Complainant

Respondent

Parties

Patrick  O Connor

Wexford County Council

Complainant

Respondent

Anonymised Parties

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Representatives

Ger Malone SIPTU

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-00052135-001

08/08/2022

The Complainant alleges he was subjected to a physical assault and a verbal assault at the hands of another employee. Following his reporting of the matter to the Respondent, they failed to act immediately and penalised him over a the following months.

The Complainant was involved in an incident when another employee, Eugene Gardiner, wrapped a seat belt around his neck and started to strangle him. It was in or around November 2019. It was some time before Eugene Gardiner released the belt from around his neck.  When he was eventually released, he exited the vehicle, fell onto the footpath, and vomited. The complainant wrote a letter at the time setting out the incident, but he didn’t send it.

A few weeks later he was doing a job in the 1798 centre when Eugene Gardiner approached him and asked him why he hadn’t picked up litter in a particular area. He said that the machine couldn’t pick it up. An argument then broke out during which Eugene Gardiner threatened the Complainant telling him if he didn’t shut his mouth, he would do it for him. He also said that he would meet him after work and “sort him out”. When the Complainant said that he was going to report him for this, and the previous incident, Mr. Gardiner put his hands around his own neck and performed a choking action. The Complainant was very distressed about the incidents.  He rang the district office and spoke to Margaret Kelly. The Complainant raised a complaint in relation to the issue under the dignity at work policy on 29th July 2021. He did so in writing.  He got no response. He filled in an incident report form, but he got no response to that either.

The Complainant was penalised after he reported the incident. On Tuesday Wednesday and Thursday, he used to travel in the work vehicle with Tom Brennan to carry out other tasks. That stopped after he raised the complaint. He was left to work on his own with no direction. The foreman was Mr Fran Breen also isolated the Complainant, and he blocked his overtime.  Prior to the complaint he was asked to empty the street bins and that was done in addition to his normal hours. He was doing that approximately five years prior to the complaint. That was stopped following the complaint. He asked if he could continue to do it and he was told “No” Tom Brennan would be doing it going forward.

There was also a role that the Complainant would cover for Fran Breen where he would go around identifying where the illegal littering was. That too was stopped. A man who had never driven before was given the task.

He also normally covered Tom Breen in his Parks and Environment role when needed but that too was stopped after he complained.

The Complainant had a discussion with Tom Breen about it and he said that he approached Tom Brennan about who would cover his parks and environment role and he said nobody.

Martin Murphy was going on holidays. Tom Brennan rang the Complainant and during the conversation said “sure you don’t do the bins anymore” The Complainant said that he has never refused to do the bins. He said that he would look into it and get back to him. He did come back to him and told him that he could do the bins if he wanted to.

The Complainant loved his job, and he takes great pride in it. His dad did the job before him. He doesn’t enjoy it now. He has been isolated since then and that he says is hard to take and very upsetting.  

Following the Affirmation Ms Ciara O’ Reilly – HR officer at Wexford County Council gave her  evidence as follows:

Mr O Connor commenced employment with Wexford County Council as a General Operative on 31st March 2009 and was assigned to the Enniscorthy Area.

On 26th October 2011, Mr O Connor submitted a request in writing to the former HR Officer Mr Mick O Reilly requesting a transfer to Enniscorthy Town Council as a pickup driver or to patch unit. He also expressed a desire to drive the Town Road Sweeper as he has previously provided holiday and sick leave cover in this respect.

Has also worked as a Temporary Driver B (road strengthening) in the Machinery Yard from 5th July 2010 to 26th November 2010 and again from 7th February 2011 to 28th October 2011.

Regraded to Light Truck Driver on 10th August 2016.

On 18th January 2022, a handwritten note signed by Mr O Connor was received in HR. Mr O Connor is alleging that since 28th July 2021 he has not worked a full 8 hours or a full 39 hour week with any of his work colleagues. He also requested a Working Alone Device.

On 22nd March 2022, the HR Officer phoned Mr O Connor and confirmed that he was now in receipt of a Lone Working Device and stated that he felt more secure in this work as a result. 

In his direct evidence he stated  “I was left to work alone, prior to the incident and me making complaints I was in the van with another colleague 3 days a week, Tuesday, Wednesday & Thursday”. Mr O Connor is employed to drive every morning the Town Road Sweeper, this is a single unit vehicle and Mr O Connor has been employed as this driver for since early 2018 after he had requested the position. For operational reasons the Road Sweeper works 5 weekday morning around the town from 8 to 10 daily.

In his direct evidence he stated  “I always covered on the bin for Martin Murphy , that also ceased”. This is incorrect, either Mr O Connor or Eugene Gardiner main as cover for Martin Murphy.

In his evidence he stated,  “My overtime on weekends and parks was taken from me and given to others”. Timesheets, signed and submitted by Mr O Connor for overtime worked at the weekend after 28th July 2021 have been submitted.  Mr O Connor following his compliant requested that he no longer work alongside Mr. Gardiner. Previously they would have been responsible for watering the flowers and gullies, this is a two man job. Mr O Connor is still in receipt of approx. 12 hours of overtime weekly to cover both street cleaning, litter patrol, and the Peace Park, all done over the weekend. In total for 2022 Mr O Connor worked 729.50 hours overtime.

2021 Overtime

72.50 hrs @ 1.5 = €1,795.20

461.50 hrs @ 2 = €15,392.54

Total = €17,187.74

2022 Overtime:

127.50hrs @ 1.5 = €3,277.29

462 hrs @ 2 = €15,775.39

Total = €19,052.68

He stated in evidence  “I had 3 hours on Public Holidays, this reduced to 2 hours”. For operational reasons it was decided that for bank holidays 2 hours cover was adequate. This was not unique to the Complainant.

He stated  “I am completely isolated and left to work alone, I had to request a work alone device, when I used to do Vinegar Hill, some of the others would be with me or coming and going, all stopped since the incident”. Mr O Connor role is also Caretaker on Vinegar Hill, his role would include upkeep and maintenance of the Toilet and carpark area. Following a SIPTU local meeting on 6th July 2022, CEP workers no longer carried out any duties around Vinegar Hill, previously they would have been responsible for opening/closing the barrier, strimming and litter picking on Vinegar Hill, all of which are duties of Mr O Connor in his role of Caretaker.

He stated “My complaints have not even been investigated yet”. A full investigation, draft and final report, with agreed Terms and Reference was conducted by Mr Brendan Hayden dated 6th January 2023. In relation to the complaint referred to by the Complainant it wasn’t received until January.  There was fully investigation into the matter in the summer of 2022. That had to be abandoned but it was recommenced later in the summer. The conclusion was that the complaint was not upheld.

The initial burden of proof is on the Complainant to establish a protected act and a detriment. If and only if the Complainant established a protected act and a detriment does the burden shifts to the Respondent to put forward evidence that the detriment suffered was not due to the protected act being an operative cause. Toni & Guy Blackrock v. Paul O’Neill [2010] 21 E.L.R. 1  established that  the burden of proof is on a Complainant to establish that on the balance of probabilities (a) she committed a protected act, and (b) 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. The Labour Court held that if both limbs were satisfied, the burden shifted to the employer to show, on credible evidence, on the balance of probabilities, that the protected act did not influence the detriment imposed.

Section 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,

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.

The acts protected from penalisation are set out in s. 27(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.

The scope of what can be a protected act is broad. The mere request for a copy of a bullying and harassment policy was sufficient for the Labour Court in In Board of Management of St. David’s CBS Secondary School Artane v. Siobhan McVeigh (HSD 118, 8th July 2011), to find that it a protected act. the  It is also well establish that an employee does not have to use the respondent’s grievance procedure for their act to amount to a protected act. In Stobart Ireland Driver Services v. Carroll [2013] IEHC 581, a truck driver asked that he not to be rostered due to his fatigue. This act was held to be a protected act by the Labour Court and the High Court, on appeal. Kearns P. spoke to the broadness of the Act of 2005 by stating, at paragraph 26:-

“There is no requirement in the Act to report any complaint via a grievance procedure. The Act specifically states "report…as soon as practicable". Thus, the respondent in this case can be deemed to have made his complaint when he reported that he was too tired to drive.”

It is clear that the subject matter of a protected complaint or representation is not relevant to determination of claims pursuant to s. 27. In St. John's National School v Jacinta Akduman [2010] 21 E.L.R. 301, the Labour Court held that it was making no finding in relation to the veracity of the complaint of bullying, in making its determination pursuant to S27. 

There were two very serious incidents at work when the Complainant was assaulted. The first was in November 2020 when the Complainant was strangled with a seat belt. Following the assault, he was forced to vacate the vehicle where he fell to the pavement vomiting. The second, a verbal assault, was when he was threatened by the same individual Mr. Gardiner. Mr. Gardiner told him that “ you better shut your mouth or I will shut it for you “ and “ will meet you at the 1798 centre after work and sort you out”. The Complainant wrote a letter setting out the November 2021 incident at the time, but he did not submit it. Then in July 2021 after the second incident he spoke to Margaret Kelly initial and then to Mary Clinch about the incidents and she filled out an incident report form for him. The Respondent stated in evidence that HR did not receive the complaint until January 2022. It was not contested that the Complainant spoke to Ms Clinch about the incident and that an incident report form was completed. In those circumstances I find it hard to understand why that complaint did not make its way to HR until January 2022. The allegations are extremely serious and should have been dealt with immediately. Not only should the Respondent have acting immediately, it is arguable that the Gardai should also have been informed.

Following on from the complaint the Complainant gave numerous examples where he suffered a detriment. They were as follows:

1.       Prior to the complaint he used to travel in the van with Mr. Brennan on Tuesday, Wednesday and Thursdays. Following the complaint, he was no longer permitted to travel in the van with Mr. Brennan and he was left alone to do whatever work he could find to do.

2.       In early 2022 the Complainant noticed that he was not being as to cover the bins for Martin Murphy which he had been doing prior to the complaint.

3.       The Complainant prior to the complaint covered the bin truck for Mr. Brennan. Following the complaint, he was deprived of this thus depriving him of the overtime he used to get.

4.       Prior to the complaint the Complainant covered Mr. Brennan’s leave and unavailability for early hours and overtime. A Mr. John Byrne now covers those hours.

5.       In October/ November Mr. Brennan was out sick for two weeks. The Complainant would have covered those hours prior to the complaint but following on from it Mr. Byrne covered those hours.

The Respondent gave evidence,  but had no supporting documentation (despite knowing what the Complainant was going to say for over a week prior to the hearing) that the Complainant has not been deprived of his normal overtime. With no supporting documentation I am left to decide which of the parties evidence I prefer. I prefer the Complainant’s evidence in this regard. I found the Complainant to be a very credible witness who did not, despite the seriousness of the allegations embellish or exaggerate his evidence in any way. The Respondent left uncontroverted the Complainant’s evidence that he has been isolate and ostracised since the complaint, that Mr. Byrne was called into cover hours that he normally would have covered and that he was no longer being asked to cover the bins for Martin Murphy.

It is clear from the evidence that the Complainant made a complaint in writing in July 2021. He had spoken Margaret Kelly and Mary Clinch prior to that. Whether or not it wasn’t seen by HR until January 2022 is not relevant. What is relevant is that he made the complaint, and it was received by the Respondent. I am therefore satisfied that the complaint meets the threshold to establish a protected act.

Having established a protected act, I must establish, having regard to the circumstances, that the protected act was an operative consideration leading to the detriment imposed.

I have no doubt that the detriments set out by the Complainant were as a result of the protected act. There were no examples given of the type of behaviours the complainant was subject to that occurred before to the complaint was lodged. There was uncontroverted evidence that his overtime hours were reduced, and his duties diminished. I find that the relevant detriments imposed were those envisaged by subsection 27 (2) ( c) of the act “transfer of duties, change of location of place of work, reduction in wages or change in  working hours.

In all of the circumstances I find that the complaint is well founded and accordingly succeeds. In assessing the level of compensation appropriate, I have taken into consideration the seriousness of the allegations made by the Complainant, the Respondent failure to act quickly to investigate the matter and the detriments imposed on the Complainant following the compliant, all of which are at the most serious end of the scale.

 I find that the appropriate amount of compensation is €20,000.00

The Complaint is well founded. I award the complainant € 20,000.00

Penalisation. Protect Act. Detriment. Assault. Compliant.