Complainant

Respondent

Parties

A Security Operative

A Security Company

Representatives

Victoria Stephens and Deirdre Canty SIPTU Trade Union

HR Director

Employee Relations Manager

Act

Complaint 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-00048268-002

21/01/2022

The Complainant commenced his employment with the Respondent on 14th November 2018 as a Security Operative. He resigned his position on 11th February 2022.

The Complainant referred his complaint to the Director General of the WRC on 21st January 2022 alleging that he was penalised for complying with or making a complaint under the Safety, Health & Welfare at Work Act, 2005.

SIPTU, on behalf of the Complainant, submits as follows.

This claim was initiated by the Union following the acts or omission by the Respondent when the Complainant was moved to an alternative work site/location suffering less favourable remuneration and working time terms. These acts and/or omissions were to the Complainant’s detriment due to his personal circumstances, of which he had made the Respondent aware prior to raising the grievance against his colleague.

SIPTU is seeking to have the Complainant compensated for his financial loss accruing from this penalisation from the Respondent since September 2021.

On the 14 November 2018 the Complainant commenced employment with the Respondent and was employed primarily as a Security Officer, reporting to the Operations Manager. The Complainant was based at the named site. The Complainant’s duties, responsibilities and reporting relationships were set out in the Employee Handbook which was exhibited at the adjudication hearing.

On the 17 September 2021 the Complainant initiated a complaint of bullying against a colleague, Mr. F. On that date the Complainant met with the Regional Operational Manager.

On the 1 October 2021 the scheduled grievance hearing took place via video call. Mediation was proposed to the Complainant, and he agreed to participate.

On the 26 October 2021 the Complainant and Mr. F attended mediation together, which was mediated by the HR Director and ended successfully for all parties involved.

On the 28 October 2021 the Regional Operational Manager emailed the Complainant stating that having ‘spoken with [the Client] in length over the past two days’ ‘they have agreed that both you yourself and [Mr. F] can now be on site together at the same time due to the mediation process being concluded.’ The same email stated that ‘I appreciate that you have been afforded day shifts due to your family circumstances at home. The company will continue to accommodate your shift patterns as much as possible,’ notwithstanding the need for flexibility to accommodate business needs.

Less than a month later the Client’s Site Supervisor advised the Complainant that he ‘will not be able to work on the same shift with [Mr. F] and that he can only work on this site when [Mr. F] is not on site,’ which is at weekends.  When the Complainant suggested that he would work Friday, Saturday & Sunday, he was advised that this would not work as Mr. F would suffer a loss of hours. The Complainant’s hours had been reduced to 24 hours without agreement at that time.

There was no justification as to why the Site Supervisor at that time deemed it fair to move the Complainant due to the grievance lodged as it was a private and internal matter between the parties involved as provided for in the Respondent’s own Company Policies and Procedures. The Respondent’s Employee Handbook, in relation to mediation states that ‘should such options be deemed inappropriate or inconclusive, a formal investigation of the complaint will take place with a view to determining the facts and the credibility or otherwise of the allegations.’ However, mediation had been successful.

On the 18 November 2021, SIPTU raised concerns by email and queried as to why the Client would have been consulted on the internal employee matter as the Client did not employ either party, both the Complainant and Mr. F were employees of the Respondent. The Respondent’s Employee Handbook refers to the interests of natural justice, and yet, though the mediation process was successful, it was the Respondent who informed the Client of the grievance, ultimately leading to the Client ‘agreeing to have both parties on site together and no further grievances were raised,’ the Complainant was subsequently moved onto another site, received reduced hours, and reduced flexibility without any reasoning provided other than that he raised a grievance of bullying in relation to a colleague.

At the adjudication hearing, SIPTU confirmed that the detriment allegedly suffered by the Complainant referred to the loss in Sunday premium rate. A separate agreement was in place on the Client’s site that provided for an extra payment of €3.44 per hour for hours worked on a Sunday. On 10th November 2021, the Complainant signed an amendment to his terms of employment that stipulated that as of 22nd October 2021 this allowance would be applied to the position of the Security Officer based on the Client’s site.

LEGISLATION & CASE LAW

Section 27 of the Safety, Health and Welfare at Work Act 2005 provides protection against penalisation.

In seeking to prove penalisation of the Complainant, SIPTU relies on the test as set out in the case of Paul O’Neill v Toni and Guy Blackrock Ltd (2010) 21 ELR 1. The protected act in this instance is the complaint of bullying made against a colleague, using the internal grievance procedure as provided by the Respondent, about health and safety.  Section 8 of the Safety, Health and Welfare at Work Act, 2005 (as amended) provides that an employer must “prevent any improper conduct or behaviour likely to put the safety, health and welfare of employees at risk”. This includes bullying. The Complainant was subsequently moved to a different work site, received reduced hours, and reduced flexibility without any reasoning provided other than that he raised a grievance of bullying in relation to a colleague. The Complainant can show that he has suffered some detriment for having raised the complaint. His hours and remuneration were reduced. The Complainant can also show that the detriment suffered was as a result of the protected act. But for he raised the grievance internally, he would not have been moved.

CONCLUSION

SIPTU request that the Adjudication Officer consider

·         whether there was a requirement on the Respondent to make the Complainant, who followed the Respondent’s policies and procedures, aware of potentially being moved, suffering reduced hours, remuneration and flexibility solely as a result of raising the grievance; and

·         whether the Respondent – who agreed their grievance procedure with its employees, adhered to those procedures when conducting the grievance process in the present case; and

·         whether, in all the facts and circumstances, moving the Complainant was an appropriate action on behalf of the Respondent or had the Respondent adequately considered alternatives to this action.

SIPTU submits that the conduct of the Respondent is characterised by a level of unreasonableness, manifested in their actions throughout, which is a defining feature of penalisation which must be held unfair. SIPTU seeks the maximum award in compensation provided for under the Act.

At the adjudication hearing, SIPTU said that the Complainant needed time off to care for his mother. He resigned when he used up his sick leave. SIPTU confirmed at the hearing that the Complainant resigned due to his family circumstances.

SIPTU clarified at the adjudication hearing that the detriment the Complainant suffered was the reduced Sunday premium. He normally worked three Sundays a month and the rate at the Client’s site was higher than the rate at Site A that he was moved to.

The Complainant was out sick from 31st October 2021 to 15th November 2021 and then from 26th November 2021. SIPTU contended that the Complainant was stressed. However, the Union representative conceded that the medical cert was in relation to a “medical condition”.

Evidence of the Complainant

The Complainant clarified that he normally worked 4 days a week, 12 hours on each day. The Complainant worked on 16th and 17th November 2021 at the Client’s site. On 17th November 2021 he was told that he could not work anymore with Mr. F on the same site. The Complainant worked a 12-hour shift on 18th and 19th November 2021 as Mr. F was off on both days. The Complainant was then not rostered for work Monday to Friday of the next week until Saturday and Sunday. He was then rostered from 23rd November 2021 to work four days a week on another site (Site A). He was rostered, as previously on day shifts only. However, he did not work on these days as he was initially rostered to be off and thought he did not get an appropriate notice. He went out sick from 26th November 2021.

It was put to the Complainant that he did not suffer any loss as he never worked on the new site, he went out sick and never returned to work.

Evidence of the Shop Steward

The Shop Steward said in his sworn evidence that the Complainant spoke to him on 16th September 2021. As he was on leave, he advised the Complainant to speak to his supervisor and a SIPTU representative. The Complainant spoke to the Supervisor and SIPTU representative on the same day and explained what had happened.

The Shop Steward said that the Client’s site has a separate agreement with respect to Sunday premium and a rate of €15.09 per hour is paid at the site.

The Respondent submits as follows.

The Complainant commenced with the Respondent on the 14 November 2018. He worked as a Security Officer at a number of sites and eventually worked at the named Client’s site.

In or around September 2021 it was brought to the Respondent’s attention, through the grievance procedure, that the Complainant and a colleague Mr. F were not getting on well together. The Complainant felt he was having difficulties with Mr. F and the Respondent held an investigation into the matter. As a result of these meetings, it was felt that the best way to resolve the issue was to hold a mediation process. This was agreed by both parties.

The mediation was held on the 26 October 2021. The Complainant was represented by a fellow worker Mr K. The mediator was the HR Director, a practicing member of the Mediators Institute of Ireland. The mediation was successful and both parties agreed to work in a friendly manner without conflict going forward.

At some stage during this process the Client became aware of the conflict which existed between the Complainant and Mr F. It is not known who informed the Client of the conflict. It was not in the Respondent’s interest that the Client was made aware of what was going on in this regard. As far as the Respondent was concerned this was an internal dispute which did not affect its contractual obligations with the Client. The Respondent was confident at all stages that it could rectify the situation and did not need to inform the Client. To the Respondent’s surprise the Client made it known that they were aware of the conflict and that they did not want both employees on their site at the same time. When the Client was made aware that the mediation was a success, it agreed that both employees could return to their previous duties on site.

The Client reneged on their original promise and informed the Respondent that the two employees could not work on the site at the same time. The Respondent discussed that situation with both the Complainant and Mr. F offering them both alternative employment with no loss of earnings. This meant one remaining at the site and one working at an alternative site in the area. The Respondent could not get agreement, so the option was to take both employees out of the site and have two unhappy employees or decide that one remained and the other was offered alternative employment. The Respondent discussed with both employees the Client’s decision that only one could stay and both wished to remain on the site. The Respondent’s decision was that the most senior person should be given the choice. Mr. F was the senior person by far having commenced with the Respondent on the 29 March 2011. The Complainant was offered alternative sites, but he turned them down. He was on sick leave from the 26 November 2021 and remained on sick leave until he resigned with effect from the 11 February 2022.

The Respondent never had a problem with the Complainant and in fact would have no hesitation in re-employing him if a vacancy arose at a location other than Client’s site.

At the adjudication hearing, the HR Director said that he had asked around, but he could not establish who informed the Client of the situation. He said that the Regional Operational Manager was called by the Client and told that the Client was aware of the issue. He said that the Client is the biggest client of the Respondent. The HR Director said that the Respondent could not influence the Client to change its mind, there was nothing sinister about it. The HR Director said that there is no question whatsoever that the Complainant was penalised or victimised. He said that the Complainant raised a grievance, which was investigated. The Complainant was represented. The Parties were offered mediation. He said that the requirement to move was a request of the Client.

Post-hearing, on 6th September 2022, the Respondent provided clarification that Sunday premium applicable at the Client’s site was increased from €5 shift allowance to €3.44 per hour as of 22nd October 2021.

The Law

Section 27 of the Safety, Health and Welfare at Work Act, 2005, states:

“(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.”

In the instant case, the Complainant claims that he was subjected to penalisation by the Respondent contrary to Section 27(2) of the Act on the basis that he was moved to another site at which the payment in respect of a Sunday premium was less beneficial that at the site he normally worked at for having made a complaint in relation to the alleged bullying by work a colleague.

The Respondent does not deny that the Complainant was moved to another location but asserts that this was as a result of the Client’s request.

The Labour Court has held in the case of Toni & Guy Blackrock Limited -v- Paul O’Neill HSD095 that: “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.”

Therefore, in order to make out a complaint of penalisation contrary to the Act, it is necessary for the Complainant to establish that the detriment which he has complained of was imposed “for” having committed the aforementioned protected act.

There was no dispute between the parties that the Complainant raised an internal grievance with respect to the behaviour of his co-worker, Mr. F.  The Respondent did not dispute that the Complainant made a complaint that falls within the scope of the Act. The matter was investigated, and an outcome letter was issued to the Complainant on 21st September 2021. SIPTU, on behalf of the Complainant appealed the outcome of the investigation on 23rd September 2021. The Complainant was invited to an appeal hearing which took place on 1st October 2021. At the hearing, the Complainant agreed to enter a mediation process. There was no dispute between the parties that the Complainant and Mr. F resolved their differences at the mediation that took place on 26th October 2021 and agreed to “shake hands”.

The Complainant commenced a period of sick leave on 31st October 2021, and he returned to work on 15th November 2021. The Complainant worked as normal on 16th , 17th, 18th and 19th November 2021. On 17th November, the Complainant was told by the Client’s Site Supervisor that he would not be allowed to work with Mr F going forward.

It appears that at some stage the Client became aware of the conflict between the Complainant and Mr. F. Neither party was able to clarify how the Client became aware of the matter. I note that minutes of the meeting of 1st October 2021 indicate that the Complainant had discussed the matter with the previous Site Supervisor but not the current one. The Shop Steward in his sworn evidence said that on 19th September 2021 he advised the Complainant to speak to the Site Supervisor and the Complainant did so on the same day.

While initially the Client agreed for both the Complainant and Mr. F to work at the site, subsequently the Complainant was informed by the Client’s Site Supervisor that he would not be able to work on the same shift with Mr. F going forward. There was no dispute between the parties that it was the Respondent’s Client’s request that the Complainant and Mr. F were not to work together at the site.  Following the Client’s request, the Respondent consulted with the Complainant and Mr. F. They both wished to remain at that particular site. As it would not be possible to accommodate the Client’s request and retain both on the site without reducing their hours of work, the Respondent decided to keep the more senior person, Mr. F on the Client’s site. The Complainant was offered a position on another site. I note that the Complainant’s contract provides as follows:

“The Company’s primary business is the provision of personal security services; therefore, you may be required to work at any of our premises or the premises of our customers, clients, suppliers or associates within Ireland. You may be required to work outside the State3, depending on the needs of the business.

Your normal place of work will be: As Per Roster Issued”.

The Complainant confirmed that initially he was rostered to work Saturday 27th and Sunday 28th November 2021. However, the roster was then changed, and he was rostered to work on the new site from 23rd November 2021 on a 4 days a week basis as previously. The Complainant did not attend work that week as he believed he did not get sufficient notice. Subsequently he commenced sick leave from 26th November 2021 and ultimately resigned his position on 11th February 2022 due to personal circumstances, not relevant to the within claim.

It is clear from the wording of Section 27 of the Act that in order to make out a complaint of penalisation it is necessary for the Complainant to establish that the detriment of which he or she complains was imposed for having committed one of the acts protected in subsection 3 (see also the abovementioned decision of the Labour Court in Toni & Guy).

Applying the reasoning of the Court in Toni & Guy, it follows that it is for the Respondent in this case to establish that it was necessary to relocate the Complainant from the Client’s site and the decision was not in retaliation for his having submitted his grievance.

The Respondent’s case in this regard is that the decision to relocate the Complainant was taken solely in response to the Client’s request.

Having considered the totality of the evidence before me, I conclude that the Complainant’s relocation was due to the decision made by the Client and not due to him having raised a grievance. Therefore, he has not established that him having raised a grievance was an operative cause.

Accordingly, I find that the Complainant has not established that he was penalised within the meaning of Section 27 of the Act of 2005 in respect of this matter.

I declare this complaint to be not well founded.

Penalisation – bullying – grievance