ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00039370
Parties:
| Complainant | Respondent |
Parties | Matthew Cullen | Transdev Dublin Light Rail Ltd |
Representatives | Seamus Collins BL instructed by Sean Ormonde solicitors on 01/06/2023 and no representation on 27/07/2023 | Rosemary Mallon BL instructed by Arthur Cox |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00050991-001 | 03/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00050991-002 | 03/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00050991-003 | 03/06/2022 |
Date of Adjudication Hearing: 01/06/2023 and 27/07/2023
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The initial day of the hearing was held on 1 June 2023 and the Complainant was accompanied by Seamus Collins BL, instructed by Sean Ormonde solicitors. His legal representatives subsequently withdrew from the proceedings and the Complainant attended on the second day as a litigant in person. The Respondent was represented on both days by Rosemary Mallon BL, instructed by Arthur Cox.
At the hearing on 1 June 2023, Ms Mallon BL sought an adjournment on the grounds that the complaints had not been particularised to an extent that would have allowed her to prepare an adequate defence. Although Mr Collins BL objected to this, I decided to grant the adjournment and invited the Complaint to submit supplemental submissions by 16 June 2023 and directed the Respondent to respond to same by 29 June 2023. Several submissions and related correspondence were subsequently received from both sides.
Prior to the commencement of the hearing on 27 July 2023, I carefully reviewed all of the submissions from the parties with the exception of the submission received from Ormonde solicitors on 14 June 2023, which the Complainant had instructed me to disregard.
After reviewing the submissions, I noted that the Respondent raised several preliminary issues and requested rulings on each of them. Recognising the significance of these matters, I deemed it prudent to address them before proceeding further and informed the parties that I would make verbal rulings in advance of hearing any evidence. Subsequently, I allowed both parties to present additional oral submissions concerning these preliminary issues. Following this, I made my verbal rulings, which I have documented in writing below.
Jurisdiction
On 11 July 2023, the Complainant furnished a submission pertaining to an incident that occurred on 8 July 2023. As it concerned a matter that occurred after the claim form was filed, the Respondent submitted that I had no jurisdiction to consider it and relied on the decision of the Labour Court in National Gallery of Irelandv Frances DonnellyEDA1312 in this regard.
As the instant complaints were referred on 3 June 2022 and the incident that the Complainant referred to in his submissions allegedly occurred on 8 July 2023, I explained to the parties that I did not have jurisdiction to hear any evidence in relation to the incident on 8 July 2023 as it post-dated the referral of the complaints to the WRC.
Recordings
Mr Cullen, in his pre-hearing submissions, alleged that that he held audio recordings and transcripts of recordings of certain meetings which he sought to introduce by way of evidence. In support of his request, he highlighted that recordings were allowed to be admitted into evidence in the cases of Singh v Singh, a case of the High Court of England and Wales [2016] EWHC 1432 (Ch) as well in the Equality Tribunal in Laurentiu v The Central Hotel (DEC-E2010-147), and in the WRC in both the cases of Enners v McCarty (ADJ-00020413) and Michael Caplis v Transdev Ireland Limited(ADJ-00012790).
In objecting to the introduction of any recordings or transcripts, Ms Mallon BL stated in her submission that they were made without notice to the parties present and as such were covert acts, which was not disputed by the Complainant, and which she alleged constituted data processing, which constituted a clear breach of GDPR. Specifically, she highlighted that under Article 4 of GDPR, personal data is defined ‘…as any information relating to an identified or identifiablenatural person (‘data subject’); an identifiable natural person is one who can beidentified, directly or indirectly, in particular by reference to an identifier such as aname, an identification number, location data, an online identifier or to one or morefactors specific to the physical, physiological, genetic, mental, economic, cultural orsocial identity of that natural person’ and furthermore that processing is defined as ‘…any operation or set of operations which is performed onpersonal data or on sets of personal data, whether or not by automated means, such ascollection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, disseminationor otherwisemaking available, alignment or combination, restriction, erasure or destruction;’ and stated that the recordings of the meetings were not therefore done lawfully, fairly or in any transparent manner. She further asserted that, as the recordings were covertly made, any such data gathered was not collected for an explicit, specified, or legitimate purpose in line with Article 5 of GDPR and should therefore be deemed inadmissible. In addition, she stated that Article 6 of GDPR required that there must be at least one lawful basis for the processing of personal data, and in line with Article 5 this basis must be generally communicated clearly in advance to the data subjects, which in this case it was not. She also stated that the most relevant basis for the processing of personal data under Article 6 is that the data subject has given consent to processing of their personal data for one or more specific purposes and highlighted that the parties who were recorded by the Complainant had not given explicit consent for the processing of this data.
Having reviewed the submissions in advance of the hearing, and having listened to the oral submissions, I informed the parties that I would not be allowing the recordings and transcripts to be submitted by way of evidence because of my view that the introduction of same would be in breach of the Respondent’s employees’ data rights, as Ms Mallon asserted, and would therefore constitute a breach of the Respondent’s right to fair procedures. I also explained that I did not accept that either the Singh or the Laurentiu cases referred to above were analogous to the within matter given that both decisions pre-dated the introduction of GDPR. In addition, I explained that, unlike the instant case, the Respondent in the Enners case, did not appear to object to the introduction of recordings. I also accepted the assertion made by the Respondent that the Capliscase is irrelevant in the context of the instant case because the activities of Private Investigators are authorised under the Private Security Services and it concerned the introduction of covert evidence obtained by a private investigator, acting lawfully.
Time limits
The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows
(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
The Respondent highlighted that as many of the incidents described in the Complainant’s submissions, occurred outside of the cognisable period, namely between 4 December 2021 and 3 June 2022, I had no jurisdiction to consider such matters. After being put on notice via their submission that the Respondent was going to raise this issue, the Complainant asserted by letter dated 27 June 2023 that it was necessary to give evidence surrounding these incidents to “[show] the continuous link of abusive behaviour towards me from the time I made the protected disclosure to the point when I made the decision to resign”. While the position concerning continuum cases is expressly set out by the Labour Court in their decision in Cork VEC v Hurley EDA 1124 where it was stated that s.77(5)(a) of the Employment Equality Act 1998 – 2015 addresses situations in which there are “a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum” and that s.77(6A) addresses situations where “an act will be regarded as extending over a period, and so treated as done at the end of that period, for example if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant”, there is no such provision in either the Protected Disclosures Act, 2014 or the Workplace Relations Act 2015.
While I also noted that in his submissions of 24 July 2023, the Complainant further stated that after he made his protected disclosure on 1 April 2021, “he made every effort and exhausted every avenue available to him to resolve the matter with the company without the need for litigation” and that he “chose to attempt at all costs to have the matter dealt with in-house”, the Labour Court stated in the case of Laurence Skelly v Dublin City Council (DWT212) that “a complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time-limit provided for generally in section 41 of the Workplace Relations Act (and in comparable provisions in other individual employment enactments) for the purpose of exhausting an alternative means of resolving their dispute does not constitute reasonable cause for the delay.”
Considering the foregoing, I decided that I would only hear evidence on the allegations of penalisation in the cognisable period and communicated this as well as the basis for my ruling to the parties at the hearing.
Inclusion of “irrelevant” matters
Ms Mallon BL stated that the Complainant made submissions concerning the operation of the role of Authorised Officer in conjunction with the Railway Safety Act 2005 but highlighted that this in no way related to his claims under the Protected Disclosures Act or the Safety, Health and Welfare at Work Act 2005. Accordingly, she requested that I rule that the matters raised by the Complainant concerning the Railway Safety Act 2005 would not be considered. Although the Complainant stated in reply that the powers conferred on him regarding his role as an Authorised Officer with the Respondent were derived from the Railway Safety Act 2005, I explained to him that my jurisdiction was limited to hearing evidence in relation to the complaints that had been referred to the WRC.
The Complainant’s Broadcasting Activities
Ms Mallon BL asserted that the Complainant co-hosts a podcast on Spotify with another former employee of Transdev and has made comments on his podcast which overlap with the matters at issue in these proceedings. She further asserted that the “sub judice” rule prohibits the public discussion of cases under judicial consideration. While the Complainant denied that he breached the “sub judice” rule, I explained to him that if the Respondent believed that he did so while this matter was still under consideration, I reserved the right to re-convene the hearing and to dismiss his complaints.
The Complainant and one witness on his behalf, Drazen Rizovic, as well as two witnesses on behalf of the Respondent, Dorota Cody, the Data Protection Co-ordinator as well as Brian Murphy gave evidence on oath/affirmation. The opportunity for cross-examination was afforded to the parties. I have anonymised the names of the parties who were named in evidence but did not attend the hearing.
Background:
The Complainant commenced his employment with the Respondent on 3 March 2018 and was employed as an Authorised Officer (AO). He stated that he was penalised by the Respondent following both a protected disclosure he made and a complaint regarding his safety, health and welfare in the workplace. |
Summary of Complainant’s Case:
CA-00050991-001: The Complainant’s stated that on 27 April 2021, an employee of the Respondent, X, made a series of racist remarks and, further, confessed to an illegal, discriminatory hiring practice while he (X) was giving a refresher training session to the Complainant and six of the Complainant’s colleagues. The Complainant made an official complaint about what was said by X on 28 April 2021. He stated that this complaint constituted a protected disclosure. On 5 May 2021, a Customer Assurance Manager with the Respondent, Y, emailed the Complainant inviting him to a meeting to discuss what occurred on 27 April 2021. The Complainant responded to this email that he would attend with a union representative and stated that he was of the view that remarks made by X demonstrated illegal conduct. Following the meeting of 5 May 2021, the Complainant wrote to a Customer Assurance Controller, Z, on 7 May 2021 giving a summary of his meeting with Y. The Complainant outlined that X and Y were friends and that this would possibly taint the impartiality of the investigation of Y into X’s remarks. The Complainant outlined that Y described the comments of X as a “mistake” and that Y indicated to the Complainant that X would apologise for the remarks. Y completed an Investigation Report, dated 18 June 2021, and recommended that X should be appraised of the requirement to be cognisant of his use of language in the workplace and provide an assurance that he would not use this type of language again. No disciplinary process was initiated against X. A further investigation was required to be carried out by the Respondent into X’s remarks. This second investigation was carried out by A. As part of the investigation, the Complainant was interviewed on 30 July 2021 regarding his complaint, and minutes were taken of the meeting. The Complainant was not made aware as to how the investigation into the remarks of X ultimately concluded.. The Complainant stated further to having made the protected disclosure however, he was subjected to detriment by the Respondent. Specifically, he alleged in the first instance that the Respondent provided faulty equipment to him, despite him having made them aware that there were issues with the equipment he had been given. In addition, he asserted that there were considerable delays in the provision of his personal data to him after he made a data subject access request (DSAR). CA-00050991-002: On 26 January 2022, the Complainant made a complaint to P, Customer Assurance Controller with the Respondent, concerning a matter of health, safety and welfare at work. Specifically, the Complainant asked P why he (the Complainant) was working with an SSO (i.e. Security Officer) while carrying out his AO duties on the LUAS rather than working with a fellow AO. The Complainant was of the view that an SSO was not trained in the revenue protection side of an AO’s job, and that it was inappropriate and unsafe that an AO be required to carry out a shift accompanied by an SSO and not a fellow AO because an SSO did not have the powers that he had. P was of the view that there was no safety issue. The Complainant was called into a meeting with Q on 27 January 2022 and again highlighted his concerns regarding an SSO not being trained in the revenue protection aspect of an AO’s duties, while still being allowed to accompany an AO when on the Luas. The Complainant asked whether a risk assessment had been carried out in respect of an AO and SSO working together on the LUAS lines. The Complainant indicated that he would not carry out the revenue protection aspect of his job pending confirmation that it was safe to do so, as otherwise he would be putting himself and his colleague at risk. The Complainant went home and did not work for the rest of the day. The Complainant is of the view that he was sent home and stated that he would have been happy to carry out the security aspect of the AO role that day. The Complainant was subsequently called into a meeting with P on 2 February 2022. The Complainant outlined that he would check tickets (i.e. carry out revenue protection) once he received satisfactory confirmation that it was safe for him to do so. The Complainant indicated that he felt it was unsafe for him to do so until such time as he received this. P explained to the Complainant that he would have to work under protest “until the issue was sorted” but indicated to him that he had a point. The Complainant was subsequently invited to attend an investigative meeting on 7 February 2022 in relation to him having gone home early on 27 January 2022. The Complainant responded to the email on 4 February 2022 indicating, among other things, that he did not feel comfortable attending meetings with P. P by reply on 10 February 2022 stated that the Complainant was being investigated for an allegation of gross misconduct. Specifically, the following was alleged against him - Failure to comply with correct attendance procedures – i.e. sign in/out procedure; - Committing serious or material or repeated breaches of his obligations under his contract; - Neglecting or failing or refusing to properly discharge any of the duties properly assigned or delegated or any legitimate instructions given by managers/management. Following the investigation meeting, the Complainant was invited to a Disciplinary Hearing on 1 April 2022, further to which he was issued a final written warning. During the hearing, the Complainant asserted in his direct evidence that the Respondent penalised him twice. Firstly, he was sent home on 27 January 2022, and secondly, P did not acknowledge during the investigation what had been informally communicated to him on February 2, 2022. Specifically, the Complainant claimed that P did not admit to the Investigator that the Complainant had a valid point when expressing concerns about an AO working independently with an SSO. |
Summary of Respondent’s Case:
CA-00050991-001: The Respondent disputed that a protected disclosure had been made by the Complainant given that X had no recruitment responsibilities and was therefore unable to decide who was or who was not hired by the Respondent. Without prejudice to their position that a protected disclosure had not been made by the Complainant, the Respondent also stated that he had not been subjected to any acts of penalisation either by way of the provision of faulty equipment to him or in delaying his data access request. The Respondent addressed the allegations of penalisation separately: 1. The provision of faulty equipment to him The Respondent stated that the only reports made by the Complainant with regards to faulty equipment which fall within the cognisable period are those dated 6 December 2021, 16 December 2021 and the follow up complaints in January 2022. The Respondent further stated that none of the reports made by the Complainant around alleged faulty equipment constitute evidence that the Complainant suffered a “detriment” within the meaning of the Protected Disclosures Act 2014. The Respondent firstly highlighted that the reporting of alleged faulty equipment via a sheet in the Sandyford Depot, where there is no onsite Manager, would not typically be an effective way of raising concerns. The Respondent also stated that there is a range of alternative equipment available where some equipment is not functioning. Where a device is non-operational then there are always multiple alternative devices that can be used. The Respondent’s policy is that where a radio is faulty it will be replaced and if there is no radio available then the affected team is not required to deploy until this has been rectified. Thirdly, the nature of the issues raised by the Complainant are not such that they would impact an employee’s ability to deploy and perform their duties. They are minor issues that are generally rectified during regular management audits. Thirdly, the Complainant issued SFNs on the dates that he reported equipment issue and there was no evidence to suggest that the Complainant was not able to perform his duties due to equipment issues. 2. The delay in the processing of his Data Subject Access Request (DSAR) The Respondent stated that the Complainant’s initial data subject access request (“DSAR”) was responded to by the Data Protection and Compliance Coordinator, Ms Cody, within the time period stipulated by her. Following a query from the Complainant as to whether the response was complete, Ms Cody commenced a further search and informed the Complainant of the process utilised to gather the data for full transparency. While it was acknowledged by the Respondent that there were delays in replying to the Complainant’s second DSAR, it was asserted that these were not related to the Complainant’s disclosure. On 26 October 2021, the Respondent experienced a significant data breach impacting 906 persons. For the next six months, the resources of the Data Protection & Compliance Coordinator were focused on mitigating and managing the data breach, as well as performing her normal duties. The Complainant was aware of the data breach as it was communicated to staff on multiple occasions from October 2021 to March 2022 through depot posters, staff newsletters, posted on the company’s intranet and by email. This resulted in an impact on the processing capacity of the Data Protection & Compliance Coordinator that affected every employee. All documents were provided to the Data Protection & Compliance Coordinator for review by the Customer Assurance and Security Departments and the Human Resources Department by 28 November 2021, within the 30-day time limit. The delay in providing the data to the Complainant arose from the need to review the data. It is necessary for a competent person to review all documentation requested on foot of a DSAR prior to its production to ensure that what is being disclosed is relevant to the request and does not contain data that should not be disclosed (e.g. the personal data of other persons). The Complainant was not the only person to make a data subject access request at this time. The Respondent stated that the processing delays impacted all of the Complainant’s colleagues, as the requests were processed by reference to the order in which they were received and the data to be disclosed. While the Respondent acknowledged that there was a delay in replying to the Complainant’s DSAR, they stated that there was no evidence to suggest that he was ignored or treated differently to his colleagues given that his request was processed as quickly as could be in the circumstances. CA-00050991-002: On 27 January 2022, the Complainant initially indicated his concern with how the rostering arrangements might impact on his performance management. The Respondent immediately met with the Complainant to assuage his concerns and assure him that there were no health and safety issues with performing the duties. Despite these assurances, the Complainant unilaterally decided, unreasonably, to refuse to perform the revenue protection aspects of his role and then left his post. It was disputed that he was sent home by the Respondent. On his return to work on 2 February 2022, the Complainant again refused to perform the revenue protection aspects of his role, having discussed the matter with the Respondent’s personnel. The Respondent stated that not only was this an essential element of the Complainant’s role, but the Complainant was at the relevant time on a performance management plan with a view to improving this aspect of his performance. As a result of his failure to carry out his duties, the Respondent initiated their disciplinary process on 10 February 2022 and suspended the Complainant without pay. Specifically, this related to the Complainant’s failure to comply with attendance procedures, material breaches of obligations under his contract; and neglect or failure or refusal to properly discharge duties assigned to him. While the Complainant alleged that this was due to his non-acceptance of the Respondent’s position on the health and safety issue raised, the Respondent asserted that the disciplinary process arose in circumstances where the Complainant was refusing to carry out his work duties. The Respondent denied the suggestion that P agreed with the Complainant’s safety concerns regarding the job of AO and stated that the allegations made by the Complainant merely indicated that there was a disagreement between colleagues as to what occurred, which did not amount to “detriment” within the meaning of the 2014 Act. |
Findings and Conclusions:
CA-00050991-001: Section 5 of the Act outlines that a protected disclosure is a disclosure of information where, “in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and it came to the attention of the worker in connection with the worker’s employment.” Subsection 3 goes on to outline that: The following matters are relevant wrongdoings for the purposes of this Act— (a) that an offence has been, is being or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, (f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur, (g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or (h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed Section 12 of the Act makes it unlawful for an employer to penalise an employee for making a protected disclosure. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure. Penalisation is defined as to mean any act or omission that affects a worker to the worker’s detriment, and in particular includes— (a) 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) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty), (e) unfair treatment, (f) coercion, intimidation or harassment, (g) discrimination, disadvantage or unfair treatment, (h) injury, damage or loss, and (i) threat of reprisal; Findings My jurisdiction regarding this complaint is confined to determining whether, within the meaning of Section 12 of the Act, the actions of the Respondent amounted to prohibited penalisation. In making my decision, I must examine firstly whether a protected disclosure was made within the meaning of the Act at Section 5 when the Complainant made a complaint on 28 April 2021 about what he alleged were illegal and discriminatory recruitment practices being promulgated by X on 27 April 2021. While I note that the fact of a protected disclosure having been made was vigorously contested by the Respondent who stated that X had no recruitment responsibilities, the Complainant must only reasonably believe that the information disclosed by him tends to show one or more relevant wrongdoings. This is in line with the decision of the English EAT in Darnton V University of Surrey [2003] ICR 615 para 33, where it was found that reasonable belief must be based on facts as understood by the worker, not as actually found to be the case. In the instant case, I find that, even if X had no role in recruitment decisions as the Respondent asserted, the Complainant, unaware of this fact, genuinely believed, based on X's assertions, that (X) he held such responsibilities. I am therefore satisfied from the evidence presented to me in this case that the Complainant made a protected disclosure. Having established that a protected disclosure was made, I must now examine if the Complainant was penalised as a result of this. In making this assessment, I am required to apply a "but for" test as the Labour Court outlined in Monaghan v Aidan & Henrietta McGrath Partnership [2017] 28 E.L.R. “the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant 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 Complainant 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”. As set out in the preamble above, I am only considering alleged acts of penalisation which occurred in the cognisable period, namely between 4 December 2021 and 3 June 2022. The Complainant clarified at the hearing that the alleged acts of penalisation that were caused by the protected disclosure were: 1. The provision of faulty equipment to him In examining this allegation of penalisation, I cannot understand in the first instance why the Complainant did not contact anyone in the Sandyford depot directly instead of relying on a written sheet to communicate his concerns if he was so concerned by the faulty equipment as he alleged. I also note that, notwithstanding the faulty equipment allegedly provided to him, the Complainant was still able to do his work. Crucially, the Complainant accepted in cross-examination that another work colleague of his had also been provided with faulty equipment, which would suggest that he was not targeted specifically by the Respondent, following the complaint that he made. Moreover, even if I accept that the faulty equipment had been provided to him and I considered this to constitute “unfair treatment”, as set out in section 12 (1) ( e ), which I do not for the reasons set out in the preceding paragraph, there was no connection whatsoever established by the Complainant between the protected disclosure having been made by him and the alleged “unfair treatment” . 2. The delay in the processing of his Data Subject Access Request (DSAR) In examining this allegation of penalisation, the first logical step is to examine whether the Data Protection and Compliance Coordinator, Ms Dorota Cody, who the Complainant alleged subjected him to penalisation, was aware of the protected disclosure. I note firstly that the Co-ordinator stated in her sworn evidence that she had no knowledge of the Complainant’s protected disclosure and there was no evidence whatsoever presented to suggest that she had or that her evidence around this was in any way not credible. I also find, on the balance of probabilities, that the delays encountered in furnishing the Complainant's data were attributable to the data breach experienced by the Respondent in November 2021. I make this finding based on the evidence presented by the Respondent concerning other employees who submitted a data access request around the same time as the Complainant and who all experienced similar delays. In addition, there was no presented evidence by the Complainant to suggest any undue delay in the furnishing of his data compared to any other employee who made similar requests around the time of the data breach. Moreover, even if I accept that the Respondent delayed in processing his data access request and I considered this to constitute “unfair treatment”, as set out in section 12 (1) ( e ) above, which I do not for the reasons set out in the preceding paragraph, there was no connection whatsoever established by the Complainant between the protected disclosure having been made by him and the alleged penalisation Considering all of the foregoing points, I find that the Complainant was not penalised as a result of the protected disclosure that he made, and that the complaint is therefore not well founded. CA-00050991-002: Safety, Health and Welfare at Work Act, 2005 The Complainant alleges that she was ‘penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act, 2005’. The relevant sections of the legislation provide, at Section 27 (1): “‘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.” Section 27 (2): Without prejudice to the generality of subsection (1), penalisation includes- (a) suspension, layoff or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977-2001) 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. Section 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 toperform functions under this Act. Findings; My jurisdiction with regard to this complaint is confined to determining whether, within the meaning of Section 27 of the Act, the actions of the Respondent amounted to prohibited penalisation. In making my decision, I must examine firstly whether a protected act within the meaning of the Act at Section 27(3), as set out above, was made by the Complainant. Having heard the evidence of the Complainant, I am satisfied that he made a complaint to the Respondent on 27 January 2022 about having to work on his own with an SSO without a risk assessment having been provided to him and find that this constitutes a protected act. In deciding whether the Complainant was penalised as a result of having made this protected act, I firstly noted the Complainant’s evidence that he was of the understanding that he had been sent home on 27 January 2022 following his refusal to work because he believed that it was not safe to do so. I also noted however that in cross-examination he appeared to accept that he had not in fact been sent home. Specifically, he stated in reply to a question from Ms Mallon BL that P responded with a "no" when the Complainant asked if P wanted him to go home. I therefore find on the balance of probabilities that the Complainant was not sent home because of his decision not to work, and that he simply refused to do his duties and left the workplace of his own volition. Given that he had not in fact been sent home, I find that there was no question of penalisation, such as non-payment of wages after he left work. On his return to work, after discussing the matter with the Respondent, the Complainant again refused to perform the revenue protection aspects of his role. As a result of this refusal, he was suspended from his role and a disciplinary investigation was initiated. The Complainant stated in evidence at the hearing that he was penalised by the Respondent because P had not admitted during the ensuing investigation what he had said to him informally on 2 February 2022, namely that he (the Complainant) had a point when he (the Complainant) had raised concerns about an AO working on his own with an SSO. Even if I accept that P omitted to say during the investigation what he had said to the Complainant informally, this does not constitute penalisation as set out in section 27 (2) of the Act above because there was no detriment caused to the Complainant as a result of the omission. This is because P only provided a statement to the Investigator and was not involved in the decision around what disciplinary sanction was imposed on the Complainant. Although there was no suggestion made by the Complainant that the disciplinary sanction in and of itself constituted penalisation, which is provided for under the Act, I find, for the avoidance of doubt that the imposition of the final written warning resulted from the Complainant’s refusal to fulfil his normal duties and was not a consequence of the health and safety complaint that he made about having to go to work on 27 January 2022 without being accompanied by an Authorised Officer. Considering all of the foregoing points, I find that the Complainant was not penalised as a result of the protected act he made, and that the complaint is therefore not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00050991-001: I find that this complaint is not well founded for the reasons set out above. CA-00050991-002: I find that this complaint is not well founded for the reasons set out above. CA-00050991-003: This complaint was withdrawn |
Dated: 09/01/2024
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
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