HSD223

1.Appeal of Adjudication Officer Decision No’s: ADJ-00030607, CA-00035909-001.

BACKGROUND:

2.The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on 22 December 2021 in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts, 2005 to 2014. A Labour Court hearing took place on 25 March 2022.

The following is the Determination of the Court:

DETERMINATION:

Background to the Appeal

This is an appeal by Mr Derek Keenan (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00030607, dated 11 November 2021) under the Safety, Health and Welfare at Work Act 2005 (‘the Act’). Notice of Appeal was received by the Court on 22 December 2021. The Court heard the appeal on 25 March 2022.

The Factual Matrix

The Complainant has been employed as a postal operative by An Post (‘the Respondent’) since 2007. His job requires him to sort and deliver mail on a daily basis. He is based at the Respondent’s distribution centre in Blanchardstown, Dublin 15. On 16 March 2020, the Complainant prepared his delivery in the usual way but informed his Working Leader that he would not deliver the mail unless he was first provided with hand sanitiser. Twenty-six (out of sixty) other colleagues at the deport did likewise. A representative of the Respondent’s management explained that the hand sanitiser that had been ordered by the Respondent would not be available until the next working day, 18 March 2020. The twenty-seven employees who were refusing to deliver mail on 16 March 2020 were offered latex gloves. Some accepted these and proceeded to complete their deliveries. The Complainant refused to do so. Nevertheless, he was paid in full for that day.

The Complainant attended for work in the usual way on 18 March 2020. However, he approached his manager (‘DSM’) and requested that he be paid three hours’ overtime to deliver the mail that was outstanding on his route from 16 March 2020.

It is common case that a so-called ‘Double Up’ payment of three hours can be applied by the Respondent in circumstances where additional mail has to be delivered on a route due to an employee’s absence. The Complainant submits that he was informed on 18 March 2020 by his DSM that he would receive this payment. The Respondent’s position is that no such undertaking was given to the Complainant as there had been no absence on 16 March 2020 and that the non-delivery of mail on that date had occurred because of the Complainant’s refusal to deliver it in the absence of being provided with hand sanitiser.

The Complainant worked an additional two hours on 18 March 2020 to complete the delivery of the mail that had been outstanding from 16 March 2020. He did not receive any additional payment for the two extra hours he worked on 18 March 2020.

Submissions

The Complainant states as follows in his written submission to the Court: “Therefore the respondent’s decision not to pay the “double up” to me on the 18^th[of] March relates exclusively to the fact that the additional workload arose as a result of my refusal to perform my route on the 16^thon Health and Safety grounds and therefore in their view that the additional workload would have to be absorbed my me”. In essence, his complainant is that he was penalised by being required to do additional work on 18 March 2020 (for which he received no additional payment) because he had declined to deliver mail on 16 March 2020 due to legitimate health and safety concerns that he had had.

In its submission to the Court, the Respondent fully acknowledges that the Complainant had genuine concerns with regards to his health and safety on 16 March 2020, at the outset of the Covid 19 pandemic in Ireland. In that regard, it says, no pressure was placed on the Complainant to make his delivery but he was, nevertheless, paid in full for that day. No sanction was imposed on him. The question of applying the Double-Up time on 18 March 2020 didn’t arise as the additional work that needed to be completed on that date was not due to an absence on the previous working day. The Respondent further submits that the Complainant was treated in the very same way as all other colleagues whose circumstances were the same as the Complainant’s.

Discussion and Decision

It is well established that this Court has consistently applied a ‘but for’ test when determining claims of alleged penalisation under the Act. For such a claim to succeed, the Complainant must first establish that he or she suffered a detriment, and that detriment was as a consequence of raising a health and safety-related concern. The complainant in the instant case submits that the Respondent’s failure to pay him a Double Up payment for the extra two hours’ work he did on 18 March 2020 constitutes a detriment within the meaning of the Act. The Respondent denies that the Complainant suffered any detriment at all in circumstances where he was paid his full basic pay for 16 March and 18 March 2020 and fulfilled only his normal workload for those two days, albeit the greater part of the work was completed on the latter date for the reasons already set out earlier in this Determination. Furthermore, the Respondent has established to the Court’s satisfaction that the established agreement in place with regard to payment of the Double Up allowance does not comprehend the circumstances that arose in the Complainant’s case as it is only payable when additional deliveries have to be made on a particular day because of an employee’s absence from the workplace.

It follows that the Complainant has not demonstrated that he was penalised as a consequence of raising a legitimate health and safety concern on 16 March 2020 or at all.

The decision of the Adjudication Officer is upheld and the appeal fails.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
CN	______________________
18 May 2022	Deputy Chairman