Complainant

Respondent

Anonymised Parties

A Forklift Operator

A Paint/ Coatings supply company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00030867-001

12/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030867-002

12/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00030867-004

12/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00030867-005

12/09/2019

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

CA-00030867-006

12/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 26 of the Chemicals Act, 2008

CA-00030867-007

12/09/2019

The Complainant worked for 31 years for the Respondent as a forklift operator. She was dismissed without notice on 17 June 2019. Her complaints are for failing to issue her with a written contract, unfair dismissal and penalisation.

The Respondent did not engage with the WRC prior to the hearing and did not attend the Adjudication hearing on 17 December 2019.

For the purpose of clarification references to the “SHWW Act” refers to the Safety Health and Welfare at Work Act 2005

“Chemicals Act” refers to the Chemicals Act 2008

“PD Act” refers to the Protected Disclosures Act 2014 and

“UD Acts” refer to the Unfair Dismissals Act 1977, as amended.

“T&C Act” refers to the Terms of Employment (Information) Act 1994

The Complainant attended the Adjudication hearing and gave the following evidence.

CA 00030867-001 – Unfair Dismissal

The Complainant was at work one day in or around May 2019 and was told by her manager to attend the office, which she did. In the office there was another person present to take notes. The Complainant was not given any notice of this meeting, nor was she advised of the purpose of the meeting nor was she advised that she could bring a representative, nor was she advised that she might be disciplined or dismissed as a result of the meeting.

At the meeting her manager asked her if she had (a) taken empty paint/coatings buckets without permission and (b) put her own personal rubbish into the Company refuse.

She told her manager that she had permission to do both. In respect of empty paint/coatings buckets, if they were redundant (because they were either wet or dirty) all staff were allowed to take buckets home and secondly, five years earlier she had asked her line manager permission to be allowed put a small amount of her personal refuse into the Company refuse collection. Following receipt of this permission she did this very openly approximately once a week, which everybody, including her manager knew about. She had been allowed to do this for 5 years with no reprimand prior to this meeting in May 2019. At the meeting she told the manager the identity of her line manager who had given her the permission.

She added that it was not only she that took redundant buckets home, that this practice was widespread among the staff and that the buckets were not re-usable and therefore would be thrown out anyway. But in any event, she had been given permission by two managers to do both things.

An investigation meeting took place on 15 May 2019. Two allegations of misuse of company property and misappropriation of company assets. Once put to the Complainant she repeated that she had permission to do both. She was informed that her two managers had been asked about this and that they each had denied giving her permission. The Complainant immediately did not believe this and said so. This was because she knew these line managers very well and had a very good relationship with them. When she asked for this to be evidenced in writing or through the managers themselves, nothing (other than the investigating manager’s say so) was provided to support the claim. The Complainant said at the Adjudication hearing that she did not believe that the two managers ever denied giving her these permissions and believes the manager fabricated this evidence, in order to suit his plan to dismiss her.

A disciplinary meeting took place on 13 June 2019 at which the Complainant was represented by her trade union representative. The Company stated the allegations and the Complainant accepted each allegation but said that she was given permission to do both.

By letter dated 17 June 2019 the Complainant was dismissed on the basis that misuse of company property (using Company refuse system for personal use) and misappropriation of company assets (taking empty paint buckets) both of which constituted theft. She was given a right of appeal, which she chose.

The appeal took place on 2 July 2019 and the Complainant argued that the dismissal was unfair in substance and in procedure. She was not afforded fair procedures.

By letter dated 18 July 2019 the Complainant was informed that her appeal was unsuccessful and that the decision to dismiss her was being upheld. No reasons were set out for this decision.

The Complainant alleges that the decision to dismiss her was unfair in that fair procedures were not followed and that the finding of theft against her was made without the Complainant being able to contest any evidence against her. Furthermore, that the decision to dismiss her for taking home empty paint buckets (when this practice was common amongst staff) and adding a small amount of personal rubbish to the Company refuse, neither constituted theft and the sanction of dismissal is entirely disproportionate to the alleged offence, both of which are denied. If any sanction was justified, a warning would have been the appropriate sanction.

Also, the fact that the Complainant had worked for 31 years with an unblemished record was not taken into account when deciding on the sanction.

Following her dismissal, forty of her fellow work colleagues signed a petition in support of the Complainant and asked management that the decision be reconsidered. It was not.

The Complainant believes that the real reason for her dismissal was because the Complainant had become regarded, wrongly, as a trouble maker, because she made three complaints concerning the use of a chemical product and for two health and safety breaches. The decision to dismiss her, apart from being an unfair dismissal, also constitutes penalisation for which she is seeking a remedy.

Penalisation CA-00030867-006 and CA-00030867-007

For a number of years, the Complainant had complained about the use of an improper loading ramp about which nothing was done. Incidentally 6 weeks prior to her dismissal, the Complainant’s forklift collapsed through the defective ramp, while she was using it. She was not injured as a result and did not institute any legal proceedings for personal injury.

In addition, a number of weeks, prior to her dismissal, she asked her manager for a hoover. Part of her job was to clean the floor of talc powder and titanium powder from the ground. The instruction, issued by management, was to remove the metallic/ talc powder by sweeping but she found that raising powder from the ground by sweeping caused an adverse reaction to her nose and scalp and this was why she requested the use a vacuum cleaner instead, however this request was refused.

Prior to her dismissal the Complainant added her voice to a complaint that had been made two months earlier by the manufacturing staff in the plant that a toxic chemical (DB20) a cleaning agent had been added to the power washer water supply and that this was detrimental to her and their health.

The complaints of penalisation arise as separate complaints; namely the real reason that she was dismissed (as opposed to the contrived reason) was because she complained about her health and safety being not protected (defective ramp and lack of vacuum cleaner) and exposure to chemical DB20. This complaint is brought under CA-00030867-006 (section 28 SHWW Act).

Secondly and separately she claims she was penalised for complaining about and/or having made a protective disclosure in relation to the use of the chemical DB20. This complaint is brought under CA-00030867-007 (section 26 of Chemicals Act).

She contends that these constitute penalisation on two counts, that two separate complaints are being made and two separate reliefs should be made, even though the penalisation, in the form of a dismissal from her job, was the same.

CA-00030867-002 - Terms and Conditions of Employment

The Complainant did not receive any written contract for 31 years of service

CA-00030867-004 - OWT

This complaint is withdrawn

CA-00030867-005 - OWT  

This complaint is withdrawn                                                                                                                                                                                                                                                                                                                        

No appearance

No representation

Findings

The Adjudication hearing was listed on 17 December 2019. The Respondent did not attend. I contacted the PRU section of the WRC to confirm that the Respondent had been properly put on notice of the hearing and that no late minute application to adjourn the proceedings had been made on their behalf. Having been satisfied that they were on notice and there being no explanation as to their absence, I proceeded to hear the matter in their absence.

A request from the Respondent dated 30 January 2020 was received by the WRC. This was a request for a re-hearing. The basis of this was that Respondent had in November 2019 requesting a postponement of the hearing on 17 December however the reply from the WRC (which had refused this application) was not recognised by the Respondent’s email server and went into the Respondent’s spam file, only to be picked up by them in January 2020, after the Adjudication hearing had taken place. The request for a rehearing was forwarded to me as Adjudication Officer and having considered the request and reasons for the application to relist the matter, I refused it on the basis that the onus was on the Respondent in advance of the hearing, having not received a reply from the WRC as to its adjournment request, to check with the WRC whether or not an adjournment of the hearing had been acceded to. Had it done so it would have learned that a reply was sent by the WRC, that it had gone into their spam account but that in any event the Adjudication hearing was proceedings on 17 December 2019. It was wrong to assume, in the absence of a reply to their November request for an adjournment, that the matter would not be proceeding.

CA-00030867-001 – Unfair Dismissal

Based on the uncontested evidence of the Complainant I am satisfied that a dismissal occurred as a matter of fact. The onus lies on the Respondent to justify a dismissal and as no evidence was presented on their behalf I find, based on the evidence available to me, that the dismissal of the Complainant constituted an unfair dismissal. However, as a complaint of a penalisation dismissal has also been raised under a different complaint, (CA-0030867-006) and section 27 (5) of the SHWW Act prevents relief being obtained under both the UD Acts and the SHWW Act, I intend to make the award under the SHWW Act, which allows me to make an award on the basis of what is just and reasonable, as opposed to loss of earnings, which in this case is limited.

Award: € Nil

CA-00030867-002 – Terms and Conditions of Employment

Based on the uncontested evidence of the Complainant I am satisfied that she did not receive a written contract over the 31 years that she was employed by the Respondent. I find this complaint to be well founded and I award the maximum 4 weeks wages

Award: €2228.00

CA-00030867-004 – OWT

Withdrawn

CA-00030867-005 – OWT

Withdrawn

CA-00030867-006 (Penalisation for raising a Health and Safety complaint under Safety Health and Welfare at Work Act 2005)

This is a penalisation complaint pursued under the SHWW Act.

As the complaint, in relation to the defective ramp had been made (which I am satisfied was a health and safety complaint within the meaning of the SHWW Act) a number of years before the adverse treatment (the dismissal), I do not find that a causal link has been established that the dismissal arose as a result of the complaint concerning the ramp. In applying the “but for test” as set out in the Labour Court case of O’Neill v. Toni and Guy Blackrock Ltd [2010] E.L.R. I do not find, in relation to the facts of the present case, that the dismissal would not have occurred but for the complaint about the ramp.

In relation to the complaint in relation to having to sweep, as opposed to vacuum clean the talc and metallic powder and in relation to the complaint concerning the use of DB20 in the cleaning water supply, I find that both these constituted health and safety complaints (under section 27 (3)(c) of the SHWW Act) and given that these complaints were made in the weeks immediately leading up to the dismissal, I am satisfied that the reason that the adverse treatment (in this case a disciplinary process leading to a dismissal) was meted out to the Complainant was as a result of her raising the reasonable health and safety complaints and that the penalisation-dismissal would not have occurred but for these two complaints in relation to the Complainant’s health and safety being made.

I find this complaint to be well-founded and in accordance with section 28 of the Safety, Health and Welfare at Work Act 2005 and I award the Complainant “just and equitable” compensation, taking into account the following:

Loss of earnings, arising from the dismissal, until the date of Adjudication hearing:                     €2,531

Loss of future earnings, arising from the dismissal:                                                                          €20,000

Losses to pension (to include losses due to early draw down and re-investment):                      €40,000

Additional “just and equitable” compensation, taking into account loss of statutory rights     €20,000                                                                            

The award of compensation is just and equitable given the Complainant’s unblemished work history of 31 years and given that she worked in one job for most of her working life, a job that, it should be noted, is in most other work places one that is performed exclusively by men and I have no doubt that, certainly early on, if not throughout her employment, this probably gave rise to a degree of adverse reaction and for that reason alone, apart from any other, her successful and blemish free work history is even more impressive. However, it follows that having only had one job for most of her working life alternative work may be now difficult for her to obtain, especially within a rural border area where the economy is not as buoyant as larger towns and cities and job options are not as freely available. Having said that I found the Complainant to be thoroughly impressive and I confident that she will continue to make every possible attempt to obtain alternative work.

The overall compensation award, in terms of what is just and equitable, also takes account of loss of statutory rights and the likelihood that the Respondent acted in the way that it did to discourage other workers from making any health and safety complaints (evidence was given that the remaining staff became worried that similar treatment would be meted out to them also). Lastly the award, takes into account the size of the Respondent business undertaking and the need for any award to act as a deterrent to such conduct in the future.

AWARD: €82, 531.00

CA-00030867-007

Complaint CA-00030867-007has been brought under the Chemicals Act 2008. The Chemicals Act provides relief against penalisation in two ways. Firstly, under the original Act (the 2008 Chemicals Act was one of the pre-2014 sectoral acts that protected against penalisation) and secondly under the 2014 amended Act a complaint under the Chemicals Act is permitted to be treated as a protected disclosure and if so found, the relief is granted under the UD Acts, via the PD Acts.

Under the original Chemicals Act, if an employee was dismissed for making a complaint in good faithto a national authority, he/she could obtain relief under section 26 (5) (c) on the basis of just and reasonable compensation not exceeding 104 weeks, calculated in accordance with the UD Acts. This did not apply in this case as there was no complaint to a national authority, rather the complaint was made internally within the company.

After 2014, under the amended sections 25 and 26 of the Chemicals Act (amended by Schedule 4 of the PD Acts), if a complaint gave rise to a penalisation and it constitutes a protected disclosure, within the meaning of section 5 of the PD Act, the relief under the Chemicals Act is dealt with in accordance with the PD Acts and the relief thereunder lies under section 7 (1A) of the amended UD Acts (up to a maximum of 260 weeks loss of earnings).

Therefore, in terms of relief provisions against penalisation; under the original (anti penalisation provisions of the) Chemicals Act, the relief is provided for under the UD Acts; under the PD Acts, relief is provided for by the UD Acts and clearly, under the UD Acts, relief is provided for by the UD Acts. In this respect, all roads return to the relief provisions of the amended UD Acts.

Section 27 (5) of the SHWW Act prevents relief respect of both the SHWW Act and the UD Acts, so in respect of a penalisation dismissal there remains a choice as to whether the relief is obtained under the SHWW Act or the UD Acts, but relief does not exist for both, or indeed multiple UD claims.

It is worth mentioning at this point that Kearns J. in the High Court case of Stobart v. Carroll held that the application of the SHWW Act was not confined to unfair dismissals only, but could be brought against other types of dismissal, such as within the first year of an employee’s service where no UD right protections have accrued, if it constitutes a penalisation dismissal. However, this is not of relevance in the present case.

In any event, there is no right to a double benefit to both SHWW relief (whether it’s a UD or another type of dismissal) and UD relief (however so arising). The wording of section 27 (5) of the SHWW Act is clear:

Section 27 (5): If the penalisation of an employee in contravention of subsection 3 constitutes a dismissal of the employee within the meanings of the Unfair Dismissals Act 1977 to 2015, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

Due to the wording of the relief sections of the Chemicals Act, the PD Acts and the SHWW Acts I find that relief may not be provided under the UD Acts and the SHWW Act and as I have already granted relief in respect of the penalisation dismissal under the SHWW Act I am precluded from also granting relief under the Chemicals Act and/or the PD Acts in respect of a penalisation dismissal. For this reason, complaint CA-00030867-007is not well founded.

Decision

Having found that complaints CA – 00030867-002 and CA – 00030867-006 are well founded I make the following awards:

AWARDS

CA-00030867-002 – Terms of Employment (Information):                                                    €2,228.00

CA-00030867-006 (Penalisation for raising a Health and Safety complaint under Safety Health and Welfare at Work Act 2005):                                                                                                            €82, 531.00

Dismissal / Penalisation / Protected Disclosures Act / Chemicals Act / Health Safety and Welfare at Work Act