HSD237

PARTIES:

DIVISION:

SUBJECT:

1.Appeal of Adjudication Officer Decision No(s) ADJ-00033836 CA-00043689-004.


BACKGROUND:

2. The employee appealed the Decision of the Adjudication Officer to the Labour Court 21 September 2022 in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts 2005-2014. A Labour Court hearing took place on 29 September 2023. The following is the Determination of the Court.

DETERMINATION:

This is an appeal by Pippa Ni Chonarain (the Complainant) against a Decision of an Adjudication Officer (ADJ-00033836, dated 17 August 2022 under the Safety, Health and Welfare at Work Act 2005 (the 2005 Act) against her former employer Applegreen (the Respondent). The Adjudication Officer found that the complaint was not well founded.

Preliminary Matter

Mr Owen Keany BL, on behalf of the Respondent, submits that the complaint before the Court is statute barred as it was lodged with the Workplace Relations Commission (WRC) outside the statutory time limit allowed under the Act and, therefore, the Court has no jurisdiction to hear the appeal.

Mr Keany BL submits that the Complainant was dismissed on 25 March 2021 and lodged complaints under the Industrial Relations Acts to the WRC on 21 April 2021. At the hearing one year later on 9 May 2022, a complaint of penalisation under the Safety, Health and Welfare at Work Act 2005 was added. He submits that such a complaint cannot be added to a list of claims outside of the statutory time limit allowed.

Mr Gearoid O’ Conarain, on behalf of the Complainant, submits that the complaint was lodged in time on 21 April 2021. The complaints lodged to the WRC on that date included a complaint of penalisation under the Safety, Health, and Welfare at Work Act 2005.

Preliminary Issue - Deliberations of the Court

A failure on the part of an Appellant to present a complaint in time deprives an Adjudication Officer, and the Labour Court on appeal, of jurisdiction to hear the claim.

Section 41(6) and 41(8) of the Workplace Relations Act, 2015, sets out the time limits for lodging complaints under various enactments, including the Safety, Health, and Welfare at Work Act 2005, as follows:-

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”
“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

A copy of the complaint form lodged to the WRC on 21 April 2021 was opened to the Court at the hearing. The Court adjourned the hearing briefly to allow all parties an opportunity to review and examine that document.

The WRC complaint form was completed on behalf of the Complainant by a representative from the Independent Workers’ Union. Three separate complaints were detailed on the form and each of the three complaints referenced and/or sought redress under the Industrial Relations Acts. The same statement was replicated under each entry setting out the details of each complaint. Within the body of the each of the statements was the text below:-

“…It is the contention of Ms Ni Chonarain that Applegreen failed in its responsibilities under the Safety, Health and Welfare at Work Act 2005, whereby: an employer is obligated to maintain a safe and healthy workplace. An employers’ duties include: Managing and conducting all work activities so as to ensure the safety, health and welfare of people at work (including the prevention of improper conduct or behaviour likely to put employees at risk). She was subject to verbal and physical abuse which when raised by both her and a side manager were ignored. She was further penalised for reporting a matter which falls within the remit of the 2005 Act. … The sequence of events demonstrates that on the balance of probability her employment was terminated because she raised a complaint about being bullied which was never followed up on by the company…”.

In reviewing the information contained within the above statement it is clear that the Complainant is raising issues about the Respondent’s responsibilities under the 2005 Act and asserting that she was penalised for reporting a matter that falls within the remit of that Act. The Act is expressly cited, and the text refers to a penalisation for reporting a matter which falls within the remit of the 2005 Act.

It is open to the Court to consider the degree to which the absence of certain information on a complaint form can invalidate an appeal. The Court is satisfied that in this case sufficient factual details were provided in the text of the WRC form submitted on 21 April 2021 to demonstrate the Complainant’s intention to lodge a complaint about penalisation under the Safety, Health, and Welfare at Work Act 2005.

The Court is satisfied that this approach is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice. On that point the decision of the Supreme Court in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal [1990] I.L.R.M 293 is relevant. Here Walsh J stated, albeit obiter, as follows: -

“This case arises from a matter which came before the Employment Tribunal, which is one of a number of tribunals set up to relieve people of what is regarded as the undue technicalities of courts and the expense and the delay. It has a fairly rapid procedure and it sits locally, and is, in many ways, intended to be somewhat informal.

This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather ironic turn in history that this Tribunal which was intended to save people from the ordinary courts would themselves fall into a rigidity comparable to that of the common law before it was modified by equity. When we come to deal with what is the main point in the case, so far as the High Court decision is concerned, it is the question of erring within jurisdiction’. I must confess that I am not very impressed by that because everything depends on what the error is. However there is not any jurisdiction in any court or tribunal to be unfair. The question here is whether what happened was so unfair as to be a fundamental issue in the case.”

The Respondent acknowledged that the text refers to the Safety, Health, and Welfare at Work Act 2005, but submits that the first time the employer was put on notice of the complaint under the Act was in 2022.

The fact that the Respondent was not notified in a timely manner about the lodgement of a complaint under the Act to the WRC does not negate the fact that the complaint was lodged in time. In this regard, the Court notes that the initial WRC hearing was adjourned when it became known that the Respondent was not on notice of a complaint under the Act. The Respondent was subsequently issued with notice from the WRC of the Complainant’s complaint of penalisation under the Act on 24 May 2022 citing a new complaint reference number CA-00043689-004 and the hearing reconvened in July 2022.

The Court therefore finds that the within appeal was made within the six-month time limit specified at Section 41(6) of the Workplace Relations Act, and so finds that the Court has jurisdiction to hear the substantive appeal.

Substantive Matter - Position of the Complainant

The Complainant was dismissed for making a serious complaint which was not thoroughly investigated by the Respondent. On 21 January 2021, the Complainant was physically assaulted and verbally abused in her workplace place by another member of staff. Several requests were made by the Complainant and her union representative to provide an incident report and to check the video footage of the incident. No punitive action was taken against the employee involved in the assault, which was laughed off by the site manager as light banter and an insignificant push.

On 25 March 2021, the Complainant’s employment was terminated for allegedly failing to complete an online training course, and this allegedly contributed to an unsatisfactory audit of the Bakewell Department of the Applegreen premises in Ballymount.
The Complainant’s dismissal was not related to her failure to complete online training. She was in the process of completing this course, and other employees had not completed their online training at the time. The Complainant’s direct manager had agreed to assist her with the course when she returned to work once her COVID-19 isolation period ended.

The Complainant received no warning, either verbal or written, of a deadline to complete the training, or that failure to meet any such deadline would lead to her dismissal. The Respondent acknowledged that the Complainant’s personal performances were of a high standard. The Complainant’s dismissal had nothing to do with her delay in completing the online training. The Complainant was dismissed for making a complaint of assault in the workplace.

Substantive Matter - Position of the Respondent

The Complainant commenced employment on 23 November 2020 as a Sales Assistant in the Bakewell department based in Applegreen, Ballymount, Dublin 12.

On 21 January 2021, the Complainant informed the site manager about an alleged incident that day in the kitchen. She asserts that after an engagement with a colleague about clearing dishes she was laughed at and intimidated by that colleague, who then proceeded to physically push her towards the door. That matter was investigated by the site manager who spoke to the Complainant about the alleged incident, viewed CCTV footage, and completed an Incident report on 22 January 2021 which was submitted to the Regional Manager.

On 25 March 2021, the Complainant was informed that she was not successful in completing her probation as she was underperforming. She was dismissed and paid in lieu of notice.

The dismissal occurred two months after the complaint of 21 January 2021. The complainant’s dismissal was not “in retaliation for” the fact that she made a complaint, but as a result of underperformance in her duties. The Complainant’s performance had deteriorated as time progressed. She failed to complete her online training despite numerous requests to do so. She did not improve on skills highlighted in her evaluation review. The area in which she worked failed an internal audit on 11 March 2021, following which the Complainant was again asked to complete her online training and improve her cleanliness and thawing procedures. She failed to do so. The Complainant was underperforming in her role and her work deteriorated, despite being given ample opportunity to improve.

Based on the above, the Complainant does not meet the criteria required under the legislation and the test as set out in Toni and Guy Blackrock v Paul O’Neill [2010] 21 E.L.R. The Complainant does not meet the threshold to prove that she was penalised for raising a complaint and was dismissed as a result of this.

Testimony of the Complainant

On 21 January 2021, the Complainant went to the Bakewell area kitchen to do dishes but was told to leave by a colleague and pushed out of the door. She was in a state of shock. Her manager was on sick leave, so she reported the matter to another manager. The site manager agreed to investigate the matter and to complete an incident report. The Complainant subsequently had to go to the doctor as she suffered severe anxiety about the matter.

Under cross-examination, the Complainant said that she could not recall if the colleague had apologised to her about the incident. She could not recall if she subsequently told the site manager that she did not wish to discuss the matter further.
The Complainant said that she did not know why the site manager waited two months after she made the complaint to dismiss her. She accepted that her employment could be terminated during her probation period.

The Complainant said that she understood the importance of rules and standards in a food setting. She accepted that online training was an essential part of her role, and that she did not comply with emails sent on 24 November 2021 and 2 December 2021 advising her that she must undertake online training. The Complainant accepted that the quality of her work and her knowledge of the job were classed as “needs improvement” at her one-month evaluation review on 17 December 2020. She was aware of the issues arising from a failed internal audit of the Bakewell area and accepted that she was the only employee from that area who had not completed on-line training. She acknowledged that all employees in the Bakewell area had to re-do on-line training as a result of failing the Internal Audit, and she failed to complete that training.

The Complainant accepted that at her three-month review meeting on 15 March 2021 a number of performance issues and corrective actions were discussed and agreed. She accepted that the quality of her work was downgraded to disimproved, and that she had not completed her online training at that point.

She acknowledged that a report generated one week later on 22 March 2021, indicated that she had completed one module on Food Hygiene at that point which had taken her four minutes to complete, and that she had not commenced the other eight modules listed.

The Complainant said that she experienced difficulties so approached her line manager for help logging into the online training. She could not recall when these approaches were made. She was able to access the Food Hygiene Level One module, but her laptop would not load, and she had difficulty accessing other modules. She understood that her line manager would help her, and she did not advise the site manager about that. The Complainant said that she could not explain why she had not logged into the online training before she did. She accepted that her failure to complete the online training was a contributory factor in her dismissal. She accepted that she was on high alert that she was at risk of losing her job.

Testimony of the Site Manager - Leanna Miller

A six-month probationary period and a standard two-week training period applied to the Complainant. Online training is accessible via a link which remains active for 48 hours. The most relevant training was Food Hygiene level I and Level II and Manual Handling. If food hygiene regulations are not followed it can lead to the closure of the restaurant premises.

On 24 November 2020 Ms Millar sent an email to the Complainant asking her to complete her online training within a week from the starting date. It is very straightforward, and few people have issues. On 2 December 2020, the Complainant was sent a reminder email with a link to complete the online training. No response was received. At the Complainant’s one month review on 17 December 2020 the Complainant and manager agreed that the Complainant’s quality of work needed to improve, as cooking and thawing procedures were not followed, and the Kelsius system not used. Ms Millar was not aware of the Complainant raising any issues about difficulties accessing the online training.

The Complainant reported an incident on 21 January 2021. She investigated the matter and reviewed the CCTV footage of the area. She asked the Complainant for a statement. The other employee apologised and said that she had not meant to touch the Complainant but that she did not push or shove her. Ms Millar completed an incident report which she sent to HR and the Regional Manager. When she subsequently approached the Complainant about the matter she did not want to talk about it, so thought the matter was resolved.

On 4 February 2021, an email was sent to the Complainant to again remind her to complete her online training.

On 11 March 2021, the area where the Complainant worked failed an audit review in terms of cleanliness, the Kelsius process, and washing of condiments. The report noted that one team member had not completed their online training. That employee was the Complainant. All staff in that area were required to redo the training. They knew how important it was and completed it the following day.

At her third month review on 15 March 2021 five areas needed improvement. The Complainant still had not completed her online training. She raised no issues about accessing the online training.

One week later on 22 March 2021, the Complainant still had not completed her online training. She completed one module on Food Hygiene in four minutes. The Food Hygiene Level I and Level II module take about two hours to complete. It is impossible to complete that course in four minutes, which suggests that she just scrolled through it. The complainant had no difficulty accessing that module.

Ms Millar said that she made the decision to dismiss the Complainant for underperformance, as she had she had been given ample time to improve. The dismissal was not related to the incident in January. She understood that matter was sorted when the Complainant said that she did not wish to discuss the matter any further.

Under cross examination, Ms Millar said that all instructions for completing the online training were clearly set out in emails. The Complainant managed to log in successfully in March but had not completed the training. When asked why the Complainant was downgraded in her reviews, Ms Millar said that she had not improved after three months. She was given a fair chance and provided with coaching. The disciplinary process did not apply as she was on probation.

Relevant Law

Section 27 of the Safety, Health, and Welfare at Work Act, 2005, provides in relevant part as follows:

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,

(3) An employer shall not penalise or threaten penalisation against an employee for—
(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.

Deliberations of the Court

The issue for the Court to decide is whether the Complainant’s dismissal occurred as a penalisation for having made a complaint to the Respondent regarding her health and safety at work.

In order to succeed in a claim under the Act, the Complainant must demonstrate that she has (a) committed a protected act, (b) suffered a detriment within the meaning of section 27, and (c) can show a causal connection between (a) and (b).

It is accepted that the Complainant made a complaint to her employer in relation to an assault at her place of work on 21 January 2021. As a result, the Court is satisfied that the Complainant has established that she committed a protected act within the meaning of Section 27(3)(c) of the Act.

It is also accepted that the Complainant was dismissed from her employment on 25 March 2021. As a result, the Court is satisfied that the Complainant has established that she suffered a detriment of a type referred to at subsection (1)(a) of Section 27 in that her employment was terminated.

In order to succeed in her claim, the Complainant must demonstrate that the making of a protected disclosure within the meaning of the Act on 21 January 2021 was the operative reason for her dismissal.

In Toni & Guy Blackrock v O’Neill [HSD095], this Court expressed the test in the following terms:

“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 suggested 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 detriment.”

The Respondent’s position is that the dismissal occurred two months after the complaint of 21 January 2021 and was not in retaliation for the making of that complaint. It asserts that Complainant was dismissed as a result of underperformance in her duties. The Respondent relies on the probationary clause in the Complainant’s contract of employment which states “…your employment may be terminated at any time during the probationary period, on one week’s notice.”

Ms Miller gave clear and precise evidence about the deterioration on the Complainant’s performance over time. The Complainant had failed to complete online training despite numerous requests to do so. She did not improve in skills highlighted to her in reviews. Her work area failed an internal audit, following which the Complainant was again asked to complete her online training, but failed to do so.

The Complainant accepted that two areas of her job needed improvement at her one-month review, and this had increased to five different areas needing improvement at her three-month review. The Complainant in her own evidence accepted that her failure to complete on-line training was a relevant factor in her dismissal. She further accepted that she had failed to comply with successive emails instructing her to undertake online training.

The Complainant’s evidence that she approached her line manager for help logging into the online training was vague and general. She gave no details regarding the dates or details of those exchanges. Having regard to the evidence, the Court is satisfied that the Complainants failure to do on-line training, and the dis-improvement in her performance during her probationary period, were the reasons for her dismissal.

Based on the evidence and submissions made, the Court cannot find that the complaint made on 21 January 2021 led to the termination of the Complainant’s employment. It is clear that there were ongoing performance issues during the Complainant’s probationary period. In the Court’s view the Complainant’s failure to complete the online training after her area had failed a food hygiene audit was the last straw for the Respondent.

The Complainant asserts that the failure of the Respondent to thoroughly investigate the incident that occurred on 21 January 2021 amounts to evidence of further penalisation under Act. The Court cannot accept that assertion. The Court’s jurisdiction under Section 27 of the Act is narrow in its application. The section only applies where an employer penalises or threatens penalisation against an employee for making a complaint or representation to their employer regarding a matter relating to safety, health, or welfare at work. An allegation that an employer has failed to meet its obligations with regard to health and safety matters by failing to thoroughly investigate a complaint is a matter that falls outside the Court’s jurisdiction when considering complaints under the Act.

For the reasons outlined above, the Court finds that the Complainant has failed to provide evidence that the making of a protected disclosure within the meaning of the Act in January 2021 was the operative cause of her dismissal. As a result, the Court finds that the complaint of penalisation is not well founded.

The Adjudication Officer’s decision is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
AR	______________________
01 November 2023	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Aidan Ralph, Court Secretary.