ADJ-00030607

Complainant

Respondent

Parties

Derek  Keenan

An Post

Representatives

In person

 Internal HR Department

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-00035909-001

21/04/2020

The complainant is a postal operative employed by the respondent. The complaint concerns an allegation by the complainant that he was penalised within the meaning of the Safety, Health and Welfare at Work Act, 2005 following his refusal, on Health and Safety grounds, to carry out his deliveries on 16th March 2020 due to the non-availability of hand sanitiser on that day. The acts of penalisation complained of relate to the threat of non-payment of wages for 16th March 2020 and the non-payment of three hours overtime referred to as a “double up.”

The complainant contends that he was penalised within the meaning of the Safety, Health and Welfare at Work Act, 2005. The complainant stated that on 16th March 2020, which was in the very early stages of the Covid-19 Pandemic in Ireland, he had serious health and safety concerns in relation to carrying out his deliveries in circumstances where the respondent was unable to provide hand sanitiser on that day.

The complainant outlined that he voiced his concerns in relation to the lack of hand sanitiser and chose not to carry out his deliveries on the day in question. The complainant stated that he was threatened by the respondent in relation to not being paid for the day and despite being assured that he would be paid the “double up” payment when he resumed his deliveries on 18th March 2020, he did not receive the additional payment. The complainant contends that he would not have remained on deliveries past his normal finishing time on 18th March 2020 had he known that he would not be paid the additional payment.

The complainant contends that the threat of the non-payment of wages from the respondent and the non-payment of the “double up” in respect of 18th March 2020 constitutes penalisation in contravention of the Act.

The respondent refutes the that the complainant was penalised in contravention of the Act. The respondent confirmed that it had identified the need to supply postal operatives with hand sanitiser well before the Pandemic began in Ireland, however, due to supply issues at that time, it was not in a position to do so until 18th March 2020.

The respondent confirmed that the complainant and a number of other postal operatives refused to go out on deliveries on 16th March 2020 due to the unavailability of hand sanitiser. The respondent confirmed that all postal operatives were offered latex gloves as a solution for the day in the knowledge that hand sanitiser would be available on 18th March 2020.

The respondent stated that the “threat” outlined by the complainant was simply a caution that a refusal to go out on deliveries may result in non-payment for the day as would apply in any circumstances where operatives refused to carry out their duties. The respondent outlined that the complainant’s concerns were taken on board, and he remained at work on 16th March 2020 and was paid his normal daily rate of pay. The respondent confirmed that there was no disciplinary action initiated against the complainant and deliveries resumed on the 18th March 2020 when hand sanitiser had been distributed to all operatives.

In relation to the non-payment of the “double up” the Manager in question had stated at the time that as far as he knew the payment would apply but that this turned out not to be the case. At the adjudication hearing the respondent confirmed that the “double up” applies only in circumstances where deliveries are not carried out due to absence and not as occurred in this case.

The Applicable Law

Section 27 of the Safety Health and Welfare at Work Act, 2005 at relevant part 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.

Penalisation – Applicable Legal Test

In HSD095, Paul O’Neill v Toni and Guy Blackrock [2010] E.L.R. 21, the Labour Court stated as follows:

“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 suggests 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 detriment.

In the instant case, the complainant contends that he was penalised within the meaning of the Act for raising Health and Safety concerns on 16th March 2020 and “but for” raising those concerns, he would have been paid the “double up” payment in respect of deliveries carried out on 18th March 2020. The complainant states that the detriment he suffered was the threat from management in respect of not being paid for 16th March 2020 and the non-payment of the “double up” payment.

Observations

Having heard the submissions of both parties in relation to the perceived threat of non-payment for 16th March 2020, I accept the bona fides of the respondent in its clarification of this issue. While the complainant refused to carry out his deliveries on the day in question, his concerns were taken on board by management, and he was paid for his days’ work. I also note that no disciplinary action was initiated in respect of the complainant or any other postal operative who did not deliver post that day.

I further note that the payment of the “double up” does not form part of a written agreement. It is an “understanding” between the respondent and its employees and both parties confirmed at the adjudication hearing that it applies in circumstances where deliveries are not carried out due to absence and is paid in respect of a day when the post is subsequently delivered. On that basis I find that the payment of the double up was not applicable in the particular circumstances of this issue and therefore its non-payment cannot be regarded as penalisation in retaliation for the complainant raising health and safety concerns.

In all of the circumstances of this complaint, I find that the complainant has not made out a complaint of penalisation within the meaning of the Act. Accordingly, the complaint fails.

Having considered the submissions of both parties, and for the reasons stated above, I find that the complaint is not well founded.

Penalisation, Safety Health and Welfare at Work Act, “but for” test