Adjudication Reference: ADJ-00044347
Parties:
| Complainant | Respondent |
Parties | Emmet Kelly | Bord Na Mona Recycling Limited Bord Na Mona |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives | David Gibbons Murphy Gibbons Solicitors | Cian Beecher, Arthur Cox |
Complaint(s):
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-00054909-001 | 07/02/2023 |
Date of Adjudication Hearing: 29/11/2023
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 complaint 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.
The Complainant attended the hearing along with his representative. The Respondent was also in attendance along with their representative.
Background:
In his complaint form submitted to the WRC, the Complainant stated that he had an accident at work on 6 December 2021 further to which he was subjected to an unfair disciplinary process, which he stated constituted penalisation under the Act. |
Summary of Complainant’s Case:
The Complainant stated that he had an accident at work on 6 December 2021 further to which he was subjected to an unfair disciplinary process, which he stated constituted penalisation under the Act. |
Summary of Respondent’s Case:
On 6 December 2021, the Complainant was on duty on one of the Respondent’s waste collection routes. He fell from the rear of a refuse collection vehicle (RCV) and suffered an injury. On 23 December 2021, the Complainant provided an incident report/statement, setting out the following: “I was travelling on the rear footboard passenger side at the time of the accident… We were travelling on a straight stretch of roadway and the truck went around a bend to the right, and just then I cannot remember if my foot or hand slipped first but I fell onto the roadway and I heard my ankle (right) side snap.” The Complainant was absent from work during the period 6 December 2021 to 19 January 2022. On 14 February 2022, the Respondent wrote to the Complainant inviting him to an investigation meeting in relation to the accident of 6 December 2021. On 17 February 2022, the investigation meeting took place. During this meeting, the Complainant confirmed that on the morning of his accident, there were no issues with the back of the truck, the handles or the steps. When the Complainant was queried as to whether he had followed the “4 points of contact” rule, the Complainant admitted he may not have done so. When asked if he might have been using a mobile phone at the time, again the Complainant accepted it may have been the case. Mr Paul O’Rourke, Operations and Planning Supervisor prepared a report following the investigation and recommended that the incident be referred to the disciplinary process. On 4 March 2022, the disciplinary meeting took place. On 27 April 2022, the Respondent wrote to the Complainant with the outcome of the disciplinary meeting. The Respondent issued the Complainant with a final written warning, to remain on his file for 24 months. The Complainant appealed the outcome of the disciplinary procedure. On 9 August 2022, the Respondent wrote to the Complainant to advise him of the outcome of his appeal. The original decision to issue the Complainant with a final 6 written warning was overturned and mitigated to a written warning. |
Findings and Conclusions:
The Law The Act at Section 27 in relevant part provides as follows: 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 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. Findings: I have approached the within matter on the basis of first determining whether a protected act within the meaning of the Act at Section 27(3) above was initiated. Having read the complaint form submitted by the Complainant and having questioned his representative at the hearing about a protected act having been made by him, given the absence of any reference to same either in the complaint form or in any of the documentation furnished to the WRC, I am satisfied that no protected act occurred. Given that the Complainant did not therefore initiate any protected act set out in section 27 (3) of the Act above, I find that his complaint is 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-00054909-001: This complaint is not well founded for the reasons set out above. |
Dated: 08/03/2024
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill