Complainant

Respondent

Parties

Des  Campbell

Northway Personnel

Representatives

Tom Fitzgerald Unite the Union

Krystian Boino Hoban Boino Solicitors

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-00039514-001

01/09/2020

The claimant had been working as a Snagger for the respondent company which is an employment/recruitment agency  since the 12th.March 2018.He complained that he had been adversely treated by the respondent company when he raised health & safety concerns in the workplace.He asserted that he had raised his issues with the respondent company to no avail – he contended that the adverse treatment constituted penalisation  within the meaning of the Safety, Health & Welfare at Work Act, 2005.The respondent denied that they were responsible for any breach of the Act and contended that the respondent company is an agency within the meaning of the Employment Agency Act 1971  and that the complaint should have been brought against the construction company Cairn Homes with whom the claimant had the interaction on his health & safety concerns.

The claimant’s union advised that the respondent company was an employment agency that worked mainly in the construction sector .The claimant worked with the respondent from the 12thMarch 2018 and was put on layoff arising from the first Covid lockdown on the 12thMarch 2020.Throughout this period the claimant worked solely on the Cairns Home client project. The claimant was advised by the foreman Mr.TJ – an employee of Cairns Homes on the 20.05.2020 that he would not be needed back on the project arising from an incident that had taken place with the site manager in March 2020.It was submitted that following this ,  the claimant contacted the respondent’s  manager Mr.PG who advised  that the client did not want him back on the site and he was unable to do anything  about it but he would stay in touch about future employment prospects. It was submitted that the claimant learned that his colleagues were brought back to the site on the 21.05.2020 and the company were advertising for positions.

The union representative summarised the incident that took place as follows :

The claimant and his colleague Mr. DW called to the Cairns Homes office for safety gloves on the 18.03.2020 – they had been advised by Cairns Homes  to wear gloves at all times – particularly in the context of Covid – an exchange took place between the claimant’s colleague and the Site Manager – who allegedly berated him  following which the Site Manager allegedly became abusive when the claimant advanced that safety gloves were standard on the site. The claimant emailed the respondent’s payroll dept on the 25.06.2020 expressing concern that he was being overlooked for work owing to the incident with the site manager. The union pursued the matter on his behalf with the respondent company who replied to the effect that they had emailed the claimant on the 3.07.2020 and the 7.07.2020 offering employment and had received no response. The claimant recommenced employment on the 29.06.2020.

It was submitted that the claimant was penalised by the acts and omissions of the respondent company when he was told by Mr.PG that  he would not be permitted to return to the  Cairns Homes site  and when his phone calls to PG concerning further work  went ignored .It was argued that but for the incident involving the Site Manager , the claimant would have been back at work on the 21.05.2020.It was advanced that the claimant lost 5 weeks pay as a result amounting to €4,336  and €3,000  owing to non payment of redundancy arising from his effective dismissal. The claimant denied receiving  any emails with offers of work from Mr.PG. It was submitted that he would normally be contacted by phone about offers of work rather than via email.

It was submitted that the Act places a duty on employers to supply PPE where risks cannot be eliminated or controlled as well as a duty on employees to take reasonable care to ensure they keep themselves and others safe in the workplace. It was advanced that the adverse treatment of the claimant fell within the definition of penalisation which is a non exhaustive list under the Act. The union invoked the provisions of Toni & Guy Blackrock v Paul O’Neill HSD 1315 with respect to the causal relationship between the protected act  and the acts or omissions complained of. It was submitted that the claimant had met this test and met the burden of proof set out by the Court in this landmark  case.

It was contended that the offers of employment referred to by the respondent were irrelevant as they arose after the detriment took place- the protected act arose in March 2020. The detriment suffered arose  in May, June 2020.

It was submitted that Cairns Homes may have employer status if the employment agency had the informed agreement of the individual concerned but that no such agreement existed and consequently the employment agency  was the correct respondent. It was submitted that the documentation furnished by the respondent did not illustrate agreement and could not be deemed to constitute acquiescence. It was submitted that the claimant never received a copy of his contract of employment.

In his direct evidence the claimant summarised the work of a Snagger in finishing off construction work and categorically denied receiving any emails with offers of work. He asserted normal communication with the respondent was by telephone. Under cross examination , the claimant confirmed that his first email to the respondent on the matter was on the 25th.June 2020.He stated that   PG had contacted him by phone to say he was sorry about his personal grievance and that he would have to put it in writing. He was questioned if he contacted Mr.PG again and replied you should only have to say things once. The claimant confirmed that the union had advised him that they had received a reply from the agency to their representations. It was put to the claimant that the union never reverted to the agency to say the claimant had never received the emails of July 2020.

The claimant’s colleague Mr.DW advised of his interaction with the site manager about the safety gloves and said when he approached the Site Manager he flipped and became angry .The witness confirmed there were 3 workers involved in the incident with the Site Manager. The witness said he started work with the company on the 6th.February 2018 and he confirmed the identity of the third snagger.

It was submitted that the Act did not require a complaint to be made and reference was made to the status of agency workers as had been set out in the seminal judgment on PMPA workers and the Minister for Labour .

In reply to the respondent’s assertion that the union had named the incorrect respondent , the union referred to the terminology in  Section 2(4) of the Act and in particular the reference to “ where an individual agrees with a person who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 , and is acting in the course of that business to do or perform personally any work or service for another person (whether or not the latter person is a party to the contract and whether or not the latter person pays the wages or salary of the individual in respect of the work or service ), then the latter person shall be deemed to be the individual’s employer for the purposes of the relevant statutory provisions”.

It was submitted that the employment agency did not have the agreement of the claimant and that consequently the employment responsibility lies with the employment agency. It was noted  “that the Employment Agency Act 1971 and consequently Section 2(4) of the 2005 Act is amended to include the provisions of the Protection of Employees (Temporary Agency )Act 2012 in terms of identifying the employer”.

The union submitted that the claimant was employed in accordance with the REA for the construction sector and that the REA defines an employee in the sector as “ a worker to whom such order has application is defined as any person aged 15 years or more who has entered into or works under a contract with an employer , (including through an employment agency within the meaning of the Employment Agency Act , 1971 and or the Protection  of Employees (Temporary Agency Work  Act , 2012).It was submitted that this illustrated the employment relationship between the complainant and the respondent , particularly  in the context of the references in the respondent’s submission to “offers of employment” and their email correspondence with the union.

It was submitted that there was no requirement under the 2005 Act to report a complaint via formal procedure and that there was authority for this in Kearns J’s advice in Stobart (Ireland)Drivers Services Ltd v Carroll [2013]IEHC to the effect that there was no requirement to report a complaint via a grievance procedure and that it is not a mandatory requirement that a grievance procedure be followed for a complaint to have been deemed to have been made.

It was advanced that the respondent’s reliance on MSR-FSR Ireland Ltd -and- Sharon Cummins HSD 204 was not appropriate in  the instant case as the Labour Court had found that Section 27 only applies to complaints of penalisation .”The complainant only referenced the 2005 Act , in his email of the 26.06.2020 after he felt he had been penalised as opposed to referencing it in the context of specific health & safety concerns”.

The respondent was adamant that the appropriate respondent was not the Employment Agency – it was contended that the claimant was directed by the Agency to perform personally work for another person – namely Cairn Homes and “ therefore that entity is the complainant’s employer against whom such allegations should have been brought”. It was  contended that it was clear from the claimant’s own submissions that the claimant accepted he was an agency employee , that he accepted that he worked on the Cairn Homes site in Lucan and that consequently he accepts he performed work for another person , that the complainant contended that he was contacted by a Cairns Home employee , that he described the “ incident with Cairns Home Site Manager” and that he argued  the link between the alleged protective act and detriment suffered and that the complainant pointed at the “incident involving the Site Manager”. It was submitted therefore that the complainant was arguing a case he should have brought against a completely separate legal identity – i.e. another respondent.

It was submitted that in order to make a complaint of penalisation it is necessary to establish the act protected by Section 27(3) of the Act , the detriment and that the protected act must be an operative cause in the sense “but for” the complainant having committed the protected act , he would not have suffered the detriment.

It was advanced that no concerns were raised formally by the claimant with the respondent – “ if it is alleged that a concern was raised with an employer as provided by Section 2(4) of the Act , the complaint shall have been made against that employer” .It was contended that Section 27  was very narrow in its application and that an allegation that an employer failed to meet its  health & safety obligations , do not come within the scope of Section 27.MSR-FSR Ireland Ltd -and-Sharon Cummins HSD 204 was invoked in support of this contention. It was submitted that if there was a protected act , that (without prejudice to a position that Cairn Homes may have ) that act relates to interaction between employer (Cairn Homes ) and the complainant and not to the respondent named by the union.

It was advanced that what was reported by the complainant to the respondent does not amount to a protected act. It was submitted that what was reported was an interaction between the Complainant and Cairn Homes. These were only submitted by way of email from the complainant on the 25.06.2020.It was submitted that the respondent was a stranger to what happened on the 18.03.0220 but noted that the complainant continued to work beyond that date. It was submitted that if the complaint was as serious as the complainant alleges , why was it not reported to the respondent immediately – it was reported some 3 months later and lacked significant detail.

It was submitted that the respondent replied on the 3rd. and 7th. July 2020 and the complainant was offered work as a Snagger on the same terms and conditions – with a start date of July 6th.The respondent sent an email to the complainant on the 7th.July – no response was received to the emails and no contact was made by the complainant. The complainant was asked to provide details of the complaint in accordance with the grievance procedure but no response was forthcoming.

The respondent questioned the credibility of the complainant with respect to his denials of receiving the emails on the 3rd. and 7th.July – it was submitted that payslips were sent from the same email address and the claimant had relied on  them in his submissions.

The respondent denied the claimant’s contentions that phone communication was the norm with respect to offers of work and submitted that email communication was frequently utilised particularly since the commencement of the lockdown. The respondent submitted that the union had not responded to their correspondence of  the 7th.Auggust when the official was asked to contact the respondent if the complainant was genuinely interested in an offer of work. It was argued that this cast a doubt on the credibility of the claimant’s intentions in relation to alternative offers of employment .It was submitted that Mr.PG was frequently present on all sites but had never been approached about the instant complaint.

The respondent did not accept the claimant’s version of his conversation with the respondent’s manager Mr.PG. It was submitted that owing to the slow down arising from COVID  only 2Snaggers were required and the criteria for selection was last in first out - LIFO. The claimant’s colleagues had longer service and were consequently  brought back  earlier than the complainant .It was contended that back in May2020 , Mr.PG was never made aware of any issue/incident with Cairn Homes management. Where a client advises of a diminished requirement for labour , the respondent follows their clients requirements and consequently the claimant did not return to work – he was informed by Mr.PG that he would stay in touch regarding future employment.

It was submitted that no detriment was suffered by the claimant as a result of actions by the respondent. Employment was offered but the complainant chose not to avail of the offer.

It was submitted that there was no protected act nor a detriment suffered by the complainant .In  his submission the claimant submitted “the complainant contends that but for the incident involving the Site Manager , he would have been back to work on around the 21.05.2020”.

It  was submitted that it was not the respondent’s decision not to call the claimant back to site on the 21st.May 2020 and this was made clear by Mr.PG .It was as a result of reduced need for Snaggers at the time and the LIFO policy was applied.

It was contended that the respondent was not the employer for the purposes of the Safety, Health & Welfare at Work Act 2005.While it was acknowledged that the respondent would be the employer for the purposes of the Payment of Wages Act , it was submitted that it  is the end user Cairn Homes who is the appropriate respondent in the instant case as would be the case if the claimant had a complaint under unfair dismissals legislation.

I have reviewed the evidence presented at the hearing , the submissions by the union and the respondent and the chronology of correspondence between the parties with a view to arriving at a conclusion as to who was the correct respondent for the purposes of the Safety Health & Welfare at Work Act 2005.

While  the respondent did not  refute  the union’s ’s assertion that the complainant  was never furnished with a copy of his  contract of employment, the respondent submitted into evidence the following documents :

A form headed Northway Recruitment Limited which states NB” No employee will be paid until this form is in Head Office “ and contains the claimant’s contact details , start date and bank account details .It also contains the following undertaking “I accept it is a condition of my employment that I wear a safety helmet , safety boots and any other protection needed at all times on site , and I adhere to safety regulations”.

The second page is  headed Northway Recruitment Ltd and “Probationary Period and Agreed rates of Pay” refers to location , hourly rate , start date , the signature of the respondent’s manager MR.PG and  and confirmation from the claimant that he received my “Terms of Engagement/Contract of Employment”. The document also contained the following clause “This 90 day probationary period is not a term of employment and is not intended nor does it impact the at-will nature of the relationship between the Company and the employee”.

The third document is a copy of texts between the complainant and Mr.PG dated the 15th.May 2020 about returning to work and contains no reference to the on site altercation in March with the Cairns Homes Site Manager. This supports the assertion of the respondent that they were a stranger to the event  that triggered the complaint and  only learned of the events of the 18th.March 2020 on the 26th.June 2020.

To a significant extent both parties are relying on the terminology of Section 2(4) of the Act in their identification of the correct respondent. The union has contended that the respondent was unable to provide evidence of an agreement between the parties as set out in the subsection –

(4)For the purposes of the relevant statutory provisions  where an individual agrees with a person who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 , and is acting in the course of that business to do or perform personally any work or service for another person (whether or not the latter person is a party to the contract and whether or not the latter person pays the wages or salary of the individual in respect of the work or service), then the latter person shall be deemed to be the individual’s employer for the purposes of the relevant statutory provisions”.

For their part , the respondent contends that it is clear from the unions submission that the claimant accepts he was an agency employee , he accepts he works on the Cairns Homes project in Lucan , that he was contacted by a Cairns Homes employee on the 20/05/2020 and advised he would not be needed back on the project owing to an incident with the Cairns Homes Site Manager and that the complainant links the alleged protected act to the alleged detriment suffered.

While I acknowledge the union’s contention that the respondent provided no  documentary evidence of the agreement referred to in Section 4(2) , I find it is reasonable to infer that given  the fact the that the claimant  worked  at the Cairns Homes site for that contractor for in excess of 2  years (which Is supported by the documents furnished by the respondent)  that this constituted an agreement – all be it  not explicitly documented – as set out in this subsection of the Act. In  addition it is clear from the submissions and evidence of the witnesses that day to day operational supervision/management on the site was undertaken by the Cairns Home staff and the go to person for Health & Safety matters was the Cairns Homes Site Manager , as set out by the complainant and his colleague. In light of the foregoing , I find the correct respondent for the purposes of the Safety Health & Welfare at Work Act 2005  as set out in Section 2(4) was the end user i.e. Cairns Homes.

As these  proceedings were instituted  against the incorrect respondent , I have no jurisdiction to issue a finding on the matter.

Correct employer for the purposes of the Safety, Health & Welfare at Work Act, 2005