Complainant

Respondent

Parties

Pippa  Ni Chonarain

Applegreen

Representatives

Anthony Mcintyre Independent Workers' Union

David O'Riordan Sherwin O'Riordan Solicitors

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-00043689-004

21/04/2021

The Complainant’s employment was terminated during her probationary period. It is accepted by both parties that an incident occurred where the Complainant alleges that she was set upon in an aggressive manner by a work colleague who pushed her away from her work area. Obviously, this was upsetting and disturbing. In turn this led to the Complainant’s father, who also is her Union representative, contacting the company and her manager and to state that it was not acceptable, and the employer was responsible to provide a safe place of work for his member. Prior to that incident a performance review took place which identified areas for improvement; however, the overall review was satisfactory. It is the Complainant’s position that this was a satisfactory review having regard to her length of service. The Respondent’s position is that review was not totally satisfactory, and that the Complainant’s contract ultimately ended having regard to her overall performance during her probationary period and no penalisation occurred. 

The Complainant alleges that arising from making a complaint to her manager about being assailed physically in work by another colleague, her subsequent reviews were harsh and ultimately gave rise to her dismissal. This would not have happened except that a complaint was made by her during her probationary period. The Company is distorting what in fact did occur during her performance reviews and in fact her performance overall was satisfactory. Therefore, it must follow that her dismissal occurred because she made a complaint about her welfare and safety at work.

The Company stated that there were several areas of improvement identified during the first few weeks of employment and that continued to a point where the Company exercised its right to terminate during probation. These areas for improvement related to food safety and quality. The employee was requested to complete training in these areas and through omission failed to do so. There is no link between the complaint made under Health and Safety concerns and the dismissal. The dismissal was informed principally by serious concerns relating to food safety and quality.

Under cross examination the Complainant accepted that her probationary evaluation form which she signed on the 17th of December 2020 identified areas of improvement.

It was put to the Complainant that she was on a Performance Improvement Programme from the first review. It was also put to the Complainant that she was meant to complete an online training programme within a week of starting her employment and had failed to do so. An email was opened to the Complainant dated 2nd December 2020 where she was requested to undertake a series of online training and again, she had failed to do so.

It was put to the Complainant that on the 17th of December 2020 she was told that she was not charging staff for their purchases. The document detailing that conversation was opened and put to the Complainant. She stated she couldn’t remember that conversation.

Her probationary evaluation form was opened detailing her evaluations dated the 17th of December 2020 and the 15th of March 2021 and it was put to the Complainant that the scores were not satisfactory.

 It was put to the Complainant that she had not satisfactorily completed her probationary review and that was the only reason why her employment ended. That decision was made nearly 2 months after the alleged incident that is conveniently being relied upon to bring a claim for penalisation. There was no link to the two events. The decision was objectively and solely made on her performance and nothing else.

It was put to the Complainant that her area had failed quality audits and a contributory factor was her failure to follow standard operating procedures around good hygiene practices detailed in the online training modules that she failed to complete.

The form applies a rating where 1 = Unacceptable 2= Needs Improvement 3 = Satisfactory

Her employment commenced on the 23rd of November 2020.

The incident where it is alleged that the Complaint was assailed by another employee occurred on the 21st of January 2021.

This claim is brought under section 28 of the Act and at section 27 of the Act penalisation is defined as:

(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,

Penalisation in case law has been described to have occurred where there is a direct causal link between making a complaint and a detriment that followed because of that complaint [Murphy and Regan Employment Law 2nd edition Bloomsbury 2017:

[5.54]

The Labour Court has made it clear that there is a distinction between a detriment suffered by an employee because of an employer’s failure to fulfil a duty under the 2005 Act, and a detriment amounting to penalisation under the 2005 Act, as set out above. In the case of Patrick Kelly t/a Western Insulation v Girdsius 107 the employee’s claim for penalisation failed as he was unable to show that the detriment that he suffered was a result of, or was in retaliation for, his having made a complaint under the 2005 Act. He was a Lithuanian employee who was injured when he fell off a ladder at work that was not properly secured. He claimed that he had limited English and that he did not receive any health and safety training at work in a language that he could understand. He took a penalisation claim against his employer on the basis that this failure operated to his detriment. The Labour Court dismissed his claim due to the complete absence of a causal connection between the alleged shortcoming on the part of the employer and any act on the part of the employee. Similarly, the Labour Court, in the case of Margaret Bailey t/a Finesse Beauty Salon v Farrell, 108 found that the circumstances in which liability will be imposed are ‘very limited and circumscribed’ and that the 2005 Act ‘only applies where an employer penalises or threatens penalisation against an employee for making a complaint or representation to their employer as regards any matter relating to safety, health and welfare at work. Penalisation of an employee for other reasons does not come within the scope of the [Act]’.

[5.55]

In contrast, in the Labour Court case of Toni & Guy Blackrock Ltd v Paul O’Neill, 109 the claimant successfully appealed a previous decision that he had not been unfairly dismissed by reason of penalisation under s 27 of the 2005 Act. Mr O’Neill alleged that he had made complaints about the poor quality gloves that had been provided by his employer for use when handling colouring agents and that his complaints were ignored. He also brought the matter to the attention of the HSA, and informed his employer that he had done so. He ultimately purchased his own gloves for use at work. He claimed that his employer’s attitude towards him changed after these complaints had been made. He was then dismissed for alleged poor time keeping and theft. The Labour Court found in his favour, referencing the causal link between his complaints under the 2005 Act and the treatment that he was then subjected to, which was absent in the two cases cited above. He was awarded €20,000 by way of compensation.

In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test:

 “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 the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment.”

On the 17th of December 2020 a performance review took place. The Complainant was assessed as suitable for the role. That form was presented in evidence.

While the form at that date identified two areas for improvement; the overall assessment was satisfactory.

On the 15th of March 2021 the evaluation is not satisfactory and the overall suitability for the role is marked with an X. The assessment in contrast to the first assessment rates the quality of the Complainant’s work as unsatisfactory.

Both parties have presented very comprehensive evidence. That evidence has been tested and challenged.

The Complainant’s manager Ms Liana Miller gave evidence under oath that the decision to dismiss was solely based on performance.

The Complainant challenged Ms Miller’s evidence stating that she was prejudiced and from the time of the alleged incident she made little of what had occurred and failed to objectively investigate the incident and to follow up diligently.

It is clear from the facts that the first review was in fact satisfactory. The question that must be asked, were the subsequent negative reviews linked to the complaint made to her employer in late January 2021 concerning her welfare and safety at work? The Complainant perceives her direct manager Ms Miller to be prejudiced. It is alleged that the review is contrived, and her performance was satisfactory.

The incident that occurred in late January 2021 was traumatic for the Complainant.

The Respondent representative has made out a case that the Complainant was seriously underperforming. That position is not supported by the scoring used by the company. There are 7 areas for scoring with a maximum score of 21. On the 17th of December 2020 her score is 19 out of 21. On the second review dated the 15th of March 2021 her score is 17. The review was less than clear with some scores stating that they were a 2 or 3 and, in this review, she was assessed as unsuitable. In these two reviews in percentage terms the Complainant achieved a mark of 90% in December 2020 and 81% in March 2021. In a marking system designed by the Company it is far from clear from the record that the Complainant’s performance was unsatisfactory; although, it was judged to be.

The final review marks the complainant low for the Quality of her Work.

However, another intervening event was an audit report sent to the store on the 15th of March 2021 which deemed that the area where the Complainant worked had failed the quality audit based on non-compliance with food safety requirements. That audit was independently completed.

The Company’s arguments regarding ongoing performance issues are not corroborated on the detail and analysis contained in the company’s evaluation forms.

However, the Complainant carries the burden of proof to show that there is a causal link between what occurred in January 2021 when she made a complaint as provided for under the Safety, Health & Welfare at Work Act, 2005 and the detriment suffered. The audit based on the balance of probabilities was the tipping point that gave rise to the termination combined with previous issues relating to quality and non-compliance with completing training pertinent to food safety. This reason on the evidence given at the hearing is on the balance of probabilities the main reason for the dismissal and not making the complaint.

Another employer may have given more time and provided an opportunity to improve so that the issue was fairly addressed. However, that is the choice that the employer can make during a probationary period and whatever view the Adjudicator may have on that point is irrelevant.

I find that the dismissal was because of poor compliance with food standard requirements and the dismissal was made having regard to the probationary contract clause. On the balance of probabilities, the termination was more linked to the audit failure in the Complainant’s work area, where food safety standards were non-compliant with hygiene statutory obligations. In that regard the employee working in that food preparation area was deemed to have contributed to the audit failure. The employee furthermore had failed to complete relevant online training in these areas despite being required to do so. I find that the complaint of penalisation is not well founded as the Complainant has not established a primary causal link to the dismissal and the complaint made under the Safety, Health & Welfare at Work Act, 2005 as amended. I find that the complaint is not well founded.

The Complainant carries the burden of proof to show that there is a causal link between what occurred in January 2021 when she made a complaint as provided for under the Safety, Health & Welfare at Work Act, 2005 and the dismissal. The internal quality audit based on the balance of probabilities was the tipping point that gave rise to the termination combined with previous issues relating to quality and non-compliance with completing training pertinent to food safety. This reason on the evidence given at hearing is on the balance of probabilities the main reason for the dismissal and not making the complaint.

Another employer may have given more time and provided an opportunity to improve so that the issue was fairly addressed. However, that is the choice that the employer can make during a probationary period and whatever view the Adjudicator may have on that point is irrelevant.

I find that the Employer exercised their legal right under the probationary contract clause to terminate the contract and on the balance of probabilities that decision was linked to the audit failure where food safety standards were non-compliant with statutory obligations. In that regard the employee working in that area was deemed to have contributed to that audit failure. The employee furthermore had failed to complete relevant online training in these areas despite being required to do so. I find that the complaint of penalisation is not well founded.

Penalisation-Complaint Form-Jurisdiction