FULL RECOMMENDATION
SECTION 29 (1), SAFETY HEALTH AND WELFARE AT WORK ACTS , 2005 TO 2014 PARTIES: DANGAN GROUP (REPRESENTED BY PENINSULA) - AND - GHEORGHE DANIEL MARCU (REPRESENTED BY MARIUS MAROSAN) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S)ADJ-00028956 CA-00036663-004 The following is the Determination of the Court:
Background The Complainant transferred to the Respondent’s employment under a transfer of undertakings on 14thApril 2020. He had been employed with the previous employer since August 2016. The Complainant’s complaint is that he was penalised for making a complaint about Health and Safety. The complaint was lodged with the WRC on 15thJune 2020. The cognisable period for the purposes of the Act is 16thDecember 2019 to 15thJune 2020. The Labour Court heard the appeal on the 29thNovember 2022 and 2ndFebruary 2023. Summary of the Complainant’s submission and evidence The Complainant was employed as a mobile Supervisor since 1stAugust 2016 and transferred under a transfer of undertakings to the Respondent on the 14thApril 2020. On the 14thApril the Complainant was asked to perform a task that he believed was not part of his normal duties and he refused to do. On the 15thApril 2019 he filed a complaint by email with a Ms Smith in the HR Department. On the 16thApril 2020 he sent a further email to Ms Smith indicating that the previous email should be treated as a formal grievance. On the 17thApril 2020 he received a reply from Ms Smith that someone would be in contact with him about his complaint and that the Company were waiting to get a copy of his contract to observe his terms and conditions of employment. Later the same day Mr Curley National Sales Manager for the Respondent invited the Complainant into his office for a formal meeting. The Complainant was not told in advance of the meeting what it was about. The Complainant brought his colleague Mr Sebastian Rogacz to the meeting with him. Mr David Coughlan Contracts Manager with the Respondent was also in attendance at the meeting. At the meeting Mr Curley informed the Complainant that he had been assigned to investigate his refusal to perform a certain task. The Complainant was told that if did not want to do the task he would have to move to night shift and that the client had asked for him to be removed from the site. The Complainant stated that he could not do nightshift he was given a form to sign and put on lay-off as they stated that they had no work for him. At the end of the meeting, he was asked to hand over his access card and take his personal belongings from the locker. That evening the Complainant sent an email to Mr Curley requesting the minutes of the meeting and evidence that the client had asked for him to be removed from the site, but received no reply. On the 20thApril 2020 the Complainant filed a second grievance with Ms Smith in HR in respect of what had occurred at the meeting on the 17thApril 2020 but this complaint was never investigated. On the 12th May 2020 the Complainant emailed Ms Smith inquiring as to why new people had been employed and he was still on lay-off he received a reply which stated that his lay-of will continue until Mr Curley finds another job for him. Further emails were exchanged and on the 16thMay 2020 the Complainant again wrote to Ms Smith requesting the outcome of the investigation, minutes of the meeting and evidence that the client had requested his removal from the site. No response was received to that email. The Complainant in his evidence to the Court stated that the duty he was being asked to carry out had previously been done by a staff member of the client. In the past staff had been asked to do that particular task, but they had voted not to it. It was his evidence that there is a Health and Safety aspect to the duty and that he did not have the proper certification, that his ticket for the machinery had expired and had to be renewed every three years and that he had reported this to Mr Curley either on the 14thor 15th April 2020. He then sent a complaint to HR about being asked to carry out that task. On the Friday morning he received an email from HR saying there would be a meeting about his complaint. Mr Curley came to talk to him, but it was not about his complaint Mr Curly said that the client wanted him out of the warehouse and that if he did not carry out the task like all other staff were doing the only other opportunity for him to work there was to do nightshift. The Complainant stated that he asked to see the letter from the client asking that he be removed from the site but was not given same He then discovered on the 16thApril 2020 that he was rostered for the night shift. At the meeting on the 17thApril 2020 he informed Mr Curley that he would not carry out the task and would not work the night shift. Mr Curley then gave him forms to sign and told him he had to sign the first form before he would get the second letter, which was a letter for social welfare. He took the forms away as he wanted to read them. Mr Curley informed him that if he did not sign the papers on the spot, he would not get the PUP payment, in the end he took the papers away to read. Under cross examination the Complainant stated that his reason for not doing the task in question was that they had previously voted not to do it. He accepted that at the meeting on the 17thApril 2021 it was explained to him why the job had to be done. The Complainant stated that at the meeting he had raised Health and Safety issues in respect of the bin and basket used to collect the stock they were to pick up as it did not have a certificate. He accepted that this was not reflected in the notes of the meeting, nor was it set out in any of the emails of complaint that he had lodged with the Respondent. The Complainant stated that he did not accept that the client wanted him off the site or that he was told that the task he had an issue with was not required on the night shift. The next witness for the Complainant was Mr Sebastian Rogasc who attended the meeting of the 17thApril 2021 with the Complainant. It was his evidence that there was no mention of Health and Safety at the meeting on the 17thApril 2021. The explanation given at the meeting for having to do the task in question was that the client wanted it done. It was his evidence that Mr Curly said the task had to be done the only other option was to do the night shift, otherwise they would have to place the Complainant on lay-off. When the Complainant stated that he would not do the task or the night duty he was handed the lay-off letter and Mr Curley said they would try and find him another job, but it would be hard because of COVID. Summary of the Respondent’s submission. The Respondent submitted that the Complainant’s terms and conditions of employment remained the same following his transfer to the Respondent under a transfer of undertakings. He continued to work an average of 40 hours per week and his hourly rate was €11 as per his contract. The tasks that the Complainant was asked to do was part of a specification that the cleaning staff worked to which the Respondent received from the previous employer as part of the transfer documentation. While it is accepted that the previous employer did not enforce that element of the task list that the Complainant is disputing, the reason given for that was that there was not adequate time for staff to do this duty along with their other duties. To overcome this Mr Curley reviewed the workload of all the staff reduced the requirement to clean each isle from three times to twice thus allowing time for the under-racking area to be cleaned. All staff with the exception of the Complainant agreed to the carry out the task following this change. When the Complainant refused to carry out this task citing it was not part of his duties a meeting was arranged to discuss the matter and the options available. At the meeting it became obvious that the Complainant was not willing to carry out the task under any circumstances. It was on that basis that he was asked if he would consider working the night shift where this task was not required to be carried out, noting that he had previously worked night shift. When the client became aware that the Complainant was refusing to undertake this task, they were not happy and set a deadline of close of business of 17thApril 2020 for the issue to be resolved. Mr Curley in his evidence to the Court stated that he first spoke to the Complainant on site on the afternoon of the 14thApril 2021 the first day that they had taken over the contract. It was brought to his attention that the Complainant was refusing to carry out the task in question, so he went back to the site to talk to him. It was Mr Curley’s evidence that all staff had manual handling training which was required for the job. The machine the Complainant referred to was machinery belonging to the client who looked after it and would have been responsible for any certification that may have been required. However, the Complainant had never mentioned having any issue with any machinery during any of their engagements. It was part of the contract with the client that this task would be carried out. It was his understanding that the issue previously had been that there had not been sufficient time to do it. He had reorganised the work in a way that allowed time for that task and all the other staff caried out and continue to carry out the task. Mr Curley confirmed under cross examination that he had not shown the Complainant the letter from the client requesting that he be removed from the site. The next witness for the Respondent was Mr Coughlan who is the Contracts Manager for the Respondent. He too had transferred over under the transfer of engagement. Mr Coughlan confirmed that he had taken the notes of the meeting on the 17thApril 2020 and he was under the impression that the minutes had been circulated to all who attended the meeting as that had been the instruction he had given. It was his understanding that the notes were sent by post. It was his evidence that nobody had ever raised a Health and Safety issue with him in respect of the machinery and or carrying out the task in question. Mr Coughlan stated that he could not recall if it was mentioned at the meeting on the 17thApril 2020 that the particular task did not have to be done on the night shift but accepted that the minutes did not record such a statement being made. It was his evidence that the Respondent laid off between 50 and 60 % of their staff because of COVID and the letters given to the Complainant were the standard letters given to all staff laid off during COVID. The Respondent submitted that at the meeting of the 14thApril 2021 the Complainant agreed to switch to the night shift but the next day he changed his mind. Arising from COVID 19, the Respondent had no other site that they could transfer the Complainant to at that time and were left with no option but to place him on lay off. It is the Respondent’s submission that the Complainant did not carry out a protected act as required by the Act. The emails he is seeking to rely on make no reference to not carrying out the task due to concerns of Health and Safety or that any complaint had been made in that regard. The Complainant was placed on layoff as the client did not want him on site as he would not carry out a specific task that all other staff were carrying out. He was offered night work as an alternative which he declined and the only other option available at that point in time was to place him on lay-off. The Law The Act at Section 27 in relevant part provides as follows: Protection against dismissal and penalisation.
Discussion and conclusions The Court’s jurisdiction in the within matter is confined to determining whether, within the meaning of Section 27 of the Act, actions of the Respondent amounted to prohibited penalisation. The Court has approached the within matter on the basis of first determining whether a protected act within the meaning of the Act at Section 27(3) was committed. The Court having read the submissions of the parties and heard the uncontested sworn evidence of the witnesses concludes for the following reasons that no such protected act occurred. The correspondence opened to the Court by the Complainant makes no mention of Health and Safety concerns and the sworn evidence before the Court by three of the four witnesses that were at the meeting on the 17thApril 2020 with the exception of the Complainant’s evidence, was that there was no mention of Health and Safety concerns at that meeting. On that basis the Court concludes that on the balance of probabilities the Complainant did not as alleged make“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,”and therefore his complaint must fail. The appeal fails. The decision of the Adjudication Officer is upheld The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |