Complainant

Respondent

Anonymised Parties

Security Officer

Security Company

Representatives

Self        

Joseph L Bolger ESA Consultants

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-00030036-001

01/08/2019

The complainant is a part-time security officer. He commenced employment with the respondent on 03 February 2018. His contract provides for a minimum of 20 hours work per week. In February 2019 he was working 36 hours per week on a client site and his gross pay was €450.00 per week. His claim is that he was penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act, 2005. The complainant’s complaint to the Workplace Relations Commission under Section 28 of the Safety, Health and Welfare at Work Act, 2005 was received on 01 August 2019.

The respondent’s position is that the complainant never made a complaint and was not penalised as per Section 27 of the Safety, Health and Welfare at Work Act, 2005.

The complainant commenced work with the respondent company in 2018. He worked as a part-time security officer on client sites. In February 2019 he was working 36 hours per week at an educational establishment which was a client of the respondent.

The complainant attended a meeting on 20 February 2019 with his manager and a Human Resource department representative. The meeting was about the loss of an access card that had been issued to the complainant.   The access card had not been reported missing by the complainant. The complainant states he was not informed the meeting was an investigation.

Following the investigation meeting the respondent e-mailed the complainant stating that the company did not accept his explanation and requested that he attend a disciplinary meeting. The complainant states that he was not shown a written complainant, allowed to take notes or call witnesses. The complainant was dismissed. He appealed the disciplinary decision on 08 March 2019.

The appeal hearing took place on 25 March 2019. The appeal hearing was conducted by Mr H and was attended by a Human Resource department representative. The complainant stated that due to the behaviour of Mr H he left the hearing for his own safety. The appeal was successful. The decision to dismiss the complainant was reversed and a sanction of a final written warning replaced the dismissal.

Three days after the appeal hearing the complainant brought his concerns about security to the student’s union at the site.

The outcome of the appeal was notified to the complainant by letter of 28 March 2019. The complainant was advised there was immediate availability of work within the events section. He was offered eleven weeks work on 14 April 2019. He asked several questions of management; what would his next assignment be and for how long, was a safety pass required and were there any health and safety issues? He states his questions were not answered.

The complainant did not take up the offer of the 11-week placement and he has not been offered further work. He has not worked for the complainant since February 2019 but is still an employee.   On 24 April 2019 the complainant requested a meeting with the Director of Risk and Compliance. A meeting was later arranged for a date in May 2019, but this meeting did not take place.

On 30 April 2019 the complainant sent a registered letter to the respondent setting out several queries he had about the investigation. He states he did not receive a reply to his queries. There followed many e-mails between the complainant and the respondent.   While there were attempts to arrange a meeting, no meeting took place.

On 22 May 2019 the complainant sent a request for his personal data. The respondent confirmed by e-mail that the request would be complied with. On 21 June 2019 the respondent sent a driver to the complainant with a package of documents. The complainant refused to accept the package as it appeared to him that the envelope was torn, and he believed that not all his data was contained in the package.

The complainant states that two investigations were conducted by the company. The second investigation was started by the Director of Risk and Compliance on a complaint brought by the complainant about the conduct of Mr Y. The complainant states that to the best of his knowledge this investigation is still ongoing.

The complainant states that the respondent failed to meet with him at a neutral venue to resolve the issue raised through e-mails. He requested a transfer back to his original place of employment, but the company would not accommodate this request. He states the company did not follow its own rules and regulations, did not act in good faith, did not address his concerns and only once offered him work after his successful appeal hearing.

The complaint form submitted to the Workplace Relations Commission states the complainant was penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act, 2005. In the “Details of your Complaint” section the complainant wrote “Complaint made in Feb 2019”. The respondent rejects this claim.

In February 2019 the respondent was providing security services to a client that is an educational establishment. The respondent received a complaint from the client that a security access card, which provided total access to the college, including the dormitories, had been handed in. The card had been allocated to the complainant and he had not reported the card missing. The client requested that the complainant be replaced on the site as this failure had raised serious doubts in their minds.

The respondent investigated the client’s complaint. An investigation meeting took place on 20 February 2019. The investigation was conducted by Mr C, a manager, and was attended by a representative of the Human Resource department. The complainant signed the investigation interview record confirming that he understood that he had the right to have a witness present and acknowledging he did not require a witness. The complainant was invited to attend a disciplinary hearing following the conclusion of the investigation.

The disciplinary hearing took place on 28 February 2019 and the complainant’s employment was terminated. The complainant submitted an appeal on 08 March 2019 and an appeal hearing took place on 25 March 2019. The complainant was notified on 28 March 2019 that his appeal was successful and the decision to terminate his employment had been reversed and replaced with a sanction of a final written warning.

The respondent did receive a letter date 30 April 2019 from the respondent. This was followed by several phone calls and e-mails.   Attempts were made to arrange meetings to discuss the content of the letter, but no meeting took place and there was no resolution.

The complainant submitted a request for personal data on 24 May 2019. The respondent prepared the data and arranged to have the documents delivered to the complainant’s home. Having checked that the complainant was at home a driver was sent to deliver the documents on 21 June 2019. The complainant then sent an e-mail saying he had been made aware of CCTV footage which related to an investigation in September 2018 concerning a complaint from a different client. Mr Y had viewed this footage. The complainant refused to accept the delivery of the documents and wrote the following on the Receipt of Letter document: “I will not be taken possession of this document as the email sent to me by yourself (Director of Risk and Compliance) states that is no photos or film of me asleep is there. (Mr H) told me its there. So either its sent to me or (Mr H) apologise then we have the meeting.”

The CCTV footage referred to was not the property of the respondent. It was the property of a client who had made a complaint in 2018 and had been viewed by Mr H at the client’s premises. The client had not retained the footage pursuant to Data Protection Regulations.

The respondent submits that the complainant never made a complaint and therefore could not have been penalised as per Section 27 of the Safety, Health and Welfare at Work Act, 2005. A client of the respondent made a complaint when an access card, which had been issued to the complainant, was found. The complainant had not reported that the card was lost. The complainant was taken through the standard investigatory and disciplinary process in accordance with fair procedures and the employee handbook.

It is submitted that for the complainant to succeed the Adjudication Officer must be satisfied, on the balance of probabilities:

(a)    A protected disclosure or complaint was made within the meaning of Section 3(a) – (f) of the Safety, Health and Welfare at Work Act, 2005 by the complainant; and

(b)    That any penalisation deemed to have occurred resulted wholly or mainly from the complainant having made that protected disclosure or complaint.

The complainant was disciplined for performance issues. There was no grievance raised by the employee throughout the investigation and disciplinary meetings. Throughout various emails sent after his appeal hearing, he merely makes unwarranted remarks about being protected by the Whistle-blowers Act and not getting answers to questions raised about the investigation in 2018. The disciplinary hearing in 2019 relates solely to the complainant’s discharge of his functions. He did not make a protected disclosure or raise a grievance which resulted in him being subjected to a disciplinary hearing.

There was no complaint made within the meaning of the Safety, Health and Welfare at Work Act, 2005.   It is submitted that at no stage can it be suggested that the complainant conveyed any facts relating to a complaint or protected disclosure. The complainant was at all times during the investigation and disciplinary hearings afforded fair procedures and natural justice.

The complainant did not make a protected disclosure or complaint within the meaning of the Safety, Health and Welfare at Work Act, 2005 and was not penalised. He is not entitled to the relief claimed or any relief.

This is a complaint alleging that the respondent penalised the complainant in contravention of Section 27 of the Safety, Health and Welfare at Work Act,2005 (the Act).

Section 27 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.

(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.

Subsection (3) above is clear that penalisation is unlawful under the Act when it is perpetrated on an employee for having performed or committed one or more of the acts set out in the succeeding paragraphs of that subsection. For the complainant to succeed in his complaint he must establish that he suffered a detriment of a type set out in subsection (1) above and that the detriment was imposed because of, or was in retaliation for, him having acted in manner referred to in subsection (2).

The Labour Court in Toni & Guy v O’Neill HSD095 held “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 determent 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”. The complainant must therefore show that “but for” having made a protected act under the subsection the detriment would not have happened.

I must decide, on the balance of probabilities, if the complainant did make a protected act as provided for in the Act, if he suffered a detriment and would he have suffered the detriment but for making a protected act. I have carefully considered the submissions presented, the oral evidence and the extensive email documents submitted. The complainant in his submission refers to two investigations being conducted by the respondent. The first investigation was conducted by the respondent in response to a complaint received from a client. The second investigation he states was started on a complaint brought by him about the conduct of Mr H and to the best of his knowledge is ongoing,

The respondent received a complaint from a client which is an educational establishment. An access card that had been issued to the complainant was found in a car park. The complainant is a security officer and had been issued with the access card to perform his security duties. The complainant did not report the loss of the card. Following the investigation, the complainant was called to attend a disciplinary hearing. The complainant was dismissed. He appealed the decision to dismiss him. The appeal hearing was conducted by Mr H. The appeal was successful and the decision to dismiss was reversed and replaced with a final written warning. The outcome of the appeal was communicated to the complainant by letter dated 28 March 2019. The complainant did not present evidence to me that he made a protected disclosure or acted in a way provided for in Section 27 Subsection (3) (a-f) of the Act during this investigation and disciplinary procedure.

Following his successful appeal, the complainant was offered work at a different site. This work was with the events team. The HR manager, Ms McM, gave evidence that she tried to engage with the complainant about this work that was being made available to him. She was clear and consistent, and I accept her evidence.   The complainant did not accept the work offered.

The complainant on 30 April 2019 wrote to the respondent and raised several queries. The queries were mainly about the investigation and disciplinary procedures followed in February / April 2019 in dealing with the client’s complaint about the lost access card. The queries in the letter of 30 April 2019 are the basis of what the complainant refers to as the second investigation. These are queries raised after the appeal hearing. The complainant stated that to the best of his knowledge this investigation is ongoing. I find that these queries are not acts as defined in Section 27 Subsection (3) (a-f) of the Act.

The complainant later submitted a data access request and engaged in protracted email correspondence with the respondent.   The respondent arranged to deliver the data to the complainant’s home address. The complainant refused to accept the data because there was a tear in the envelope and because CCTV footage was not included. For the respondent Mr H gave evidence that he had arranged to have the data delivered and the package was returned to his office unopened. He further sated in evidence that the CCTV footage referred to related to a complaint in 2018 and was the property of a client. In 2018 during an investigation Mr Y had viewed the CCTV footage at the client’s premises. The CCTV footage was not and had not been the property of the respondent. The client had disposed of the footage in compliance with the Data Protection legislation. I find no connection between these exchanges and acts as defined in Section 27 Subsection (3) (a-f) of the Act.

I find, on the balance of probabilities, that the complainant did not make a complaint or commit one of the acts protected in Section 27 Subsection (3) (a-f) of the Act. Therefore, as the complainant did not commit one of the protected acts there can be no penalisation arising wholly or mainly from the protected act. I declare that the complaint brought under the Safety, Health and Welfare at Work Act, 2005 is not well founded.

CA-00030036-001 – For reasons set out above I declare that the complaint brought under the Safety, Health and Welfare at Work Act, 2005 is not well founded.

Penalisation

Section 27 Complaint Safety, Health and Welfare at Work Act, 2005