Complainant

Respondent

Anonymised Parties

Laboratory Attendant

Veterinary Laboratory

Representatives

Des Fagan Forsa Trade Union

Head of laboratory

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-00033838-001

16/01/2020

The Complainant is employed as a Laboratory Attendant since October 2001. He is paid €1,006.08 per fortnight. He has claimed that he was penalised for making a complaint about Personal Protective Equipment (PPE) and the use of chemicals. He is seeking compensation.

The Complainant is employed as a Laboratory Assistant and Civil Servant. He has worked in this role from 22/10/2001. The laboratory undertakes continuous surveillance for exotic and endemic disease conditions in Irish livestock. It provides a laboratory diagnostic service to private veterinary practitioners and farmers. He undertakes general operative and assistant work in the Laboratory. He noticed a deterioration in his health in late 2017. He experienced breathing difficulties whilst at work. These illnesses lessened following a period of time off at home on sick leave absence. He ascribed the illnesses to the workplace and in particular the use of chemical agents known as formalin which is a formaldehyde-based substance and is widely used in the Laboratory. The Agency for Toxic Substances and Disease Registry (ATSDR) based in Atlanta, Georgia, is a federal public health agency of the U.S. Department of Health and Human Services. It describes Formaldehyde as a colourless, highly toxic, and flammable gas at room temperature that is slightly heavier than air. It has a pungent, highly irritating odour that is detectable at low concentrations, but may not provide adequate warning of hazardous concentrations for sensitized persons. Amongst other things Formaldehyde is described by the ATSDR as an eye, skin, and respiratory tract irritant. Inhalation of vapours can produce narrowing of the bronchi and an accumulation of fluid in the lungs. Formaldehyde solution (formalin) causes corrosive injury to the gastrointestinal tract, especially the pharynx, epiglottis, oesophagus, and stomach.

The systemic effects of formaldehyde are due primarily to its metabolic conversion to formate and may include metabolic acidosis, circulatory shock, respiratory insufficiency, and acute renal failure. Formaldehyde is a potent sensitizer and a probable human carcinogen. He raised these issues with the employer in December 2017 following which protective measures including breathing apparatus had been installed. An upgrading of the use of this agent and the preventative and protective measures were advised to all of the Departments 6 RVL’s throughout the country in the period following the Complainants notice to the employer. Details supplied shows the assessment of his state of health advising of suspected chemical pneumonitis. He has also received medical advice and attention as a result of his required use

at work of the chemical agents. He has also commenced legal proceedings against

the Department for compensation due to injury at work.

Workplace Relations

The Complainant alleges that following this incident relations at work with his

managers deteriorated to the point of him feeling isolated and being treated differently at work than his colleagues. He first noticed this when he received a severe rebuke from his manager when he contributed to a conversation via email regarding the storage and

water temperature of the mixture when preparing Anistel disinfectant for use. Details supplied showed the response of his manager as feeling let down and very disappointed on the 8th of December 2017 and then a number of days later a recognition of the correct nature of the advice that he attempted to provide his manager for which he was rebuked publicly.

The Complainant stated that a pattern emerged where changes to his work-life were made that differed from his colleagues in other labs. He was instructed not to use the delivery van anymore at lunch times and could only use it for authorised runs and a time log and mileage register had to be maintained as per DAFM driving policy. When he questioned with his supervisor that other labs had not introduced the same policy he was advised that the

Lab supervisor was entitled to exercise his/her discretion in this regard.

During a meeting with his manager where the Complainant was discussing a complaint he

was making against another colleague who was a senior laboratory technician, the manager raised the perception that staff were reporting that he was difficult to work with. The Complainant asked for examples and the manager said that he had noticed that he would not park his car in the carpark and was parking it outside on the road. He advised that he had

to park it there to keep it in the shade so his working dog would not be stressed in the sun in a

vehicle. The point the Complainant made here is that he was being monitored by staff and

the manager to the extent of where he parked his private vehicle.

The Complainant also describes his colleagues taking photographs of the facilities bins.

His duty was to empty these bins every evening however if one of his colleagues noted that

something else had been placed in the bin after being emptied they would photograph the

content of the bin. The photos were shot on the Laboratory camera which was viewed by the

complainant.

The Complainant described an escalating series of incidents at work and no action being

taken on the complaint he had made to his manager regarding one of his colleagues, who was also the Health and Safety Officer for the RVL. Following a formal complaint made

by the Complainant to Dept HR Division the complaint was settled following mediation.

He describes incidences and the undermining of his work by his colleagues throughout 2019. He documented all of the incidences in a diary and he reported constant undermining and being challenged at work on every issue possible. He states that these challenges in email were often circulated to a wide staff pool which painted him in an incompetent manner, whilst his co-worker was treated differently not being subject to the same emails or harassment and verbal conflict. Matters took a decidedly more sinister turn when he

was disciplined and received a verbal warning and sanction for an offence that should not have been applied to an employee at his grade level in the Civil Service.

Disciplinary Process

In Sept 2019 the Respondent became aware of reports of his role in the Beef Plan Movement and a producer organisation, and his attendance as a member of a delegation that met with Department Officials in relation to securing an EU license to undertake price negotiations on behalf of Beef Producers. He was advised of a disciplinary process to be undertaken to investigate the complaints. On the 27th of September his union wrote to the Department requesting him not to go ahead with the disciplinary process as there was no basis for it proceeding, The points made in that letter refer to the health damages claim that he had made against the Department and the subsequent view that the disciplinary process was part of a vindictive act by the Department using a specious reason, i.e. that the Complainant was not entitled to lobby or represent his personal interests to the Department. The letter from the union cited the specific section of the Code of Practice for Civil Servants and also the Irish Constitution and the weakness of the employer’s case.

Despite these representations the Department proceeded with the process and issued a

verbal warning to him with the added citation that he must not make representations,

nor must he be engaged in or connected with any activity which would in any way conflict with the interests of the Department. The six-month verbal warning was in itself applied

erroneously as explained above, however the future curtailment of his Civil Rights are completely unacceptable and evidence of the vindictive nature of the actions of the

Department.

As a part-time farmer there are implications for him due to the nature of the restrictions imposed. The warning could mean that he is not permitted to make claims arising from his farming interests to the Department. It is important to stress here that the Department and HR are aware of a Senior Officer in the Technical grades who is an officer of an Irish Farmers Association branch that picketed an office of the Department a picture of which was carried by local media. At the level of salary that this officer in question is paid the Code of Practice for Civil Servants prohibits him from this action. Yet he has been sanctioned for similar issues or less. It is contended that no officer in the Dept has been sanctioned as he has and yet there must be some 500 farmers big and small who run farms and who are members and officers of farm lobby groups as is their right under the Irish Constitution. The union has all of the necessary details if required.

Promotional Opportunity Lost

At the time of these occurrences the Department was in discussions with the union regarding

the upgrading of the Laboratory Attendant grade to a higher paid grade of Laboratory Attendant Specialist. This new role was designed to recognise the extra duties that were being undertaken by the Laboratory Attendant grade. Anyone who applied for the role was taken on, all except for the Complainant whose sick leave record was the justification for him not being appointed, having passed all the required competencies for the role. The Complainant is clear that he was not appointed due to his actions of alerting the employer to his health difficulties at work.

Conclusion

The Complainant has demonstrated that he raised issues related to his health and safety at work for which remedial measures were taken. He has also demonstrated a deterioration in workplace relationships that took place following his representation on the issue.

He has been sanctioned by the Department for an act that he should not have been

taken to task for. His future rights guaranteed under the Irish Constitution remain curtailed due to the sanction applied.

He has lost a promotional opportunity as a result of the sick leave incurred as a

consequence of the actions and omission of his employer to protect his health in the

workplace.

He continues to work from home because of the Covid 19 epidemic and due to his

injuries sustained he is in the high-risk category and his family life has been severely

disrupted

He is seeking that the sanctions applied to the Department should free him from having to observe the sanction that has been imposed on him and to recognise by way of compensation the serious damage that has been done to his health, reputation and family-life.

In September 2019, the Complainant’s manager became aware of his alleged role in the Beef Plan Movement. The Beef Plan Movement is a nationwide farmers group that regularly lobbies the Department on matters relating to the price of beef. He is believed to be serving, or to have served, as an officer of the group. In September 2019, the Beef Plan Movement was involved in discussions with the Minister and Department officials in relation to the establishment of a new beef producer organisation in order to collectively negotiate beef prices with meat factories. He was a member of the group of representatives from the Beef Plan Movement in attendance during these discussions.

His manager met with him on 11 Sept 2019, to discuss his concerns with regard to that matter in the hope of resolving his concerns by the use of informal measures.

At the meeting he claimed he had submitted a Conflict of Interest declaration to his manager some months earlier, referring to his membership of a Producer Organisation. The manager did not concur that he had received that declaration, and in any event the manager noted that the Civil Service Code of Standards and Behaviour clearly states that the specific prior approval of the Secretary General would be required if he or any officer was to be allowed act as a representative for such an organisation which concerns itself with matters for which this Department has responsibility.

At this meeting between which did not result in his concerns being resolved he agreed to revert to his manager by the following Monday with a proposal to resolve his concerns. However, subsequently, on the 13 September, the manager was contacted by his Union representative who said that he had requested he attend the scheduled further discussion with regard to his concerns. The Official stated he would not be in a position to attend, “until the following dates: Monday 30th of September, October 7th or 9th.”

The manager wrote to him to say he was prepared to defer further consideration of the matter pending a meeting with both of them on 30 September, on the condition that he comply with management instruction to i) “immediately cease being an officer of any organisation which is negotiating with the Minister, or his officials, on behalf of any third party”, and ii) “immediately cease being a member of any delegation which is negotiating with the Minister or his officials, on behalf of any third party”.

On 16 September, the Official wrote to the manager to say that the instructions put to him were unacceptable to them both.                                                                          

The manager responded to advise him that the option of complying with the instructions he had set out as a means of resolving the matter through informal measures remained available to him until close of business that day, and noted that as a civil servant he was not permitted to make representations on behalf of an outside association or organisation, either as an individual or as a member of a delegation, in relation to matters for which the Department has responsibility except with the specific prior consent of the Head of the Department (Section 14.4 of the Civil Service Code of Standards and Behaviour refers).

As no such assurances were received and as previously notified to him the manager initiated a disciplinary process with regard to the concerns about his conduct.

The manager also responded that if the assurances he sought were not provided to him by close of business that day he would have to proceed to a formal disciplinary process on the basis that his efforts to resolve his concerns by the use of informal measures had not succeeded.

In advance of the disciplinary meeting, he was informed of the name of the person who would act as the Relevant Manager (role as referred to in the Civil Service Disciplinary Code).

The disciplinary meeting with him was conducted on 30 September 2019. He was accompanied by his union official. Following the meeting, the Chair considered the concerns that had been put to him namely:

i) that he may have failed to comply with Section 14 of the Civil Service Code of Standards and Behaviour which states, inter alia, that civil servants may not at any time engage in, or be connected with, any outside business or activity which would in any way conflict with the interests of their Department, and that a civil servant is not permitted to make representations on behalf of an outside association or organization, either as an individual or as a member of a delegation, in relation to matters for which his or her Department has responsibility except with the specific prior consent of the Head of his or her Department;

ii) that he may have failed to comply with reasonable management instruction that he would inform Mr C by close of business on 16 September 2019, that he would comply with Mr C’s instruction to “immediately cease being an officer of any organization which is negotiating with the Minister , or his officials, on behalf of any third party”, and “immediately cease being a member of any delegation which is negotiating with the Minister, or his officials, on behalf of any third party” pending approval from the Secretary General to permit you to do so.

The Chair also considered his response to the concerns put to him, and the representations made by his Union representative, and concluded that the concerns put to him had been proven, that his conduct amounted to misconduct, that his misconduct warranted the application of a disciplinary sanction, and that the appropriate sanction in this instance was to give him a verbal warning.

A verbal waning is the first of the 13 increasingly serious sanctions that can be applied under the terms of the Civil Service Disciplinary Code, sanction 13 being dismissal. The verbal warning came into effect on 10 October 2019 and expired on 9 April 2020.

Fair procedures and adherence to the provisions of Civil Service Disciplinary Code

Hewas afforded appropriate fair procedures throughout this process. He was informed of the concerns about his conduct, and provided with appropriate detail to allow him respond in respect of those concerns; he was provided with all material considered by the Relevant Manager, and allowed to respond to the concerns; he was represented by an official of the trade union that represents officers of his grade, and the conclusions were fairly and impartially determined after all relevant facts were considered.

The provisions of the Civil Service Disciplinary Code were adhered to at all times, including Section 3.1 which suggests that the use of informal measures to resolve concerns may be attempted in the first instance.

Reasonable

It is entirely reasonable that a line manager would be concerned at reports that one of his team was making representations on behalf of an outside organisation, in relation to matters for which his Department has responsibility.

In the absence of the specific prior consent of the Head of the Department, it is entirely reasonable that a manager would instruct his team member to assure him or her that he would cease being an officer of an organisation negotiating with the Minister or his officials, and cease being a member of a delegation negotiating with the Minister or his officials.

The manager took an entirely reasonable approach in deciding to seek to resolve his concerns by the use of informal measures.

It was reasonable that the manager would ask for those assurances he did, as a condition for postponing their discussion of the concerns on an informal basis.

Given the failure of those informal measures, and particularly given his refusal to comply with a reasonable management instruction to the effect that in the absence of the specific prior consent of the Head of the Department, he should comply with the conditions detailed at point 16 above, it was entirely reasonable that then manager would conclude that his attempt to resolve this matter by the use of informal measures had failed.

In accordance with Section 3.1 of the Civil Service Disciplinary Code, it was appropriate to commence a disciplinary procedure under the auspices of the Civil ServiceDisciplinary Code, which ensured that he would be afforded appropriate fair procedures throughout the process.

Given his refusal to provide management with reasonable assurances with a view to resolving the concerns by the use of informal measures, he cannot reasonably complain that a formal process was undertaken.

Given the evidence considered by the Relevant Manager t was reasonable for her to conclude that the concerns put to him were upheld and amounted to misconduct warranting sanction.

Given that disciplinary procedures often operate on a progressive basis i.e. moving through the process of discipline and escalating the level of disciplinary actions from warnings up to and including dismissal, it is reasonable that she applied the lowest sanction in this instance.

Unconnected issues

In an entirely separate but parallel incident, the applicant is pursuing legal action against the Department for an alleged act of negligence on the Departments behalf. The applicant, by virtue of a letter written to the Department (dated 26th September 2019) by the applicant’s union representative, and raised again verbally at the disciplinary hearing, inferred that the incidents were related and that the disciplinary matter was initiated vindictively as a reprisal for the applicant’s initiation of legal proceedings.

While not wanting to document details surrounding the ongoing legal case for fear of prejudicing same, the Department completely and absolutely rejects his association of the legitimate concerns that were put to him with any other issues including the initiation of this legal action, or what he refers to as a “deteriorating work relationship” with his managers.

It would be unconscionable and a failure of his or her responsibilities, if a manager became aware of the matters that raised a concern in this instance, and for that manager not to put those concerns to the member of staff.

Notwithstanding his ongoing legal action against the Department, and his allegation that his managers are implicated in that claim, managers must and do continue to manage him in terms of his work, his performance, his PMDS, and his conduct. They must continue to do so in a manner that complies with all relevant Policies, Codes of Practice, Circulars etc.

Similarly, he continues to work to his line managers and must adhere to all relevant Policies, Operating Procedures, Codes of Practice, Circulars etc. in the performance of his duties, including the Civil Service Code of Standards and Behaviour.

Responsibility for day-to-day management of his conduct and performance rests with his local managers, and it was entirely appropriate and standard practice for his managers to manage this disciplinary process in accordance with the provisions of the Civil Service Disciplinary Code as they would for any other member of their team or as they would with respect to any other managerial administrative process.

As noted above, his line managers were entirely reasonable in the approach they took to dealing with this matter, and the outcome of the process was entirely appropriate and proportionate.

Standard practice

It is untrue to say that he was singled out by the Department. He was dealt with appropriately and in the way any other civil servant should be, given his failure to comply with the provisions of the Civil Service Code of Standards and Behaviour,as found.

Whereas the vast majority of officers of the Department comply fully with the provisions of that Code, unfortunately, from time to time, concerns arise with respect to the conduct of individual members of staff.

It is standard practice that concerns with respect to an alleged failure to comply with the Civil Service Code of Standards and Behaviour are put to those members of staff in accordance with the provisions of the Civil Service Disciplinary Code. More often than not those concerns are resolved by the use of informal measures.

Where the use of informal measures is deemed inappropriate or to have failed, a formal disciplinary process may commence. The outcome of a disciplinary process may be a conclusion that no misconduct occurred or a conclusion that misconduct did in fact occur.

Misconduct, when found, may be with respect to any one of the many provisions of the Civil Service Code of Standards and Behaviour, or with respect to a failure to comply with some other Policy or Code. And so, in recent years, another officer’s conduct was considered to amount to misconduct with respect to Section 14 of the Civil Service Code of Standards and Behaviour, and other officers’ conduct was considered to amount to misconduct with respect to other Sections of that Code.

He was in no way singled out. He was dealt with reasonably, in accordance with the provisions of the Disciplinary Code which apply to all civil servants of his grade.

It is respectfully requested that this complaint be dismissed. The applicant was not penalised due to any unrelated issue as he alleges, but rather was reprimanded for a clear breach of the Civil Service Code of Standards and Behaviour that applies to all civil servants. It is also worth reiterating that the applicant was given ample opportunity to avail of an informal resolution to the issue by conforming with the Civil Service Code of Standards and Behaviour before a formal disciplinary process had been initiated. He chose not to do so.

Notwithstanding the Department’s viewpoint that the disciplinary processes were appropriately applied and carried out in this case, it should be noted that the sanction handed down, a verbal warning, expired in April 2020. It is now completely removed from the complainants record and it had no adverse impact on any aspect of the complainant’s duties, privileges or remuneration during its period of effect, so it is unclear what redress is being sought.

Sec 27 of this Act states, “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.

I note that the Labour Court in LCR Determination No HSD 081 stated,

“It is clear from a plain reading of Sec 27 subsection 3 of this section that penalisation is rendered unlawful under the Act when it is perpetrated on an employee for having performed or committed one or more of the acts referred to in the succeeding paragraphs of that subsection. Thus it is perfectly plain that in order to succeed in a cause of action grounded on the Section a Claimant must establish not only that he/she suffered a detriment of a type referred to at subsection (1) but that the detriment was imposed because of, or was in retaliation for, the employee having acted in a manner referred to at subsection (2).

Therefore, I find that penalisationcan only be established if conduct or omissions which are included in the statutory meaning of the term penalisation arise and as a consequence of an act protected in subsection 3 and but for the protected acts of subsection 3 the claimant would not have suffered the detriment complained of.

The Complainant has claimed in his original claim that he was penalised by the issuing of a verbal warning. He has subsequently referred to the following incidents as also being acts of penalisation, Isolation at work, use of the delivery van, parking of his vehicle, undermining him at work and promotional opportunity.

1) Issuing of verbal warning

I note that the Complainant has claimed that he was penalised by the issuing of a verbal warning which was done in retaliation for him making claims of unsafe work practices which has damaged his health.

I note that the Complainant has commenced proceedings against the Department for compensation due to injury at work.

I note that the Respondent has rejected this contention.

I note that the Respondent initiated a disciplinary investigation into the Complainant’s activities with the Beef Plan Movement and being a member of a delegation that met with Department Officials. which the Respondent asserted was in breach of Civil Service Code of Standards and Behaviour.

I note that this disciplinary investigation resulted in the Complainant being issued with a disciplinary sanction for breach of that Code.

This Code requires specific prior approval from the Secretary General.

I note that the Complainant has stated that he submitted a Conflict of Interest declaration to his manager some months earlier referring to his membership of a Producer Organisation.

I note that the Respondent stated that they had no knowledge of such a submission.

I note that the Complainant has stated that the Code does not apply to all Civil Servants, this is rejected by the Respondent, who state that it does.

I find that If it is accepted that he had submitted a Conflict of Interest declaration, then that would suggest that he believed that the Code applied to him.

I find that the Respondent acted reasonably in how they dealt with this matter.

I note that they initially sought to deal with it informally, seeking assurances from him to cease his involvement in that organisation.

I note that this was rejected.

I note that the Respondent confirmed to him that as a Civil Servant he was not permitted to make representation on behalf of an outside association or organisation and referred him to Sec 14.4 of the Civil Service Code of Standards and Behaviour.

Paragraph: 14.4 states,   A civil servant is not permitted to make representations on behalf of an outside association or organisation, either as an individual or as a member of a delegation, in relation to matters for which his or her Department/Office has responsibility except with the specific prior consent of the Head of his or her Department/Office.”

I note that no such assurances were given so a disciplinary process was initiated which resulted in him being issued with a verbal warning, which was the least serious of the procedure.

I find that the Respondent became aware of his involvement in a representational body, that he had not received prior approval for and so was in breach of that Code.

I find that issuing of that disciplinary sanction was solely to do with the breach of the code.

I found no evidence to support his claim that it was done in retaliation to his workplace claims about health and safety.

I refer to the Labour Court case Considine v Limerick City and County Council, HSD165, which stated, “The Court observes that the statutory protections are designed to ensure that a person cannot be penalised for making a complaint under the Act. However, it is not a protection against the normal and unrelated exercise of management within an employment.

I have decided that the disciplinary action was not penalisation for making a complaint under this Act rather it was ‘normal and unrelated exercise of management within this employment.

Consequently, I find that this claim is not well founded.

2) Isolation at work

I found no evidence to support this claim.

I find that a manager has a right to manage and to set and maintain standards of work. The only evidence I found was this is action.

I also note that the Complainant advised the hearing that he did not ‘go the canteen’ and so he himself was isolating himself from his colleagues.

I find no basis for that complaint of retaliation/penalisation for making claims under this Act.

3) Use of Delivery Van

I find that the Respondent was implementing a company-wide instruction/policy on the use of the delivery vans for personal use.

I found no evidence that this was an act of retaliation/penalisation.

I find no basis for this complaint of retaliation/penalisation for making claims under this Act.

4) Parking his vehicle

I find that the Complainant confirmed to this hearing that he did not park in the designated space. Therefore, it was his actions not the Respondent.

I find no basis for a complaint of retaliation/penalisation for making claims under this Act ..

5) Undermining

I found no evidence to support his claim of undermining him in retaliation/penalisation for making claims under this Act.

6) Promotional Opportunity

I find that he was excluded by reason of his absence record.

I find no basis that this was in retaliation/penalisation for making claims under this Act.

7) Use of photographs

I find that this allegation was unsupported and unknown to the Respondent.

I find no basis that this was in retaliation/penalisation for making claims under this Act.

Overall, I have found that this claim for penalisation was unfounded and so it must fail

Allegation of penalisation or normal management exercise