Complainant

Respondent

Parties

Wayne  Cleary

Momentum Support Services Maybin Support Services

Representatives

Alpha Employment Representative Services

Act

Complaint 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-00042477-001

14/02/2021

The complainant says that he has been treated unfairly and penalised because he made health and safety complaints to the Health and Safety Authority and HIQA and his employer.

The complainant raised grievances on August 31st, 2020, and there was one grievance meeting on September 25th, 2020.

However, the respondent failed to investigate his grievances as required by their policy and has penalised him for making health and safety complaints and reporting poor practices in his workplace.

In particular he has been restricted from leaving his unit to access health and safety information or his roster.  

Momentum Support is a trading name of Maybin Support Services (Ireland) Limited and was established in 1982. It employs in excess of two thousand five hundred people and delivering more than three million hours of service per annum, Momentum provides award-winning consistently high standard of soft services to businesses and organisations based in the UK and Ireland.

The Complainant began employment with Momentum on November 18th, 2010 and is employed as a cleaning operative. The respondent rejects the complaint of “penalisation”.

On August 31st, 2020: Mr. Cleary complained to his Manager at St James Hospital regarding the alleged conduct of a supervisor.

On September 23rd, 2020 he was invited to a grievance meeting scheduled for two days later and on the September 25th,2020, he was advised of new correspondence procedures to become effective from   September 30th, 2020.

The first grievance meeting took place as proposed on September 25th.   It was initially due to be reconvened on November 6th but was deferred.

On November 2nd, 2020: Mr. Cleary made a number of complaints inrelationthe grievanceprocess to which a comprehensive reply was sent on November 13th and a second letter on November 19th about the “sharing correspondence”procedures.

On November 19th Mr. Cleary was invited to a reconvened meeting to be held onthe24th. Despite this, on December 17th, 2020: the complainant wrote alleging that nobody had responded tohis grievance.

On December 21st and again on January 7th, 2021, Mr. Cleary was sent a letter in relation to the ‘sharing correspondence’ procedures.

On February 14th, 2021: Mr. Cleary lodged this penalisation complaint to the Workplace Relations Commission.

(Adjudicator’s Note; The respondent detailed further exchanges and a timeline of communications between the parties after that date, but these cannot be considered as part of the complaint, as they postdate it).

The Complainant did not exhaust the Company’s Grievance procedures as he chose not to appeal the decisions of two of his managers.

He is fully aware of the procedures contained in the Grievance Procedure and has been provided with them.

The objective of the “Correspondence Sharing” protocol procedures introduced in September was to ensure that the complainant remained at his place of work and to avoid unnecessary time away from his work duties.

He refuses to accept correspondence delivered by hand which is both unreasonable and deliberately vexatious. In addition, having to send the claimant correspondence by way of regular and registered post is an unnecessary financial cost on the organisation.

Having thoroughly investigated Mr. Cleary’s allegations, and in particular the one of unfair treatment, the company found that there was no evidence that the complainant was treated unfairly as a consequence of reporting a large volume of health and safety concerns.

Whilst the company acknowledges that there was a delay in completing the grievance as it arose from Mr. Cleary’s complaint in relation to a supervisor’s behaviour, the outcome of the grievance declared.

“There is not enough evidence to uphold the complaint of WC of the alleged inappropriate of JJ (Supervisor) towards him.

The complaint is one of penalisation for reporting a matter under the Health, Safety and Welfare at Work Act, 2005.

The incident which gave rise to the sequence of events had, it turns out, nothing to do with that legislation, but arose from an event on August 31st, 2020. This resulted in the complainant raising a matter with one of his managers regarding the conduct of a supervisor.

From the letter of complaint, it is clear that this was a Dignity at Work issue; the phrase ‘dignity and respect’ appears in the letter four times and there are about the same number of references to the alleged conduct of the supervisor.

There is no reference to health and safety breaches or principles of any description and the letter cannot, by any stretch of the imagination, be regarded as a complaint under the Act.

The alleged act of penalisation which followed this was the letter sent by the respondent on September 25th advising him of the somewhat grandly titled, ‘sharing correspondence protocol’. 

It appears this was intended to restrict the complainant’s movements, which having regard to the extent of those movements was probably quite justified, and in any event is a matter for an employer to decide.

However, it is more than several steps away from being an act of penalisation.

It is first separated by the absence of a complaint under the Act for which it might be seen as retaliation.

Secondly, it imposed no detriment on the complainant other than to require him to discharge the duties for which he was being paid. The respondent has a right to impose reasonable restrictions on any employee where it is necessary for the efficient management of its work.

Where these are considered to be unreasonable there are mechanisms for addressing them within the workplace through the grievance machinery open to any employee, but this complaint is not one of them.

The complainant has not made out a prima facie case; the complaint is vexatious and misconceived, and it is not well founded.

For the reasons set out above, Complaint CA-00042477-001 is not well-founded.

Penalisation, Misconceived.