told the Court that she normally received a performance review in January, she had received one in 2017 and requested one from her Manager, Mr Fanning in January 2018. He told her he would work on it and get back to her. She said that she regularly raised the issue with him that year and each time he told her that he required training in it and would get back to her. She said that she received the self-performance review form, which was a self-assessment form in September and completed it on 9th September 2018 and submitted it to Mr Fanning. The witness accepted that Mr Fanning sent it to management “for discussion” on 10th October 2018. She said that he told her he was waiting to speak to Mr Lynch, the General Manager, who was away on business at the time, as he was unsure how to proceed with the review.

The Complainant said that she went out on sick leave on 23rd November 2018 and returned for three weeks on 26th March 2019, and in late April 2019 she went on sick leave again. She said that other employees in the Quartz Department had their reviews in December 2018 and received increases of 5% in their pay. She said that she believed that the reason she did not receive her review was due to the health and safety issues she raised and the complaints she referred to the WRC under the Acts.

The witness was asked about the working relationship between her and Mr Fanning, she described it as “frosty”. When asked about the 5S Programme, the witness said that she had attended a slide presentation at the beginning of 2018, given by Mr Fanning, on the workings of the programme. She accepted that a handout was given to all employees at the presentation, but she left it behind as she was familiar with the programme. She said that a meeting was held in the Hot Fab regarding the programme, however, she denied that she was asked for her opinion at the time. She said that she was aware that there would be changes to the Hot Fab area and that they would be coming soon, however, she was not aware that they would be taking place while she was on holidays. She said that when she arrived back from holidays on 25th May 2018, she noticed the changes in the Hot Fab area. She said that it looked bare and clean, it was aesthetically pleasing however, she was not satisfied with the re-design as fans had been removed, there were flammable plastic sheeting on tables, heat protector screens had been removed and turntables had been pushed too close together. She said that when she raised issues with Mr Fanning that he told her that the changes were made in accordance with the 5S Programme. He told her that new industrial fans had been ordered but he would not return the old fans in the meantime. The new fans arrived in August, but she said that other changes suggested by her were not implemented.

Under cross examination, the witness accepted that no performance review had been conducted prior to 2018 and accepted that her contract of employment did not state that a performance review would be conducted annually, at that time, this occurred in 2019. The witness agreed that the company had been in financial difficulty and that the appointment of a manager in the Quartz Department was necessary to address this.

The Complainant denied that she had been asked on a number of occasions for her views on the 5S Programme. She said she did not feel that there was a need to as she was familiar with the Programme and knew that it was a good programme, however, she said that she did not expect it to result in worse conditions. She accepted that the best time to introduce it was when the Quartz Department was closed due to holidays. She was asked if she refused to do training to upskill, she said that she had refused.

When questioned by the Court, the witness accepted that the performance review took place for all other employees in December 2018, when she was off sick. There were 8 employees in the Quartz Department, [one other employee did not receive a performance review, for different reasons]. She accepted that had she been in work the Respondent would have applied it to her also. She accepted that she received a 5% pay increase plus a voucher in 2017. She accepted that she had not invoked the Grievance Procedure when her performance was not reviewed at the same time as other employees were being reviewed. In answer to the Court, the witness agreed that Mr Fanning had a plan in place to implement the 5S Programme regardless of the complaints she made concerning health and safety matters.

Summary of Mr Clem Fanning’s Evidence

Mr Clem Fanning gave evidence on behalf of the Respondent. He commenced employment as Quartz Department Manager in November 2016, having spent a number of years working in crystal manufacturing both in Ireland and abroad. He said that he had extensive experience in the 5S Programme.

Mr Fanning told the Court that in late December 2017, before the Christmas holidays he gave a slide presentation on the 5S Programme to all employees in the Quartz Department. At the presentation he said he covered the following issues:- Training, Mapping Process, Problem Solving, Visual Awareness, Design, Professional Appearance and World Class Manufacturing Facility. He presented a slide dedicated to the Hot Fab area. He said that he asked for feedback at the presentation however, he received none.

Mr Fanning said that he took the opportunity, when the Hot Fab was closed in May 2018 as employees were on holidays, to carry out the 5S Programme re-design, as it was the opportune time to do so. He said that the changes made were designed to make the Hot Fab area safer. He said that when the Complainant returned from her holidays, she had commented that the place looked cleaner and had never raised any concerns with him about the changes which had been made. He said that other employees had also not raised any concerns with him and were very supportive of the re-design. He said that they saw it as a new direction, to ensure the viability of the Department.

The witness said that he handed out the performance review self-assessment forms to employees in September 2018 and received them back in October. As it was his first time to conduct performance reviews and he was unfamiliar with the process, he wanted to meet with Mr Lynch to discuss how to do it as he wanted to make sure he was doing it correctly. He said that it was not until one employee asked how much of a pay increase, they were getting that he realised that the performance review had the potential to include a pay increase for employees. He informed the employee that if there was a pay increase due then it would be backdated. He said that he conducted the performance reviews in around 12th to 14th December 2018. He said that he put a lot of time in completing each one, however, the Complainant was out sick therefore he did not complete hers at the time. He said that had she been there he would have conducted her performance review also. He said that he had no issues with her, she did a very good job and there were no problems with her work.

In cross examination, he was asked was he in fear of the Complainant, was he afraid to meet with her. He denied the suggestion and said that he had a decent working relationship with her and had no difficulties with her. He said that the decision not to complete the Complainant’s review until her return to work was not a company policy decision related to her claim before the WRC but was his own decision. He said that he did not get to speak to Mr Lynch about how to undertake the performance review until late November 2018. The witness said that it was not his role to recommend a pay increase as part of the work he conducted on employees’ performance assessment, however, pay increases were paid to those employees as a result of the performance rating received, which was paid in their December payment.


When asked about the feedback he sought from the Complainant regarding the 5S Programme, he agreed that he had no meeting in the Hot Fab area, he had no individual meeting with the Complainant, but that he did have a conversation with all Hot Fab employees together, however, he received no feedback. He said that he told them that the Programme would be implemented shortly but did not specifically mention that it would take place while they were on holidays. He denied that the Complainant spoke to him about the removal of the fans, the table with the plastic cover, the removal of screens, and said that she never made any complaints.

Summary of Ms AislingGylnn’sEvidence

Ms Aisling Glynn, HR & Payroll Manager, gave evidence on behalf of the Respondent. She told the Court that in 2017, both the Complainant and her colleague in Hot Fab qualified for a 5% pay increases, due to the successful completion of a project. This payment was not related to a performance review of the staff members. Pay related performance reviews were only brought in in 2018, as the company emerged from its financial difficulties. She said that in 2018, performance reviews were supposed to be completed in September, however, they ran late and were not completed until December, however, the increase in pay was backdated to September. She explained that the delay was due to Mr Fanning’s inexperience in conducting such reviews and his need to discuss the matter with Mr Lynch who was away on business, as Mr Lynch had previously been the Manger in the Quartz Department.

The witness said that as the Complainant was out sick when the reviews were being conducted and was sending in medical certs, her review could not be conducted at that time. She said that had the Complainant been at work during the period 12th to 14th December 2018, she would have had her performance review. However, she said that the Complainant never requested to have her performance review while she was out on sick leave.

In cross examination, the witness was asked if there was conflict between the Complainant and Mr Fanning over health and safety matters. She responded that she was aware that matters had been raised by the Complainant’s colleague which contained her name on the correspondence. Otherwise she said that there were good relations between Mr Fanning and the Complainant.

Conclusions of the Court

The Law Applicable

The complaint is grounded on Section 27 of the Act, which provides, as follows: -

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.

• • 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.

• (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 Complainant’s submission, Mr Cody raised a number of issues that do not fall within the remit of the Court under this Act, when he raised alleged safety issues and the Respondent gave details of how these safety issues were dealt with. However, the Court’s jurisdiction under the Act is very limited and circumscribed. Section 27 of the Act is quite narrow in its application. The section only applies where an employer penalises or threatens penalisation against an employee for making a complaint or representation to their employer as regards any matter relating to safety, health or welfare at work. An allegation that an employer has failed to meet its obligations with regard to health and safety matters under the Act does not come within the scope of Section 27 of the Act.

Secondly, in his submission and presentation to the Court, Mr Cody referred to incidents which occurred post the date the complaint was referred to the WRC for investigation. The time period for referring a claim under the Act is governed by the Workplace Relations Act, 2015 (the Act of 2015) at Section 41.

The Act of 2015 provides at Section 41(6) as follows:-

• (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

It is thus clear that a cause of action can only accrue to an employee if the conduct or omissions, which come within the statutory meaning of the term penalisation, arisebecause ofan act protected by subsection (3) orbut forthe protected act the employee would not have suffered the detriment complained of. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.

InToni & Guy Blackrock v O’NeillDetermination No HSD095, this Court expressed the foregoing in the following terms:

• “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 detriment.”

The Respondent contended that the Complainant has produced no evidence to substantiate her claim. InPhilip Kirwan v. Department of Justice, Equality and Law Reform(Determination No. HSD082), the Labour Court held:-

• "It is clear, however that in the absence of any contrary
  statutory provision, the legal burden of proof lies on the person
  who asserts that a particular fact in issue is true."

• Performance Review:

The Court is satisfied that the fact that no performance review and hence no pay increase was applied to the Complainant when her colleagues received such performance review/pay increase comes within the parameters of a detriment within the meaning of section 27 (1) of the Act.

The Court notes that the Respondent introduced the performance review system for employees in the Quartz Department for the first time in 2018. While employees were required to complete the form in September 2018, the Court finds that it is not unreasonable that Mr Fanning required instruction in how to operate the system as he was unfamiliar with it and sought guidance from Mr Lynch, who was abroad on business at the time. The Court notes specifically that Mr Fanning only discovered after the forms were distributed that the review entailed a potential pay increase and therefore it was particularly important that he be instructed in its operation. It is not disputed that the performance reviews were conducted in December. Nor is it disputed that the Complainant was out on sick leave from 23rd November 2018 until March 2019 and subsequently. The Court notes that all other employees, (with one exception which was the subject of a separate claim under the Act) had their performance reviews carried out in December and received pay increases at that time, backdated to September 2018.

Having carefully reviewed the evidence, the Court is of the view that it was not unreasonable that Mr Fanning who was unfamiliar with the performance review process would require instructions in its use, therefore holding off until the return of Mr Lynch was not out of the ordinary in the circumstances. The Court is also of the view that it was not unreasonable that a performance review of the Complainant, which required her participation, was not conducted while she was out on certified sick leave. Mr Fanning informed the Court that when the Complainant presents back at work following her sick leave, the performance review will be carried out and any concomitant pay increase will be back dated to September 2018. Therefore, the Court fails to see the connection between the making of safety complaints in 2017/2018 and the delay in conducting her performance review. On that basis, the Court finds that the protected act was not a factor which influenced the Respondent not to conduct a performance review of the Complainant in December 2018 and concludes therefore, that the Complainant was not penalised within the meaning of Section 27 of the Act.

• Re-design of the Hot Fab Workplace:

Therefore, the appeal fails, and the decision of the Adjudication Officer is affirmed.

The Court so Determines.

	Signed on behalf of the Labour Court
	Caroline Jenkinson
OC	______________________
18 November 2020	Deputy Chairman