Complainant

Respondent

Anonymised Parties

On-line Retail Employee

A Supermarket

Representatives

Michael Monahan Solicitor

Carmel Murphy HR Solutions

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-00043744-001

23/04/2021

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

CA-00043744-002

23/04/2021

There are two complaints:

CA-00043744-001

The complainant contends that she was penalized (dismissed) for making a health and safety complaint following a slip and fall at work.

and

CA-00043744-002

The complainant contends that the Respondent failed to provide her with basic terms and conditions of her employment in writing in accordance with the Terms of Employment (Information) Act 1994, as amended.

Both complaints are denied by the Respondent.

The Complainant gave evidence under Oath as follows:

Penalisation Complaint

1.      The Complainant was employed as an Online Retail Shopper by the Respondent, a retail grocery business, on 8. 2. 2021.

2.      She sustained an injury when she fell in the staff toilets on 25. 3. 2021.

3.      She informed the store manager, PB, immediately after the fall and explained that it occurred because the floor was wet, and no warning sign had been erected.

4.      She went home after her shift. That was a Thursday.

5.      She took Friday 26 March off as certified sick leave due to a back injury.

6.      She was then off work on Saturday 27 and Sunday 28 in accordance with her roster (she did not work weekends.)

7.      She returned to work on Monday 29 March 2021 and worked until 31 March 2021. During this time she was asked to complete an incident report form about the accident.

8.      She took 1 and 2 April off as certified sick leave. As usual she did not work Saturday (1st April) and Sunday 2nd) and Monday 3rd April which was Easter Monday.

9.      She worked from Tuesday 6 April until Friday 9th April. On 7th April she filed the incident report form.

10.   On 9th April she was asked by Store manager (BH) to go to the office for a meeting, where she was dismissed by one of the two shop owners, PG. BH was also present at the meeting.

11.   BH told her that she was on an extended trial period but that they had decided to terminate her employment. He said it was because she wasn’t working fast enough, that she had been using her phone in work and because she chit chatted too much.  He gave her a dismissal letter which gave no reasons why she was being dismissed.

12.   She took the letter and left. She was upset because no one had warned her that she might lose her job and no one had properly trained her in. She made a few mistakes but that was to be expected given that she wasn’t that long working there and had no retail experience before working for the Respondent.

13.   It was her opinion that if she had not slipped and fallen on 25 March 2021 and reported it, that she would not have been dismissed.

14.   The proximity in time between her raising the complaint and being dismissed (2 weeks later) is too close to be unconnected.

T&C complaint

15.   The Complainant did not receive all her terms and conditions in writing within 5 days of starting work and her pay slip was inaccurate, insofar as it referred to the trading name, not the Respondents’ legal name.

Under cross examination the Complainant stated as follows:

16.   The Complainant accepted online shopping job was an important role in the shop because post-pandemic, much of the Respondent shopping had gone online.

17.   The Complainant accepted that there were a few performance issues that arose during her 8 weeks of employment but nothing that was unexpected given her lack of experience.

18.   She accepted that on 9 March 2021 she wrongly gave a customer a bottle of Dingle Vodka when they had ordered Dingle Gin. She accepted that she was told this by one of her bosses (RG) that the customer had complained. She also accepted that Easter eggs ordered by the same customer had partially melted but were still had been put into the customer’s parcel by her for delivery. She accepted that this was prior to her slip and fall.

19.   She accepted that her supervisor (CT) had given her feedback on her performance before the slip and fall but not much at all. She did not accept that she was warned about not completing online shopping in the right order; leaving customers too long for their shop to be delivered; failing to properly substitute products if a specific product was not available; failing to complete the paperwork properly; leaving paperwork incomplete before going home.

20.   She did not accept that her work was so poor that she needed to be supervised so closely that her supervisor may as well have been doing her job.

21.   She did not accept that she was told about customer complaints.

22.   She accepts that she made an error on the till where a customer was charged €4000 by accident instead of €4 for one transaction. She said that that was a mistake because she wasn’t used to the tills. She does not accept that this incident took place on 22 March when she had been working there 6 weeks and should have known after two weeks how to work the tills.

23.   She said that she may have been slow at the start but that was because she did not know where the products were.

24.   She said that she was told to ask her supervisor if she did not understand and she did that. She said that she spoke to her supervisor most days.

25.   In respect of the incident report form she said that she completed the form on 7 April and two days later she was dismissed.

26.   She did not accept that she got worse in second month than she had been in the first month.

27.   She told her manager on the day that she slipped and fell and she believes that the reason she was dismissed was because she complained about a health and safety issue, that no warning sign had been erected following her slip and fall. She also told one of her bosses (PG) on her return from sick leave about the fall.

28.   She accepts that her boss and the store manager asked her to fill in the incident report form a few times but when she returned to work she was on pain killing medication which made her forgetful. She accepts that she may not have told her employer that.

29.   At the termination meeting she was told about her phone use but she was not told that her dismissal was because of poor substitution of products; incorrect charging of customers. Her boss did mention unsatisfactory work at the meeting but did not say what that was. She accepted that her supervisor did address her mistakes with her on the shop floor.

30.   She accepted that she said to BH after the termination meeting that she knew that the dismissal was coming but she didn’t say it was because of her health and safety complaint, but that is what she meant.

31.   In terms of loss arising from her dismissal the Complainant has not worked since because she has not been cleared by her doctor to work.

Legal Submissions on behalf of the Complainant were:

32.   In respect of the penalisation complaint, the evidence shows that on the balance of probabilities the Complainant would not have been dismissed but for the fact that she reported her injury as a health and safety issue (slip and fall) on the day that it occurred (ie 25 March) and again to her boss (PG) a few days later.

33.   Her work performance issues were standard “bedding in” issues that would have been ironed out had her employment continued. These issues were not brought to her notice in any way that could have allowed her to believe that her job was in jeopardy. No fair procedures were followed. If even a part of the reason for her dismissal was due to her making the health and safety complaint, the “but for” test is satisfied, as set out in Toni and Guy Blackrock Ltd v. Paul O’Neill which was the law that pertained at the time that this detriment/ dismissal occurred.

34.   In respect of the second complaint (no terms and conditions in writing were provided), the Respondent concedes that it did not provide the Complainant with all the basic terms and conditions of her employment within 5 days of her starting, or indeed at all.

The Respondent position is that:

CA-00043744-001 – The “but for” Toni and Guy test has not been discharged by the Complainant. The reason that the Complainant was dismissed was due to her work performance in a trial period of 2 months during which the Complainant’s mistakes were so bad that she could not be kept on an employee. She had become a liability to the business. The fact that she had a minor accident at work and told her manager about it, played no part in the decision to dismiss her.

CA-00043744-002 – The complaint that her pay slips did not stated the work “Limited” after the company name is not a breach under the Terms of Employment (Information) Act, which is how this complaint is described in the complaint form and even if there is a technical breach it is minor and should be dealt with on a de minimis basis.

The evidence on behalf of the Respondent was as follows:

Supervisor (CT) gave evidence under oath as follows

1.      CT has worked for the Respondent as a shop supervisor for 24 years. She manages the off-licence business and oversees online shopping.

2.      Throughout the 8 weeks that the Complainant was employed her work performance was poor.

3.      CT trained in the Complainant. She worked directly with the Complainant for the first week. One week of direct one to one training has proven to be sufficient for any of the other employees who learned how to do the job. The job tasks are not complex.

4.      Students did it at the weekend and they picked it up straight away.

5.      The Complainant’s mistakes were very abject mistakes that were not as a result of any lack of training. It was inattention and carelessness.  She left a half-filled trolley on the floor without completing the customer’s shop. She left frozen goods on the shop floor which had defrosted by the time that they were delivered to the customer. She inputted wrong units of what was ordered. She overcharged customers. She did not complete paper-work before she finished her shift.

6.      The big obvious errors (which led to customer complaints) were the overcharging another customer €4000 instead of €4 and on 30 March delivering melted easter eggs and Vodka instead of Gin to a customer.

7.      CT had to check and recheck every order and what was being sent by the Complainant. In the run up to Easter, particularly around 30 March, there were a number of mistakes on that day which made the situation completely unworkable.

8.      The Complainant made CT’s job more difficult instead of less difficult. It added to instead of lessened her work-load.

9.      She reported these problems to her line managers (PB and BH regularly). From a few weeks into the job CT reported serious misgivings about the Complainant’s ability to do the job.

10.   At the end of the 8 weeks, as it was coming up to Easter and the Complainant was getting worse not better CT told her boss that the complainant was not capable of doing the job.

CT was cross examined as follows:

11.   When asked why she did not raise these serious concerns with one of the two bosses, she said that she did. She said that she talked to RG about the Complainant.

12.   When asked why she did not talk to the Complainant directly and try to help her to improve, CT said that she did almost on a daily basis.

13.   If asked why she was allowed stay for 2 months if she had been as bad as she was, CT said that from the Complainant’s second week she told her line managers her belief that the Complainant was not able for the job.

14.   But the end of four weeks she told her manager (PB) that she thought the Complainant should be let go. This was before any slip and fall. She also told her boss, RG this.

15.   The Complainant was the worst employee in the store. The mistakes were basic.

Store Manager (BH) gave evidence under oath as follows:

1.      He had a high level of interaction with the Complainant for the 8 weeks that she was there.

2.      Customers complained about her

3.      He gave her regular feedback to her about how to do the job on the shop floor.

4.      She did not improve as time passed.

5.      She was inattentive. She used her mobile phone on the shop floor.

6.      The Complainant’s supervisor (CT) complained to him about the Complainant’s work performance on a regular basis.

7.      She seemed to get worse not better in the second month

8.      The reason that she wasn’t let go after the first month was because Easter was looming and that two-week period is when many visitors come to holiday in the area and it is a very busy time for the business.

9.      They had no one else that could step in and do the work.

10.   They decided to leave her there until after Easter when they would then decide what to do.

11.   After Easter it would become less busy and then the students would soon be returning from college and could do the online work as they did before.

12.   However in March came big mistakes; the overcharging of €4000 and then on 30 March there were a number of mistakes the Gin/Vodka mix up, the Easter eggs being delivered melted, a steak order which a customer was charged but did not receive, volumes of water meant for a nursing home were not delivered. This all led to a decision on 30 March that they would let her go. The decision was made by the owners in discussion with him and his line manager (PB.)

13.   BH told the owners that he was recommending to them that she be let go. He could not keep dealing with this level of mistakes and customer dissatisfaction. She was a liability to the business, not an asset.

14.   Back on 26 March he was told by PB that the Complainant had fallen the previous day in the toilets. That happens. It was not considered to be a serious incident. Her fall was not connected in any respect to her poor work performance and the decision to let her go on 9 April. She was told a number of times to fill out the incident report form but didn’t. They were chasing her about it, they certainly were not trying to evade her giving her version of what happened or punish her for doing so. 

15.   The decision to dismiss her was taken on 30 March but she was not dismissed until 9 April.

16.   BH was at the termination meeting.

17.   The reasons she was told for her dismissal was: poor substituting of products, mixing up trolleys, use of mobile phone on the shop floor and chit chatting.

BH was cross examined as follows

18.   The decision to dismiss the Complainant was recommended by him and was supported by PB and the owners. It was decided on 30 March 2021.

19.   The decision had nothing to do with her fall on 25 March. Her work had been poor before then and was poor subsequent to it.

20.   She was on a trial period anyway and she did not pass the trial.

21.   The reason that the Complainant was not told about the dismissal until 9 April was because they wanted to get through the two busy weeks of Easter which ended on Friday 9th April.

22.   He accepted that at her termination meeting there was nothing on paper to show that she had been warned about poor performance but she admitted in her own evidence that her poor work performance, albeit unspecified, was mentioned at the meeting and she accepted that her supervisor gave her feedback on the shop floor on how to improve.

23.   The complainant was put on notice – both by her Supervisor and him - about the mistakes she was making and how the job needed to be done.

24.   He accepted that she was not advised that she might lose her job, but she was on a trial period. That is what a trial period is for. It is a test to see if a person is up to the job.

25.   Not only was she not penalised for raising a health and safety complaint, but the Complainant was asked on multiple occasions to fill in the incident report form. The Respondent were constantly asking for her to write this notification, they certainly were not seeking to punish her for notifying them of her slip and fall. They were seeking the detail from her to give to their Insurers.

Respondent Owner (RG) gave evidence under oath as follows

1.      RG owns the Respondent business with her husband PG.

2.      It is a retail grocery business in a town and there are 40 or so employees.

3.      RG heard a lot of complaints about the Complainant early on in her employment.

4.      Generally most workers learn the ropes after a week of being supervised. After 2 weeks there is no reason why everything that she needed to know should not been understood.

5.      The problems continued after 2 weeks and they were abjectly bad.

6.      RG discussed with the Complainant about substituting the Dingle Gin with Vodka. It was hard to know how this mistake came about. If Dingle Gin was not available, she should have substituted it for an alternative gin, not kept the same brand and selected vodka.  The Complainant would have got the list from the customer. She would have gone around the store with a trolley and used the hand wand to charge the product. She would have seen the product and when she scanned the bar code it would have come up as Vodka. This was not one mistake. This was a multiple mistake event.

7.      RG accepts that the letter to the Complainant setting out her terms of employment did not comply with the “5-day Statement” (names of parties; employer address, place of work, title/grade, start date, length of probationary period, pay, work hours) and the Complainant did not receive any other written terms and conditions within a month of her start date.

8.      In terms of her slip and fall, she was told about it by PB, the Manager on the evening of 25 March.

9.      RG spoke to the Complainant about it on Monday 29 March and asked the Complainant to fill in an Incident Report Form which RG would need. The Complainant described the accident in full to RG and RG gave her the Incident Report form to complete. Despite asking her a number of times, the Complainant did not complete it until 7 April.  The incident did not appear to be serious from the Complainant’s point of view. The Complainant told RG said that she would not make any complaint against the Respondent about the fall however on 19 April, ten days after her dismissal, a solicitor’s letter was received in which the Complainant was seeking compensation for personal injuries.

10.   The completion of the Incident Report Form was chased by RG. It was the Complainant who was reluctant to fill it is. This does not support the Complainant’s view that she was penalised because she made a health and safety complaint.

RG was cross examined as follows

11.   When asked why her husband, who conducted the termination meeting was not present at the Adjudication hearing, RG said that she was one of the decision makers and she did not require her husband to be there, as well as her to give evidence. The Store Manager, BH was at the termination meeting to give evidence about what was said.

12.   She did not accept that her husband was the “boss man” and said that she also was an equal part of the business ownership.

13.   The assertion that poor work performance was concocted by the Respondent witnesses after the dismissal occurred was denied. The Complainant’s work performance was manifestly under par since she started and she was told on multiple occasions where and how she was going wrong.

14.   When asked why the wait from 30th March (when the decision to dismiss was made) until 9 April (when the Complainant was dismissed) she said that this this was mainly because they needed to cover the two busy Easter weeks and had no replacement.

15.   When it was put to her that it was too co-incidental that the Complainant had a fall on 25 March and was dismissed 2 weeks later, 2 days after she completed the Incident Report Form and to suggest that the fall was unconnected to her dismissal was unlikely, RG responded that she was not going to keep the Complainant employed just because RG was afraid that the Complainant might sue her. Being afraid of a law suit is not a good reason to keep on an employee who has become a liability to a business.

16.   The discussions about whether or not to keep her on were well advanced before the slip and fall on 25 March. By that stage she had been employed for 7 weeks and had been a disaster.

17.   The Complainant’s fall and reporting her fall had nothing whatsoever to do with the fact that the Complainant was bad at her job and needed to be dismissed for that reason.

18.   The non-delivery of water to the nursing home was on 18 March, ie before the slip and fall.

19.   The most serious mistake was overcharging the customer €4000 for a €4 packet of Minstrels.

took place on 22 March, ie also before the slip and fall and when RG heard that, she thought we needed to end her employment as soon as possible. That was not practically possible until after the Easter fortnight.

20.   The manager wanted to fire her then and there but there was no replacement available.

21.   That was before her slip and fall on 25 March.

22.   The Gin and Easter eggs mistakes were on 30 March (ie after the fall) as well as the non-delivery of steak. That was all on 30 March. That day was the nail in the coffin as far as RG was concerned. That’s why the owners made the decision on 30 March to dismiss her.

Legal Submissions on behalf of the Respondent were as follows:

RE: Penalisation:

1.      The Respondent submitted that the test for penalisation for making a health and safety complaint is as follows: a protected act must have been made + a detriment must have occurred + there must be a causal (“but for “) connection between the protected act and the detriment.

2.      The Respondent accepted that the Complainant complained of a slip and fall injury on the day that it happened on 25 March 2021. The Respondent accepts that this is capable of being regarded as a protected act.

3.      The Respondent accepted that a dismissal is capable of being regarded as a detriment.

4.      The Respondent does not accept that Toni and Guy “but for” test has been satisfied.

5.      The evidence is not contested. There were multiple significant mistakes by the Complainant which took place both before and after the protected act, which were serious enough for the Complainant’s supervisor to suggest that she not be kept on and sufficient for the Respondent owner, RG, to decide that her work performance was too poor for her to be kept employed.

6.      The slip and fall was unconnected with the decision to dismiss.

7.      The overwhelming evidence supports that she would have been dismissed anyway and was dismissed as soon as the Easter break was over.  

8.      Furthermore it was the Respondent that had to chase the Complainant to give details of the slip incident, not that they were punishing her for making such a complaint. They needed that information for their insurers.

9.      If an employee the Complainant is so bad at their job during a probation/trial period, when an Employer has the right to terminate their employment if they are not up to the task,  because that employee might have grounds to sue them for a personal injury claim is not a good reason to keep them on.

10.   The link between her reporting an injury and her being dismissed is erroneous and denied utterly.

Special Circumstances

In light of a request by a member of the press to attend the remote hearing on day 2 - the Complainant’s evidence on day 1 hearing having proceeded in private - an application was made by the Complainant representative (at the commencement of day 2) that the hearing continue as it had on day 1, ie in private.  I asked the parties what the special circumstances were.  The Respondent indicated that they did not object to a public hearing however the Complainant’s representative did and the Complainant herself indicated that she did. The Complainant representative expressed concern that given that all the Complainant’s evidence had been completed on day 1 that any media report reflecting only the Day 2 evidence namely, the Respondents evidence, who were very critical of her work, which she denied, would be unfair on the Complainant. The Complainant also indicated that she was attending the hearing from home at the same time as minding her partner and young family who all had Covid and were unwell. She also was unwell. Furthermore, she was having difficulty with the hearing connection, and her connection kept cutting out. For these reasons the Complainant became anxious. The Adjudication Officer considered that it was clear that the Complainant was anxious and the prospect of media coverage compounded this. The Adjudication Officer decided that in all the circumstances that special circumstances existed to justify the exclusion of members of the public from attending the hearing. Had the Complainant not been unwell as well as having to mind her sick partner and young sick family at the same time as attending the remote hearing, the application would not have been acceded to, solely on the basis that the media did not attend on day 1, because that of itself would not have constituted special circumstances. However, in light of her presented illness, her family’s illness, her evidenced anxiety and online hearing connection problems I considered overall that special circumstances did exist to maintain the hearing as being one to be conducted in private.

Findings

CA-00043744-001 – Penalisation Complaint

The complaint is brought under the Safety Health and Welfare at Work Act 2005.

I accept that a protected act occurred when the Complainant complained to her manager of poor health and safety practice following a slip and fall at work on 25 March 2021.

I accept that a dismissal constitutes a detriment under the 2005 Safety Health and Welfare at Work Act.

The applicable law at the time this alleged penalisation occurred, namely O’Neill v. Toni and Guy Blackrock Ltd. 2010 ELR 21 held that if a protected act has occurred and if a detriment has been suffered then the onus lies with the Employer to “satisfy the Court on credible evidence and to the normal civil standard, that the complaint relied upon did not influence the Claimant’s dismissal.”

Having heard all the evidence and cross examination, I am satisfied thatthe Respondent has proven on the balance of probabilities that there was no causal link between the Complainant making a health and safety complaint and the fact that she was dismissed on 9 April 2021.

The Complainant had significant work performance issues which were manifest both before and after she raised a health and safety complaint. In my view these mistakes were serious enough to permit a reasonable employer to decide that the Complainant was not capable of doing the job without close supervision and to dismiss her during a probation/ trial period.

While the Complainant asserted her belief that her dismissal occurred because she told her line manager that she had slipped and fallen, this belief is not corroborated by any other evidence.

Her errors were serious. Customers were upset. They complained and this impacted the reputation of the business. The mistakes included over charging a customer €4000 for a €4 packet of Minstrels (sweets). This took place on 22 March, before the slip and fall and the evidence of both the Supervisor and Store Manager was that, when that happened, they advised the owners that her employment should be ended then and there.  Therefore, before any protected act had occurred, there was a good reason to terminate the Complainant’s employment.

The issues that immediately preceded the decision to dismiss her (on 30 March) were likewise significant. Three mistakes were made on 30 March. The Complainant delivered Dingle Vodka to a customer instead of Dingle Gin. She failed to notice that chocolate Easter eggs had melted but she delivered them to the customer anyway and in respect of another customer she failed to deliver steaks that the customer had paid for. Retail grocery businesses in Easter 2021 were still grappling with pandemic restrictions. Online shopping had become the main way to ensure that retail businesses survived. These mistakes, which are not denied by the Complainant, were abject and should not have been occurring two months into the job. They are not mistakes that more training could have solved, they were competence issues.

By the end of March 2021 the errors being made by the Complainant appeared to be increasing rather than lessening and given that she still on a form of probation period (although the Respondent should take note that the term “trial period” and opposed to “probation period” has no legal effect) it was not unreasonable for the Complainant to be dismissed for poor work performance. The purpose of a probation period is mainly to test out the suitability of a worker.  I do not accept that the Complainant was not on notice of these problems. Her supervisor’s evidence was that the Complainant was given feedback on a daily basis but still she seemed unable to improve. The Complainant did not deny this.

I also do not accept the submission of the Complainant that because there were no written warnings given to her that this made the dismissal unfair. This appears to me to be a conflation of legislative rights under different Acts. This is not a complaint under the Unfair Dismissals Act where after a year of service,  fair procedures need to be applied. This is a dismissal complaint in the shape of penalisation for making a health and safety complaint. The rights under the Unfair Dismissals Act, when the employment is no longer under probation and where security of position is enjoyed, should not be confused with rights when the employment is not yet secure.

I am satisfied that the Respondent has provided sufficient evidence which proves on the balance of probabilities that there was no causal link between the Complainant’s dismissal and her raising a health and safety complaint. The proximity of dates (between complaint and dismissal) becomes less probative when the employment only lasted 2 months anyway.

I find the evidence provided by the Respondent witnesses to be reliable and consistent, more so than that of the Complainant, who for example first gave evidence that her work performance was never raised at the termination meeting but then contradicted this by admitting that work performance was mentioned but no specific work issues were identified. There were also other inconsistencies, such as where during the course of the Adjudication hearing the Complainant believing herself to be unmuted, spoke to her husband, but when asked by the Adjudicator to mute herself, she denied having spoken at all.

The Complainant’s assertion that the three Respondent witnesses concocted their evidence was not supported by any evidence. As already stated I found their evidence to be consistent and persuasive.

In conclusion I am not satisfied that the Complainant would not have been dismissed but for the fact that she made a health and safety complaint on 25 March 2021. I find this complaint to be not well founded.

CA-00043744-002 – Terms of Employment (Information) Act

I accept the evidence of the Complainant with which her employer, RG, under oath did not disagree, namely that the Complainant was not provided with all terms and conditions of employment either within 5 days of starting her employment or within a month of starting.

I do not accept that the Complainant’s case in the complaint form was confined limited to an inaccuracy in the Respondent’s name on her pay slips, as set out in the Complaint form narrative section.

I treat this complaint as being a general complaint under the 1994 Terms and Conditions of Employment (Information) Act (that box having been ticked on the complaint form) I am satisfied that the Complainant did not receive all her terms and conditions in writing as she was entitled.

I find this complaint to be well founded.

CA-00043744-001 – This complaint is not well founded

CA-00043744-002 – This complaint is well founded. I award the Complainant the sum of €509.00

Retail worker – Penalisation for a health and safety complaint - Terms of Employment (Information)