Complainant

Respondent

Parties

Henry  Connolly

Freshtoday Wexford Limited

Representatives

Self-represented

Jacob and Twomey Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00048710-001

17/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Protection of Young Persons (Employment) Act, 1996

CA-00048710-002

17/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00048710-003

17/02/2022

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

CA-00048710-004

17/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00048710-005

17/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00048710-006

17/02/2022

The complainant was employed as a delivery driver from 6th December 2021, until his employment was terminated on 14th February 2022. He earns €13 per hour. He claims he was discriminated against and was penalised arising from his absence from work due to Covid.

The respondent denies that his employment was terminated due to the Covid absence. Their position is that his employment was terminated during the probationary period arising from his performance.

On the discrimination complaint, the complainant ticked the box on the WRC Form indicating discrimination arising from an employment agreement. This was obviously in error as the written complaint made no reference to an employment agreement. I decided based on an examination of the complaint and written text to allow his complaint on discrimination to proceed.

The three complaints for decision are:

CA-00048710-001- a discrimination complaint.

CA-00048710-004-a penalisation complaint under the Safety, Health, and Welfare at Work Act 2005.

 CA-00048710-006-a penalisation complaint under the Terms of Employment (Information) Act 1994.

Summary of Complainant’s Evidence

The complainant described his job as a delivery driver of food items to schools. This involved a very early start and early finish. His route was Wexford although he drove to Waterford occasionally. He stated that he was owed 8 or 9 hours for this work in Waterford.

He confirmed that he had an employment contract which he received at the commencement of his employment. He reviewed this over several days and then returned it to the company.

He gave evidence that he was out on sick leave with Covid when he got the sack. He received a text informing him that his employment was terminated on 14th February 2022. He put several text messages with the respondent into evidence. These were communications with his line manager who was advised by the HR manager, Ms O’Donoghue. He was adamant the reason he got the sack arose from being out sick with Covid. He never returned to work after he had Covid. He stated that his wife had Covid prior to him. He contracted Covid in or around 7th February 2022 and he sent his line manager a picture of his positive Covid test.   

His line manager replied by text informing him to stay at home until he was free of Covid. As the HR manager, Ms O’Donoghue wanted a PCR test, his line manager sent him a text requesting same. His text response was that he checked on-line about a PCR test, and he was not paying €100 euro for a test just for her records. He included a picture of the online details of those eligible for a free test and he was not covered. He gave evidence that he could not afford to pay €100 for a test, particularly when he was not paid when on sick leave.  

He said that other than the Covid absence he had no other sick leave. He was given no reason why he was sacked. He asked for a letter, and this also gave no reasons.

He said he was sacked due to the Covid absence which was not right as he followed the steps to keep himself and others safe.

For the weeks that schools were off, he was not paid and needed to sign on for social welfare. He said that there were delays with the company filling out forms, so he had no money coming through at times. This was very frustrating as he had bills to pay.

He commented on the respondent’s submission and said he was not responsible for damage due to a minor accident with the company van.

Under cross examination, he said he was not taking the complaint for monetary compensation. He said there was a principle, and the company should not be allowed to do what they did. He said that he did everything by the book. He was never asked for a letter from his GP for his absence.

He was questioned on the lack of clarity of the complaints submitted under six different acts. He was informed that the respondents were entitled to know the details of the complaints he was pursuing. He was asked to identify from the nine discriminatory grounds the complaint he was taking. He went through the nine grounds and responded that he was not taking a case under any of the nine grounds. He said that the case he was taking was that he got the sack over Covid. He felt unfairly treated by not getting paid extra for his route to Waterford and that he was always waiting for his forms to be filled out for social welfare when schools were closed. He was questioned on his CV and his relevant experience from previous employment.

He was questioned on the penalisation complaint and the proofs required. He repeated his claim that he felt he was treated badly and was sacked for having Covid. He was reminded by the respondent’s representative that he had given evidence that he returned his employment contract without any issues on his terms and conditions.

He was taken through his contract of employment which stated his weekly hours were averaged out and the Waterford route was covered under the flexibility clause in his contract. There was no requirement for the respondent to pay the complainant as the hours would be balanced out.

He was questioned on his penalisation complaint under the Safey, Health and Welfare at Work Act. He referred to the text messages to his line manager and the lack of response on the PCR test.

It was put to him that there was a probation clause in his contract and his employment was terminated due to his performance. He was questioned on his attendance and time sheets. He repeated that he did not take any time off other than his Covid absence.

He was questioned on meetings he attended regarding a wrong delivery and the system management wanted him to follow when checking delivery boxes for each school.

He was asked about the advice from management to wear black trousers and that he had been warned at the commencement of his employment on this. He admitted that he had worn a tracksuit bottom on one occasion when his trousers were in the wash.

He was asked about the slight damage to the van and the incident report form. He was also questioned on parking the van on the kerb on one occasion.

Prima Facie Case

At the conclusion of the complainant’s evidence, the respondent’s representative sought the dismissal of the complaints. He stated that the complainant had not identified a discriminatory ground so that complaint which therefore made the complaint invalid. I adjourned the hearing to decide on the application.

On the resumption, I informed the parties that I was satisfied that there was no valid discriminatory complaint as no ground was identified in the complainant’s evidence. A prima facie case had not been made out.

On the penalisation complaint under the Terms of Employment (Information) Act 1994, I decided that a prima facie case had not been made out based on the evidence of the complainant. The complainant had given evidence that he had returned his employment contract, and he had raised no issues.

I proceeded with hearing evidence on the penalisation complaint under the Safety, Health, and Welfare at Work Act 2005.  

Summary of Ms O’Donoghue’s Evidence

Ms O’Donoghue outlined her role within the company as HR consultant along with marketing functions. The company employs 215 staff, and she has worked with the company since 2017.

She outlined the complainant’s role as delivery driver for public school runs and his normal start and finish times. She said that he was not dismissed due to Covid, and the timing of events was unfortunate.

She said she spoke to him about not wearing tracksuit bottoms. There were other issues such as setting a school alarm off during a delivery, and a mistake with a delivery to a school. She said he got training with the manager when he started and there was further training to ensure he understood the delivery system to match each delivery to the list.

She outlined those meetings that had taken place with the complainant, and these were referred to in the respondent’s submission. The initial meeting took place in the office to go through the contract during the first week of employment as the company never issues contracts at interview stage.

She was concerned after the first meeting as he said he might be better off not taking the job once he had calculated his take home pay. She had concerns on investing in training if he had reservations about continuing in the job.

On the social welfare forms, she said he would be verbally aggressive with staff. She said the last straw was the damage with the van and the complainant’s attitude to this on Friday 4th February. She said that it was decided not to dismiss him immediately and that it was to be left till after the weekend. He then called in sick. She issued the termination letter on 14th February 2022.

Under cross examination, she was questioned by the complainant on why he was given no advance warning or reasons for the termination. She replied that it was difficult to deal with him due to his aggressive nature and that he had slammed the door after the last meeting.

The complainant asked why he got no advance warning and why issues were not raised at the time. He outlined that the delay with the signing of social welfare forms was a frustration for him as he was dependent on the money.

I asked Ms O’Donoghue on whether the meeting notes were copied to the complainant at the time. I questioned whether the complainant was on notice of performance issues and any document which indicated his job was in jeopardy. I asked if the evidence given on his aggressive nature, and the school alarms issue were documented to him at that time. It was clarified these documents were not sent to him and that they were on his file if he had requested them. 

Respondents Summary

Mr Twomey summed up by referring to the case of O’Donovan v. Over-C Technology Limited [2021] IECA 37 and the right of the employer to assess performance during the probationary period.

He referred to the complaints which were either withdrawn or were without foundation. He referred to the inconsistency of the complainant’s evidence on certain events.

He referred to the legal requirements to ground a claim of penalisation and that the complainant had not made a health and safety complaint.

CA-00048710-001- Discrimination Complaint

The complainant has not cited any of the discriminatory grounds on the complaint form or in direct evidence. Therefore, the complaint is not a valid complaint in accordance with the Act.

I find that the discrimination complaint is not well founded.

CA-00048710-004- Penalisation under Safety, Health, and Welfare at Work Act 2005

The Relevant Law:

Section 27 of the Act provides:

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 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.

Penalisation is described to have occurred where there is a direct causal link between the making of a complaint and the detriment that followed. The Labour Court in the seminal case of O’Neill v. Toni and Guy Blackrock Limited [ELR21] considered in detail the matter of a causative link as follows:

“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 Subsection 3.  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 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 a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent”. 

Therefore, the complainant needs to establish not only that he suffered a detriment but that the detriment complained of was imposed because of, or was in retaliation for, having committed a protected act.

Findings

Protected Act

The complainant in this case alleges that he was dismissed due to Covid. On 7th February 2022, he sent a text with a picture of his positive test to his line manager. He then got a text message from his line manager- ‘All you can do is stay at home until ur ok for work again.’

Later that morning, he got a further text from his line manager stating- ‘Lynnsie just asked me will u do a PCR test as well and send us in the results also.’

The complainant then sent a picture of the online guidance on who could get a free PCR test. This was then followed up with a further text message from the complainant –

‘Well u may tell her I can’t get one I tried online n everything and I’m not paying 1 hundred euro for one just for her records cause that’s all I see.’

Nothing further occurred until the complainant received a text on 14th February 2022 stating that his employment was terminated.

It is clear the complainant suffered a detriment as his employment was terminated. Was this a consequence or in retaliation for an earlier protected act. Under the Act, the definition of a protected act is quite broad and includes- (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.

In Clarke v CGI Food Services Limited [2020] IEHC 368, the employer contended the plaintiff did not mention anything about a protected disclosure until after the dismissal. This was not accepted in Clarke and Humphreys J explained-

‘There is no necessity for an individual employee to consider the situation in statutory terms until such time as adverse consequences such as dismissal materialise. Indeed it could be counterproductive to do so. The breakdown of an employment relationship, like that of any relationship, is not necessarily a linear process with entirely logical and rational steps on all sides. There can be vacillation, mixed feelings, false dawns, reconciliations and setbacks; and sometimes it is only after the person picks themselves up off the ground, if even then, that they start to figure out what actually happened.

The employer submits that the plaintiff has attempted to retrospectively characterise matters which are not and cannot be protected disclosures as such in an attempt to avail of the protection provided by s.11 of the 2014 Act, but that isn’t how such situations automatically evolve in practice. One can make a protected disclosure without invoking the 2014 Act or without using the language of a protected disclosure. It is often only after the victimisation, dismissal or other adverse consequence arrives that one has to retrospectively figure out what really happened and analyse it in the statutory language. There is nothing wrong with that process and it is certainly different from retrospectively creating a case from nothing.

Overall it is likely that there are substantial grounds for contending that communications that constituted protected disclosures were engaged in by the plaintiff insofar as he drew the attention of the employer to various potential illegalities and wrongdoings. That in principle is making a protected disclosure: see the definition in s 6(1)(a).’  

The above judgment concerned a protected disclosure under the 2014 Act. However, there are parallels between the wording of section 5 (3) (d) of the 2014 Act and section 27 (3) (c) of the 2005 Act as both contain similar broad language as to what constitutes a protected disclosure.

The Supreme Court judgment in Baranya v Rosderra Meats [2022] ELR 73 provided further clarity on protected disclosures and particularly paragraph 27 & 28 where Hogan J states-

27. ‘The point nevertheless is that many complaints made by employees which are entirely personal to them are nonetheless capable of being regarded as protected disclosures for the purposes of the 2014 Act. This is also true of complaints regarding workplace safety under s 5(3)(d), a point clearly illustrated by the sheer breadth of the language contained in the subsection: ‘health and safety of any individual’… ‘has been, is being or is likely to be endangered.’

28. It is perfectly clear from these words that the complaint does not have to relate to the health or safety of other employees or third parties: a complaint made by an employee that his or her own personal health or safety has been or is being or is likely to be endangered by reason of workplace practices, as this amounts to an allegation of ‘wrongdoing’ on the part of the employer in the extended (and slightly artificial) sense in which that term has been used by s. 5(2) and s 5(3) of the 2014 Act. It follows that a complaint made by an employee that his or her own personal health was being affected by being required to work in a particular manner of in respect of a particular task can, in principle, amount to a protected disclosure.’

Hogan J then proceeded at paragraphs 40 & 41 to outline the importance of context in assessing whether a protected disclosure has been made. Again, as Baranya was under the 2014 Act, it is still useful to consider the superior courts guidance on how these matters should be assessed.

The context of the exchange of text messages was against the backdrop of the Covid clause in his contract which I will discuss shortly. As he could not afford the PCR test and the respondent had not replied on this, this could have resulted in a premature return to work and the health and safety of others in the workplace.   

Having examined the context of the text messages, I consider that they relate to a health and safety issue. The complainant is a relatively new employee and has not been on sick leave before. His view is clear that he cannot afford a PCR test and yet he is left in limbo with no guidance.

For the reasons outlined, I decide that a complaint or representation was made to the employer, and it related to a health and safety issue at work.

Operative Reason

The complainant alleges that the operative reason for him getting the sack arose from Covid and the earlier series of messages, as described above.

As the complainant has no way of proving this, it therefore falls on the respondent to provide sufficient evidence that the operative reason for termination was not related to the Covid absence and that there were other valid reasons that were operative at that time.

Probation Clause

The respondent’s position for the termination is that the complainant was on probation and there were several performance issues. Evidence was given at the hearing of these performance issues and O’Donovan v. Over-C Technology Limited [2021] IECA 37 was cited that no reason was needed for termination as the complainant was on probation.

During evidence, the employment contract which included a probation clause was referenced frequently so it is worth setting out the clause in full:

‘For all new employees, the first 6 months of employment is a probationary period. This period will start from your first day of employment and does not include holiday, exclusion, or temporary lay off periods. An intermediary review may be conducted after 3 months. This will review progress to date and identify any difficulties you may be having and all requests for further training or explanation required of the job. Any and all assistance required will be provided to help you succeed in your role with the company.

If your work is deemed grossly unsatisfactory, the company reserves the right to terminate your employment, without a probationary review being held within the first 6 months of employment, at the discretion of the company. If all aspects of your employment are satisfactory after the first 6-month period, you may continue your employment with Freshtoday and your probationary period will be complete. If your work and/or other factors are not satisfactory, you may be granted an extension to the probation period or alternatively your employment may be terminated at the discretion of the company.’

Extensive evidence was given by Ms O’Donoghue of the ongoing performance issues including the meetings with the complainant. Other performance issues also emerged including the complainant’s aggressive attitude and a school alarm issue. Despite the direct evidence and the notes of meetings in the respondent’s submission, it became apparent during the hearing that he had not been issued with any documents putting him on notice of these issues. The complainant in evidence did accept that he attended meetings although he considered these as normal operational meetings at the commencement of his employment. From the complainant’s perspective, he was not on formal notice that his performance was under scrutiny and that his job was in jeopardy. There were no contemporaneous documents put into evidence of him being on notice of underperformance.

The probation clause states, ‘If your work is deemed grossly unsatisfactory, the company reserves the right to terminate your employment, without a probationary review being held within the first 6 months of employment, at the discretion of the company.’

As the respondent is relying on this probationary clause, the complainant’s work was obviously deemed ‘grossly unsatisfactory’ yet there are no documents stating that his work was ‘grossly unsatisfactory’. The termination letter also did not set out the grounds of any unsatisfactory performance.

The probation clause states that an intermediary review may be conducted after 3 months which would identify any difficulties. This review did not take place as the termination was initiated a few weeks before the 3-month review period.

Covid Clause in Contract

The employment contract also includes a Covid clause, so it is worth setting this out also:

‘Please be advised that due to COVID-19 Contact Traceability legislation, Freshtoday may be requested to furnish the HSE or other Official Governmental Agencies your Health & Travel Employee Disclaimers or other pertinent employee information relating to COVID 19.

We strongly advise that full disclosure is provided, for this purpose.

Any employees found to be in breach of company Covid Policy & Procedures may be subject to disciplinary action.’

The above Covid clause in the employment contract demonstrates the serious way Covid issues would be handled. The complainant’s representation on the PCR test issue was not clarified. There was no evidence presented of a response to the complainant’s concerns. As there was no payment during sick leave, he was dependent on social welfare during school closures. The affordability of a PCR test and the reasons why one was required were never explained by the company. Instead of an explanation, the complainant received a termination letter a few days later. This is despite the earlier text from his line manager- ‘All you can do is stay at home until ur ok for work again.’

Having assessed the respondent’s evidence that the reason for termination was based on performance, I am not convinced this was the operative reason. The complainant had no contemporaneous notice of his inadequate performance leading up to the termination. That omission combined with the lack of a response on the PCR test, followed by the immediate termination do not convince me that the operative reason for termination was performance. If performance was at issue, in accordance with the probation clause, his work needed to be ‘grossly unsatisfactory’. I am not satisfied that the respondents have demonstrated in evidence that the operative reason was performance.

The respondent representative cited O’Donovan v. Over-C Technology Limited [2021] IECA 37 that no reasons were required for termination during probation. The issues in O’Donovan did not involve a penalisation complaint after a health and safety representation was made, as in this case.

Also, the probation clause in O’Donovan is worded differently to this case. In O’Donovan, it stated ‘During this period your work performance will be assessed and, if it is satisfactory, your employment will continue’. At paragraph 64 of the judgment, it states ‘Mr O’Donovan was dismissed pursuant to an express contractual term within the period of probation and he was paid one month’s salary in lieu of notice.’ Therefore, O’Donovan is distinguished from the facts of this case.

The other authority cited by the respondent is Galway City Council v. Daly HSD206. That case turned on whether there was a detriment to the complainant. In this case, I am satisfied that the complainant could clearly show a detriment as ‘his termination of employment’.

I decide that the operative reason for the termination of the employment was related to the earlier representation on the PCR test. Therefore, the complaint of penalisation has been made out.

I find the complaint well founded.

Redress

On deciding appropriate compensation, the complainant said his complaint was one of principle and he was not taking the complaint for monetary reasons. However, he was under cross-examination at that time and now having found in his favour, I need to ensure that the compensation is just an equitable in the circumstances. Even though the complainant had less than three months service, the net effect is that he lost his job along with everything else that flows from that.  

I decide it is just an equitable that the respondent should pay the complainant compensation of €5,000.

CA-00048710-006- Penalisation under Terms of Employment (Information) Act 1994

Section 6C of the Act provides:

6C.— (1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

To prove a penalisation complaint, the complainant must make a complaint or representation in some form under the Act. The complainant has given no evidence that he made a complaint or representation on any aspect of his terms of employment. He gave evidence that he returned the employment contract without raising any issues.

I find the complaint not well founded.

CA-00048710-001- Discrimination Complaint under Employment Equality Act

I find the complaint not well founded. I decide that the complainant was not discriminated against.

CA-00048710-002-

The complainant has withdrawn this complaint.

CA-00048710-003-

The complainant has withdrawn this complaint.

CA-00048710-004- Penalisation under Safety, Health, and Welfare at Work Act 2005

I find the complaint well founded. I decide it is just an equitable that the respondent should pay the complainant compensation of €5,000.

CA-00048710-005

The complainant has withdrawn this complaint.

CA-00048710-006- Penalisation under Terms of Employment (Information) Act 1994

I find the complaint not well founded.

Penalisation