Complainant

Respondent

Anonymised Parties

A General Operative

A Local Authority

Representatives

SIPTU

Local Government Management Agency (LGMA)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00024514-001

02/01/2019

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

CA-00025350-001

28/01/2019

The Complainant commenced employment with the Respondent as a General Operative on 21 October, 1994. He was appointed to the position of Ganger by the Respondent on 12 April, 2019.

CA-00024514-001 – Dispute under the Industrial Relations Act 1969

The Worker claims that the Employer failed to respond to a grievance which he raised concerning health and safety in the workplace. The Worker claims that the Employer subsequently failed to roster him for overtime as a result of having raised this grievance in relation to health and safety in the workplace. The Worker has sought to have this dispute adjudicated upon in accordance with the provisions of Section 13(9) of the Industrial Relations Act, 1969.

The Employer disputes the claim that it failed to respond to his grievance in relation to health and safety in the workplace or that there was any failure to offer him overtime arising from this matter.

CA-00025350-001 – Complaint under the Safety, Health & Welfare at Work Act, 2005

The Complainant claims that he was denied the opportunity to work overtime on a number of occasions as a result of having raised a concern with his employer in relation to a health and safety issue in the workplace. 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 arising from this matter.

The Respondent disputes the claim that the Complainant was subjected to penalisation contrary to Section 27 of the Safety, Health & Welfare at Work Act, 2015 as a result of having raised a concern in relation to health and safety in the workplace.

CA-00024514-001 – Dispute under the Industrial Relations Act 1969

The Worker’s submissions in relation to this dispute can be summarised as follows:

·         On 21 December, 2017, the Worker wrote at his invitation to the Employer’s Health & Safety Officer, and three other managers expressing safety concerns over the practice of lone working for operatives in the Environment Section of the local authority. No reply was made to the Worker by any of these managers.

·         O 2 November, 2018, the Worker’s trade union wrote on his behalf to the Employer, seeking to raise a grievance in respect of the failure to respond to his health and safety concerns and the failure to roster him for Sunday overtime in January and February, 2018. On 6 November, 2018, the Employer’s HR/IR Officer wrote to the trade union official acknowledging receipt and advising that she would “be in further contact shortly”. The applicable procedure provides for a “reasonable time-scale” for reference to the line manager.

·         On 20 November, 2018, the Employer’s HR/IR Manager wrote to the trade union giving a response to the Worker’s grievance and referred to “the rota basis” for “weekend letter bin servicing”. The trade union replied on 5 December, 2018 seeking “a copy of the rota, of which [the Worker] was previously unaware” and a date for the grievance hearing. The letter stated that if no date for hearing was confirmed by 19 December, 2018, the matter would be referred to the WRC. No copy or date was ever provided.

·         The dispute under the Industrial Relations Act 1969 was referred to the WRC on 2 January, 2019. On 3 January, 2019, the Employer’s HR/IR Officer wrote to the trade union proposing a hearing on 17 January, 2019. A “without prejudice” meeting was held on 25 January, 2019. The Worker and his colleagues were provided with a document dated March, 2012 and entitled “[Local Authority] Overtime Policy & Procedures: Outdoor Staff” (That policy requires that overtime be “managed in an equitable fashion and offered to all suitably qualified staff on a rota basis)”.

·         On 31 January, 2019, the Employer’s HR/IR Officer wrote to the WRC stating that: “On 11 January, 2019, [Local Authority] received notification from the WRC confirming that [the Worker] was seeking his complaint be considered for adjudication by the WRC. While [the Local Authority] have no objection to an investigation of the Grievance by an Adjudication Officer, the referral of the matter to the WRC without first examining the grievance internally under [the Local Authority’s] Grievance and Disciplinary Policy and Procedures has prejudiced the outcome of hearing locally under our Grievance and Disciplinary procedures”. It was submitted that strong objection was taken by the trade union to the Employer’s mischaracterisation of events by letter dated 11 February, 2019.

·         The Employer has deviated from its normal practises in relation to the manner in which it has dealt with the Worker’s grievance and has failed to conduct an investigation under the internal procedures in relation to his complaint of penalisation on health and safety grounds.

CA-00025350-001 – Complaint under the Safety, Health & Welfare at Work Act, 2005

The Complainant has been employed by the Respondent since October, 1994 and was assigned to the Environment Section within the local authority in 2017. The Complainant’s core duties involve the collection of refuse bins.

The Complainant submits that he raised a concern with his employer by letter dated on 21 December, 2017 in relation to health and safety issues in the workplace relating to the emptying of bins during the early morning at weekends. This letter outlining the Complainant’s concerns was sent to the Respondent’s Health & Safety Officer and three other managers within the organisation.

The Complainant stated that prior to raising these concerns he had experienced a number of encounters with intoxicated and aggressive individuals on the streets while attempting to discharge his duties in the early morning which had undermined his safe working environment. The Complainant stated that he raised these health and safety issues with his immediate supervisor and was advised to put the concerns in writing. The Complainant submits that the Respondent did not address the health and safety concerns raised in his letter dated 21 December, 2017. The Complainant contends that he only received a response from the Respondent on 20 November, 2018 after his trade union had intervened in relation to the matter.

The Complainant submits that he suffered detriment (namely, the denial of the opportunity to work overtime) for making his representations in relation to health and safety issues in December, 2017. The Complainant contends that he had regularly worked overtime prior to raising these issues but was subsequently denied the opportunity to work overtime on 12, 13, 19, 20, 26 and 27 January, 2019.

The Complainant submits that he raised a grievance under the internal procedures in relation to this matter, but the Employer failed to conduct an investigation in relation to the matter. The Complainant contends that in response to his grievance, the Respondent invented a “rota basis” for the allocation of overtime. The Complainant submits that this rota had not been in existence prior to when he raised the concerns in relation to health and safety matters.

The Complainant submits that the denial of overtime to him by the Respondent as a result of making a complaint in relation to health and safety in the workplace amounts to penalisation contrary to Section 27 of the Safety, Health & Welfare at Work Act, 2015.

CA-00024514-001 – Dispute under the Industrial Relations Act 1969

The Employer’s submissions in relation to this dispute can be summarised as follows:

·         The Worker had a brief conversation with his foreman on 21 December, 2017 in relation to health and safety concerns when emptying bins over the weekend which occurred four days earlier. His foreman told him that he would speak to the Waste Operations Supervisor and advised the Worker to contact the Health and Safety Officer and also to complete an incident report form.

·         On the same day the Worker phoned the Health and Safety Officer and discussed his concerns with him. The Health and Safety Officer notified these concerns to the Worker’s supervisors.

·         Following receipt of a letter from the Worker dated 21 December, 2017, the Environment Department completed a risk assessment in conjunction with the Health and Safety office. The Engineer in the Environment Department also immediately requested a refresher toolbox talk for all staff in the section on Litter Bin Servicing procedure which included dealing with aggressive behaviour/emergency situations. The training took place on 31 May, 2018 and the Worker attended the training session. Additionally, all relevant staff attended a training course on dealing with violence and aggression. The Worker also attended this course.

·         On 9 February, 2018, a scheduled meeting between management and the Worker’s trade union took place. The Worker’s letter and the steps taken by management were discussed at this meeting. As no other issue was raised at this time, management considered the matter closed.

·         On 2 November, 2018, the Employer was informed by the trade union that the Worker wished to raise a grievance. The Employer responded to this on 20 November, 2018. The Employer received a letter from the trade union on 6 December, 2018 requesting a date for a grievance hearing by close of business on 19 December, 2018. Given the time of year, the Employer was not in a position to respond immediately. The Employer confirmed on 3 January, 2019 that a grievance hearing could take place on 23 January, 2019.

·         On 11 January, 2019, the Employer received notification from the WRC informing them that the Worker wished to have his compliant heard by an Adjudication Officer.

·         The Employer had been satisfied to proceed with a formal investigation in this matter, but the Worker clearly decided to pursue it otherwise. The Employer notified the Worker’s trade union on 3 January, 2019 of a hearing date, unaware that the union had already escalated the matter to the WRC for consideration.

·         The Employer contends that the appropriate legislation for this issue is the Health, Safety & Welfare at Work Act 2005 and that the Worker is seeking to encompass a health and safety complaint within the Industrial Relations Act 1969.

CA-00025350-001 – Complaint under the Safety, Health & Welfare at Work Act, 2005

The Respondent disputes the claim that the Complainant was penalised by being denied access to overtime for having raised a concern in relation to health and safety matters in the workplace.

The Respondent submits that the requirement for weekend overtime for bin servicing is dependent on service demand. Throughout the year, demand on Sundays has traditionally been lower than Saturdays, with approx. 20 weeks of the year when bin servicing is not required on a Sunday evening. There is an established practice in relation to weekend bin servicing in the local authority; with those employees who complete this specific duty as part of their weekend role given first refusal on the Saturday shift. There are nine volunteers and they are contacted on a rota basis as and when required. At the weekly meeting, supervisors in the Environment Department assign staff to the relevant duties for the coming weekend.

The Respondent does not dispute that the Worker was not offered overtime on the dates indicated on his complaint referral form in January, 2019. However, it was submitted that the Complainant was offered and worked overtime both the weekend prior to and after the dates in question i.e. on 6 January, 2019 and 3 February, 2019. This represents a fair proportion of the overtime which was available. It should be noted that out of the 6 dates listed in the complaint form, 3 of these are Saturdays which were worked by staff which had first refusal as per the overtime system. The remaining staff requirements were assigned on a rotational basis.

The Respondent submits that the overtime in question is voluntary and offered on a rota basis to a number of staff. Records for overtime during 2018 show that the Complainant worked overtime on 34 occasions out of a possible 60 dates. This demonstrates that the Complainant worked overtime on over 50% of the dates when it was available more than any of the other volunteers. This does not include any occasion when the Complainant may have been offered overtime but was not available. The Respondent submits that the Complainant was, in fact, being offered overtime on a regular basis and did not suffer any detriment as a result of raising the concerns in relation to health and safety in December, 2017.

The Respondent submits that in order for the Complainant to succeed in a complaint of penalisation contrary to Section 27 of the Act, it must be established that the detriment complaint of has been imposed for having committed a protected act within the meaning of subsection (3)(c) of Section 27. The Respondent contends that the Complainant has failed to show any causation between the making of a complaint regarding health and safety matters in the workplace and the alleged detriment/penalisation.

The Respondent relied upon the Labour Court case of O’Neill -v- Toni and Guy Blackrock Limited HSD095 in support of its position on this matter.

CA-00024514-001 – Dispute under the Industrial Relations Act 1969

This dispute was referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 and concerns a claim by the Worker that the Employer failed to respond to a grievance which he raised concerning health and safety in the workplace. The Worker also claims that the Employer subsequently failed to roster him for overtime as a result of having raised this grievance in relation to health and safety in the workplace.

I have carefully considered the extensive written and oral submissions made by the parties in relation to this dispute.

It was not in dispute between the parties that the Respondent has established internal dispute resolution procedures and mechanisms for addressing grievances and disputes of an industrial relations nature. It was common case that the Worker raised a formal grievance with the Employer in relation to the above matters under the internal grievance procedures. I note that the Worker had sought a hearing by letter dated 6 December, 2018 under the internal procedures in relation to this grievance. It is clear that this hearing did not take place and therefore the parties have not exhausted the internal grievance procedures prior to the referral of the present dispute to the Workplace Relations Commission.

It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted. This has clearly not happened in the circumstances of the present dispute.

Accordingly, I recommend that the parties exhaust all internal dispute resolution mechanisms for addressing these grievances before the Worker considers the further referral of this matter to the Workplace Relations Commission for adjudication under Section 13 of the Industrial Relations Act 1969.

CA-00025350-001 – Complaint under the Safety, Health & Welfare at Work Act, 2005

The Law

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 by being denied access to overtime contrary to Section 27(2) of the Act for having made a representation to management in December, 2017 in relation to matters concerning health and safety issues in the workplace.

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.

I note that it was not in dispute between the parties that the Complainant made representations to the Respondent by letter dated 21 December, 2017 regarding concerns in relation to his health and safety while discharging his duties collecting refuse bins during the early morning shifts at weekends. Having considered the evidence adduced by both parties on this matter, I find that the Complainant did, in accordance the provisions of Section 27(3) of the Act make a representation to his employer as regards 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 contends that having made a protected act that he was subjected to a detriment of being denied access to overtime which it is claimed constitutes an act of penalisation within the meaning of Section 27(3) of the Act. The Complainant contends that he was denied access to overtime on 12, 13, 19, 20, 26 and 27 January, 2019 as a result of having committed the protected act.

The Respondent does not dispute that the Complainant was not offered overtime on the material dates in question but emphatically denies that this was in any way linked to the fact of him having made a representation about health and safety 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 contends that there is no causal link between the occurrence of the protected act and the alleged penalisation, and therefore, the claim under the Act is without foundation.

In considering this issue, I note that there was a dispute between the parties in relation to the procedures for the allocation of overtime to staff for the weekend letter bin servicing and the existence or otherwise of a rota for this purpose. The Respondent, on the one hand, contends that there is an established practice in relation to weekend bin servicing in the local authority whereby those employees who complete this specific duty as part of their weekday role are given first refusal on the weekend shift and other competent staff members account for the remaining resource requirements on a rota basis. The Respondent contends that there are nine staff members (including the Complainant) who have made themselves available for the weekend bin servicing and each individual is provided with their share of the overtime in line with the rota basis that is in place. The Complainant, on the other hand, disputes that there was any such rota in place for the allocation of overtime and contends that the Respondent invented this rota in response to the grievance which he had raised in relation to the matter.

In considering the question as to whether there was a causal link between the alleged detriment and the fact that the Complainant had committed a protected act, I have carefully considered the evidence of both parties in relation to the manner in which overtime was allocated during the material period in question.

I note from the documentary records submitted in evidence by the Respondent that the Complainant was allocated overtime on 27 occasions in 2017; on 34 occasions in 2018 (out of a possible 60) and on 19 occasions in 2019 (January to end August). I am satisfied from the evidence adduced that there was no diminution in the amount of overtime allocated to the Complainant during the 12-month period (i.e. the calendar year 2018) after having made the protected act or representation to the Respondent in relation to health and safety. On the contrary, it is clear from the records adduced in evidence by the Respondent, which were not contested by the Complainant, that his allocation of overtime actually increased during the subsequent 12-month period after making the protected act.

I have also taken into consideration that there was a significant time lapse of more than 12 months between the date the Complainant made the protected act (on 21 December, 2017) and the dates that the actual detriment relied upon was alleged to have occurred (a number of dates in January, 2019). On balance, I find it highly improbable that the Complainant would be subjected to the detriment claimed after the expiry of such a lengthy period of time after having made the protected act especially in circumstances where he had been allocated a significant amount of overtime during the intervening period. I have also found it significant that the Complainant was allocated overtime both on the weekend prior to and after the dates on which the detriment was alleged to have occurred (i.e. 6 January, 2019 and 3 February, 2019). In the circumstances, I cannot reasonably conclude that the reason the Complainant was not allocated overtime on the material dates in question was in any way connected to the fact of him having made a protected act some 12 months previously.

Having regard to the totality of the evidence adduced, I am unable to find a causal link between the alleged detriment in relation to the denial of overtime 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.

CA-00024514-001 – Dispute under the Industrial Relations Act 1969

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that the parties exhaust all internal dispute resolution mechanisms for addressing these grievances before the Worker considers the further referral of this matter to the Workplace Relations Commission for adjudication under Section 13 of the Industrial Relations Act 1969.

CA-00025350-001 – Complaint under the Safety, Health & Welfare at Work Act, 2005

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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. Accordingly, I find that the complaint is not well founded.

Industrial Relations Act 1969 – Section 13(9) – Trade Dispute – Internal Grievance Procedures -Safety, Health and Welfare at Work Act 2015 – Section 27 – Protected Act – Penalisation – Detriment – Overtime