Complainant

Respondent

Parties

Kim  Guerin

Pharmacy Care Services Limited t/a  Walsh's Pharmacy

Complainant

Respondent

Anonymised Parties

Representatives

  Self-Represented

William Wall- Peninsula

Act

Complaint/Dispute 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-00053988-001

04/12/2022

The Complainant worked as a retail assistant in the Respondent’s pharmacy. She submits that after she made a complaint about a health and safety hazard, she was penalised by the Respondent in breach of section 27 of the Safety, Health and Welfare at Work Act 2005.

The Respondent denies any penalisation.

Summary of the Evidence of the Complainant:

The Complainant commenced work with the Respondent in April 2022 as a retail assistant in the Loughrea branch. She  was appointed as Health and Safety representative soon after. In October 2022 she reported a hazard at the back of the shop  whereby slippery conditions might  cause an accident for staff putting out bins. She was told by the Respondent that they (the staff in Loughrea) should clean it themselves. The Complainant expressed the view that it was not the staff’s responsibility, and a person was subsequently sent out from the Oranmore branch to clear up the hazard.

On 1  December 2022, the Respondent Director, Mr Denis Walsh, verbally reprimanded her in a public area of the shop. He said that he was disappointed that the staff did not clean up the area in question and accused the Complainant of influencing other staff members not to do it. The Complainant felt she was subsequently disadvantaged by not being in a position  to ask for a pay rise as a result of the reprimand.

In  cross-examination the Complainant accepted that she was getting on well in the employment though she did feel intimidated after the conversation with Mr. Walsh.

The Complainant accepted in evidence that other duties were expected of her outside of the  duties of retail assistant  as contained in her contract of employment.

Summary of the evidence of Mr Denis Walsh:

The witness stated that he had been in business for 33 years and that he had 44 employees, 35 of whom were retail staff. He had a report in October 2022 that there was an issue with health and safety in the Loughrea branch and that subsequently there was a refusal to carry out a lawful instruction. On 1 December 2022 he went to Loughrea and approached the Complainant in the shop. He said there were no customers present. He told her he was disappointed that she refused a lawful instruction to clean up the health and safety hazard and felt she was also  influencing other staff not to do so.  He also brought to her attention the fact that he felt there was little interaction between customers and staff at the shop. He said that he told her that that customers should be greeted cordially every time they came in and by way of example stated that he asked the Complainant if she knew the names of any of the customers; she accepted she did not. He said that he is very happy with the work of the Complainant since and that she was a valued member of staff. He said she was in receipt of a subsequent pay rise and Christmas bonus.

The Complainant chose not to cross examine the witness.

Legal Argument:

 The Respondent submits that it has not penalised the Complainant  as defined  section 27 of the Safety and Health Welfare at Work Act 2005.

The Respondent addresses  the issue of the Complainant not carrying out a lawful instruction by referring to employee handbook at point (1) where it states:

“It is an express condition of employment that you are prepared, whenever necessary, to transfer to alternative departments or duties either on a temporary or permanent basis within our business. This flexibility is essential as the type and volume of work is always subject to change, and it allows us to operate efficiently and gain maximum potential from our work force.

The Respondent further cites refer to section D wherein it states;

“You have been provided with a job description of the position to which you have been appointed but amendments may be made to your job description from time to time in relation to our changing needs and your own ability. It may be necessary for you to perform alternative duties within the business.”.

The Respondent argues it is entitled to give to the complainant a lawful request on all matters. The Respondent  cited  Ruffley v Board of Management of St Anne’s School1 [2017] IESC 33where Charlton J referred to employers in how they need to address employees when he  stated:

“Correction and instruction are necessary in the functioning of any workplace, and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point out faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Appropriate interventions may not be pleasant and must simply be taken in the right spirit”

The Applicable Law:

Section 13 of the Safety, Health, and Welfare at Work Act 2005 (the Act)  defines the duties of an employee in the relevant provisions, as follows at section 13: 

13.— (1) An employee shall, while at work—

(a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work,

(b) ensure that he or she is not under the influence of an intoxicant to the extent that he or she is in such a state as to endanger his or her own safety, health, or welfare at work or that of any other person,

(c) if reasonably required by his or her employer, submit to any appropriate, reasonable and proportionate tests for intoxicants by, or under the supervision of, a registered medical practitioner who is a competent person, as may be prescribed,

(d) co-operate with his or her employer or any other person so far as is necessary to enable his or her employer or the other person to comply with the relevant statutory provisions, as appropriate,

(e) not engage in improper conduct or other behaviour that is likely to endanger his or her own safety, health and welfare at work or that of any other person,

(f) attend such training and, as appropriate, undergo such assessment as may reasonably be required by his or her employer or as may be prescribed relating to safety, health and welfare at work or relating to the work carried out by the employee,

(g) having regard to his or her training and the instructions given by his or her employer, make correct use of any article or substance provided for use by the employee at work or for the protection of his or her safety, health and welfare at work, including protective clothing or equipment,

(h) report to his or her employer or to any other appropriate person, as soon as practicable—

(i) any work being carried on, or likely to be carried on, in a manner which may endanger the safety, health or welfare at work of the employee or that of any other person,

(ii) any defect in the place of work, the systems of work, any article or substance which might endanger the safety, health or welfare at work of the employee or that of any other person, or

(iii) any contravention of the relevant statutory provisions which may endanger the safety, health and welfare at work of the employee or that of any other person, of which he or she is aware…

Section 27 of the Act deals with penalisation and protection for employees as follows:

(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 11or appointed under section 18to 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.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) 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.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

The recognised seminal case in relation to the interpretation of the Act is Toni and Guy Blackrock v Paul O’Neill [2010] 21 E.L.R.where the Labour Court set out the test to be applied in determining whether a complainant has made out the necessary causal link between the detriment complained of and the reporting of the protected Act:

“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 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 detriment.”

A more precise description of the burden of proof was further given by the Court in Toni & Guy

“….it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus, the claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the claimant's dismissal.”

In this instant case the Complainant must establish: (a) on the balance of probabilities, that she committed a protected act, (b) that she suffered a detriment (c) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed. If both limbs are satisfied, the burden shifts to the Respondent to show, on credible evidence and to the normal civil standard, that the protected act did not influence the detriment imposed.

I am satisfied that the Complainant committed a protected act when she reported the slippery surface hazard at the Loughrea branch. I must now determine if she was penalised, and if so, whether there was a causal link between committing the protected Act and the penalisation. The Complainant submits that the reprimand she received left her feeling intimidated. Section 27(2)(d) of the Act defines a reprimand as constituting penalisation where it states:

d) imposition of any discipline, reprimand, or other penalty (including a financial penalty), and

(e) coercion or intimidation.

Crucially, in uncontested evidence Mr. Walsh stated that the reprimand, if it should be called this, was for the failure of the Complainant to carry out a lawful instruction i.e., the cleaning up of the hazardous area at the rear of the shop when requested. I am mindful of words of Charlton J in Ruffley , as cited by the Respondent, where he stated in the Supreme Court that:

“Correction and instruction are necessary in the functioning of any workplace, and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point out faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Appropriate interventions may not be pleasant and must simply be taken in the right spirit”

This is a succinct description of what might be termed a “lawful instruction” the principle of which can be sensibly applied in this case.  The Complainant gave no evidence that the cleaning of an area was an unlawful instruction. The Complainant accepted that there were contractual  duties expected of her, outside of her normal retail duties. The evidence was that the Respondent dealt responsibly with the report of the hazard by the Complainant and sent an employee from another store to rectify the matter, after refusal by the  Complainant to do so. There was no evidence given that the Respondent had been unhappy with the Complainant’s protected act.

In conclusion, after hearing the evidence and submissions in this case, I am satisfied that a verbal reprimand for the Complainant made by Mr Walsh on 1 December 2022 was for refusal to carry out a lawful instruction i.e., attending to the hazard,  and was not penalisation of the Complainant for reporting the hazard in the first place. I find that the complaint was not well founded.   

For the reasons outlined above, I find that the complaint was not well founded.

Safety, Health and Welfare at Work Act 2005, Penalisation.