Complainant

Respondent

Parties

A Motor Mechanic

 A Transport Company

Representatives

Ms. A. Lawless BL instructed by Griffin Solicitors

 Company Managers

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00028129-001

01/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00028129-002

01/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00028129-003

01/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028129-004

01/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00028129-005

03/05/2019

The issues in contention concern the alleged Dismissal, Discrimination against, Penalisation and Working time complaints of a motor Mechanic by the Employer – a Transport Company.

The Employment commenced in November 2018 and ended on the 14th March 2019.

The rate of pay was €720 Gross for an average week of between 40 and 48 hours.

Oral Evidence was given by the Complainant and supported by a Written submission from his Legal advisors. The evidence was cross examined on, the 14th of October 2021, by the Respondent Representative.

Reference was made to former employees who had left the employment or had unfortunately passed away. Conscious of the rules regarding hearsay little weight could be made of this evidence.

1:1         Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts - CA-00028129-001

The Complainant was dismissed on the 14th March 2019 by Mr. S, Respondent Owner/Manager. The Complainant was in bed in a House used by employees as lodgings. Mr. S entered the Complainant’s bedroom. Mr. S  was very agitated and was waving around a Solicitors letter in regard to a workplace accident which took place on 23rd January 2019. The Owner/Manager, Mr. S assaulted the Complainant and in a very rough physical manner, causing personal injuries, ejected the Complainant from the lodgings. He was told “never to come back”. Mr. S, it was alleged, threaten to shoot the Complainant if he ever returned and made a hand gesture imitating a hand gun/pistol. It occasioned the Complainant calling the Gardai for assistance. Another employee intervened to restrain Mr. S. This employee had subsequently left the Company and was not available to give evidence. The Complainant never worked at the Respondent premises after this incident

The Complainant’s Legal Representative pointed out that no proper employment procedures of any nature, such as would be set out in SI 146 of 2000 -Code of Practice on Grievance and Disciplinary Procedures - were followed by the Employer. It was a blatant case of Unfair Dismissal for raising a Safety complaint .

1:2         Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 - CA-00028129-002

The Complainant alleged Discrimination and allied Victimisation in his treatment by the Respondent.

The Complainant is of Lithuanian nationality and had difficulty with the English language. The Respondent Owner /Manager, Mr. S constantly belittled him and ignored his complaints regarding working conditions and tools required. He was often reminded that he was an immigrant in Ireland. No other Employee of Irish origin was treated in this manner. His ejection from the lodgings and the ending of his employment was clearly racist as it was couched in very racist language, gestures and manner from Mr.S.

This was clearly Race motivated action and obvious Victimisation.

1:3         Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 - CA-00028129-003

The employment ended on the14/03/2019 leaving pay outstanding to the 22/03/2019 - this being a week’s minimum notice outstanding.

1:4          Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00028129-004

The Complainant did not receive his due Holiday pay on leaving the employment.

1:5         Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 - CA-00028129-005

The Complainant alleged that he was Penalised by being Dismissed by his former employer contrary to Section 27 of the S, H & W Act, 2005. The Complainant had raised, by letter from Griffin Solicitors dated the 21st February 2019, serious H&S issues with the Respondent.

The actions of Mr S on the 14th March was clearly linked to having received Mr. Griffin’s letter. He had the letter in his hand and was clearly very agitated by the contents.

Section 27 of the S, H & W Act, 2005 clearly protects employees from Dismissal, Coercion, or Intimidation as a result of exercising their statutory rights under the Act.

The Employer in this case was egregiously in breach of Section 27 of this Act.

1:6          Unfair Dismissals Act,1977 Complaint.

Although not part of the initial referral (01/05/2019) the Complainant added a subsequent complaint under the Unfair Dismissal Act, the Employment Equality Act,1998 and the Safety, Health & Welfare at Work Act,2005 and Minimum Notice and Terms of Employment Act, 1973. (letter of the 1st May 2019.) Dismissal was alleged to have been based on Race Grounds. 

At the final Hearing on the 14/10/2021 the UD Act,1977 complaint was withdrawn.

Oral evidence from the Owner/Manager and the Representative supported by documentation was presented by the Respondent on the initial hearing on the 6th November 2019 and again at the hearing on the 14th October 2021. All evidence was subject to cross examination by the Complainant Representative.

A potential Respondent key witness, a former Supervisor /Office Manager had most unfortunately passed away between Hearings.

2:1        Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts - CA-00028129-001

The Respondent maintained that no actual dismissal from Employment had taken place. It was accepted that he had been asked to leave the company Lodging House. The Complainant was not paying his rent. All these accommodation matters were completely separate from an Employment Dismissal.

The Owner /Manager gave evidence that the Complainant had effectively been homeless, and the Company had given him only temporary accommodation in the Lodging House. It was never intended to be a permanent arrangement. He had been almost destitute, and the Respondent had advanced him money to get him set up. He had been provided with new protective clothing – a good jacket for example. The tools complained about were not old fashioned and no complaints had ever been made about them. The Complainant was not of a great skill set as a mechanic- he had for example neglected to put proper track rod nuts on a Truck before a NCT Inspection. This was a basic mistake for an allegedly experienced mechanic. The Owner/Manager denied every making gun/pistol signs at the Complainant. The only key witness, the Supervisor/ Office Manager, who had accompanied the Owner/Manager to the Lodging House had unfortunately passed away since the events.

Following the meeting in the Lodging House of the 14th March the Respondent had written twice to the Complainant querying his Sick leave status. This was not the action of an employer who believes the employee has been dismissed. No letter of termination of employment was every written to the Complainant. The Complainant did not make direct contact in reply to Ms. S until his letter of the 15th April arrived. The Employer reasonably felt that this letter and the absence of prior contact was effectively a resignation and proceeded accordingly.

No Unfair Dismissal from employment had ever taken place. The claim has no merits and should be dismissed.

2:2         Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 - CA-00028129-002

Any and all grounds of Discrimination and or Victimisation against the Complainant were resolutely denied. The Employer has a large multinational workforce with many non-Irish staff having long employment records with the Company. The lack of comfortable English usage was never an issue as there were many Supervisors and other employees available as interpreters.

The Complainant lacks any required prima facie evidence to support his Equality Act case.

2:3 & 2:4        Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 - CA-00028129-003 – Minimum Notice and Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00028129.

The Respondet representative at the Hearing on the 14th October 2021 maintained that all financial obligations to the Complainant had been discharged, both any requirements for Minimum Notice and or Holiday Pay.

Post the Hearing financial records were submitted in support.

The Respondent maintained that there was no case to answer here.

2:5          Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 - CA-00028129-005

As the Complainant was not Dismissed from his Employment there can be no case to answer here. The removal from the Lodging house, a main part of the Complainant’s claim, was completely unconnected with this and had nothing to do with H&S issues. Direct evidence was given by the Owner/Manager, Mr. S as to what had transpired, in his view, at the Company Lodging House. The issue was related to the provision of accommodation to an employee who was absent on sick leave and had nothing directly to do with the Solicitors’ letter and certainly was not a dismissal from employment.

 The Complainant never made any formal complaint regarding Health and Safety. The Employer is committed to a Safe Working environment and any complaint would have been treated most seriously. Language was not an issue as there were plenty of staff available to interpret or even use Google Translate.

It was acknowledged that other proceedings were under way in regard to a PIAB matter between the parties. These are completely separate matters and cannot be used to support this complaint of victimisation and or discrimination.

3:         Introductory Remarks / Incidents of the 14th March 2019 in the Company Lodging House.

For reasons largely outside of all Parties the schedule of Hearings became somewhat protracted. However, on the final day, the 14/10/2021, a comprehensive examination of the case took place.

Oral direct evidence was crucial as the key Parties, the Complainant and the Owner /Manager, Mr. S, gave extensive evidence. Full cross examination took place.

Much hinged on what exactly had transpired at the Company Lodging House on the afternoon of the 14th March 2019. Independent witnesses were not available. The Complainant and the Owner/Manager, Mr S, gave very conflicting versions. Both witnesses were determined in their evidence but neither could be described as overwhelmingly persuasive. A key question was whether or not an actual Penalisation by way of Dismissal had taken place.

The rule of the Balance of Probabilities had to be relied upon by the Adjudicator. The absence of independent witnesses was problematic.

However, on reviewing all the Oral evidence and the presentations from the key players, it was very difficult not to conclude that a very direct and forceful exchange took place between the parties. It was alleged by the Complainant that the Gardai from Naas had been called to come to his assistance. It was not denied that he was homeless for a period after the 14th March.

The Complainant was entitled to feel that his relationship as either tenant or employee with the Respondent was over.

However, the Manager, Ms. S, wrote standard HR style absence control letters in the following days which were clearly an invitation to the Complainant to establish contact. No formal dismissal letter was ever issued.

On overall balance the evidence pointed to a Penalisation Dismissal by Mr. S, the Owner/Manager but the failure to engage with Ms.S , the HR Administrator, in the following days has to be regarded as a significant Employee contribution to the situation.

Conclusions

Following the order of the Complaints the following Adjudication conclusions seemed apparent.

3:1         Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts - CA-00028129-001 and associated possible Unfair Dismissals Act,1977 complaint.

The Complainant’s Representative indicated that the UD Act,1977 reference was not being pursued. However, the dispute under the Industrial Relations Act, 1969 remained for Industrial Relations Act,1969 Recommendation. See Recommendation in Section 4 below of this Adjudication finding.

3:2         Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 - CA-00028129-002

3:2:1       The Burden of Proof in Equality cases.

Section 85A of the Employment Equality Act, 1998 is quoted below

Burden of proof.

85A

85A.—(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the  Director General of the Workplace Relations Commission  under section 85(1) , facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary.

(4) In this section ‘discrimination’includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

In plain English this Section requires that a Complainant satisfy the initial Burden of Proof question – does a prima facie case exist to base an Equality case on. Legal precedent is strong on this point.

In Employment Equality Law by Bolger Bruton and Kimber, Round Hall 2012 at Section2-215 the Authors state.

The starting point is the decision of the Labour Court in Southern Health Board v Mitchell a decision which predates the new Directives and s.85A but still remains the leading decision on the shifting of the burden of proof. The court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

2-216

This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or court at the level of balance of probabilities and if proven must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the Complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her.

In the case in hand the Complainant argues that because of his Lithuanian nationality he was treated less favourably that other employees especially Irish employees. The oral evidence relied upon focused largely on his occupational accident and general complaints against the Employer. The Respondent pointed to their very diverse nationality workforce as evidence that they were not discriminatory.

On balance and having listen to and read all the evidence it was hard to see the specific acts of clear race discrimination necessary, even at the balance of probability, to base a direct Employment Equality claim.

The conclusion has to be that the Employment Equality complaints lack a sufficient prima facie basis.

3:3          Complaint seeking adjudication by the Workplace Relations Commission under Section 27 and 28 of the Safety, Health & Welfare at Work Act, 2005 - CA-00028129-005

3:3:1         The Legal position is set out in Section 27 of the Act, quoted below.

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.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them

The key Legal precedent here is the O’Neill v Toni & Guy Blackrock Limited [2010] ELRLabour Court case where the Court considered penalisation under the Safety Health and Welfare at Work Act 2005. The Court set out what is now known as the “but for” test in determining whether penalisation has occurred (i.e. “but for” having made the disclosure, the worker would not have suffered the detriment complained of).

It is accepted that giving Instructions to a Solicitor to write to your employer constitutes making a Health and Safety complaint as per Sub Section 3 above.

In the case in hand all the oral evidence pointed to the Owner/Manager arriving at the Lodging House with the letter from Griffin Solicitors of the 21st February 2019 in his close possession. He, from his oral evidence, felt that he had behaved very honourably to the Complainant when he had first arrived, found him accommodation and given him a job. The Solicitor’s letter was a grievous personal blow and he was agitated. No party denied that a very frank exchange took place.

We do not, unfortunately, have any independent witnesses to what transpired. However, on the balance of probabilities it appears that he, Mr. S, made it very clear to the Complainant that he was to immediately leave the lodgings and it is also not really open to speculation if the Complainant was also correct in his belief that the employment was also over. Any normal relationship was obviously now impossible.

The evidence did not really sustain the Respondent argument that the dispute at the Lodging house was a matter of simply Rent /Accommodation issues only.

The receipt of the Solicitor’s letter of the 21st February 2019 regarding the alleged workplace accident seemed to have been a “bridge too far” for the Owner/Manager.

Accordingly, the evidence points to the fact that a breach of Section 27 of the S, H & Welfare at Work Act,2005 – Protection against dismissal and penalisation - took place.

With all evidence considered Sub Section 4 above applies

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

A Penalisation Dismissal took place. The Solicitor’s letter was the “but for” factor as identified in the Labour Court precedents quoted above.

However, it has to be noted that by refusing to engage with the Employer post the 14th March 2019 and his letter of alleged “Resignation” of the 15th of April the Complainant did contribute to his situation. Any award of Redress under Section 28 of the Act has to reflect this.

3:4         Legal note re Time limits.

Legal precedent largely hinges on two High Court cases here. In essence Sharma v the EAT [2010] 21.ELR 262 established a necessity for a Complaint under Section 27 of the H, S &W Act,2005 to have 12 months service (following the original UD Act,1977) before a claim of Dismissal can succeeded.

 However, this was clarified in Justice Kearns in High Court case Stobart (Ireland) Driver Services Ltd v Carroll [2013] IEHC 581. Here Justice Kearns clarified that where a Complainant was not making a claim under the Unfair Dismissals Act,1977 but rather a claim of Penalisation under Section 27 of the S, H & W Act,2005 the 12-month service rule does not apply.

Accordingly, in this case, the Dismissal is a Section 27 Penalisation and can be compensated under this heading even though the Complainant does not have 12 months completed employment service.

3:5          Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 - CA-00028129-003 – Minimum Notice and Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00028129.

At the Oral Hearing the Respondent maintained that all financial obligations to the Complainant had been discharged. This was largely accepted by the Complainant as regards Annual Leave.

In post hearing correspondence the Respondent Representative outlined monies actually paid -€ 670 on the 11th November 2019 as regards Annual leave.

It appeared that no statutory Minimum Notice had been paid as the Complainant had been deemed to have resigned.

However, as the Adjudication Decision in 3:3 above is of a Penalisation Dismissal a payment of one weeks Minimum Notice is warranted.

Accordingly, a payment in lieu of Minimum Notice of € 585 is due to the Complainant – (this being 39 hours at €15:00 –rate from Payslips and Complaint form.)

4:          Decision and Recommendation

Section 41 of the Workplace Relations Act 2015 , Section 77 of the Employment Equality Act, 1998,Section 12 of the Minimum Notice & Terms of Employment Act, 1973 , Section 27 of the Organisation of Working Time Act, 1997 , Section 28 of the Safety, Health & Welfare at Work Act, 2005 , Section 8 of the Unfair Dismissals Acts, 1977 - 2015 and Section 13 of the Industrial Relations Acts 1969 require that I make a Decision and Recommendation in relation to the complaints and dispute in accordance with the relevant redress provisions of the cited Acts.

4:1           Complaint seeking Recommendation by the Workplace Relations Commission under the Industrial Relations Acts - CA-00028129-001

It is Recommended that

The Respondent Employer familiarise themselves with the provisions of SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedures and immediately implement Employment/HR practices to reflect same.

4:2        Complaint seeking Adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 - CA-00028129-002

Having reviewed all the evidence it was not satisfactorily established that a prima facie case of Discrimination or Victimisation took place.

Accordingly, the complaint under the Employment Equality Act, 1998 is Not Well Founded.

4:3          Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 - CA-00028129-003

The complaint for Minimum notice is deemed to be Well Founded.

Minimum Notice of one week’s pay (€ 585 - 39 hours) is awarded to the Complainant.

4:4          Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00028129-004

Holiday pay was paid to the Complainant- This Complaint is deemed to be Not Well Founded.

4:5          Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 - CA-00028129-005

For convenience Section 28 of the Act is set out below.

As discussed in Paragraph 3:3:1 above the evidence leads to, on the balance of probabilities, the conclusion that the Complainant was Penalised under Section 27 of the Act by being  Dismissed on the 14th March 2019. This is in contravention of Section 27(4) of the Safety, Health & Welfare at Work Act, 2005.

In considering suitable Redress, legal precedent and taking guidance from Section 7(3) of the UD Act,1977 indicates that any Award be “Just and Equitable having regard to all the circumstances”.

In this case a number of factors have to be considered. The Complainant was less than forthcoming is his communications with the Respondent Employer and declined to properly engage with the Administrator, Ms. S when she wrote to him twice following the 14th March 2019. The Complainant letter of the 15th April 2019 was taken by the Respondent to be a Resignation. This was debatable, but the letter was not that of an employee anxious to re establish good communication.

In addition, the Complainant was pursuing a PIAB action against the Respondent. Legal precedent, while recognising that Workplace Injury actions are completely separate from UD Act,1977 actions, cautions against the dangers of Double awards. (See Culkin v Sligo Co. Council [2017] IECA 104 and the issue of parallel proceedings). It was clear from the Oral evidence that the PIAB proceedings and possible monetary awards were to the forefront of the Complainant’s thoughts.

As regards loss of earnings the evidence from the Complainant was that he was on Social Welfare benefit since leaving his employment.

There was no suggestion of Re Instatement or Re Engagement being realistic prospects.

Accordingly, and in review of all the evidence presented an award of € 5,000 for a Penalisation under the Safety, Health & Welfare at Work Act, 2005 is deemed “Just and equitable”. This award takes into account a significant Complainant contribution to the situation.

For the avoidance of doubt this is a Compensation award for the Breach of a Statutory right.

Dated:   13th January 2022

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Key Words:

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