Complainant

Respondent

Parties

Ryan McMullan

Dallan & Co. Mechanical Services Ltd.

Representatives

Andrew Turner Solicitor of Hamilton Turner Solicitors

 No Appearance

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-00040362-001

12/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Paternity Leave and Benefit Act, 2016

CA-00040362-002

12/10/2020

No attendance by Respondent at Adjudication Hearing

This Adjudication hearing took place over two days on 15 September 2021 and 14 November 2022.

At the first hearing (15.9.21) the Complainant attended and was represented by his trade union, UNITE and the Respondent also attended.

On the second hearing date (14.11.22) the Complainant was represented by Mr. Andrew Turner of Hamilton Turner Solicitors and the Respondent did not attend. As the Respondent had attended the first hearing date and nearly a year had passed in between hearings, prior to the commencement of  the hearing (on 14.11.22) the Adjudicator took steps to establish that the Respondent were properly on notice of the Adjudication. As a result she established the following:

-        Despite the parties agreeing a timeline at the first hearing within which theretofore unfurnished submissions would be furnished, the Complainant complied with this timeline, but the Respondent did not - and no submissions were received by the WRC in the period intervening the first and second hearings.

-        The Respondent was sent a hearing notification in respect of the second hearing by the WRC by email.

-        The Respondent was subsequently sent an email invitation by the WRC to attend the remote Adjudication hearing on 14.11.22.

-        The email used for the Respondent was that which was used for the Respondent in advance of the first hearing on 15.9.21 and no request to change the Respondent email address details was received by the WRC

-        The WRC received no response from the Respondent to either notification or invitation. The WRC telephoned the Respondent on the morning of 14.11.22 using a telephone number that had been provided by the Respondent but there was no answer.

Having satisfied herself that the Respondent were on proper notice of the Adjudication Hearing, but  had declined to attend, the Adjudicator proceeded to conduct the Adjudication in the absence of the Respondent.

Hearing in Public

No application was made that special circumstances prevailed to permit the Adjudication hearing proceed otherwise than in public.

Complaints

The complaints made are two-fold.

First that, when the Complainant attempted to take statutory Paternity Leave, the Respondent subjected him to unfair treatment, which amounted to Penalisation.

Second that the Complainant was penalised (in the form of dismissal) by the Respondent as a result of him raising two health and safety complaints about the Respondent’s work practices. 

The Complainant gave evidence under Affirmation.

He started work as a plumber with the Respondent on 4 August 2020.

He was dismissed by the Respondent on 23 September 2020. On the first day of the Adjudication hearing (15.9.21) the fact that a dismissal occurred was not disputed by the Respondent although the grounds as asserted by the Complainant were disputed by the Respondent, however as the Respondent did not attend the Adjudication hearing on 14.11.22 no sworn evidence by the Respondent was tendered.

Penalisation under Paternity Leave and Benefit Act 2016

When the Complainant started work in August 2020 he explained to Mr. Dave Dallan, director of the Respondent, that he would need to take Paternity Leave soon because his partner was due to have a baby the following month. Mr. Dave Dallan told him that the timing of this did not suit. He said that they would be engaged on a very busy job working on the St. James Hospital site and the Respondent could not afford to allow the Complainant to take 2 weeks off at that time. The Complainant felt put under pressure. They agreed instead the Complainant would only take one week off and that this week would start on his partner’s due date.

The Complainant’s partner had their baby on 8 September 2020 but there were complications with the delivery which necessitated her having a C section and being kept in hospital. This meant that her return home was delayed. The Complainant decided that, given her surgery, that he needed to take the second week of Paternity Leave after all. He tried to contacted Mr. Dave Dallan by telephone to inform him but he got no answer. He left a message but got no reply. He sent the statutory forms to avail of Paternity Leave to Mr. Dave Dallan to sign but again got no response. This was a stressful time and the Complainant felt this was very unfair given that all he was seeking was leave which he was entitled to anyway. He returned to work on 21 September and gave Mr. Barry Dallan (Mr. Dave Dallan’s brother) hard copies of the statutory forms to complete. The forms were signed by Mr. Dave Dallan and returned to the Complainant on 22 September 2022 but everything about getting the leave and enforcing the leave had been made difficult by the Respondent. This was specifically that the Respondent had been reluctant to allow the Complainant take leave in the first instance; he did not respond when the Complainant tried to contact him and did not engage with him during the leave period and only signed the forms when the Complainant forced the issue by presenting the forms on his return to work. This unfair to the Complainant. The Respondent should have just accepted the Complainant’s request and given him the leave without any hassle, objection or delay.

Penalisation complaint under the Safety Health and Welfare at Work Act 2005

Eye protection

When the Complainant started working on site, he was advised by the Safety Officer for the main contractor, an engineering company, for which the Respondent was the on-site (plumbing) sub-contractor that, he should be wearing prescription safety glasses (not goggles, prescription glasses with side panels to prevent dust ingress) for the work that he was doing and that the Respondent, was obliged to provide these to him. Following this, the Complainant raised this with Mr. Dave Dallan but he got no response to this. This was about 2 weeks before he took paternity leave. There was no more mention of the glasses after that and the Complainant did without.

Use of a Drill

For the duration of his work with the Respondent he was required to work with a hand-held SDS Drill. When this drill was used to drill concrete, as the Complainant was required to, it needs an additional part, an impactor (which creates a hammer type mechanism)  to stabilise its function. If the drill is used on concrete without such an impactor the drill-bit can jam in the concrete which will cause the whole hand piece to rotate suddenly and powerfully in the user’s grip.  This is very likely to cause a wrist or arm injury to the user or more dangerously, if as the Complainant was drilling into a ceiling, it could cause a fall from a height.

This site was the first job that the Complainant had worked where an impactor had not been supplied to workers who were required to use an SDS drill.

When he was on Paternity Leave, he heard from co-workers that his colleague had injured his eye when using this drill and that this was because the drill did not have an impactor. On return from leave, given that this accident had just occurred, he was very surprised when on the morning of 23 September 2020 Mr. Barry Dallan instructed him to use the drill – again without an impactor. The Complainant told Mr. Barry Dallan that he would not use it because it was dangerous. He reminded him of the injury that had occurred the previous week to his colleague.  Mr. Barry Dallan told him that if he would not use the drill, that there would be no work for him there. This was around 9am and the Complainant had been working from 7.30am.

The Complainant then left his work-station and went to the canteen. After a few minutes he decided he would go home and email his boss, Mr. Dave Dallan. He emailed Mr. Dave Dallan at 10.34am stating that he had left the site that morning because his line manager Mr. Barry Dallan ( a brother of Mr. Dave Dallan) had told that there was no work for him unless he used the drill without an impactor. The Complainant wrote that he hoped the situation could be sorted because they workers had been looking for an impactor for a while. He named his colleague who had injured himself using the drill as an impactor and recorded that he also had nearly injured his hand the previous week. He stated that the use of the drill in this way, was not safe.

Mr. Dave Dallan telephoned him and the Complainant told him what had happened and Mr. Dave Dallan said to him “We’ll leave it there.”

The Complainant then emailed Mr. Dave Dallen asking what he meant by “We’ll leave it there.” He asserted that he would be happy to return to work if he was given the right tools,  but he had been told by Mr. Barry Dallan that if he did not use the drill as instructed, which was dangerous, that there was no work for him there.

At 13.44 Mr. Dave Dallan replied by email confirming that the Complainant was dismissed. He said the reason he was being dismissed was because he had left site without telling anyone and because of issues with the management.

As there was no attendance by the Respondent, the Complainant was not cross-examined.

The Complainant legal submissions

The Complainant submits that there have been two acts of penalisation:

1.       Under section 22 (2) (b) of the Paternity and Benefit Leave Act 2016 the Respondent penalised him by subjecting him to unfair treatment by firstly telling him that he was not permitted to take his full two-week entitlement to paternity leave, by negotiating that he take only half of the leave he was entitled to and then by refusing to respond when he first asked the Respondent to sign the statutory leave forms. This made it difficult for the Complainant to take the leave that he was entitled to.

2.       Under the 27 (2) (c) of the SHWW Act 2016 the Respondent penalised the Complainant by dismissing him because he made a complaint regarding an unsafe system of work, re:prescription safety glasses and re: requiring him to work with a drill without an impactor.

No Appearance

Based on the uncontested evidence of the Complainant I am satisfied that both complaints are well founded for the following reasons:

CA-00040362-002 Penalisation under the Paternity and Benefit Leave Act 2016

Paternity Leave is the same as any other statutory leave, such as maternity leave or holiday leave. The 2016 Act provides a statutory entitlement to this leave. There is no basis within the Act to not provide this leave. Pay during this leave is discharged by the Department of Social Protection. There is no income loss to an employer when leave is taken. The time that a child is born is often a very centrally significant time in a parent’s life for this reason European and national law has provided that parents are entitled to take time off work. The statutory leave entitlement is two weeks and an unpaid absence from work for two weeks is not an excessive period for a business to bear. In this case the Complainant was candid from the start of his employment. He explained to the Respondent in August 2020 that his partner was expecting soon and that he would need to take paternity leave. The reluctance that was shown by the Respondent during that conversation suggests that the Respondent considered that this statutory entitlement is one which is discretionary, which is not the case. To respond as the Respondent did to the Complainant’s request, namely to negotiate the Complainant’s entitlement downwards, reducing a two week entitlement to one week was entirely unfair. When a request is made for Paternity Leave, this needs to be approached by an employer with the same openness and acceptance as where a mother requests Maternity Leave or if a person requests to take annual leave.  Such a request should receive the support of an Employer. It is not something that should be negotiated upon or sought to be reduced by an Employer. While ultimately the leave was sanctioned by the Respondent, this only happened after the leave was taken, without any response to the Complainant’s requests or calls having been received.  I consider that the manner in which the Respondent responded to the Complainant’s request constituted unfair treatment and as such it falls within the definition of penalisation pursuant to section 22 (2)(b) of the Paternity Leave and Benefit Act 2016.

For the reasons cited above I find this complaint to be well founded.

Award: I award the Complainant the sum of €1366, which is two weeks remuneration

CA-00040362-001 Penalisation under the Safety Health and Welfare at Work Act 2005

The applicable test for Pensalisation under the SHWW Act 2005 is would the penalisation have occurred “but for” the Health and Safety complaints made by the Complainant.

O’Neill v. Toni and Guy Blackrock [2010 E.L.R. 21] applied

For reasons set out below I am satisfied that the Complainant would not have been dismissed other than he made complaints about 1. a lack of provision of prescription safety glasses and 2. the failure to provide the Complainant with an impactor when he was instructed to use the SDS drill.

The evidence arising from the second complaint (re the drill) is stronger than that in respect of the prescription glasses. I have not been provided with evidence to support the Complainant’s contention that the Respondent was under a duty to provide prescription safety glasses, particularly if the use of contact lenses and safety goggles was alternative way of ameliorating the risk of injury. In the absence of such evidence being provided I am not satisfied that the Complainant has discharged the onus that is on him to prove that the Respondent’s failure, specifically to provide prescription safety glasses constituted a health and safety risk.  However, I am satisfied that what happened in response to the drill issue alone enables his complaint to succeed.

In the absence of evidence to the contrary it is uncontested that the use of an SDS drill without a hammer or impactor, when concrete is being drilled, created a serious health and safety risk. The risk of the drill-bit sticking in the concrete when an impactor is not either integrated into the drill or attached to the drill, is high. If the drill bit catches or sticks in concrete (which is likely if there is no impactor or hammer mechanism) risks the hand drill swivelling in the grip of the user which clearly could result in a worker being injured by either sustaining a hand or wrist injury or worse if the worker is destablised while he is working at a height.

I am satisfied that the Complainant raised safety concerns with his supervisor, Mr. Barry Dallan about the use of an SDS drill on concrete without an accompanying impactor or hammer. I am satisfied that the Complainant made this complaint arising from his own safety concerns but also because his colleague had recently been injured using the drill in the improper. I am satisfied that the Complainant refused to do this work unless an impactor was provided. I am satisfied that in response to that, he was told by Mr. Barry Dallan that unless he accepted this instruction, that he would be dismissed. I find that this is a clear breach of section 27 (3) (c) of the SHWW Act 2005.

I am also satisfied that after the Complainant refused to follow the Respondent’s work instruction, he went home and immediately emailed Mr. Dave Dallan to inform him what had happened advising that he would return and would work if the correct equipment was provided. While Mr. Dave Dallan’s email confirmed the Complainant’s dismissal he asserted in his email that the Complainant’s dismissal was because he had left the site without permission. However this evidence was not given at the Adjudication hearing because the Respondent did not attend.

I am satisfied that Mr.  Barry Dallan dismissed the Complainant because he made a safety complaint (a protected act) because he refused to work with an unsafe equipment within a system of work that was inherently unsafe. I find that this constitutes penalisation contrary to section 27 (3)(c) of SHWW Act 2005.

I am also satisfied that Mr. Dave Dallan’s email confirms penalisation. Given the circumstances the Complainant was entitled to believe that he or other workers were in serious and imminent danger by being requested to do inherently unsafe work he entitled to refuse to do this work and/ or leave the site in order to avoid injury and, had the earlier dismissal not met the test for penalisation (which I have found it did) then the second dismissal (by Mr. Dave Dallan) of the Complainant, for leaving the site, given the dangers that were inherent on being present on the site with work practices as they were,  also constitutes a penalisation under section 27 (3) (f) of the SHWW Act 2005.

For reasons cited above I find this complaint to be well founded.

Award: Under section 28 SHWW Act 2005 I require that the Respondent pay to the Complainant the sum of €28,000.00.

This award is just and reasonable particularly  given that the Respondent was aware that another employee had been recently injured in precisely same way yet still the Complainant’s  line manager insisted that he use the defective equipment and he dismissed him when he would not. The Respondent’s conduct in this case was egregious. The Complainant was treated by the Respondent as a trouble-maker. Had they not already been on notice of the earlier injury I could make the observation that the Complainant was doing them a favour by raising this safety concern because it put them on notice of a risk that one of their workers could be injured, possibly more seriously given that they were drilling into concrete, sometimes at a height. However, such an observation would be incorrect,  because the Respondent were already on notice of this risk and yet they still insisted that the Complainant do this inherently unsafe work. The Respondent’s conduct appeared to be cavalier to the risk that one or indeed a number of their employees might be injured.  And then they proceeded to dismiss the Complainant.

In this Adjudication I am reminded of the observations made by the then High Court judge Mr. Justice Peter Kelly when he directed criticism at the director of a construction company which had committed serious breaches under the Health and Safety at Work Acts in the 1990s. He said “You are entitled to make profits on the sweat of your workers, but you are not entitled to make profits on the blood…of your workers.”

The only fortunate aspect of this case is that the Complainant was not injured, unlike his co-worker but this was not as a result of protections that his employer should have ensured were in place.

In calculating this award, I also take into account that following his dismissal the Complainant was out of work for six months and arising from that he suffered a financial loss of €18441

An award of €28,000.00 is proportionate and appropriate to take into account all the circumstances and to ensure that the Respondent’s conduct is not repeated.

CA-00040362-002: I find this complaint to be well-founded and award the Complainant the sum of €1366.00

CA-00040362-001: I find this complaint to be well founded and award the Complainant the sum of €28,000.00

Penalisation  - Paternity Leave – Health and Safety