Complainant

Respondent

Parties

David  Keegan

Peter O' Brien t/a Plan Eden Projects

Representatives

Brian Robinson, Benville & Robinson Solicitors, instructing Paul Twomey BL.

Ciara Cloake, Cullen & Co Solicitors, instructing Aodhán Peelo BL.

Act

Complaint/Dispute 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-00051631-001

11/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015

CA-00051631-002

11/07/2022

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

CA-00051631-003

11/07/2022

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

CA-00055491-001

11/07/2022

Chronology of Events and Correspondence:

On 13 January 2022, the Complainant commenced employment with the Respondent as a carpenter, earning €840 per week. He was not provided with any documentation or information in writing relating to his employment.  

On 17 January 2022, the Complainant was seriously injured when he fell from scaffolding onsite. The Complainant did not return to work after the workplace accident. From 24 January 2022 until 13 April 2022, the Complainant was certified as being unfit for work. An Occupational Health Assessment provided by MedMark on 12 April 2022 (the “MedMark Assessment”), found that the Complainant was unfit for work and that an extended period of time off work would be necessary. It also noted that the standard recovery time from knee surgery, which had not yet taken place, may be “15 to 20 weeks”. In August 2022, the Complainant underwent knee surgery.

Between 17 January 2022 and 17 February 2022, the Complainant received approximately three and a half weeks’ sick pay.

On 31 January 2022, the Complainant emailed the Respondent an MRI report concerning his injury.

On 3 February 2022, the Complainant’s solicitor wrote to the Respondent regarding the accident. This letter asserted that the Respondent “failed to provide a safe system of work and sufficient training for [their] employees.” The letter was subsequently emailed to the Respondent on 15 February 2022.

On 16 February 2022, the Respondent acknowledged receipt of the email and letter.

On 17 February 2022, the Respondent emailed the Complainant, referring inter alia to the Complainant’s “legal action”. The Respondent stated, that on advice from his solicitor, he would no longer pay the Complainant, and that he had advised his external payroll company accordingly.

On 17 February 2022, Ms. Gaye Edwards, the Respondent’s business administrator, emailed the external payroll company stating that the Complainant “has left us, effective today”. The Complainant’s employment status was also changed to “ceased” on his online Revenue records.

On 22 February 2022 and 2 March 2022, the Complainant’s solicitor wrote to the Respondent’s solicitor, asking for, inter alia, clarification regarding the Complainant’s employment status.

On 9 March 2022, the Respondent’s solicitor emailed the Complainant’s solicitor and confirmed, inter alia, that the Complainant was still an employee of the Respondent.

On 9 March 2022, the Complainant’s solicitor wrote to the Respondent’s solicitor asking for clarification regarding the Complainant’s employment status and sick pay.

On 21 March 2022, the Respondent’s solicitor wrote to the Complainant’s solicitor confirming that the Complainant was an employee of the Respondent. The Respondent’s solicitor stated that the length and duration of sick pay was entirely at the Respondent’s discretion and that the Complainant’s status in his online Revenue records “has little, or nothing to do with the legal, and factual, relationship between him and his employer”.

On 22 March 2022, the Complainant’s solicitor wrote to the Respondent’s solicitor stating inter alia that the change to the Complainant’s status in his online Revenue records, evidenced that the Respondent was terminating the Complainant’s employment due to the accident.

On 30 March 2022, the Complainant’s solicitor stated that they would not engage further in any “unnecessary correspondence”, and that they were authorised to accept service of proceedings.

On 16 March 2022, the Respondent emailed the Complainant to arrange an appointment with MedMark.

On 12 April 2022, the Respondent was assessed by MedMark.

On 26 April 2022, the Complainant emailed Ms. Gaye Edwards, the Respondent’s business administrator, asking for a copy of the MedMark Assessment.

On 27 April 2022, Ms. Gaye Edwards replied, informing the Complainant to direct all future correspondence through his solicitor.

On 29 April 2022, the Complainant’s solicitor wrote to the Respondent’s solicitor seeking a copy of the MedMark Assessment.

On 11 July 2022, the Complainant submitted his complaints to the WRC.

On 14 January 2023, the Respondent emailed the Complainant to inform him that that he was giving him notice and that his employment would end on 25 January 2023. He stated that the Complainant was being made redundant as the construction side of the business was being wound up.

The Complainant provided detailed written submissions:

The Complainant submitted that he commenced employment on 13 January 2022 and that he was not provided with any information required under the Terms of Employment (Information) Act 1994, as amended.

The Complainant further submitted that he was injured in a workplace accident which occurred on 17 January 2022. The Complainant outlined that his solicitor contacted the Respondent on 3 and 15 February 2022, setting out his position that the Respondent “failed to provide a safe system of work and sufficient training for [their] employees.”  The Respondent acknowledged receipt of this letter on 16 February 2022. The Complainant submitted that as a result of making the complaint or representation, relating to safety, health or welfare at work, he was penalised by the Respondent in breach of section 27 of the Safety, Health and Welfare at Work Act 2005, as amended.

The Complainant outlined that the Respondent engaged in retaliatory behaviour amounting to penalisation, which included:

1.         Informing the external payroll company that the Complainant “has left” on 17 February 2022;

2.         Changing his employment status to “ceased” with Revenue on 17 February 2022;

3.         Stopping his sick pay without any consultation or notice on 17 February 2022;

4.         Failing to communicate with the Complainant from February 2022;

5.         Failing to engage with the Complainant about a return to the work and treating him as if he were no longer an employee; and

6.         Dismissing the Complainant on 14 January 2023.

The Complainant submitted that he suffered a detriment because he was penalised for making a complaint in respect of a health and safety matter. He concludes that he would not have suffered the detriment if he had not made a complaint in the first place.

Witness Evidence:

The Complainant:

The Complainant stated that he commenced work as a carpenter on 13 January 2022. Approximately one week prior to commencing work, he was interviewed by the Respondent and Ms. Gaye Edwards, the Respondent’s business administrator. The interview broached his experience and skills. The Respondent explained to him that he was working on gardens and tree houses and that he wanted a carpenter. The Respondent also showed him around the workhouse in Newtownmountkennedy. The Complainant outlined that he did not see an “Interview Checklist” during the interview. He further outlined that there was no discussion of sick pay during the interview.

The Complainant outlined that prior to commencing work, he did not receive a safety briefing or any training. He was not provided with any documentation concerning his employment whatsoever. He was also not required to sign anything. The Complainant outlined that the Respondent later told him on the phone that his salary would be increased once he proved himself. However, no timeline was specified. The Complainant outlined that he started on €21 per hour and that he would have expected an increase to between €25 to €27 per hour.

The Complainant outlined that he subsequently commenced work on a site in Moyne. He explained that on 17 January 2022, he was working on a concrete ring beam. He alleged that the scaffolding was not erected properly, resulting in him falling and suffering a serious knee and leg injury.  The Complainant outlined that the Respondent drove him to St. Vincent’s Hospital for treatment. The Complainant outlined that he does not remember much of their conversation en route as he was in so much pain.

The Complainant stated that he received a medical certificate which ran from 24 January 2022 to 4 April 2022. He had surgery in August 2022 and remained an outpatient. He was prescribed painkillers by his GP.

The Complainant outlined that on 31 January 2022, he sent his MRI Report to the Respondent, to keep him updated. The Complainant outlined that he contacted the Respondent’s office about retrieving the keys for his van. He stated that he does not recall any other communications with the Respondent or the Respondent’s office. He does not recall the Respondent contacting him regarding his wellbeing.

The Complainant submitted that there was no discussion with him about leaving work. Despite this, the Complainant referred to three developments which occurred on 17 February 2022. Firstly, (he later learned that) Ms. Gaye Edwards, the Respondent’s business administrator, informed the Respondent’s external payroll company that the Complainant “has left us, effective today 17th February 2022”. Secondly, (he later learned that) his employment status was changed to “ceased” in his online Revenue records. Thirdly, he outlined that the Respondent emailed him, noting his “legal action” and indicating that on advice from his solicitor, he was stopping his sick pay. The Respondent explained that he was upset by these developments and that he was confused as to what was happening. He said that he had a number of bills to pay and the stopping of his sick pay caused him a lot of financial stress. He said that he felt that he was being punished for going to his solicitor and for taking a case regarding his workplace accident.

The Complainant outlined that he understood that the Respondent was a reputable company. He stated that he checked the Respondent’s website before commencing work and noted that staff were fully insured. The Complainant outlined that he was upset to learn after his workplace accident, that in fact, staff were not insured.

The Complainant referred to the email correspondence dated March and April 2022, regarding the MedMark Assessment. The Complainant explained that when he requested a copy of the MedMark Assessment dated 12 April 2022 from the Respondent, he was told on 27 April 2022 to direct all future correspondence “through [their] respective solicitors.” The Complainant outlined his belief that that this was not the correct way in which to conduct an employer-employee relationship. The Complainant also referred to the letter to his solicitor dated 30 March 2022, in which the Respondent’s solicitor stated that they would not engage in “unnecessary correspondence”. The Complainant outlined how he believed that all avenues of correspondence were being closed down to him. The Complainant outlined that he did not know why the Respondent had taken this approach. He explained that he felt that he was being punished for taking a case against the Respondent regarding the workplace accident and for going to his solicitor.

The Complainant referred to the MedMark Assessment dated 12 April 2022 which confirmed that he wanted to go back to work but that he could not do so any time soon. The Complainant outlined that he had limited mobility and had to use a crutch. He knew that his recovery would take some time. The Complainant explained that he suffered stress as a result of his injury and financial stress as a result of being unpaid.

The Complainant again referred to the MedMark Assessment dated 12 April 2022. He outlined that the Respondent did not offer to cover the cost of six counselling sessions “as a supportive measure”, as recommended by MedMark. He explained that there was no follow up by MedMark or the Respondent regarding the MedMark Assessment. The Complainant outlined that the Respondent did not correspond with him at all. The Complainant did not receive any correspondence from the Respondent from 27 April 2022 until 14 January 2023 when he received an email providing notice of his dismissal, to take effect on 25 January 2023. The Complainant said that he was confused about this email. He did not understand why he was being dismissed on the same date as his WRC Hearing date. He thought that the Respondent was continuing to penalise him.

The Complainant – Cross-Examination:

Under cross-examination, the Complainant accepted that when he began work on 13 January 2022, he held a safe pass and various certificates including one concerning manual handling. He accepted that during the interview, he told the Respondent that he was ready to begin. The Complainant denied that the Respondent told him during his interview that he would not receive sick pay. The Complainant stated that the Respondent told him over the phone, a few days later, that his hourly rate would be increased once he proved himself. The Complainant submitted that he thought that this rate would have been more than €21 per hour.

The Complainant outlined that he fell from scaffolding on 17 January 2022. The Complainant rejected the allegation that he was not using the scaffolding properly.

The Complainant outlined his assumption that he would receive sick pay until he returned to work. The Complainant said that this assumption was based on his belief that the Respondent “seemed like a decent person”.

The Complainant said that he does not recall the Respondent contacting him after the accident. He denied that the Respondent offered to drive his van to his house.

The Complainant reiterated that when he received notice of his dismissal in January 2023, he felt as if he was being penalised. He felt that the timing coincided with the WRC Hearing date.

The Respondent provided detailed written submissions:

The Respondent submitted that there was no opportunity to provide the Complainant with a written contract of employment.

The Respondent further submitted that the Complainant was not penalised, in particular:

1.         The Complainant was not dismissed on 17 February 2022 but was removed from payroll as an “administrative step”. The Respondent submitted that it was confirmed with staff on 8 March 2022 that the Complainant had not left employment and that it was ensured that the records reflected this position retrospectively;

2.         The Complainant had no right to sick pay which had been paid to him until 17 February 2022 on a discretionary basis. The Respondent denied that the moneys paid constituted a “wage” and / or that stopping sick pay constituted a “discipline, reprimand or other penalty”;

3.         The Complainant was asked to conduct communications “relating to an accident, the subject matter of ongoing litigation” via his solicitor, as the Respondent was following legal advice; and

4.         The Complainant’s dismissal in January 2023 arose out of a legitimate redundancy situation as the Respondent was winding down the construction side of his business.

Witness Evidence:

The Respondent:

The Respondent outlined that he and Ms. Gaye Edwards, his business administrator, interviewed the Complainant in early January 2022. He said that they used an “Interview Checklist” to ensure that all points were covered. He stated that during the interview, the Complainant was told that he would not receive sick pay and that this was a position that he took with all employees. The Respondent said that he did not provide the Complainant with a contract of employment as the workplace accident occurred so soon after he had started.

The Respondent said that in the immediate aftermath of the accident, in January and February 2022, he called the Complainant two or three times to see how he was doing. He said that he could produce phone records to evidence this, if necessary.

The Respondent outlined that as the accident happened onsite, he decided to continue to pay the Complainant sick pay on the understanding that the Complainant would return to work in the short-term. He said that he was not in a position to pay the Complainant sick pay on a long-term basis.

The Respondent outlined that once he learned that the Complainant would not return to work in the short-term, his legal advice was to cease sick pay as all pay issues would be resolved by way of the Complainant’s personal injury claim. The Respondent outlined that he initially understood that he could take the Complainant off payroll, which he did on 17 February 2022. However, he realised that this was a mistake and that the Complainant should have been kept on payroll, just not paid. The Respondent said that this was an administrative error which was rectified with retrospective effect on 8 March 2022. The Respondent said that there was no malice in his actions. 

The Respondent outlined that after his initial two or three calls to the Complainant, he did not contact him again as he did not want it to seem as if he was putting him under undue pressure to return to work.  The Respondent also outlined his belief that in seeking the MedMark Assessment at his solicitor’s suggestion, he had stayed in contact with the Complainant. The Respondent said that he believed that the MedMark Assessment was for his legal team only, and not for the Complainant. The Respondent said that the Complainant had his own legal team to advise him.

The Respondent outlined that he spent the first week of January 2023, going through his business accounts with his accountant. He noted that the construction and maintenance side of his business was not making money. He therefore decided to wind up that side of the business and dismiss his staff. He put all of his staff on notice. The Respondent outlined that he gave the Complainant a few more days’ notice than statutory notice and that it was “ridiculous” to suggest that he wound down his business and dismissed the Complainant to penalise him for taking a case.

The Respondent – Cross-Examination:

Under cross-examination, the Respondent outlined that during the Complainant’s interview in early January 2022, he explained that no sick leave would be paid. The Respondent accepted that he did not keep a note of the interview.

The Respondent stated that the Complainant told him that he had a safety pass. The Respondent outlined that the Complainant’s safety certification was not checked. He said that all employees are trained onsite.

The Respondent stated that he paid the Complainant sick pay on a discretionary and exceptional basis, for a short-term period. He explained that he did this as the accident had occurred onsite. He said that he could not afford to pay long-term sick pay. He accepted that he never discussed sick pay with the Complainant after the workplace accident. The Respondent accepted that he paid the Complainant sick pay over approximately three and a half weeks. The Respondent stated that he did not give the Complainant an explanation for stopping the sick pay. The Respondent accepted that it could be confusing for an employee to receive sick pay on one day, and not receive it on the following day, without any explanation. The Respondent did not accept that that he should have continued to pay the Complainant sick pay.

The Respondent said that he didn’t engage with the Complainant as he was following legal advice to that effect. The Respondent outlined his belief that correspondence could only take place via their respective solicitors as litigation had commenced.

The Respondent stated that he was self-insuring, as his insurance ceased in early 2020. The Respondent accepted that his website was not amended in early 2020 to reflect this development. The Respondent said that the website was amended when this error was brought to his attention, in the course of this WRC matter.

The Respondent stated that it was a series of coincidences on 17 February 2022 that: his business administrator informed the external payroll company that the Complainant “has left”; the Complainant’s employment status was changed to “ceased” in his online Revenue records; and that the Complainant’s sick pay was stopped, shortly after the Complainant brought his personal injury claim.

The Respondent then accepted that he did in fact dismiss the Complainant on 17 February 2022, but that he had done so in error and had subsequently rectified his error, with retrospective effect, on 8 March 2022. The Respondent accepted that prior to this erroneous dismissal, the Complainant was in receipt of sick pay, however when the erroneous dismissal was rectified, the Complainant was no longer in receipt of sick pay. The Respondent stated that as the Complainant was on long-term sick leave and offsite, he was an employee “in name only”. When questioned further, the Respondent did not accept that he was now backtracking on his evidence and prior position.

Still under cross-examination, the Respondent took issue with the word “retaliate”. He said that he did not retaliate against the Complainant, nor did he act maliciously, but instead acted on the legal advice he received. The Respondent said that his legal advice was to stop paying the Complainant sick pay. The Respondent did not accept that he stopped the Complainant’s sick pay or dismissed him as retaliatory measures.

The Respondent stated that he did not give a copy of the MedMark Assessment to the Complainant as he believed that it was for his own legal team and not for the Complainant’s benefit. The Respondent accepted that he did not assert legal privilege over the document and that the Complainant eventually got a copy of the MedMark Assessment via his own solicitor.

The Respondent accepted that he did not offer to cover the cost of six counselling sessions for the Complainant, as recommended in the MedMark Assessment. The Respondent stated that he did not contact the Complainant as he did not want to “harass” him. The Respondent accepted that he has an obligation to discuss the Complainant’s return to work with the Complainant, but said that he did not know when this should happen.

The Respondent accepted that when he dismissed the Complainant in January 2023, he did not consider issues such as the Complainant’s notice period pay or accrued holiday pay.

The Respondent outlined that approximately six months ago, he had eight or nine employees. Two employees remain and they are currently (at the time of the Hearing) working their four-week notice period. The Respondent confirmed that once those two employees finish working their notice period, he will have no employees and that he will operate as a sole trader, in the area of design only.

Ms. Gaye Edwards:

Ms. Edwards outlined that she assisted the Respondent in interviewing the Complainant. She stated that all of the points on the “Interview Checklist” were covered. She outlined that, in her experience, interviewees are always informed that they will not receive sick pay.

Ms. Edwards was referred to her email dated 17 February 2022 in which she said that the Complainant “has left” the Respondent. She said that approximately two weeks later, it was pointed out to her that this was an error. She outlined that this error was rectified with retrospective effect, but that the Complainant’s sick pay was stopped.

Ms. Edwards outlined that some weeks after the accident, the Complainant came into the office, wearing a leg brace, to collect his keys. She said that it was evident to her that he had a severe injury. She outlined that she was disappointed to hear that the Complainant said that he had received no calls from the Respondent, as she had called him once or twice from her own personal phone in January or February 2022.

Ms. Edwards outlined that she left the Respondent at the beginning of November 2022 as she was made redundant.

Under cross-examination, Ms. Edwards confirmed that while she attended employee interviews, she did not make hiring decisions, as her role was that of a business administrator. She confirmed that she did not keep a note of the Complainant’s interview.

Ms. Edwards outlined that there was no staff handbook or sick pay policy in writing. She said that she could not recall whether a Health and Safety statement, usually provided to employees within a week or two of starting, was provided to the Complainant.

Ms. Edwards said that once she was notified of the error in her email dated 17 February 2022, she would have emailed the external payroll company to correct the situation. She stated that the external payroll company would have liaised with Revenue directly.

Ms. Edwards accepted that she emailed the Complainant on 27 April 2022, advising him to communicate via his solicitor. She accepted that, aside from specific emails regarding the MedMark Assessment, from March 2022 until her dismissal in November 2022, there was no correspondence with the Complainant regarding his health, prognosis, or return to work.

Mr. Derek Foley:

Mr. Foley sought to outline what he had witnessed on 17 January 2022, the day of the workplace accident. I explained that the personal injury claim was not before me and that I would only hear evidence that was relevant to the complaints before me.

Mr. Foley outlined that during his interview he was told that he would not receive sick pay. He explained that this was something that he had to give some consideration to, when he decided to accept the job. Finally, he stated that he received his notice on 13 January 2022.

Mr. Goran Kouter:

Mr. Kouter outlined that he was told during his interview that he would not receive sick pay. He further outlined that he received his notice on 12 January 2022.

CA00051631-001 and CA-00055491-001: Complaints under the Terms of Employment (Information) Act 1994:

The Law:

The Terms of Employment (Information) Act 1994, as amended, (the “TE(I)A”) sets out the basic terms of employment which an employer must provide to an employee in written form. Section 3(1A) of the TE(I)A obligates an employer to provide employees with certain essential information, or core terms, in writing within five days of commencing employment. Section 3(1) of the TE(I)A also obligates an employer to provide employees with a statement in writing concerning other aspects of an employee’s terms and conditions of employment within two months of commencing employment. This provision was recently amended to indicate one month.

Award:

Section 7 of the TE(I)A provides that compensation up to a maximum of 4 weeks’ remuneration may be awarded if a complaint is deemed well founded. In Beechfield Private Homecare Limited v. Ms Megan Hayes Kelly, TED 1919, the Labour Court awarded the maximum of four weeks’ remuneration. Here the Chairman of the Court noted “[i]n determining the appropriate level of compensation it should award in a particular case, the decisionmaker must take into account all the relevant circumstances of the case before it. In this case, the Court determines that the breaches were at the serious end of the spectrum …”.

Findings:

The Complainant was employed by the Respondent from 13 January 2022 until 25 January 2023, save for a brief period in February / March 2022. The Complainant submitted that he was not provided with any information required under the TE(I)A. After hearing the Complainant’s evidence, the Respondent accepted that neither core terms in writing nor a statement in writing were provided to the Complainant. By way of response, the Respondent submitted that there was no opportunity to provide the Complainant with a written contract of employment. However, this is not a defence. Consequently, the Respondent breached section 3(1A) and section 3(1) of the TE(I)A and the two complaints are well founded.

Conclusion:

As the Respondent failed to provide any core terms in writing or any statement in writing on the Complainant’s terms of employment, the two breaches are at the serious end of the spectrum. Pursuant to section 7 of the TE(I)A, I order the Respondent to pay the Complainant compensation of two weeks’ remuneration for each breach, which is just and equitable having regard to all the circumstances. This amounts to €1,680 (2*€840) per breach.

CA00051631-003: Complaint under the Safety, Health & Welfare at Work Act 2005:

The Law:

The main legislative provisions relating to safety, health and welfare at work are contained in the Safety, Health and Welfare at Work Act 2005, as amended, (the “SHWWA”). Section 27 of the SHWWA provides protection for employees against penalisation for having exercised a right under the SHWWA:

“Protection against dismissal and penalisation.

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.

(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 WRC’s jurisdiction here is confined to determining whether, within the meaning of section 27, the actions of the Respondent amounted to penalisation. Once the Complainant has engaged in a protected act, as outlined under section 27(3), there are two questions to consider:

1.         Did the Complainant suffer a detriment or harm, of the kind referred to at section 27(2)?; and

2.         Is there a causal link between the detriment suffered and the protected act – in other words, was the complainant penalised for committing the protected act?

1.         Detriment:

In An Garda Siochana v. Hazel Delahunt, HSD1311, the Labour Court considered the word “detriment”. Here the Labour Court relied on Shamoon v Chief Constable of the Royal Ulster Constabulary, [2003] UKHL 11. This case held that the test for what constitutes a detriment is an objective test and that a court should consider whether a reasonable worker would or might take the view that they had been disadvantaged in the circumstances in which they had thereafter to work.

In HSE v. Jennings, HSD222, the Labour Court found that the complainant suffered a detriment when he was relocated, resulting in a disruption to his established working pattern and a delay in investigating the complaint against him which inter alia resulted in his mental health suffering.

2.         Penalisation:

In Paul O’Neill v. Toni & Guy Blackrock Limited, HSD095, (“O’Neill v. Toni & Guy”) the Labour Court outlined the applicable “but for” test concerning penalisation complaints.  Here the Labour Court found that the complainant must establish that the detriment complained of was imposed “for” having committed a protected act. Where there is more than one causal factor in a chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause. In other words, “but for” the complainant committing the protected act, they would not have suffered the detriment. This requires a consideration of the motive or reasons which influenced the respondent in imposing the detriment. The Labour Court noted:

“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.”

Award:

Under section 28 of the SHWWA, an adjudication officer shall do one or more of the following:

“(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to take a specified course of action, or

(c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances.”

Findings:

Protected Act:

The Complainant suffered an injury following a workplace accident on 17 January 2022. The Complainant’s solicitor wrote to the Respondent’s solicitor on 3 February 2022. In the same letter, they asserted inter alia that the Respondent “failed to provide a safe system of work and sufficient training for [their] employees.”  The Respondent acknowledged receipt of this letter on 16 February 2022. It is uncontested between the Parties that this letter constituted a complaint or representation to the Respondent pursuant to section 27(3)(c) – in other words, a protected act.

First Dismissal:

On 17 February 2022, the day after the Respondent was on notice of the protected act, he dismissed the Complainant. The Respondent initially submitted that the Complainant was not dismissed and that he had simply been removed from payroll as an “administrative step”. However, under cross-examination, the Respondent revised his position and accepted that he did, in fact, dismiss the Complainant on 17 February 2022 but argued that he rectified this error, with retrospective effect, on 8 March 2022. When questioned further, the Respondent did not accept that he had changed his evidence. The fact remains that the Respondent dismissed the Complainant. The evidence showed that this dismissal led to the Respondent’s business administrator informing the external payroll company that the Complainant “has left”, and the Complainant’s employment status being changed to “ceased” in his online Revenue records.

This first dismissal constituted a detriment outlined under section 27(2)(a). The Complainant suffered this detriment the day after the Respondent was on notice of the protected act. It is clear from the evidence adduced and the timeline involved, that “but for” the Complainant committing the protected act, he would not have been dismissed.

Stopped Sick Pay:

On 17 February 2022, the day after the Respondent was on notice of the protected act, he stopped the Complainant’s sick pay.  In his submissions, the Respondent argued that he was not liable to pay sick pay, and that he had only done so on a discretionary short-term basis. The Respondent further submitted that he stopped the Complainant’s sick pay in accordance with his legal advice. However, the fact remains that he did pay the Complainant sick pay for approximately three and a half weeks. The Respondent then decided unilaterally and without notice to stop the Complainant’s sick pay on 17 February 2022 – the day after he was on notice of the protected act.

In his evidence, the Respondent stated that it was a series of coincidences that: his business administrator informed the external payroll company that the Complainant “has left”; the Complainant’s employment status was changed to “ceased” in his online Revenue records; and that the Complainant’s sick pay was stopped, all within one day of being on notice of the protected act. Due to the Respondent’s changing evidence (outlined above) and the temporal proximity between the protected act and the detriments suffered, I do not accept that these were a series of coincidences.

The stopped sick pay constituted a detriment outlined under section 27(2)(d). The Complainant suffered this detriment, the day after the Respondent was on notice of the protected act. It is clear from the evidence that “but for” the Complainant committing the protected act, he would not have had his sick pay stopped.

Failure to Communicate and Disregard of Employment Rights:

In a letter dated 30 March 2022, the Respondent’s solicitor effectively shut down any correspondence with the Complainant’s solicitor by indicating that they will “not engag[e] in unnecessary correspondence […and that they] have authority to accept service of proceedings”. In an email dated 27 April 2022, the Respondent stated “[w]e have been advised that all future correspondence (including that concerning your occupational health report) be conducted through our respective solicitors”. The Respondent therefore effectively shut down all avenues of correspondence for the Complainant.

The Respondent’s submission and evidence that the Complainant was only to direct correspondence regarding the workplace accident via his solicitor is unfounded. It is clear from the email dated 27 April 2022 that the Complainant was not to contact the Respondent about any issue whatsoever. I do not accept the Respondent’s position that he did not communicate in any way with the Complainant, for almost nine months – from 27 April 2022 until 14 January 2023 – as he did not want to “harass” him or put him under undue pressure to return to work.

The Respondent also disregarded the Complainant’s employment rights. The Respondent stated at the Hearing that as the Complainant was on long-term sick leave and offsite, he was an employee “in name only”. He refused to provide the Complainant with a copy of the MedMark Assessment. He did not engage with the Complainant regarding the MedMark Assessment findings. He did not offer to cover the cost of six counselling sessions as recommended by MedMark.  He failed to engage with the Complainant about a return to work. The Respondent accepted that when he dismissed the Complainant for the second time in January 2023, he did not consider issues such as notice period pay or accrued holiday pay. It is clear from the evidence that the Respondent disregarded the Complainant’s employment rights.

The failure to communicate with the Complainant and the disregard of his employment rights constituted a detriment as outlined under section 27(2)(d). It is clear from the evidence that “but for” the Complainant committing the protected act, the Respondent would not have failed to communicate with him or disregarded his employment rights.

Second Dismissal:

As noted above, in O’ Neill v. Toni & Guy, the Labour Court held that where there is more than one causal factor in a chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause.

From the evidence, it appears that the Respondent is winding down the construction side of his business, where the Complainant worked. The Respondent submitted that approximately six months ago, he had eight or nine employees, but they have all been let go, save for two employees who are (at the time of the Hearing) working their notice period. Both of these employees also gave evidence to this effect. In the circumstances, it appears that the Complainant’s commission of the protected act was not the operative cause leading to his dismissal in January 2023.

Conclusion:

In summary, I find that the Complainant was penalised in the form of his first dismissal, his stopped sick pay, the Respondent’s failure to communicate with him and the Respondent’s disregard of his employment rights. For the reasons outlined above, I find that the complaint is well founded.

In calculating the award, I am mindful that the Respondent’s conduct towards the Complainant – in dismissing him, stopping his sick pay without notice, failing to communicate with him and disregarding his employment rights – was wholly unacceptable. I am also mindful that the Complainant was in a vulnerable position, being unable to work due to his injury. I require the Respondent to pay the Complainant compensation of six months’ remuneration which is just and equitable, having regard to all the circumstances. This amounts to €21,840 (26*€840).

For the avoidance of any doubt, I make no finding whatsoever on the personal injury claim or on any matter outside of the specific complaints before me.

CA-00051631-001: Complaint under the Terms of Employment (Information) Act 1994:

The complaint is well founded. I order the Respondent to pay the Complainant compensation of two weeks’ remuneration for breach of section 3(1) of the Terms of Employment (Information) Act 1994. This amounts to €1,680 (2*€840).

CA-00051631-002: Complaint under the Industrial Relations (Amendment) Act 2015:

The Complainant withdrew this complaint.

CA-00051631-003: Complaint under the Safety, Health and Welfare at Work Act 2005:

The complaint is well founded. I require the Respondent to pay the Complainant compensation of six months’ remuneration for breach of section 27 of the Safety, Health and Welfare at Work Act 2005. This amounts to €21,840 (26*€840).

CA-00055491-001: Complaint under the Terms of Employment (Information) Act 1994:

The complaint is well founded. I order the Respondent to pay the Complainant compensation of two weeks’ remuneration for breach of section 3(1A) of the Terms of Employment (Information) Act 1994. This amounts to €1,680 (2*€840).

Terms of Employment (Information) Act 1994, Safety, Health and Welfare at Work Act 2005, Penalisation, Compensation Awarded.