ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013686

Parties:

	Complainant	Respondent
Anonymised Parties	A Senior Technical Officer	A Third Level College

Representatives

Complaints:

Act	Complaint/Dispute 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-00017993-001	16/03/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00021062-001	09/08/2018

Date of Adjudication Hearing: 15/2/2019, 12/4/2019, 23/08/2019

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant submits that he was penalised for protected acts and that but for the protected acts he would not have been penalised.

Summary of Complainant’s Case: CA-00017993-001

Preliminary Issue:

In response to the respondent’s preliminary issue that the instant complaint had been heard previously, the complainant denied that the complaints had been heard previously and submitted that these were new complaints.

Substantive Issue:

The complainant is employed as a Senior Technical Officer (STO) and submits that he raised safety complaints verbally on 11 October 2017 and by email on 25 October 2017 regarding insufficient maintenance of safety filters which a Safety Auditor classified in May 2016 as a priority/risk = high. The complainant submitted a complaint to the WRC on 16 March 2018 and sets out that as result of his protected actions he had been penalised and has suffered three detriments set out as follows:

Detriment #1:

It was submitted that the Health and Safety Authority (HSA) instructed the complainant’s lab to segregate chemicals and provide hazardous chemical safety cabinets and in 2016 it was advised that three cabinets were required and that the cabinets would be provided in early 2017. Two cabinets arrived and on 23 August 2017 a third cabinet was ordered and arrived on 7 November 2017 and paid for on 9 November 2017. The complainant submitted that following his safety complaint; his line manager Mr A who is a Chief Technical Officer (CTO), would not release the safety cabinet to the complainant and told the complainant’s colleagues it was to teach the complainant a lesson for the safety complaints he had made verbally and by email in October 2017 and the cabinet remained in storage for four months. The complainant emailed Mr A on 13 March 2018 asking why the cabinet was not released but received no answer. It was submitted that this amounted to intimidation and victimisation by Mr A.

Detriment #2 The complainant submitted that two hours after making safety complaints in October 2017, the complainant was penalised when he was tasked with additional work by the lab leader Mr B. Mr B advised the complainant that it was unusual to give this instruction to the complainant as Mr B was not the complainant’s actual line manager but that the complainant was to start processing requisitions raised by others and that research project work would also be assigned to the complainant. The complainant advised that he would not refuse to do work that was related to his role only. The complainant submitted that such tasks were penalisation for having made safety complaints and requested information under freedom of information requests. It was submitted by the complainant that Mr C who was the line manager of Mr A (the complainant’s line manager) did not furnish all the emails under the FOI request and that the complainant received the relevant emails under his FOI request to the Chief Operations Officer (COO). One of these emails from Mr C set out”

“I agree that the emails, particularly those that are unprofessionally lengthy and off point are a waste of time for all of us…surely there are projects in which he (the complainant) could be gainfully employed” .

Another email from Mr C sets out

“I am really worried about (the complainant’s) mental state. He appears to be suffering from a lot of stress and his behaviour at the meeting yesterday was very unprofessional. Indeed a number of his technical colleagues have commented on its appropriateness”.

The request to do the requisitions and research work was withdrawn and instead an Administrative Assistant was sanctioned to process the orders. The complainant advised that requests to perform research work would only be done by academic grades funded under specific research grants and that the complainant is not identified in any such grant to perform project work. It was submitted that no other STO were requested to carry out requisition work and that this amounted to penalisation.

Detriment # 3

The complainant submitted that when opportunities arise for eligible staff in the college; the respondent normally informs all eligible staff of such opportunities. Two opportunities arose between October 2017 and early 2018 which the complainant was excluded from. On or before 14 November 2017 Mr A choose another STO colleague to deputise for him without informing the complainant of this opportunity. The complainant submitted that he was ranked second in a CTO selection process in 2016 ahead of this STO and has 5 years previous experience as a CTO.

On 8 January 2018 the head of school announced that a CTO was to be seconded to another institute for a year and that day-to-day operations were to assigned to one of the STOs; without notifying the complainant that such an opportunity was available. It was submitted that the failure to allow the complainant these opportunities was penalisation and that the complainant had made actions protected by Section 27 of the Act and suffered detriments and that the burden of proof shifted to the respondent.

Case Law cited included HSD118, Adj 4808, HSD95, HSD121.

Summary of Respondent’s Case: CA-00017993-001

Preliminary Issue:

The respondent submitted that the complainant had previously submitted claims about penalisation following complaints about cabinets to the WRC under Adj-0009081 which had also been appealed to the Labour Court under HSD 183 and that the complainant’s complaints had not been upheld.

Substantive Issue:

Detriment #1 - Without prejudice to the preliminary matter, the respondent submitted that the complainant was provided with safety cabinets as per the HSA report. Following delivery of cabinets, the complainant advised that his cabinet was missing but there was no record that the cabinet he claimed for had been ordered. The cabinet was ordered but delivered in a different accounting year and it took a period of time to determine whether the following year’s budget could allow for the expense of this cabinet. It was submitted that the cabinet was withheld purely from a financial viewpoint as the department wished to recuperate all or part of the cost of the cabinet and when the cost was not forthcoming, the cabinet was released as a gesture of goodwill in April 2018 but was not installed until November 2018.

Detriment #2 The complainant’s job description sets out that he would be required to assist in administrative duties which would have included goods in and out, in addition to research work. There is no evidence that allocating the complainant such duties was as a result of the complainant raising health and safety concerns. The complainant appears to have an issue with a request to him to take on additional duties but objects to other STOs who are asked to take on additional duties.

Detriment # 3 The respondent submitted that the STO asked to deputise for the CTO is the safety officer so it was therefore very appropriate to have her deputise for the few days involved. Furthermore there is no policy as to who should deputise for another employee when they are on leave. With regards to the CTO post not backfilled it was submitted that the duties assigned to other personnel were in line with the job specification for their job and the STO asked to do the responsibilities is not acting in any higher capacity.

It was submitted that the complainant has failed to fulfil the appropriate and established burden of proof and for an act or omission complained off to be found to be a penalisation there has to be a detriment and a causal relationship and that the complainant has not established this.

Case law cited included Western Insulation v Girdzius HSD081, Toni & guy Blackrock v Paul O’Neill, St Johns National School v Jacinta Akduman [20110 21 ELR 301], Electrical Rewind Service (Limerick) Ltd v James Earls HSD121.

Findings and Conclusions: CA-00017993-001

Preliminary Issue:

The respondent submits that the complaint regarding cabinets had been subject of a previously held WRC Hearing Adj-0009081 which was appealed to the Labour Court (HSD 183). The decision Adj-0009081 references that the specific complaint “is that he (the complainant) was penalised for raising health and safety concern in December by being redeployed and not being promoted” and his complaints were not upheld. On appeal to the Labour Court, the Court found that they

“cannot accept that a change in management reporting structure amounts to a redeployment. Therefore the Court cannot accept that the detriment complained of falls within Section 27(2) of the Act. Furthermore the Court is satisfied that the change to the reporting structure was contemplation regardless of the complainant’s safety complaint made on 27th February 2017. Therefore the Court finds that the complainant has not satisfied the essential criteria to maintain a complainant under the Act.

Having reviewed the above, it is clear that the complaint held under WRC Hearing (Adj-0009081) and the appeal to the Labour Court (HSD 183) dealt with allegations of penalisation by the alleged redeployment and failure to promote the complainant. Submissions from parties to the WRC and the Labour Court may have referenced the cabinets but they were not the subject of the specific complaints to the WRC or the Labour Court. I find that this instant complaint (CA-00017993-001), is a new complaint and has not been heard previously.

Substantive Issue:

There are has been a number of previous disputes between the parties and substantial exchange of correspondence regarding such events detailed and whilst I will not be referring to every email, or incident I have taken into account all the submissions including oral and written made to me in the course of my investigation as well as the evidence presented at the hearing relevant to this instant complaint.

The specific complaint in front of me, namely under Section 28 of the Safety, Health & Welfare at Work Act, 2005 is that the complainant was penalised by what the complainant has referred to as three detriments when he made protected complaints. The complainant submitted his claim to the WRC on 16 March 2018 and section 41(6) of the Workplace Relations Act 2015 provides a six-month time-limit within which a complaint in respect of an alleged penalisation can be made. This is the six-month period from 17th September 2017 to 16 March 2018. The detriments alleged to have been suffered can be summarised as:

Detriment 1: Intimidation and victimisation by withholding a cabinet from the complainant

Detriment 2: Unfavourable treatment and victimisation by assigning work not within the complainant’s normal remit.

Detriment 3: Victimisation and unfavourable treatment through loss of opportunities.

Section 27 of the Act details penalisation as .— (1)

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.

Subsection 3 of Section 27 prescribes the circumstances in which penalisation is rendered unlawful under the Act. It provides: -

(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 11or appointed under section 18to 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.

While the Act is silent on the question of to whom the burden of proof rests with, the court in Department of Justice, Equality and Law Reform v Kirwan, (HSD/082) 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 (see Joseph Constantine Steamship Line v Imperial Sheltering Corporation [1942] A.C. 154).

The provision for “penalisation” under the Act must be a matter connected with safety, health and welfare at work. Furthermore, the act of penalisation must arise from a retaliation to an employee who has made a complaint to his employer. The Labour Court has stated that the concept of penalisation should, similar to victimisation, be construed as widely and literally as can be fairly done (Panuta v Watters Garden World Ltd [2010] E.L.R. 86.). The impugned conduct must be of a type referred to in subs.(2) “or involve other punitive or detrimental conduct similar in nature to that referred to in subsection (2)”. Section 27(3) provides that the employee must suffer detriment. The court has also regarded in Shamoon v Chief Constable of the Royal Ulster Constabulary ([2003] UKHL 11 per Lord Hope at para.33; [2003] I.C.R. 337; [2003] I.R.L.R. 285; [2003] 2 All E.R. 26.) that “the test for what constitutes a detriment is an objective one and the Court should consider if a reasonable worker would or might take the view that the treatment complained of was, in all the circumstance, to his or her detriment”. The Labour Court stated that there is a requirement “to show a chain of causation between the impugned detriment and the protected act or omission” Óglaigh Náisiúnta na hÉireann v McCormack (HSD/115).

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. In this instant case, the complainant made safety complaints and submitted a complaint to the WRC on 16 March 2018 and I am satisfied that these were protected acts and no suggestion was made that the concerns raised by the Complainant were anything other than protected acts. The second limb of the test is that the complainant 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 and that ‘but for’ having made a protected act under the subsection the detriment would not have happened.

Detriment #1

The complainant submits that a cabinet that he ordered was delivered to the respondent but the respondent would not release it to the complainant and that this amounted to intimidation. I note that there was agreement between parties that albeit the cabinet had been paid for; there were issues over which financial year payment for the cabinet would be assigned to. While there was disparity between the parties over who actually ordered/owned the cabinet I find it credible that the complainant was to be provided with a similar type cabinet. However, I do find that that there were other circumstances which led to the delay in assigning the cabinet to the appropriate area; namely issues over which financial year the cost of the cabinet was to be assigned to and from which budget payment would come from. I do not find that the relationship between the complainant and Mr A helped matters but having considered all the evidence I do not find that the complainant was penalised by not receiving the cabinet up to 16 March 2019 and I find that this aspect of the complaint is not well founded.

Detriment #2

The complainant submits that he was assigned work which had not been assigned to other STOs and that these tasks were assigned to penalise the complainant for making a safety complaint. The respondent denies the claims. I note that complainant’s job description refers to duties and responsibilities which include “support the research activities of the discipline of X” and “to assist in administrative duties associated with the discipline”. It is also noted that other employees were allocated responsibilities separate to their normal duties such as acting for the CTO when the CTO was not available. Having considered all the evidence I do not find that the complainant was penalised when he was allocated duties and I find that this aspect of his complaint is not well founded.

Detriment #3

The complainant submits that other STOs was allocated promotional opportunities which were not made available to the complainant. It is noted that one of the STOs was down as the contact person for a CTO for a few days and that another STO was assigned duties when a CTO and his position was seconded to another area. I do not find any evidence to support that these STOs were given opportunities above that of their existing position. I note also that the complainant had previously disputed taking on allocated duties referred to in Detriment #2. Having considered all the evidence I do not find that the complainant was penalised by loss of opportunity and I find that this aspect of his complaint is not well founded.

I find that these complaints are not well founded and I dismiss the complaints

Summary of Complainant’s Case: CA-00021062-001

Preliminary Issue:

In response to the respondent’s preliminary issue that the instant complaint had been heard previously, the complainant denied that the complaints had been heard previously.

Substantive Issue:

CA-00017993-001 above dealt with the complainant’s complaints during the cognisable period September 17th 2017 – 16th March 2018 which had been submitted to the WRC on 16th March 2018. Complaint CA-00017993-002 was referred to the WRC on 9th August 2018 and therefore the cognisable period is February 10th 2018 – 9th August 2018. Within this instant complaint (CA-00021062-001) the complainant submits that the cabinet was moved to another building and that the reasons for the movement of the cabinet were to penalise the complainant for making a safety complaint and to intimidate the complainant. The complainant located the cabinet and raised questions as to why the cabinet had not been delivered to him and why it had been moved. These were recorded in the minutes and the cabinet was released to the lab on 18 June 2018. The complainant confirmed that the cabinet was not plumbed for use until November 2018.

Case Law cited included HSD118, Adj 4808, HSD95, HSD121.

Summary of Respondent’s Case: CA-00021062-001

Preliminary Issue:

The respondent submitted that the complainant had previously submitted claims of penalisation following complaints about cabinets to the WRC under Adj-0009081 which had also been appealed to the Labour Court HSD 183 and that the complainant’s complaint had not been upheld.

Substantive Issue:

Findings and Conclusions: CA-00021062-001

Preliminary Issue:

I find that the complaint held under WRC Hearing (Adj-0009081) and the appeal to the Labour Court (HSD 183) that dealt with allegations of penalisation by the alleged redeployment and failure to promote the complainant. Submissions from parties to the WRC and the Labour Court may have referenced the cabinets but they were not the subject of the specific complaints to the WRC or the Labour Court. I find that this instant complaint (CA-00021062-001), is a new complaint and has not been heard previously.

Substantive Issue:

The specific complaint in front of me, namely under Section 28 of the Safety, Health & Welfare at Work Act, 2005 is that the complainant was penalised by what the complainant has referred to as a detriment when he made a protected complaint. The complainant submitted his claim to the WRC on 9th August 2018 and section 41(6) of the Workplace Relations Act 2015 provides a six-month time-limit within which a complaint in respect of an alleged penalisation can be made. This is the six-month period from 10th February 2018 to 9th August 2018. The detriment alleged to have been suffered can be summarised as intimidation and victimisation by moving a cabinet away from the complainant

While the Act is silent on the question of to whom the burden of proof rests with, the court in Department of Justice, Equality and Law Reform v Kirwan, (HSD/082) held:

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. In this instant case, the complainant made safety complaints and submitted a complaint to the WRC within the cognisable period and I am satisfied that these were protected acts and no suggestion was made that the concerns raised by the Complainant were anything other than protected acts. The second limb of the test is that the complainant 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 and that ‘but for’ having made a protected act under the subsection the detriment would not have happened.

It was evident that there is a fractured relationship between the Complainant and his line manager and that this was a factor in the chain of events that led to this instant complaint. The complainant submits that when he advised Mr A that the failure to give him the cabinet was an act of intimidation; the cabinet was moved approximately two weeks later as was noted in the minutes of department meetings. Evidence given was that the cabinet was moved as it was required in another area but when the cabinet was moved to the other area, it was no longer required in that other area and was never unpacked. I have found the complaint unfounded that the failure to release the cabinet was to penalise the complainant as referred to above in CA-00017993-001 as I found it was credible that the previous delays were owing to the financial dispute. However, there has been no credible evidence submitted as to why the cabinet was moved from its location and never used; a move which happened very shortly after the complainant’s email and referral of health and safety complaints to the WRC. It was clear from the minutes of meetings that other employees also believed that moving the cabinet was to teach the complainant a lesson and I find that the decision to move the cabinets was a decision taken as a direct result of the complainant’s protected acts. I believe, therefore, that a reasonable person would determine that moving the cabinet was done to prevent or discourage the complainant from making other such complaints which amounts to efforts to intimidate the complainant.

In determining how serious this level of intimidation was, I am taking into consideration factors including that the complainant failed to install the cabinet until November 2018 which suggests that this was less about installing a cabinet and was more about a ‘battle of sorts’ between the complainant and Mr A. I find that the nature of the intimidation was not at the most serious end. I find that the complaint is well founded and order the respondent to pay the complainant €450.

Decision:

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

CA-00017993-001

I find that the complaints are not well founded.

CA-00021062-001

I find that the complaint is well founded and order the respondent to pay the complainant €450.

Dated: 17th June 2020

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Health and safety and penalisation