HSD243

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00040852 (CA-00052135-001).

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts, 2005 to 2014.  A Labour Court hearing took place on 18 June 2024.

The following is the Decision of the Court:

DECISION:

This is an appeal by Wexford County Council (the Respondent) against decision ADJ-00040852- CA-00052135-001 of an Adjudication Officer in a complaint by Patrick O’ Connor (the Complainant).  The complaint was made pursuant to the Safety Health and Welfare at Work Act 2005 (the Act). The Adjudication Officer held that the complaint of penalisation was well founded and awarded compensation of €20,000.

Background

The Complainant commenced employment with the Respondent as a general operative on 31st March 2009, and is currently employed as a Driver category A based in Enniscorthy. The Complainant alleges he was penalised by having his variable overtime reduced, contrary to the Act, for raising health and safety issues.  The Complainant lodged his complaint with the WRC on the 8th August 2022. The relevant time limits for the purpose of the Act are 9th February 2022 to 8th August 2022.

At the commencement of the hearing the representative for the Respondent informed the Court that they accepted that the Complainant had made a complaint in line with section 27 (3)(c ) of the Act but they do not accept that he was penalised or suffered any detriment for doing so.

Summary of the Complainant’s submission and evidence.

The Complainant’s Union representative submitted that the Complainant suffered three types of penalisation 1) ostracisation, 2) no investigation into his complaint and 3) loss of overtime. These manifested by way of the Complainant losing out on potential overtime, people deliberately avoiding him, reputational damage, that his bullying complaint was not investigated and changes to his work practises. The Complainant in his sworn evidence to the Court stated that he had made a complaint to the Health and Safety Officer on July 27th, 2021.  In early 2022 he noted that he was not being asked to cover the bins for a colleague, something he had done for a number of years and for which he got paid overtime.  There was also other work where he covered for annual leave, sick leave etc, and he noticed that he was no longer being asked to do that generating a further potential loss of overtime.  It is his understanding that other colleagues are now doing this work. Another issue impacting his potential overtime was that he always worked three hours on a Public Holiday, during Covid it was cut to two which was supposed to be temporary, but it was never restored.

In terms of ostracisation he always worked three days in the van with another colleague, but this was changed, and he was left working alone. In December 2021, he had to request a working alone device. On another occasion when he went into the yard nobody spoke to him. The Complainant stated that his complaint of bullying was not investigated properly. The Complainant confirmed that he had two types of overtime fixed, which did not change unless he received a pay increase and variable. He stated that it was the impact on his variable overtime by not doing cover, that he had previously done was the potential loss. He estimated this potential loss during the relevant period as being €1,200. The Complainant was asked to look at a table in the Respondents submission which showed his annual salary and overtime from 2019 to 2022. The table showed a year-on-year increase in his overtime payments. He accepted that the figures were correct.

In cross examination the representative for the Respondent asked the Complainant if he could identify the portion of overtime that was fixed and the portion that was variable in the figures set out in the table. The Complainant confirmed that he could not, and he accepted that he continued to do variable overtime such as festivals after he made his complaint in July 2021. He accepted that the chart showed he suffered no loss in respect of overtime, in fact his overtime increased. He also accepted that during the relevant period he did some cover for which he was paid overtime. The Complainant confirmed that his hours including fixed overtime were as follows.

  Week 1 Monday to Thursday 8.00am – 5.00pm

               Friday 8.00am to 400.pm

               Saturday 6.00am to 8.00am

              Sunday 6.00 am to 8.00 am

Week 2 Monday to Wednesday 8.00am to 6.00pm

              Thursday 6.00am to 6.00pm

               Friday 8.00am to 5.00pm

Saturday and Sunday 6.00am to 10. 00am and 5pm to 7.00pm

The Complainant confirmed that there had been no change to these hours or the fixed overtime within these hours.

The Union on behalf of the Complainant submitted that he had proven that it was apt to infer from the events outlined that his complaints were an operable consideration leading to him suffering the detriments he had identified.    

Summary of the Respondent’s submission and evidence.

The Respondent denies that the Complainant was penalised or suffered any detriment. The Complainant has identified loss of overtime earnings across a number of areas as a principal detriment. The fact is, as set out in the table in the Respondent’s submission that there has been no loss of overtime earnings, in fact his earnings increased.   Ms O’ Reilly in her evidence to the Court will give details showing that the Complainant earned higher than the average overtime for crew members in each of the years looked at.  Contrary to what the Complaints states his complaint of bullying and harassment arising from an incident in July 2021 and another incident were formally investigated. However, the complaints of bullying and harassment were not upheld.  In respect of his complaint of ostracisation the Complainant is the sole driver of the Town Road Sweeper which is leased. In order to maximise the efficient use of the vehicle, in 2020 the Senior Executive Engineer requested that the Complainant drive the sweeper for longer periods of the day. The Complainant was allowed to bring the sweeper home so there was no need for him to be in the truck. This predated his complaint in 2021.

Ms O’ Reilly Acting Head of HR for the Respondent in her evidence to the Court stated that she had put together the table in the Respondent’s submission showing the Complainants earnings for the years 2019 to 2022, and his overtime earnings for the same period. She had gathered the information from their payroll system. Ms O’ Reilly stated that she looked at the average overtime for staff in the same category as the Complainant, and for the year 2022 it was 460 hours, whereas the Complainant worked overtime as follows; 603 hours in 2022, 544 hours in 2021, and 535 hours in 2020. The Respondent submitted that while they accept that a complaint was made in line with the Act, it is not accepted that the Complainant was penalised or suffered detriment. He suffered no loss of earnings and in fact his earnings increased during the relevant period.

The relevant Law

The Act at Section 27 in relevant part provides as follows:

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,

Subsection 3 of Section 27 prescribes the circumstances in which penalisation is rendered unlawful under the Act. It provides: -

(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) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions

(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.

Discussion

The Court’s jurisdiction in the within matter is confined to determining whether, within the meaning of Section 27 of the Act, actions of the Respondent amounted to prohibited penalisation.

The Court has approached the within matter on the basis of first determining whether a protected act within the meaning of the Act at Section 27(3) was committed. The Court notes that the Respondent accepts that the Complainant made a complaint that falls within the scope of the Act. The Court therefore determines that there was a protected act.

 The Complainant alleges three acts of penalisation firstly, loss of overtime. It is clear from the evidence before the Court, which the Complainant did not disagree with, that during the relevant period the Complainant suffered no reduction in overtime. Year on year his overtime increased, and he accepts that. The Complaint’s objections appear to be that the variable overtime changed in terms of the tasks he carried out. The Complainant has suffered no loss in terms of his overtime and has failed to establish a causal link between the change of tasks to his complaint to the Health and Safety Officer and on that basis this element of his complaint must fail.

The second detriment alleged was a failure to investigate his bullying and harassment complaints. The Court was provided with details of the investigation carried out. The Complainant did not dispute that this investigation occurred but informed the Court he did not accept the outcome. Not agreeing with the outcome is different to no investigation having taken place and on that basis this element of his complaint must fail.

The final part of his complaint was that he was ostracised. The Complainant did not dispute the Respondents contention that prior to his making his complaint the Senior engineer had decided that he wanted the sweeper truck which the Complainant drove to be used for longer periods. In respect of his complaint that one day he walked into the yard, and nobody spoke to him the Complainant has failed to establish a causal link between that incident and his complaint or any detriment arising from that incident. 

Decision

The Court having considered the submissions and the evidence before it finds that the Complainant did make a complaint which would constitute a protected act but had failed to establish that he was penalised by the Respondent or suffered any detriment for doing do. On that basis his complaint must fail.

The appeal is upheld. The decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
8th July 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.