Complainant

Respondent

Parties

Damien  O’Connor

Health Service Executive

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Self-Represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00040343-001

09/10/2020

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

CA-00040343-002

09/10/2020

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

CA-00046728-001

18/10/2021

The Complainant commenced employment with the Respondent on 30th January 2005. At all relevant times, the Complainant’s role was described as that of “Paramedic”. The Complainant is a permanent, full-time member of staff, in receipt of a weekly payment of €1,200.

On 9th October 2020, the Complainant referred the first two listed complaints to the Commission. Thereafter, on 18th October 2021, the Complainant referred the final complaint. On his complaint forms, the Complainant alleged that the Respondent unilaterally amended his terms of employment, that he was penalised for seeking to enforce his rights under the Parental Leave Act and that he was further penalised for reporting a health and safety issue. By response, the Respondent denied each of these complaints in turn, stating that all parental leave matters were under review at the relevant time and that the Complainant suffered no penalisation in the course of his employment.

A hearing in relation to this matter was convened for, and finalised on, 27th May 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side in the course of the hearing.

CA-00040343-001 Complaint under the Terms of Employment (Information) Act

In September 2019, the Complainant was appointed to a secondment within the Respondent organisation. This secondment was due to finish on 12th April 2020, however the Respondent has insisted that the Complainant remain at this seconded location. The Complainant raised this issue through the Respondent’s internal procedures, however this did not resolve the issue. The Complainant stated that this location is further from his home address and involves a greater commute both to and from work.

CA-00040343-002 Complaint under the Parental Leave Act

The Complainant stated that he was penalised for seeking to enforce his rights under the Act. In particular, the Complainant stated that he previously referred a dispute to this forum regarding the Respondent’s failure to engage with him in respect of his rights under the impleaded legislation. Following the referral of his complaint, and further engagement with the Respondent, they Complainant agreed an ongoing arrangement regarding the parental leave in advance of the hearing.

In April 2020, the Complainant’s entitlement to this parental leave was questioned, with the Respondent stating that all such arrangements were to be reviewed. The Complainant stated that to his knowledge, no other staff member was subject to such a review. Having regard to the same, the Complainant submitted that the review arose from the manner in which he sought to enforce his rights under the relevant legislation.  

CA-00046728-003 Complaint under the Safety, Health and Welfare at Work Act

On 1st August 2021, the Complainant worked for eleven and a half hours without a break. The Complainant reported the same to management and returned to base to finish his shift. At 19.00, the Complainant completed his shift and returned home.

Shortly thereafter, the Complainant’s line manager informed him that a portion of his pay would be withheld until management investigated the circumstances of his returning to base. Following an investigation of this incident, the Complainant’s wages were fully paid, however he submitted that being subjected to the investigation constituted penalisation for raising a health and safety complaint.

The Complainant further raised an incident that occurred on 8th October 2021. He stated that on this date, he understood that a vehicle had suffered a minor defect and was potentially unsafe. On foot of the same, the Complainant waited until an alternative vehicle became available and then began to complete his duties. By response, the Complainant’s line manager explained that the station has a notice board informing staff of the status of the vehicles. He further stated that the Complainant could have called the paramedic supervisor who would have confirmed that the vehicle was in fact road worthy. While the Complainant’s line manager did thank him for raising the health and safety issue, he stated that as the Complainant did not complete his duties on the date in question, half and hour’s payment would be withheld.  

By submission, Complainant stated that the above two instances constitute penalisation on foot his making a complaint regarding a health and safety issue.

CA-00040343-001 Complaint under the Terms of Employment (Information) Act

The Respondent submitted that the Complainant received a comprehensive set of contractual documentation at the outset of his employment. They submitted that this documentation was fully complaint with Section 3 of the Act.

CA-00040343-002 Complaint under the Parental Leave Act

The Respondent accepted that the Complainant previously raised issue regarding his parental leave rights in 2016. They also accepted that all such arrangement were placed under review in 2020. However, they disputed any link between these two matters. They stated that in 2020, the health service was placed under an enormous strain as a result of the Covid-19 pandemic. At this time, the service was under severe pressure due to an increased workload and staff absences. As a result of the same, all parental leave arrangement were reviewed, with many being placed on hiatus for a period of time.

In this regard it was denied that the Complainant suffered any detriment as a result of seeking to enforce his rights in this regard. In addition to the same, it was further denied that the alleged detriment arose as a result of the Complainant seeking to enforce his rights, but rather the same arose as a response to the exceptional challenges facing the health service during the pandemic.

CA-00046728-003 Complaint under the Safety, Health and Welfare at Work Act

Regarding the first issue raised, the Respondent submitted that they became aware that the Complainant signed himself off for work for a portion of the day on 1st August 2021. In such circumstances, the Respondent conducted an investigation into the surrounding circumstances. On 3rd August 2021, the Respondent informed the Complainant that his pay would be suspended pending said investigation. Following the completion of the investigation, the Complainant was paid his full salary.

In relation to the second issue, the Respondent submitted that the each station contains a notice board setting out the status of the various vehicle to be used on the forthcoming shifts. They submitted that the vehicle in question was fully roadworthy, with the confirmation of the same being placed in the notice board. They submitted that in circumstances hereby the Complainant did not commence his shift on time, being under the mistaken impression that the vehicle was not roadworthy, an investigation would be undertaken regarding the circumstances of the same.  

Regarding both allegations, the Respondent denied that the Complainant was penalised for making for making a complaint under the Act. They stated that on both occasions, the Complainant elected to remove himself from his duties of his own volition. The Respondent submitted that such an action will necessarily invoke an internal investigation. Notwithstanding the same, the Respondent submitted that the Complainant suffered no detriment as a result of raising the issues.

CA-00040343-001 Complaint under the Terms of Employment (Information) Act

The Complainant has alleged that the Respondent failed abide by the terms of his contract of employment in relation to his place of work. He stated that he agreed to a secondment based in a alternative location on the basis that the same would be for no longer than six months. As events transpired, he was required to work from this location for much longer than expected.

Section 3 present Act requires that a worker must received a written statement of employment regarding certain terms of employment, including location of employment. However, as explained to the parties, the subsequent enforcement of these terms is outside the remit of the Act once the requirements of Section 3 are met. 

In this regard, I note that clause 3 of the Complainant’s contract of employment states that his initial assignment would be to Drogheda Ambulance Station. The clause goes on to state that, “you may be required to work in any service area within the vicinity as the need arises”.

It is apparent that this statement complies with the requirements of Section 3 of the Act. Furthermore, this clause not require amendment in light of the Complainant’s secondment to an alternative location within the region.

Having regard to the foregoing, I find that the Complainant’s complaint under this legislation is not well founded.

CA-00040343-002 Complaint under the Parental Leave Act

The Complainant alleged that he was penalised for seeking to enforce his rights under the Act. He stated that in 2016 he brought a complaint to this forum regarding his entitlements under the impleaded legislation. He stated that in the days prior to the proposed hearing the parties came to an arrangement and the hearing was abandoned.

The Complainant stated that in 2020, the Respondent sought to renege on this agreement. The Complainant’s case is that this constitutes a form of penalisation for having previously sought to enforce his rights. In the alternative, the Respondent submitted that all parental leave arrangements were placed under review on foot of the strain on the service caused by the Covid-19 pandemic. They submitted that this was issued across the organisation and had nothing to do with the manner in which the Complainant previsouly sought to enforce his rights.

Section 16A(1) of the Act provides that,

“An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to parental leave…”

Section 16A(2) of the Act then provides that,

“Penalisation of an employee includes…(a) dismissal of the employee, (b) unfair treatment of the employee, including selection for redundancy, and (c) an unfavourable change in the conditions of employment of the employee.”

In the matter of O’Neill v Toni & Guy Blackrock Limited[2010] 21 ELR 1 the Labour Court set out the following test for establishing penalisation,

“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 determent 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 determent.”

In the present case, it is apparent that the Complainant sought to enforce his rights under the Act in 2016. Some four years later, in 2020, an agreement that was reached in relation to the same was placed under review. The first point to note in relation to the same is the passage of time between the alleged “protected act” and the alleged “detriment”. The arrangement agreed in 2016 apparently stood uninterrupted for a period of almost four years. It is inconceivable that following that passage of time, the Respondent sought to penalise the Complainant for the manner in which he sought to enforce his rights by placing the arrangement under review. I also accept the Respondent’s contention that 2020 constituted a period of extreme strain on the health service and this was the operative reason for the arrangement being placed under review on this occasion.

Having regard to the foregoing, I find that this complaint is not well-founded.

CA-00046728-003 Complaint under the Safety, Health and Welfare at Work Act

The Complainant alleged that on two separate occasions he raised an issue regarding a Health and Safety issue and that on both occasions he was subjected to an investigation where the Respondent threatened to make a deduction from his wages. He submitted that these constituted unfavourable treatment in response to raising such an issue. By response, the Respondent submitted that the Complainant is encouraged to raise issues regarding health and safety concerns. Notwithstanding the same, in the two instances referred to by the Complainant, he stood himself down from duty of his own volition. Such an action would inevitably lead to an investigation of the surrounding circumstances.

Again, the tripartite test outlined by the Labour Court in O’Neill v Toni & Guy Blackrock Limited[2010] 21 ELR 1 must be met in order for the Complainant to succeed in his complaint. The Complainant must firstly establish that he made a complaint within the meaning of the act, secondly, he must establish a detriment suffered following such a complaint and finally, the Complainant must establish a causal link between the two.

Regarding the first issue raised, Section 27(3) of the Act provides that,

“An employer shall not penalise or threaten penalisation against an employee…(c) for 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 relation to the first allegation, the Complainant stated that he had worked for a period of eleven and a half hours without a break and that he felt that he could not longer continue to work. Following the same, the Complainant stood down from his duty and returned to the base. There he remained for the short period of time until his shift ended. In this regard it is apparent that the Complainant made a complaint to his employment within the definition of Section 27(3)C of the Act.

In relation to the second allegation, it is apparent that the Complainant attended work and formed the opinion that one of the vehicles was not roadworthy. In such circumstances the Complainant waited for the period of approximately half an hour until another vehicle became available and thereafter commenced his duties. Thereafter, the Respondent withheld the portion of wages related to the Complainant’s waiting on the second vehicle.

In this regard, Section 27(3)(F) of the Act prohibits penalisation,

“…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…taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.”

Section 27(6) provides that,

“For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.”

In relation to the second allegation, the Complainant did not utilise a vehicle as he believe the same was not roadworthy. Nonetheless, it is apparent that the Complainant could have made relatively simple enquiries regarding the status of the vehicle prior to his refusal to operate the same. In these circumstances, and having regard to the wording of Section 27(6), I find that the steps taken by the Complainant were inappropriate and consequently do not fall under the definition outlined in Section 27(3)(F).

Section 27(1) defines penalisation in the following terms,

“…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.”

Section 27(2)(D) specifically enumerates the “imposition of any discipline, reprimand or other penalty (including a financial penalty)” as an example of penalisation in this context.

From the evidence adduced, it is clear that the Complainant undertook a protected act within the meaning of the Act regarding the first allegation. Following the same, the Complainant removed himself from active duty and reported to his base of operations. Following the Complainant’s report in this regard, he was informed that an investigation would be conducted in respect of his standing down from duty. From the evidence adduced it is apparent that the Complainant suffered no detriment or received no form of formal or informal sanction on foot of the same. In this regard, it is apparent that the Respondent was not seeking to penalise, or more accurately threatening to penalise, the Complaint for reporting a health and safety issue. Rather the employer became aware that that the Complainant stood himself down from active duty and commenced an investigation in respect of the same.  In this regard, when an employee stands down from his duties, the Respondent has a right, if not an obligation, to investigate the surrounding circumstances. Such an action does not constitute penalisation for raising the health and safety issue, rather it is seeking to examine the Complainant’s actions thereafter. 

In circumstances whereby the Complainant has not identified any discipline, reprimand or penalty imposed, outside of an internal investigation undertaken by the Respondent, I find that the complaint is not well-founded.

CA-00040343-001 Complaint under the Terms of Employment (Information) Act

I find that the complaint is not well-founded.

CA-00040343-002 Complaint under the Parental Leave Act

I find that the complaint is not well-founded.

CA-00046728-003 Complaint under the Safety, Health and Welfare at Work Act

I find that the complaint is not well-founded.