ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00045156
Parties:
| Complainant | Respondent |
Parties | Luis Neves | Davra Networks Ltd |
Representatives | Self | Meghan McSweeney Mason Hayes & Curran Solicitors |
Complaint(s):
Act | Complaint 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-00055995-001 | 10/04/2023 |
Date of Adjudication Hearing: 11/09/2023
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant commenced employment with the respondent on the 10th of December 2021 and his employment ceased on the 13th of October 2022. He was employed as the site reliability engineer. The employee alleges that he was penalised by his employer and relies upon the Safety Health and Welfare at Work Act 2005 (the Act) to ground his complaint. He states that section 27 of the Act provides that an employer shall not penalise or threaten penalisation against an employee for performing any duty or exercising any right under the relevant statutory provisions. He states that as he performed all his duties to the maximum of his ability and his employer terminated his contract without giving him a reason that constitutes penalisation. The Complainant also relies on bringing the penalisation complaint under part 3 section 20 of the S.I. number 259 of 2007 European Communities (European Cooperative Society) (Employee Involvement) Regulation 2007 (the “Regulations”). The Respondent stated that this complaint is misconceived, and that the Adjudicator should not proceed to hear this claim. The Respondent is not an entity governed by the 2007 regulations as it is a limited company and therefore does not meet the definition of a European Cooperative Society and such an entity is defined in regulation 2 (1). The Respondent is not such an entity. The complainant seeks relief under both the 2007 regulations which is misconceived, and penalisation allegedly suffered under the 2005 act. However, he has not particularised any health and safety issue and as such the complaint is bound to fail. For these reasons the respondent submitted that the complaint was misconceived and made a formal application for the proceedings to be struck out in their entirety. |
Preliminary Matter
The Complainant detailed his claim as follows:
In the Safety, Health and Welfare at Work Act 2005, section 27, states an employer shall not penalise or threaten penalisation against an employee for performing any duty or exercising any right under the relevant statutory provisions. I believe that I did the perform my duties to the maximum of my abilities and my employer terminated my contract without providing any reason.
The proposition is where the employee has performed his duties and his employment was terminated without a reason under the Act (2005 Act) that amounts to penalisation.
Section 27 of the Act defines penalisation as:
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.
Section 27 details when a complaint can be brought, and it relates to relevant statutory provisions.
The purpose of the Act is to:
AN ACT TO MAKE FURTHER PROVISION FOR SECURING THE SAFETY, HEALTH AND WELFARE OF PERSONS AT WORK AND FOR THE ENFORCEMENT OF THE RELEVANT STATUTORY PROVISIONS, TO GIVE FURTHER EFFECT TO COUNCIL DIRECTIVE 89/391/EEC OF 12 JUNE 19891 ON THE INTRODUCTION OF MEASURES TO ENCOURAGE IMPROVEMENTS IN THE SAFETY AND HEALTH OF WORKERS AT WORK AND COUNCIL DIRECTIVE 91/383/EEC OF 25 JUNE 19912 ON MEASURES TO IMPROVE THE SAFETY AND HEALTH AT WORK OF WORKERS WITH A FIXED-DURATION OR TEMPORARY EMPLOYMENT RELATIONSHIP, TO PROVIDE FOR THE FURTHER REGULATION OF WORK ACTIVITIES, TO CONTINUE IN BEING AND CONFER ADDITIONAL FUNCTIONS ON THE NATIONAL AUTHORITY FOR OCCUPATIONAL SAFETY AND HEALTH AND RENAME THAT BODY AS THE HEALTH AND SAFETY AUTHORITY, TO REPEAL THE SAFETY, HEALTH AND WELFARE AT WORK ACT 1989, TO PROVIDE FOR THE REPEAL OF CERTAIN OTHER ENACTMENTS AND THE AMENDMENT OF THE NATIONAL STANDARDS AUTHORITY OF IRELAND ACT 1996 AND TO PROVIDE FOR RELATED MATTERS.
The Complainant hasn’t referred to a relevant provision in the Act to ground his complaint.
Dismiss Claim as Misconceived:
I also note as cited in Delaney and McGrath that the Superior Courts have clarified when claims in the courts should be dismissed as misconceived:
Basis on which the Jurisdiction Will Be Exercised
16-06
It is well-established that the jurisdiction conferred by Order 19, rule 28 is exercisable by reference to the pleadings only. In McCabe v Harding11 O'Higgins CJ stressed that, in order for rule 28 to apply, “vexation or frivolity must appear from the pleadings alone”, a point that was reiterated by Costello J in Barry v Buckley,12 who stated that “the court can only make an order under this rule when a pleading discloses no reasonable cause of action on its face”. This basic principle was reaffirmed by Costello J in D.K. v King,13 where he stated that rule 28 only applies where it can be shown that the text of the plaintiff’s summons or statement of claim discloses no reasonable cause of action or that the action is frivolous or vexatious. So, for the purposes of considering whether to accede to an application based on rule 28, the court should consider the pleadings14 only, ignoring any affidavit evidence filed,15 and further must proceed on the basis that any statements of fact contained in the pleading sought to be struck out are true and can be proved by the party.16 Clarke J made it clear in Salthill Properties Ltd v Royal Bank of Scotland plc17 that “the court must accept the facts as asserted in the plaintiff’s claim, for if the facts so asserted are such that they would, if true, give rise to a cause of action then the proceedings do disclose a potentially valid claim.” As Baker J stated in Wilkinson v Ardbrook Homes Ltd,18 the approach of the court should be “to ask whether the plaintiff could possibly succeed on the case as pleaded and in the light of the facts asserted, and only if it is satisfied that a plaintiff could not possibly establish those facts, or could not possibly succeed on the pleadings, should the proceedings be struck out.”
On the face of the written claim, it does not follow that because an employee performed all their duties and subsequently was dismissed, it must follow that the termination was linked to being penalised for a relevant provision under the Act. Therefore, the fact of dismissal is not per se an event that establishes penalisation.
Insufficient Particulars:
I note in Delaney and McGrath (4th Ed 2018 Round Hall)
5-82
An example of a case where sufficient particulars of negligence were not provided is Mitchell v Arthurs.188 The plaintiff workman sued for damages arising out of the fall of bricks from scaffolding and pleaded that the defendant “so carelessly, negligently, and unskilfully erected the scaffolding, that a large number of bricks fell on the plaintiff”. The statement of claim was struck out as embarrassing on the basis that it merely made a general plea of negligence and failed to specify the particular defects in the scaffolding of which complaint was made.
I also note in Civil Proceedings Delaney and McGrath cite:
If a party is not satisfied that sufficient particulars of his opponent’s claim have been given, the proper course of action is to bring a motion to compel replies rather than a motion to strike out the pleading on the ground that it fails to disclose a reasonable cause of action pursuant to Order 19, rule 28: Tromso Sparebank v Beirne, High Court (Costello J), 14 March 1988.
On the written submission and based on the evidence presented at the hearing there is a dearth of specificity concerning the breaches that have occurred. The Complainant called no witnesses to corroborate his claims. The Complainant opened no documentary evidence to support his claims.
The Respondent relies on the decision of the Labour Court in Patrick Kelly t/a Western Insulation v Algirdas Girdsius, where the Court held:
“there is no evidence of any kind to establish any causal connection between the alleged omissions relied upon and any act on the part of the Claimant of a type referred to at subsection 3.”
The Court found the claim to be misconceived.
The Complainant has made out no case to support a claim for penalisation. The fact that the contract was terminated, and the complainant believes that he performed all his duties does not constitute penalisation under the Act.
The reference to part 3, section 20 of S.I. No. 259 of 2007 under European Communities (European Cooperative Society) (Employee Involvement) Regulations 2007 is also misconceived as it does not apply to a Limited Company. The purpose of that regulation is:
The purpose of these regulations is to give effect to EU Directive 2003/72/EC of 22 July 2003, “Supplementing the Statute for a European Cooperative Society with Regard to the Involvement of Employees”.
The European Cooperative Society Statute is a new legal instrument that enables the establishment of a European Cooperative Society (to be known as an “SCE”), the objective of which is to make it easier for cooperatives to operate across the EU.
These regulations transpose the provisions of the Directive, providing that a new SCE cannot be registered without first negotiating with employees on their involvement in the cooperative, whether through information and consultation and/or, in certain circumstances, participation at board level.
The Respondent is not a legal entity that is subject to these regulations. It follows that the reference to penalisation to an employee in these regulations do not apply to the Complainant. For this reason, the complaint seeking relief under these regulations is misconceived.
Summary of Complainant’s Case:
The Complainant commenced employment with the respondent on the 10th of December 2021 and his employment ceased on the 13th of October 2022. He was employed as the site reliability engineer. The employee alleges that he was penalised by his employer and relies upon the Safety Health and Welfare at Work Act 2005 (the Act) to ground his complaint. He states that section 27 of the Act provides that an employer shall not penalise or threaten penalisation against an employee for performing any duty or exercising any right under the relevant statutory provisions. He states that as he performed all his duties to the maximum of his ability and his employer terminated his contract without giving him a reason that constitutes penalisation. The Complainant also relies on bringing the penalisation complaint under part 3 section 20 of the S.I. number 259 of 2007 European Communities (European Cooperative Society) (Employee Involvement) Regulation 2007 (the “Regulations”). |
Summary of Respondent’s Case:
The Respondent stated that this complaint is misconceived, and that the Adjudicator should not proceed to hear this claim. The Respondent is not an entity governed by the 2007 regulations as it is a limited company and therefore does not meet the definition of a European Cooperative Society and such an entity is defined in regulation 2 (1). The Respondent is not such an entity. The complainant seeks relief under both the 2007 regulations which is misconceived, and penalisation allegedly suffered under the 2005 act. However, he has not particularised any health and safety issue and as such the complaint is bound to fail. For these reasons the respondent submitted that the complaint was misconceived and made a formal application for the proceedings to be struck out in their entirety. |
Findings and Conclusions:
On the written submission and based on the evidence presented at the hearing there is a dearth of specificity concerning the breaches that have occurred. The Complainant called no witnesses to corroborate his claims. The Complainant opened no documentary evidence to support his claims. The Respondent relies on the decision of the Labour Court in Patrick Kelly t/a Western Insulation v Algirdas Girdsius, where the Court held: “there is no evidence of any kind to establish any causal connection between the alleged omissions relied upon and any act on the part of the Claimant of a type referred to at subsection 3.” The Court found the claim to be misconceived. The Complainant has made out no case to support a claim for penalisation. The fact that the contract was terminated, and the Complainant belief that he performed all his duties, does not constitute penalisation under the Act. The reference to part 3, section 20 of S.I. No. 259 of 2007 European Communities (European Cooperative Society) (Employee Involvement) Regulations 2007 is also misconceived as it does not apply to a Limited Company. The purpose of that regulation is: The purpose of these regulations is to give effect to EU Directive 2003/72/EC of 22 July 2003, “Supplementing the Statute for a European Cooperative Society with Regard to the Involvement of Employees”. The European Cooperative Society Statute is a new legal instrument that enables the establishment of a European Cooperative Society (to be known as an “SCE”), the objective of which is to make it easier for cooperatives to operate across the EU. These regulations transpose the provisions of the Directive, providing that a new SCE cannot be registered without first negotiating with employees on their involvement in the cooperative, whether through information and consultation and/or, in certain circumstances, participation at board level. The Respondent is not a legal entity that is subject to these regulations. It follows that the reference to penalisation to an employee in these regulations do not apply to the Complainant. For this reason, the complaint seeking relief under these regulations are misconceived.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The reference to part 3, section 20 of S.I. No. 259 of 2007 under European Communities (European Cooperative Society) (Employee Involvement) Regulations 2007 is misconceived as it does not apply to a Limited Company. The Respondent is not a legal entity that is subject to these regulations. It follows that the reference to penalisation to an employee in these regulations do not apply to the Complainant. For this reason, the complaint seeking relief under these regulations are misconceived. The Complainant detailed his claim as follows: In the Safety, Health and Welfare at Work Act 2005, section 27, states an employer shall not penalise or threaten penalisation against an employee for performing any duty or exercising any right under the relevant statutory provisions. I believe that I did the perform my duties to the maximum of my abilities and my employer terminated my contract without providing any reason. The proposition is where the employee has performed his duties and his employment was terminated without a reason under the Act (2005 Act) that amounts to penalisation. The Respondent relies on the decision of the Labour Court in Patrick Kelly t/a Western Insulation v Algirdas Girdsius, where the Court held: “there is no evidence of any kind to establish any causal connection between the alleged omissions relied upon and any act on the part of the Claimant of a type referred to at subsection 3.” The Court found the claim to be misconceived. The Complainant has made out no case to support a claim for penalisation. The fact that the contract was terminated, and the complainant believes that he performed all his duties does not constitute penalisation under the Act. The complaint of penalisation under the Safety, Health and Welfare at Work Act 2005 is misconceived as no causal connection between the alleged penalisation and a relevant provision in the Act has been made out. I determine that the complaints are not well founded. |
Dated: 9th January 2024
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Misconceived |