Complainant

Respondent

Parties

Robert  Farrell

Modus Link Kildare Unlimited Company

Representatives

M. Connellan BL instructed by Hanahoe and Hanahoe, Solicitors

Eoin Haverty , IBEC & Company Managers

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-00042574-001

18/02/2021

The issue in contention concerns the terms of a proposed Discharge Agreement between the Parties consequent on the Redundancy of the Complainant in August 2020. The Complainant had a PIAB Action in course at the time. The Respondent Employer, following their alleged custom and practice for many years, insisted that the Discharge Agreement be “full and final” and cover all outstanding Legal issues including the PIAB action. This was not acceptable to the Complainant. He alleged that the insistence on including the PIAB issue was in effect penalisation by the Respondent, in effect a retaliatory action, because he had lodged a Personal Injury action. As a consequence, the Complainant did not receive the ex gratia element of his Redundancy payment.

The Complainant began employment with the Respondents predecessor on the site in 1991 and following a takeover continued until August 2020.

The rate of pay was a nett €520 for 40-hour week.

The Complainant, having been an employee since 1991, sustained an alleged occupational injury on the 26th November 2018. The Complainant was on long term sick leave until February 2020. On or about the 17th June 2019 the Complainant’s Solicitors informed the Respondent that they were initiating a PIAB claim in respect of the accident.

On the 26th June 2020 the Respondent informed the Complainant that he, along with 13 other permanent employees plus some temporary staff were being made redundant. Procedures followed and on the 24th August 2020 the Complainant was made Redundant.

On that day he was requested to sign a Discharge Document which would have absolved the Respondent from the PIAB action. He declined to sign. Accordingly, according to Company policy, he did not receive any ex-gratia Redundancy payment. He left with the Statutory payment only.

This withholding of the ex gratia payment of approximately € 50,309 was in flagrant breach of Section 27 of the Safety, Health and Welfare at Work Act,2007. Section 27 (1) refers to “penalisation”

Protection against dismissal and penalisation.

27

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 11or appointed under section 18to 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. 

Section 27 (3) (3) is particularly relevant (highlighted above for ease or reference).  The Complainant via his Solicitor raised a qualifying H&S issue in their letter of the 17th June 2019. The actions of the Employer in withholding and attaching conditions to the payment of the ex gratia payment, effectively in response, was clearly penalisation.

In further exchanges between the Respondent and the Complainant an additional sum of €10,000 was proffered as an inducement to the Complainant to settle the PIAB action. This offer was declined by the Complainant and was described by the Complainant’s Representative as a form of “Coercion” as per Section 27(2) (e) of the Act.

The Complainant referenced the Labour Court case of O’Neill v Toni and Guy Blackrock -HSD095 in support of their arguments. In summary the Complainant was seeking Compensation for the Penalisation alleged in the issue of the Discharge Agreement and withholding of the ex gratia amount.

In Oral evidence the Complainant’s Representative argued that the Respondent was being unnecessarily inflexible on the issue of the Discharge agreement and the matter could have been resolved at local level.

The basic employment dates were agreed. As background the Respondent is a major employer and has a long-standing practice of requiring all employees being made Redundant to sign a comprehensive “Discharge” Agreement. This is particularly so when an ex gratia sum is being paid. At the time of the Complainant’s Redundancy some 13 other colleagues also left and all signed the Discharge agreement. Exchanges of correspondence & e-mails followed culminating in exchanges in February 2021 where the proposal of amending the Discharge Agreement to exclude the PIAB action was proposed by the Respondent. This did not find favour from the Complainant and effectively was let drop due to a lack of Complainant response.

In Legal Arguments centred on the O’Neill v Toni and Guy Blackrock -HSD095 case the Respondent strongly argued that they had not committed a specified act of penalisation – Section 27 of the 2005 Act - that would incur an Adjudication finding against them.

They were at all times prepared to pay the full ex gratia amount. The Discharge Agreement was well known Company Policy for many years and had covered multiple redundancy situations.  It was not an act of premediated malice against the Complainant in these particular circumstances. If the Tony and Guy “But for argument” was adopted to this case the Complainant would not be able to establish a clear causal chain, required by numerous Legal precedents, linking a purported breach of Section 27 to the “freezing” of the ex gratia sum.   The case of Citizens Information Board v John Curtis (HSD101) was quoted in support of this argument.

In summary the Respondent absolutely denied having committed a “protected Act” Section27(3) and did not impose a detriment on the Complainant allegedly in result or as a Penalisation.

3:1          The Law - Section 27 of the Safety, Health and Welfare at Work Act,2007 – Key questions

Section 27 is quoted above in Section 1 – Complainants Arguments. The key questions are

firstly, whether or not a “protected act” as set out in Section 27(2) (c)   quoted below, took place.

(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,

and

secondly, whether or not a Penalisation took place contrary to Section 27(2)(3).

In reviewing these situations, it is useful to take guidance from the Court of Appeal decision in Culkin versus Sligo County Council [2017] IECA 104. In this case Mr. Justice Hogan reviewed the crossover issue that can arise in that case between the Employment Equality Act, 1998 - specifically Section 101 and the possibility of parallel or subsequent Common Law actions by the same parties on basically the same issues.

Among his conclusions was the view that a high degree of flexibility was allowed depending on the facts of a particular case. A Common Law action was not specifically debarred. The key point for the case in hand is that a Common Law -PIAB – action has an independent life and cannot be effectively wrapped up in an Employment situation – in this case a Redundancy settlement or Discharge Agreement – unless of course the Parties so agree.

The Labour Court have also considered in detail the matter of a causative link, as alleged in this case, being established for having made a health & safety complaint and any resulting detriment. In Paul O’Neill v Toni and Guy Blackrock Limited (HSD095) the Court stated:

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 detriment 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 detriment.

This point was also addressed in Labour Court Determination in St Johns NS v Akduman (HSD102) which stated:

“It is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by Subsection (3) and but for the protected act the employee would not have suffered the detriment complained of” and the respondent’s treatment of the claimant.

However, as Mr. Justice Hogan pointed out the individual facts are crucial and must be considered.

3:2 Facts of the case.

The evidence was clear on the point that the letter of the 17th June 2019 from Hanahoe & Hanahoe Solicitors for the Complainant, satisfied the requirement s of Section 27 (2) (c). It was a representation to the Employer regarding a H& S issue.

The next issue is whether or not the Employer’s somewhat rigid insistence on the standard custom and practice Discharge agreement was a follow-on Penalisation.

The Labour Court reflected on this issue of causation in the Tony & Guy case already referred to.

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. 

From the evidence the difficulty with the ex gratia payment arose from the clear and well know Redundancy Policy of the Respondent, for many years, of insisting on a comprehensive Discharge Policy. The Respondent was not, initially, prepared to move on this point. In oral evidence it was clear the local Mangers did not, at the time of the Redundancies, have operating discretion to amend this rule.

A key subsequent factor here was the later offer from the Respondents in December 2020 and February 2021 to drop the PIAB references from the Discharge agreement. This avenue was never pursued by the Complainant’s representatives although it appears this was due to a difference of opinion over the value of any proposed PI settlement. It appeared to have got enmeshed in offers /counter suggestions to settle the PIAB issues. It was clear that there was no ill will or anything vindictive against the Complainant.

However, the Act -Section 27 as quoted above is clear. There was no malice involved but evidence both written and oral clearly pointed to the initial withholding of the ex gratia arisng from the PIAB situation of the Complainant. It was to quote the Labour Court the “but for” element.

3:3       Final Summary

The evidence has to support the case that a protected act took place - the letter of the 17th June 2019 – Section 27 (2) (c) and that the withholding of the ex gratia was in effect a Penalisation, committed as a consequence of a fixed Employer policy regarding all in Discharge Agreements.  The Complaints made, have to be upheld.

However, in any consideration of Redress or Compensation the overall context has to be taken into account in considering what is an equitable compensation award.

Safety, Health and Welfare Act, Penalisation, Redundancy Agreements