Complainant

Respondent

Anonymised Parties

A Senior Technical Officer

A Third Level College

Representatives

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-00029096-001

17/06/2019

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

The complainant submits that on 5 February 2019 he emailed a safety complaint to the HR Director Ms A and Chief Operating Officer Mr B about lab safety. On 15 February 2019 the complainant presented a complaint at a WRC Adjudication Hearing and that on 6 and 8th March 2019 the complainant raised complaints about bullying by management and an unsafe workplace. It was submitted that the aforementioned are protected actions. The complainant submitted four detriments occurred as a result of his protected actions and that but for submitting protected actions the detriments would not have occurred .

Detriment #1

It was submitted that three days after giving evidence at a WRC Hearing concerning complaints under the Safety, Health & Welfare at Work Act, 2005, the complainant was advised by his line manager, Chief Technical Officer Mr C that the complainant was to provide dates in advance of attending to duties at Campus X of the respondent’s premises. The complainant has lab space and office space at two locations across the respondent’s site. The complainant questioned reasons for the instructions and asked Mr C why nobody else was required to do this and further advised that he was being victimised which amounted to bullying. On each occasion that the complainant moved across campus, he advised Mr C of same and advised that he was doing so under protest and with significant duress.   Mr C indicated on the 29th March 2019 that the instruction was withdrawn and would not respond as to why it had been withdrawn. It was submitted that the initial instruction to the complainant was unfavourable treatment and was not justified and was not a reasonable instruction and amounted to penalisation.

Detriment #2

The complainant submitted that he requested on 9 April 2019 to view his HR file which was something the complainant had done previously and access had been given to him previously in a timely manner. The complainant was referred to the Freedom of Information (FOI) Officer and the information was not provided within 4 weeks of the request.   It was submitted that the delays in providing him the information amounted to penalisation for protected acts.  

Detriment #3

The complainant submitted that on 6th and 8th March 2019 the complainant raised a grievance and health and safety complaints and Ms A instructed that only one element of the grievance be addressed. Furthermore HR nominated on three occasions; persons, who were clearly biased, to chair the stage 1 grievance meetings. All three nominated persons had been accused of bullying a colleague previously.

Two months later the stage 1 hearing took place on a date when the respondent knew that the complainant’s union official was not available and the complainant had to attend on his own. The respondent failed to respond to the grievance within the required time and it was only following the complainant’s submission of a complaint to the WRC that a response was issued. To date the respondent has failed to progress the grievance to stage 2.   The respondent’s failure to provide a fair grievance process amounts to penalisation

Detriment #4.

The complainant submitted a request to Mr C to cover the cost of a new fridge in the kitchen at work and Mr C declined to cover the cost. The complainant was told that people should collect money to cover the cost of a new fridge. However, when another student asked Mr C could a replacement fridge be purchased Mr C advised that it would not be a problem. The refusal to the complainant by Mr C amounted to penalisation.

It was not disputed that the complainant had made safety complaints and attended a WRC Adjudication Hearing but it was disputed that the complainant had been penalised. With regard to the specific penalisation that the complainant had submitted the respondent submitted that:

Detriment #1

Issues had arisen regarding differences in the complainant’s annual leave record and the records held by his line manager Mr C.   As a result of these issues Mr C requested dates for when the complainant would be working elsewhere on the campus. Mr C later clarified to the complainant that he only required details of when the complainant was not on site. The complainant was not penalised as no differences arose in the annual leave records for other employees and it was therefore a fair and reasonable request.

Detriment #2

On 9 April 2019 the complainant requested to view his HR file on a laptop and owing to data protection legislation the request was referred to the data protection officer. The delays did not amount to penalisation and were unrelated to the complainant’s health and safety complaints and any delays were to ensure all the documents were uploaded to a confidential file on the system and redactions made where necessary.

Detriment #3

On 6 March 2019 the complainant emailed Ms A with a complaint regarding the non-sanctioning of annual leave by Mr C and a safety issue and the complainant advised his union official would be in touch but no correspondence was received from the union official. On 8th March 2019 Ms A responded requesting a meeting between the parties to resolve the issues and the complainant requested a formal grievance of the complaint and advised that there were several other complaints. Delays ensued as the complainant objected to managers nominated to hear the grievance.   The respondent outlined that they were not made aware that the date of the grievance meeting was unsuitable owing to the non-availability of the union official and that the complainant was happy to proceed. The complainant was advised that some of his issues were outside the scope of grievance such as bullying and health and safety and the complainant was given copies of notes of the hearing.

Detriment 4#

The respondent refuted that the delay in approving a fridge amounted to penalisation under health and safety.

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.

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 four detriments when he made protected complaints. The complainant submitted his claim to the Workplace Relations Commission on 17 June 2019 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 18th December 2018 to 17 June 2019. The detriments alleged to have been suffered can be summarised as

Detriment 1: unfavourable treatment and victimisation with regard to the complaint’s conditions of work

Detriment 2: unfavourable treatment and victimisation as was not allowed to review his HR file in a timely manner

Detriment 3: unfavourable treatment and victimisation of the complainant’s grievance

Detriment 4: Unfavourable treatment and victimisation by the refusal to fund the purchase of a fridge

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 3 days after giving evidence on penalisation under Safety, Health & Welfare at Work Act, 2005 at a WRC Hearing, the complainant was instructed to give details of when he would be working on Campus X and that this instruction was not required of any other employee. I note that the request for details regarding when the complainant was working at another campus were asked within the context of an ongoing query over the complainant’s annual leave entitlement. I find this aspect of the complainant’s complaint is not well founded.

Detriment #2

The complainant submits that there were significant delays following his request to see his personnel file on 9th April 2019 and that this amounted to penalisation. The respondent submits that any delays were as a result of ensuring the necessary files were uploaded electronically and also to ensure that irrelevant information was redacted from the file. I find that although there were delays in facilitating the complainant’s request to review his personnel file I do not find that this amounts to penalisation and I find this aspect of the complaint is not well founded.

Detriment #3

The complainant submits that on 6th and 8th March 2019 he raised a grievance regarding bullying and unsafe working and that the respondent’s response which included refusing to hear his grievance in its entirety and nominating biased people to hear the grievance amounted to penalisation. The respondent submits that some aspects of his complaints were unsuitable to heard as a grievance and the complainant objected to some of the people put forward to hear his grievance. Having heard all of the evidence I do not find any such delays amounts to penalisation and I find this aspect of the complaint is not well founded.

Detriment #4

The complainant submits that he was refused funding on 19th March 2019 for the purchase of a fridge which amounted to penalisation as another person was not refused. The respondent denies refusal of a fridge amounts to penalisation. I note from the complainant’s email of 18 March 2019 sent to Mr C that the complainant refers to another employee who was refused the purchase of the fridge. “(Employee X) informed me that he sought for (the department) to cover the replacement cost. I understand you rejected the request”. I also note that Mr C outlined that his own area had to pool together to purchase a microwave. I do not find that this amounts to penalisation and I find that this aspect of the complaint is not well founded.

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

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

Health and safety , penalisation