Complainant

Respondent

Parties

Patrick O'Connor

Wexford County Council

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Rachel Hartery SIPTU

Amanda Kane Local Government Management Agency (LGMA)

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-00057109-001

13/06/2023

The Complainant commenced employment with the Respondent as a General Operative on 31 March 2009. He is currently employed as a Light Truck Driver assigned to the Enniscorthy area.

The Complainant provided a detailed written submission.

The Complainant submits that there are three elements to his claim for penalisation:

(i)               The lack of investigation following a complaint submitted to the Respondent in November 2022.

(ii)              Ostracization

(iii)            Loss of overtime.

The Complainant submits by way of background that two previous incidents which allegedly took place in 2020 and 2021 and lead to formal complaints, were never dealt with properly by the Respondent. The Complainant was penalised for making these complaints and the Respondent has failed in their duty of care as there has been a continuum of penalisation since the Complainant submitted these complaints.

The Complainant submits that an incident took place on 30 October 2022 between the Complainant and his foreman, Mr Tom Brennan, where the Complainant alleges, he was forced to get out of a truck and was subject to abusive behaviour. The matter was reported to the Senior Executive Engineer and on 2 November 2022, SIPTU lodged a case under the Dignity at Work Policy to the HR Section of the County Council.  An investigation meeting with the Complainant was arranged to take place on 11 January 2023.  At this meeting the Complainant’s SIPTU representative requested a copy of a statement made by the alleged perpetrator, however the Investigator refused to hand over a copy of the statement. The meeting ended without any investigation or interview commencing.

On 14 February 2023, SIPTU wrote to the HR Section to ascertain who was picking up the investigation as the original investigator had moved departments.

HR responded on 17 February 2023, stating that the original investigator was, “still looking into dealing with it and awaiting clarification from the other party before resuming the investigation”.

The Complainant submits that there was no further communication from the investigator and this complaint was left “in the abyss”.

The Complainant submits he was ostracised after he made the complaint relating to the incident of 30 October 2022, in a number of ways:

(i)                he was no longer picked up and brought to work as heretofore;

(ii)               when he enters the yard groups of colleagues quickly disperse;

(iii)            at a music festival steward in June 2023, he was tasked with a role which meant he was stationed alone.

The Complainant submits that the protected act was an operative cause in him being excluded, being ostracised and having repeated problems with the agreed overtime arrangements.

In conclusion, the Complainant submits that the Respondent has a legal obligation to follow up on all complaints, they breached their duty of care to the Complainant and in doing so have enabled the abuse of the Complainant. The Complainant has been in a high state of distress and was left unsupported.

A Mr Christian Tauroginski gave evidence on affirmation at the hearing. The totality of the witness’s evidence related to matters that were subject of a previous WRC investigation and Decision.

The Complainant gave evidence on oath at the hearing.

The Complainant stated that he had previously worked with the crew and the foreman but now he does not and has to avoid group “happenings”.  A toxic environment has been created and he cannot join in conversations with his colleagues. He drives a one-man sweeping machine which requires to be emptied in the depot; when he comes into the depot, the crew disperses.

Regarding the music festival the Complainant stated that at the 2022 festival he was positioned in the middle of the square but in 2023 he was put on a barrier on his own where there was no activity.

The Complainant stated that he is continually denied access to overtime.

The Complainant stated that the difficulties he has encountered have severely impacted on his health.  It has affected his family as it has been such a difficult time for him. 

The Complainant feels he has been let down by the Respondent; they have failed to follow their own policies and have managers not trained to deal with conflict. He is not a “human punch-bag”.  The Respondent has failed miserably in their duty of care.

In cross examination, when it was put to the Complainant that he was earning overtime and had earned €18,000 in overtime up to November 2023, he agreed that he had more recently been in receipt of overtime payments, however, the overtime he was querying was that due to his seniority.

In conclusion the Complainant submits that the Respondent has a legal obligation to follow up on all complaints, they breached their duty of care to the Complainant and in doing so have enabled the abuse of the Complainant. The Complainant has been in a high state of distress and was left unsupported.

The Complainant’s representative stated that it is the inaction of the Respondent that has brought the parties to the WRC. Resolution is what is required, the Complainant does not want to keep putting in complaints. The Complainant believes section 27 has been breached and the inactions of the Respondent amount to penalisation.

The Respondent provided a detailed written submission.

The Respondent submits that the Complainant submitted a formal complaint against Acting GSS Mr Tom Brennan alleging that he shoved him out of the pickup truck on the morning of 30 October 2022.  Mr Brennan denies any allegation of assault but confirmed that he asked the Complainant to leave the vehicle due to the comments of the Complainant when he collected him.

The Complainant submits that a person was appointed by the Council to investigate the alleged incident. However, due to a change in personnel an investigation never occurred.

The Respondent accepts that its procedures in relation to the handling of complaints were not followed in this instance. It is clear that an incident occurred between both parties on the morning of 30 October 2022 with the result that the Complainant left his line manager’s vehicle. The nature of the interaction is in dispute.

The Respondent submits that the Complainant has not discharged the burden of proof imposed on him to the effect that he was penalised and suffered detriment within the meaning of section 27(3) (c ) of the Act for having made a complaint to his employer in relation to his safety, health or welfare at work.

At the hearing the Respondent’s representative stated that the investigation referred to above did not take place due to the illness of the appointed investigator.  The Respondent accepts it should have handled this matter better.  The Respondent believes relationships have broken down and trust is gone. However, the Respondent has been trying to sort things out and has offered mediation to the Complainant to that end.

In concluding the Respondent asserts that there is a significant overlap between this instant case and the previous case which went to the WRC (ADJ-00040852).

Section 27 of the 2005 Act states:

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.

(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.”

I refer to the Labour Court and Toni & Guy Blackrock Limited -v- Paul O’Neill HSD095.

The Court stated:

“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.”

The Labour Court also gave consideration to what was required in order to discharge this burden or proof stating:

“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 detriment.  This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

It is clear that employees will only be successful in a penalisation claim under the 2005 Act if they can prove that they:

 a)  made a complaint to their employer in respect of a health and safety matter; and b) suffered a detriment as a result of the actions of their employer; and c)  It can be proven that they would not have suffered this detriment had a complaint not been made in the first place. 

I find the following:

(i)               The Complainant did make a complaint to their employer in respect of a health and safety matter.  The complaint gave evidence about the incident that took place on 30 October 2022.  He says he was shoved out of a vehicle, an unsafe act. Although the Respondent stated at the hearing that Mr Brennan denies the allegation, Mr Brennan was not present to give evidence at the WRC.  In addition, although it seems some effort was made to initiate an investigation into the complaint, it got nowhere and no investigation took place, therefore there is nothing to contradict the Complainant’s view in regards to the incident.

(ii)              The Complainant suffered a detriment as a result of the actions of his employer. I accept the Complainant’s contention that the Respondent’s failure to carry out an investigation into the events of the morning of 30 October 2022, to be a penalisation of itself.  Every employee has the right to make a complaint and expect that it will be investigated in some manner or means. The Respondent’s own policy provides that investigations take place in circumstances a such as this and the Respondent accepts that this should have been handled better.

(iii)             I also accept, on the uncontroverted evidence of the Complainant, that he has and is ostracised at work.  The example given relating to the music festival and the role allocated to the Complainant is telling. I accept the Complainant endures on-going isolation from some of his colleagues.  This is a difficult matter for the Respondent to deal with, but it is not acceptable that the Respondent “sit on its hands” in relation to dealing with the issue.

(iv)            Regarding the matter of losing overtime I find this matter would seem to have been addressed to some degree if not in its totality.  In his evidence the complainant accepted he does receive an amount of overtime, although he says this is not what he believes it should be. In the Complainant’s written submission it states, “There is no loss of overtime and constant communication with this foreman.” Notwithstanding this, the Respondent did not provide any documentation to support its position that the Complainant was not out of pocket due to a diminution of overtime. 

In 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’s failure to investigate the complaint relating to the 30 October 2022, the ongoing ostracization of the Complainant and the loss of overtime earnings he has endured.

I find that the appropriate amount of compensation is €10,000.00.

The complaint is well founded, and I order the Respondent to pay the Complainant €10,000.

Penalisation, inaction.