ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00033752

Parties:

	Complainant	Respondent
Parties	Dean Kerley	Centum Engineering Services Limited

Representatives

Paul McKeon BL Sarah McAuley Anthony Joyce & Co. Solicitors

Siobhan McGowan Alastair Purdy & Co

Complaint:

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-00044646-001	15/06/2021

Date of Adjudication Hearing: 16/09/2021 and 11/11/2021

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the hearing as well as any written submissions disclosed in advance of the hearing.

The Complainant herein has submitted a complaint under Section 27 of the Safety Health and Welfare at Work Act 2005 (referenced in aforementioned schedule 5) which protects employees from being penalised for having acted in compliance with the SHW Act, for having performed any duty under the SHW Act, for having made a complaint (or other representation) under the SHW Act (to a safety rep, an employer or the Health and Safety Authority) or who has otherwise engaged in an exercise which might be deemed a protected act for the purposes of compliance with the Safety Health and Welfare at Work Act 2005. An Employer shall not penalise or threaten penalisation in such circumstances.

“Penalisation” in the context of s. 27 of the Safety Health and Welfare at Work Act 2005 would include (but is not limited to) suspension, lay-off, demotion, transfer of duty, imposition of discipline or penalty and coercion or intimidation. The penalisation will usually be an identifiable act or omission on the part of the employer which affects, to his or her detriment, the employee. The word “detriment” is given it's ordinary and natural meaning of causing harm or damage (Per Hyland J. in the case of Conway -v- Department of Agriculture 2020 IEHC665)

It is noted that Section 27(4) of the Safety Health and Welfare at Work Act provides that penalisation may include Dismissal and further specifies that if the penalisation constitutes dismissal the employee may institute proceedings under the Unfair Dismissals legislation assuming there is twelve months service etc..

Section 28 of the Safety, Health and Welfare at Work Act 2005 confirms that a decision of an adjudication officer under section 41 of the Workplace Relations Act in relation to a complaint of a contravention of Section 27 of the SHW Act shall do one or more of the following –

- Declare the complaint was well founded;
- Require the Employer to take a specific course of Action;
- Require the Employer to pay to the Employee compensation of such an amount that the Adjudicator considers just and equitable in the circumstances.

The initial burden of proof is on the complainant to establish the existence of a protected act and a detriment. If and only if the complainant establishes a protected act and a detriment does the burden shift to the respondent to put forward evidence that the detriment suffered was not due to the protected act being the operative cause. Paul O’Neill -v- Toni & Guy Blackrock [2010] 21 E.L.R. 1 established that the burden of proof is on a complainant to establish that on the balance of probabilities (a) she/he committed a protected act, and (b) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed. The Labour Court held that if both limbs were satisfied, the burden shifted to the employer to show, on credible evidence, on the balance of probabilities, that the protected act did not influence the detriment imposed.

The Toni and Guy case establishes the “but for” test in penalisation cases where it states :-

“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 Section 27(3) of the Safety Health and Welfare at Work Act 2005. 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 suggestion that where there is more than one causal factor in the chain of events leading to the detriment complained of, then the commission of the protected act must be the 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”

The Labour Court has further expanded on a number of issues in the case of An Garda Siochana -v- Hazel Delahunt Determ. HSD1311 where the Court noted that the term “detriment is not defined in the legislation but that it has been considered in some UK decisions which noted that “a detriment exists if a reasonable person/worker would or might take the view that the [treatment] was in all the circumstances to his detriment” Khan -v Chief Constable West Yorkshire 2001 UKHL 48. The Labour Court further noted that an “unjustified sense of grievance cannot amount to a detriment within the statutory meaning” Shamoon -v- Chief Constable RUC 2003 2AER26.

The Labour Court in An Garda -v- Delahunt also held that any act on which penalisation is based “must amount to a detriment in the claimant’s terms and conditions of employment and not something that merely has the potential to lead to such a result is not enough”. The Court went on to state that “except in circumstances in which it is alleged that the initiation of enquiries of this nature was actuated by malice or calculated to undermine the relationship of mutual trust and confidence between the parties” and it could not see how an investigation can constitute an act of penalisation for the purpose of the Act.

The Labour Court also stated in Delahunt “However in order to amount to a contravention of that implied term and therefore a detriment in respect of a term or condition of employment, it would be necessary to show that the initiation of a disciplinary investigation was calculated to destroy or seriously damage the relationship of trust and confidence between the parties. It would be necessary to show that the investigation was undertaken without proper justification and cause”.

In general terms, Employers have a duty to ensure employees safety health and welfare at work as far as is reasonably practicable. To prevent workplace injuries and ill health, the employer must take certain actions. These include:

- Provide and maintain a safe workplace which uses safe plant and equipment.
- Prevent risks from employees using any dangerous article or substance and from exposure to physical harm, noise and vibration;
- Prevent any improper conduct or behavior likely to put the safety health and welfare of the employees at risk;
- Provide instruction and training to employees on health and safety;
- Provide protective clothing and equipment to employees;
- Appoint a competent person as the organization's safety officer.

Protection against dismissal and penalisation – the relevant legislation:

Section 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.

The acts protected from penalisation are set out in s. 27(3) which states--

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 11 or appointed under section 18 to 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.

Background:

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

I can confirm that I explained to the parties the immediate impact that the recent Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) has had on how WRC hearings must now proceed. In particular, I indicated that hearings must now (and in the interests of transparency and in the administration of Justice) be open to the public. I have additionally informed the parties that in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered. In these circumstances the witnesses and parties herein agreed to give their evidence having made affirmations to tell the truth pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 which cameinto effecton the 29th of July 2021 and which allowed me, as Adjudicator to administer the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Complaint herein is set out in the workplace relations complaint form dated the 15th of June 2021. The Complainant believes that when he was dismissed on the 25th of May 2021, it was primarily because he had reported an incident of assault in the workplace which amounts, he says, to a protected disclosure.

Summary of Complainant’s Case:

The Complainant was fully represented. At the outset, the Complainant was called upon to make an Affirmation to tell the truth. I was provided with a comprehensive submission in advance of the hearing, and this can be read in conjunction with the submission outlined in the Workplace Relations Complaint Form.

The Complainant alleges that his Dismissal amounted to a penalisation for having raised a legitimate issue under the Safety, Health and Welfare at Work Act. The Complainant was cross examined.

Summary of Respondent’s Case:

The Respondent had representation at this hearing. The Respondent provided me with a written submissions. I have additionally heard from a number of witnesses for the Respondent following Affirmation. The Respondent witnesses were cross examined by the Complainant representative.

Findings and Conclusions:

I have carefully listened to the evidence and the legal arguments which were adduced over the course of two days of hearing.

The Complainant had only been employed for circa four weeks before the dismissal. This employment relationship was initially intended to be a 12 week Contract – per letter of 18th of April 2021 received by the Complainant. I also note that the letter confirms that this employment is on a contractual basis and that the letter directs that the confirmation of acceptance should be with the Respondent HR department.

The Complainant was sent onto a third-party site which was under the direction and operation of the larger company M. An incident occurred some four to five weeks after the start of this employment on the 24th of May 2021. There seems to have been a verbal altercation or interaction which resulted in the Complainant being kicked in the arm by a supervisor who was a member of the M staff. The Complainant was outraged at this behaviour in the workplace, and he went immediately to report that behaviour with the on-site safety officers. These individuals are employees of M, but the Complainant gave evidence that it was appropriate to notify them as they were on site. I understand that the Complainants Health and Safety induction had been twofold – one carried out by the Respondent and another carried out separately by M. He believes a statement was taken by the individuals concerned. The Complainant was advised to go home

The Complainant was contacted the next morning by the Account Manager (MrMcK) of the Respondent company, his direct Employer. McK was annoyed that the Complainant had gone to members of M staff when his direct line manager (J) should have been his first port of call. Indeed McK stated that as the Complainant had McK’s phone number he should have gone to McK in the first instance. The Complainant was told by McK that there had been a review or on-site investigation into the allegation he had made and that no-one had seen any wrongdoing. The Complainant was somewhat surprised to hear this as no-one had contacted him. He was even more surprised to receive an email terminating his employment later that same day. This letter came from Ms.KOL (from HR) and it states that the reason for terminating the employment are:

- Complaints received from our client regarding your attitude.

- You approached the client directly with a complaint and by-passed your employer.

- Failing to follow reasonable instructions and displaying a poor attitude to your site foreman.

Interestingly the letter specifically disavows any suggestion that the termination is as a result of the complaint made, though confirms that the making of the complaint to the third-party M is in fact a breach of conduct. The Respondent insists that involving the client third-party in the complaint can cause reputational damage.

I note that Mr.McK confirmed that both his company and the third-party company performed investigations. He says that the outcome to these investigations was no wrongdoing or assault. Be that as it may, I am satisfied that the fact of performing investigations at all was as a direct consequence of the fact that a complaint of an assault had been made. I am therefore satisfied that a Protected Disclosure was made. Section 27 of the Safety Health and Welfare at Work Act 2005 includes protection for employees from being penalised for having acted in compliance with the SHW Act and in particular for having made a complaint (or other representation) under the SHW Act (to a safety rep, an employer or the Health and Safety Authority). I am satisfied that when the Complainant went to make his complaint on-site he was citing an incident of rough, rowdy and potentially dangerous behaviour which fell into the type of activity envisaged by this Act as being appropriate for disclosure. Whether or not this claim was substantiated in the two rushed investigations performed within the next 24 hours is irrelevant. This was a protected disclosure. On the face of it, the Complainant was entitled to not be penalised.

Within 24 hours the complainant’s employment was terminated. I know different and unrelated reasons were given (outlined above) but I find these reasons to be somewhat spurious and unsubstantiated reasons. McK gave evidence of ongoing issues concerning the Complainant’s performance on site but his evidence was based on undocumented conversations with people who were not present to give evidence. It is clear from the evidence provided by KOL and McK and, indeed, the Complainant himself - that these issues (of attitude, time-keeping and failing to follow instructions) were not live issues previously raised with the Complainant.

On balance I am satisfied that the penalisation herein – the termination of the employment is unavoidable linked with the protected disclosure having been made. The dismissal is a clearly identifiable act of penalisation which has affected the Complainant to his detriment.

Whilst the Respondent has offered other reasons for the Dismissal, I am not satisfied that the Employer has demonstrated that bringing this Health and Safety risk to the attention of the safety officers was not an operative consideration in imposing the detriment.

In assessing compensation, I must have consideration for the intended length of this Contract of Employment.

I also recognise the difficulty faced by the Respondent who had been directed not to allow the Complainant back on to M’s site.In the UK case of Scott Packing and Warehousing Company Limited -v- Paterson 1978 IRLR 166 Lord McDonald pointed out that the third party pressure to dismiss could constitute a substantial reason justifying the dismissal of the employee: “In our view an employer cannot be held to have acted unreasonably if he bows to the demands of his best customer in a situation such as this even the customer’s motive for seeking the removal of the employee was suspect “

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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

CA-00044646-001 - IDeclare the complaint was well founded and I require the Employer (Respondent) to pay to the Employee compensation in the amount of €7,000.00.

Dated: 30-05-2022

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Key Words: