ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00043690

Parties:

Complaints:

Date of Adjudication Hearing:  15/04/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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.

Background:

The Complainant contends that he was penalised for having made protected disclosures to the Health & Safety Authority and having raised safety and welfare issues with his employer.

Summary of Complainant’s Case:

The Complainant has been a Store Manager since January 2005.  For the duration of his time the Store has consistently maintained a high record for internal audits.  During that time, it has also won store of the season.  The Complainant was tasked with improving the performance of other stores.   In conjunction with this, the Complainant has acted as a mentor for Store Managers and was nominated “delivery champion” by the Respondent for his work.  Both roles involved travelling and incurring expenses.

While the latest incidents of penalisation occurred within six months of the Complainant bringing his complaint, the Complainant submits that the offending behaviour in whole or in part motivated by a safety issue / protected disclosure made prior to this.  However, the latest incidences occurred within six months of making his complaint to the WRC.

All of the issues raised by the Complainant relate to the safety, health and welfare of the Complainant and his fellow employees.  Each instance constitutes a complaint under the Safety, Health & Welfare at Work Act 2015 (as amended) and or a protected disclosure.

The complaints can be summarised as follows:

On 5th September 2018 the Complainant made a protected disclosure concerning the welfare of a fellow worker.  The Complainant emailed his manager in September 2018 about his concerns about the welfare of one of his colleagues, who he believed was subject of an unfair disciplinary penalty.    He was subsequently subjected to aggressive and intimidating behaviour.  He was also penalised by not having his expenses signed off by the manager within a reasonable time.

On 12th September 2022 the Complainant raised a safety issue in respect of a recommendation that storage tubs be kept within the store. 

On 2nd October 2022 the Complainant made a protected disclosure to the Health & Safety Authority concerning both the storage tubs and an ongoing safety issue regarding a lift in the store;

On 11th October 2022 the Complainant made a complaint of harassment against his line manager Mr D.

In October 2022 the Complainant resigned as “delivery champion” as he felt undermined due to expenses not being signed off and his exclusion from a delivery training workshop.

Loss Prevention audit

In August 2022 an internal loss prevention audit was carried out at his store while the Complainant was on holiday.  The findings of this audit stated that 75 storage tubs were wrongly stored outside the store, and that confidential waste was being stored incorrectly with incorrect tags.  In respect of confidential waste the Complainant submits that it was and is stored in accordance with the Respondent’s guidance.  The storage of the tubs had been done in the same manner since 2011 as space in the store was at a premium and the new direction to store them inside caused serious concern to the Complainant from a safety, health and welfare perspective.

The Complainant was, and remains of the view that the findings of the loss prevention audit were incorrect and presented a safety risk.

There followed a series of events and emails where the Complainant raised his issues about the incorrect and misleading elements of the audit with his line manager.  His line manager told him to raise the issues with the manager Mr H who carried out the audit.  The Complainant told his manager that was in contravention of the Respondent’s grievance policy and served to further humiliate him and it was unacceptable that there was no investigation and that he felt victimised for having raised the issues.  On or about 15th September 2022 the Complainant was attending an area meeting and the line manager asked him to step into the manager’s office.  There followed an altercation where the line manager asked him was he refusing an instruction to ring Mr H and when the Complainant told him he felt intimidated, the line manager Mr D told him he was following the advice of the HR manager Ms K. 

The following day the Complainant emailed his manager with his recollection of these events.

Apart from the fact that his own safety had been ignored in the form of intimidation by Mr D the Complainant was concerned that the safety issues in the store were being ignored.   For this reason, he raised the issues of the direction to store the tubs by making a protected disclosure to the chief executive of the Health & Safety Authority by way of email dated 2nd October 2022.  He included the issue of the lift in that disclosure.  He told the Authority that he had been raising the issue of the lift whether it was a goods lift or a people lift since July 2022.  Lift Engineers stated that the lift represents a danger as there was no autodial in it and yet he and the staff were told to continue using it.

Formal grievance

By email dated 11th October 2022 to the HR Director the Complainant raised an additional formal grievance regarding the failure to deal with his complaint raised on 12th September 2022 and he complained about harassment by his line Manager Mr D.  He questioned if he would receive an impartial hearing considering his line manager stated that he was following advice from Ms K. HR.

Protected Disclosure to the HSA

Following the Complainant’s protected disclosure to the HSA the Authority carried out an inspection on 1st November 2022.  The Authority required clarification of the status of the list and if it was a passenger lift it should contain an operational auto dialler.  The Complainant then received phone calls from his Area Manager Mr D and Health & Safety Manager Ms S on 4th November 2022.  During both calls the Complainant was questioned about issues the subject of the HSA inspection, its report and the safety issues raised.  On 1st December 2022 Ms S paid an unannounced visit to the Store.  She raised the issue of the lift and stated it was the responsibility of the Complainant to ensure there was a working autodialler.  The Complainant found Ms S’s demeanour to be intimidating.

The Complainant submits that his treatment by Mr D and Ms S constituted penalisation, and was in whole, or in part due to his having raised the safety issue/protected disclosure of the lift.

In summary

The Safety, Health & Welfare at Work Act 2015

Section 27 (3) (c)  of the Act provides that an employer shall not penalise or threaten penalisation against an employee for making a complaint or representation to his or her safety representative or employer … as regards any matter relating to safety, health and welfare at work.

The Complainant made a number of complaints regarding safety, health and welfare at work in respect of the following:

The treatment of a colleague in 2018

The housing of storage tubs

Harassment by his Line Manager

The functioning of the lift   

Section 27 (1) provides:

Penalisation includes any act or omission by an employer or a person acting on behalf of an employer that affects to his detriment, an employee with respect to any term or condition of his or her employment.

The word “includes” is important as in reality any unfair treatment that results in a detriment to the employee which is motivated by that employee making a complaint covered by the 2015 Act will be penalisation.  It is submitted that bullying & harassment of the Complainant, his raising the issues of the storage of tubs and his harassment complaint were all operative factors in Mr D’s habitual demeanour of intimidation and isolation of the Complainant.  It is submitted that the Complainant has made out a prima facie case in that the argument contended for is within the range of inferences that can be reasonably drawn from the facts.

The Protected Disclosures Act 2014

The Complainant contends that the safety issues raised by him fall squarely within the criteria of wrongdoings as defined in the Act.  It is submitted that all of the Complainant’s complaints set out in respect of safety, health and welfare at work also constitute protected disclosures for the purposes of the PDA.

The acts or omissions that affected him to his detriment are:

Failing, refusing or neglecting to sign off the Complainant’s expenses within a reasonable time

Causing the Complainant to relinquish his Delivery Champion role due to the routine delay in signing off his expenses

Excluding and isolating the Complainant including from the delivery of training workshops

Habitually dealing with the Complainant in an intimidating and or aggressive manner including on the issue of storage tubs and in store lift

It is submitted the Complainant has made out a prima facie case and it is for the Respondent to prove that his treatment did not in any way arise on foot of having made the disclosures.

The Complainant gave sworn evidence and was cross examined.  He stated that his role as Manager was to maximise sales and minimise costs.  He was responsible for around 66 staff.  He was very procedures driven and when his manager Mr D told him to “ring Keith” in relation to the loss prevention audit, he was not happy.  This was a formal audit and he wished to pursue his issues formally.  He went back to the 2018 experience he had regarding his staff member who was being disciplined and he felt proper procedures were not being followed.  He felt intimidated and harassed.  He raised a formal complaint and this was handled in part by HR who had already advised Mr D so the Complainant felt he was not going to get an impartial hearing. He made his protected disclosure to the HSA as he was very concerned he was not getting anywhere about the safety issue – was it a goods lift or was it a passenger lift?  He felt intimidated and undermined by both his manager Mr D and the H&S Manager Ms S in their dealings with him. He said he raised the issue of the unreasonable delay in signing off his expenses a number of times, in 2018, 2019 and 2022.  In 2022 he was so upset by the delay he stepped down from the Deliver Champion role.  He said why would anyone wait 20 days to have expenses approved?  In cross examination he agreed he was familiar with the grievance procedure, and that he had not appealed the finding into his formal grievance.  He was also referred in cross examination to the fact that the Company had through Ms S tried to resolve the lift issue since July 2022.  A chart of communications between Ms S and the Complainant was shown that demonstrated the detailed communications between them including Ms S’s instruction that he was to have the lift used as a goods only lift pending installation of an autodialler.  In cross examination, he stated that the detriment suffered was the phone calls received by him from Ms S and Mr D.  

Summary of Respondent’s Case:

The Complainant is a longstanding and valued employee. He has worked with Next since 9 January 2005. He is a trusted store manager, this has been made clear to him on a number of occasions. As a result of The Complainant’s hard work, the Waterford store has been a consistently top performing store. From time to time, The Complainant raises matters which he considers significant. All such matters are investigated by Next. For the avoidance of doubt, Next has no problem with The Complainant raising points of concern where he feels that is merited. It is categorically denied that there has been any attempt to destroy The Complainant’s career, his good name, or his general standing in the Company. There is simply no evidence or facts which would suggest this to be the case. In fact in March 2022, he was put forward for a merit increase / pay award.                                     It is clear as pleaded in this case, that many of the issues relate to The Complainant’s area manager, Mr D. It should be noted, that throughout The Complainant’s employment, he has had approximately seven area managers. The Complainant has raised issues with all of his prior managers, bar one. All issues raised were investigated, formally and informally, and support provided to The Complainant where it was felt this would assist him. The issues would be considered everyday occurrences which would normally be dealt with through conversation.

The Complainant indicates in his submission that all of the issues raised by him relate to safety, health and welfare of him and other employees. He outlines that each instance constitutes an alleged complaint under the Safety Health and Welfare at Work Act 2015 and or a protected disclosure under the Protected Disclosures Act 2014.

The Complainant made an alleged protected disclosure related to a former employee on 5 September 2018

It is our position that this complaint is out of time. By the Complainant’s own admission, any subsequent complaint he may have takes place four years later in August 2022. We request that the Adjudication Officer does not consider this aspect of the case. In the event that the AO decides to hear this aspect, we submit that the Complainant became angry because a staff member in his store made a mistake (breached the till and admin procedure), and was disciplined during her probation period (received a written warning). He raised a number of issues to both his manager and to HR in relation to the process.

The Complainant’s version of events is at odds with both his manager and the HR manager’s recollection of the same event. We note that the Complainant in his documents, does not include the replies to any of the emails he exhibits. We enclose at Tab 2 an email from Manager Mr D to the Complainant on 15 November 2018 when he replies in full to any of the allegations raised by the Complainant. We will read this email into the hearing in full as it best outlines the series of events as they took place. It is categorically denied that this could constitute a protected disclosure. It is also categorically denied that the Complainant suffered any detriment as a result of the issues he raised. He did not take a grievance when invited to do so and did not reply to the comprehensive email as outlined above.

2022 Grievance – issues with loss prevention audit

In August 2022, the Senior Regional Loss Prevention Manager Mr H carried out an audit on the Complainant’s store in Waterford. Loss Prevention Manager carries out audits on approximately 107 stores across the UK and Ireland. He concentrates on the top 20 stores where there are loss prevention issues and visits those stores on a regular basis. The Waterford store is not within the top 20 stores. Therefore, Loss Prevention Manager visits the store irregularly, and it had been February 2016 since it was last audited. When Loss Prevention Manager visited on 24 August 2022 he issued a number of recommendations, including that 75 storage tubs should not be stored outside. The tubs have a cost value of approximately £1,500 and should be kept inside. Loss Prevention Manager was of the opinion that there was room inside for the tubs. The Complainant is of the opinion that storing the tubs inside would be a health and safety hazard. Loss Prevention Manager’s email was sent to the assistant store manager and copied The Complainant and Manager Mr D. In his email he outlines the scores and says, “these are all fixable – the main thing is to create an action plan to resolve… please feel free to call if you need clarification or assistance on anything”. The Complainant took great umbrage with Loss Prevention Manager’s report and recommendations. Manager Mr D will give evidence that he called The Complainant on 14 September after receiving an email from him. The Complainant said that he was annoyed about the recommendation email which Loss Prevention Manager had sent him and copied Manager Mr D. Manager Mr D will outline that he reassured The Complainant explaining that he, as the area manager, was not concerned about the tubs, he had archived the email and it would have no impact on anything. Manager Mr D said he reassured The Complainant that he knows he runs a good store. The Complainant advised that he was humiliated by the matter. Manager Mr D advised him to call Loss Prevention Manager and explain the scenario, he knows the store best and can advise on the space available. He said that if there were any further issues to call him. Manager Mr D will give evidence that the call was approximately 40 minutes long. Loss Prevention Manager will give evidence that the Waterford store scored well in this audit. As explained, this store is not regularly audited. In Loss Prevention Manager’s experience, a store which is not regularly audited will have lots of points of improvement. This wasn’t the case in Waterford. Loss Prevention Manager will give evidence that his opinion was that the tubs could be stored inside but if The Complainant felt differently, he was the store manager and that was his decision. In his submission, the Complainant outlines that the effect of the audit undermined his position and called into question his ability to perform his role as well as his integrity. It is suggested by the Respondent that this is manifestly untrue and a complete over exaggeration of a very normal result of an internal audit which is not even published internally.

The Complainant raises issue with the fact that he was asked to discuss the matter directly with Loss Prevention Manager. The Respondent contends that this is entirely reasonable and reflects how matters would normally be resolved. In his email to Manager Mr D, The Complainant makes statements such as “your instruction to telephone Keith was humiliating”, “it deprives me of my rights to dignity in the workplace”, “I am entitled to make evidenced, substantiated and witnessed claims in the valid expectation that they would be investigated”.

The Respondent categorically denies all of the above. This was a general audit directed at the assistant store manager related to small actions to prevent any loss within the store. None of the points raised were in any way personal to The Complainant. Manager Mr D was meeting with The Complainant on the next working day in a meeting in Dundrum. He decided to discuss the matter with him face to face. Manager Mr D will give evidence that The Complainant’s recollection of the 15 September meeting in Dundrum is entirely different to his own. The Complainant was attending an area meeting facilitated and hosted by Manager Mr D for all Ireland Store Managers. In a private conversation, Manager Mr D asked The Complainant to discuss the email he had sent. Manager Mr D will give evidence that The Complainant repeated his annoyance at the audit and the fact that it was incorrect. Manager Mr D will say that he said to The Complainant, you are asking my advice and I recommend that you speak with Keith. They then attended and took part in the managers meetings for the remainder of the day, without any issue. The Complainant again emailed on 16 September suggesting that he had been intimidated and that Manager Mr D was aggressive to him. Manager Mr D categorically denies this assertion. At the end of the email, he confirms that he has phoned Loss Prevention Manager and discussed the issues with him. Loss Prevention Manager attended the Waterford store again on 27 September 2022 as body cameras were being rolled out across all stores. Loss Prevention Manager will give evidence that after the training session on body worn cameras, Loss Prevention Manager asked The Complainant if he wanted to discuss the audit. They did so for approximately 45 minutes. The discussion was cordial and that was the end of the matter.

Referral to Health and Safety Authority

On the 2nd of October, as evidenced by The Complainant’s submission to this court, The Complainant wrote to the Health and Safety Authority to make a protected disclosure. He complained about the safety in the store where he was the general manager and ultimately responsible for the safety. He never advised anyone in Next that he was reporting the store and denied any suggestion when it was made that he had reported the issues. He outlined two areas of concern, the lift, which will be dealt with further below and that he was being asked to store tubs inside. As far as the Respondent is aware, the tubs have never been taken inside so any risk is only one perceived as a possibility by The Complainant. The HSA inspected the premises and made minimal reference to the tubs. Their report said to keep fire exits clear and if tubs are stored inside, to ensure they were stored in a safe place without obstructing pedestrian access. Ms Sandra Smith, Safety, Health and Wellbeing Manager with Next, liaised with the HSA and Next successfully passed their inspection.

Grievance from the Complainant

On 11 October, the Complainant then made a grievance complaint relating to breach of contract and of harassment against Manager Mr D Tab 3. On 24 October and 7 November, Ms H, the regional manager for Ireland heard The Complainant’s grievance. The Complainant raises issues of impartiality with the fact that Ms K was involved in the hearing of his grievance. He suggests that because Manager Mr D mentioned on a previous occasion that he had discussed the matter with Ms K, that she could not be impartial. Ms K is the regional HR manager for Scotland and Ireland. It is part of her role to guide managers and employees. Ms Kingsbury has support discussions with all managers. This does not mean that she cannot be impartial when taking a note of a grievance meeting. She is a very senior and experienced HR professional. In fact, in the Complainant’s own submission, he seems to accept her impartiality when he says, “However, the notes do reflect that Claimants again informing the Respondent that his well-being was detrimentally affected…” In his complaint form, he suggests that he made a complaint, and the perpetrator was left in charge of dealing with it.

We are unclear if this is referring to Ms K or Manager Mr D. Ms K could not be deemed to be a perpetrator. Manager Mr D had no involvement in the grievance. We are unclear as to what is suggested in this reference. Ms H issued her decision on 11 November 2022.   Ms H found that there was no breach of contract and no evidence of harassment. The Complainant was given the right to appeal the grievance, which he did not do. Ms H recommended that the parties engage in mediation with an external company. The Complainant and Manager Mr D took part in a mediation session on 6 December in person with a company called the TCM Group. The Complainant lodged his WRC complaint form on 20 January 2023.

Issues in relation to the lift

Throughout his complaint and submission, The Complainant raises issues with his perceived unsafety of the in-store lift. At the outset, it should be said that Manager Mr D has had no involvement in any of The Complainant’s issues with the lift. Therefore, any purported intimidation or penalisation cannot be connected with any issue with the lift. The Complainant raised issues with the emergency bell function of the lift. Ms S, Next’s Health, Safety and Wellbeing Manager based in Scotland supported him in relation to these issues. She arranged for the insurance company and lift engineers to visit and repair the lift.  She was concerned that despite her instructions the lift continued to be used.  She started to keep a log of her phone calls and emails with The Complainant in relation to the lift. She was concerned that The Complainant was not listening to what was said in their telephone discussions and then emailed her with a different set of what he said had been discussed. On a number of occasions Ms S said that she had to agree to disagree with The Complainant’s perception of events.   Therefore, notwithstanding that the instruction was not to use the lift, The Complainant wrote to the HSA and told them that the lift was being used. This is quite concerning. Next only became aware of the complaint to the HSA when The Complainant’s legal team provided their submissions. In any event, despite the visit of a number of engineers and the insurers, the team were pressing the wrong button in the lift. There was no safety issue at any point.

Alleged grounds of penalisation

The particular grounds of penalisation, including unfair treatment intimidation and harassment are listed by The Complainant as follows:

Expenses

The Complainant has alleged that as a result of raising protected disclosures, he has been penalised, intimidated and harassed and that the respondent has failed, refused or neglected to sign off on his expenses within a reasonable time. It is acknowledged by the Respondent that there were some IT issues with the Concur system in 2018 and 2019. This is an external platform to Next which is used to approve employee expense claims. Manager Mr D emailed The Complainant in 2018 to check how long it was taking for expenses to go through the system. He would not be aware when an employee logged an expense or when they were paid. He would only get a notification that one had been logged.

Later in 2018, The Complainant flagged in July that expenses for a June meeting were not approved. Manager Mr D approved immediately once he got the email. In October 2018, Manager Mr D flagged a systems issue where The Complainant was listed under a Scottish manager along with another employee and this was causing a delay in approval. The IT system then rectified this issue. The Complainant raised a grievance to Ms F, Regional Manager for Scotland, Ireland and North East on a number of issues including the delay in his expenses being signed off.  She issued her decision on 29 November 2019 and confirmed that she had outlined the importance to Manager Mr D of signing off quickly on expenses. She required that a contingency is set up for when Manager Mr D is on holidays and that if he has IT issues, that he must resolve them immediately. As far as Manager Mr D is aware, there has been no issue with expenses since October 2019. Manager Mr D has reviewed the matter with Next’s finance team. The Complainant has made 31 expenses claims between 1 January 2019 and 25 August 2023, they have all been paid. The average number of days (including Saturday and Sunday) between the employee submitting the expense and the expense being repaid is 8.84 days. See email from the Finance Operations team at Tab 6. At its height, this is a matter where Manager Mr D missed a number of claims submitted by The Complainant. Manager Mr D will give evidence that he regularly checks his Concur app to ensure he can approve expenses and that he asks his managers to let him know if they have submitted an expense so that he can log on and approve it. The fact that on average, The Complainant’s expenses are paid to him within 8 days of him submitting his expense, completely refutes any allegation that the Respondent has failed, refused or neglected to sign off on his expenses within a reasonable time.

Delivery Champion Role

The Complainant indicates that he was required to relinquish his delivery champion role due to the routine delay in signing off his expenses. Manager Mr D asked The Complainant to be a Delivery Specialist in an Area Manager meeting on 14 August 2019. Many store managers are asked to take on a specialist area to champion. This might be deliveries, training, customer service, health and safety, audit & Oracle or loss prevention. If there is a change in the area from head office, the specialists in the particular area may be trained first and assist in the roll out to stores. Or the specialist may attend stores if they are struggling in a particular area and provide their expertise. The fact that The Complainant was asked to be a specialist in delivery is testament to the trust and respect which Manager Mr D has for him. The Complainant raised a complaint into his expenses which was concluded by the end of November 2019. As far as the respondent is aware there has been no issue in relation to expenses since that date. As outlined above, expenses are paid to The Complainant on average 8 days after he submits them. The Complainant was a delivery specialist for just over two months when he raised an issue in relation to expenses. That issue was resolved a month later. The Complainant continued in his delivery role. Manager Mr D emailed The Complainant in March 2021 to ask if he was happy to continue in the role. In his email, he asked: Hey, just to keep you in the loop … I was going to put you down as Area Delivery Champion if you still up for it? An Important role for us when we're on our feet again so would be great if you can control! Hope this ok, if not just shout. …

The Complainant replied and said: “yes more than happy to take that on”. He then held the delivery specialist role until he emailed to say he wanted to step down on 17 October 2022. There is no logical connection to any delay in expenses which was raised and resolved in November 2019 and the decision to step back from an additional role, three years later in October 2022. Even if the matters were connected, which they are not, the Complainant does not receive any benefit from acting as a delivery champion. His decision to step down from the role has no detriment to him in any way.

Excluding and isolating the Complainant from the delivery of training workshops

As far as the Respondent is aware, this relates to one training workshop on 6 September 2022. Both Manager Mr D and The Complainant had been on annual leave immediately in advance of the training. The workshop was a Delivery and Replenishment Workshop organised by Caroline McKeown (Learning and Development Partner) for new store managers, assistant store managers and delivery managers. This was not a workshop for store managers. Invites were sent by Ms McKeown to the full area to nominate attendees. It is likely that the assistant store manager in The Complainant’s store attended this session. The Complainant outlined to Manager Mr D after the session that he was surprised he hadn’t been included. Manager Mr D agreed with him that it would have been very beneficial if he had been included so as to give his expertise to the group. Manager Mr D will give evidence that he did not organise the training, He was on annual leave and only returned on the day of the training and it didn’t occur to him to check to see if The Complainant had been invited. The training was not for store managers and was for more junior staff. There is no aspect of this matter which could be considered unfair treatment, intimidation or harassment. The Complainant also did not suffer any detriment as a result of not being included in a training session for more junior staff.

Dealing with the Complaint in an intimidating and aggressive manner including on the storage of the tubs

This matter is discussed in detail above and was considered by the Company in the grievance brought by The Complainant. There is no evidence that the Complainant was dealt with in an intimidating or aggressive manner.

Insinuating that the Complainant formed the subject of discussions without informing to what purpose.

There is no evidence as to what this refers to.

Legal Submissions

First it should be noted that the Complainant has put forward the same evidence in respect of his claim of penalisation under the Protected Disclosures Act, penalisation under the Safety, Health and Welfare at Work Act and his complaint under the Industrial Relations Acts.

Safety Health and Welfare at Work Act 2015

The relevant test under Section 28 of the Health and Safety in Work Act is on the balance of probabilities:

• did the employee make a complaint about a health and safety at his work?;
• did he suffer a detriment having done so?; and
• would he not have suffered the detriment but for having made the health and safety complaint?

The Complainant states that he made a number of complaints concerning the safety, health and welfare at work and sets them out as following:

• the treatment of Ms S (an ex employee);
• the housing of storage tubs;
• harassment of him by Manager Mr D;
• the functioning of the in-store lift and its alarm system.

It is submitted that the issue regarding this ex-employee occurred in 2018 and is completely out of time. Without prejudice to that it is submitted that because this matter arose in 2018 and was dealt with at that time, there can be no causal link between it and the alleged penalisation that the Complainant now refers to. In relation to the issue regarding the housing of tubs, it is submitted that that is the matter that was raised during an internal audit by the Respondent’s Mr Keith Howie. It was ultimately the Complainant’s own decision as to where he stored the tubs. Following on from that the Complainant wrote to the Health and Safety Authority. The report of the HSA said to keep fire exits clear and if the tubs are stored inside, to ensure they were stored in a safe place without obstructing pedestrian access. It is submitted that that is entirely correct and in line with what the Respondent would expect. The Respondent has successfully passed their inspection and therefore the Respondent is at a loss as to how this issue is now being put forward to support an alleged claim of penalisation. The allegation of harassment is unfounded and has been investigated. The Complainant was given an option of appealing the outcome and chose not to do so. The issue of the in-store lift and its alarm system has been dealt with in detail within the submissions. The alleged penalisation is set out in the most general terms. The Complainant makes a very general allegation of “intimidation and isolation of the Complainant”. This is denied. It is denied that the Complainant has been penalised in any way and it is for the Complainant to satisfy the Adjudication Officer that they have been penalised as a result of raising a health and safety issue. The Complainant references Manager Mr D’s “continual neglect or refusal to sign off the Claimant’s expenses within a reasonable time”, a matter that has not arisen since 2019. It is submitted that there can be no causal link between a general allegation about signing off of expenses that occurred a number of years previously. As outlined above all of the Complainant’s expenses lodged between January 2019 and August 2023 have been paid in an average of 8.4 days. The Complainant also makes again very general assertions regarding what he describes as “further intimidation by Manager Mr D and Ms S on foot of having raised safety issues with the HSA”. This is without elaborating any further or giving the Respondent an opportunity to respond. It is denied that the Complainant was penalised in any way and it is submitted that the general allegations put forward by the Complainant are not supported by evidence.

The Protected Disclosures Act as amended

The Protected Disclosures (Amendment) Act, 2022 came into effect on 1 January 2023. The relevant law for the purpose of this complaint is the 2014 Act. The definition of a protected disclosure is set out at section 5.1.

Section 5.2 of the Act provides that information is relevant information if

(a) in the reasonable belief of the worker, it turns to show one or more relevant wrongdoings; and  (b) it came to the attention of the worker in connection with the worker’s employment.

Section 5.3 of the Act lists the matters considered to be relevant wrongdoings. 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 other public body 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 intending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed. The burden of proof under the Protected Disclosure Act (as amended by the 2022 Act) is governed by Section 12(7) c, which provides that: "The penalisation shall be deemed … to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds." It is submitted that this provision operates in a similar manner to that set out above regarding the penalisation under the Safety, Health and Welfare at Work Act. On that basis, the Claimant must first show a prima facie case of penalisation as a consequence of having made a protected disclosure.

Therefore, in the first instance, the complainant must satisfy an Adjudication Officer that:

(i) He has made a protected disclosure (as defined).

(ii) He must show that he has suffered penalisation.

(iii) That the penalisation suffered was as a consequence of making the protected disclosure.

It is submitted that the complainant has not made a protected disclosure. Without prejudice to that, the complainant has failed to show what detriment he has suffered, as arising out making a protected disclosure (which is denied).

Was the Plaintiff penalised and has he suffered a detriment?

Section 3(a)(ii) sets out the definition of penalisation as follows:

Penalisation means any direct or indirect act or omission which occurs in a work related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes

1. a) Suspension, lay off or dismissal,
2. b) Demotion, loss of opportunity for promotion or withholding of promotion,
3. c) Transfer of duties, change of location of place of work, reduction in wages or change in working hours,
4. d) The imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),
5. e) Coercion intimidation, harassment or ostracism,
6. f) Discrimination, disadvantage or unfair treatment,
7. g) Injury, damage or loss
8. h) Threat of reprisal
9. i) Withholding of training
10. j) A negative performance or employment reference.
11. k) ….
12. l) ….
13. m) Harm including to the worker’s reputation, particularly in social media, or financial loss of business and loss of income,
14. n) …..
15. o) ….
16. p) …..
17. q) ….

In Conway v Department of Agriculture, Food and Marine Hyland J considered an appeal from the Labour Court where Mr Conway alleged that the Defendant in ignoring his protected disclosure, failing to take it seriously and failing to investigate (either at all or in a timely manner) constituted a detriment and amounted a penalisation under the 2014 Act. Hyland J rejected the appeal. In assessing the ordinary and natural meaning of the word detriment, she concluded that it conveyed harm or damage. The Court held that the legislation requires that the detriment must cause harm or damage to the person making the disclosure. [o]ne can understand the frustration and annoyance [Mr Conway] presumably suffered…But there is no evidence whatsoever that this lack of response impacted upon the applicant’s situation either in the workplace or elsewhere.

The penalisation that the complainant complains about is as follows:

• Failing, refusing or neglecting to sign off the Claimant's expenses within a reasonable time. It is submitted that if the Adjudication Officer decides that this amounts to a detriment, it was resolved in November 2019.
• Causing the Claimant to have to relinquish his delivery champion role due to the routine delay in signing off his expenses. Again, it is submitted that the issue of expenses was resolved in 2019. The Complainant stepped down from his role as delivery champion in October 2022. The Respondent is at a loss to understand how it can be alleged that the decision of the Complainant himself to step down from a role can be viewed as penalisation imposed by the Respondent.
• Excluding and isolating the Claimant, including from the delivery of training workshops. As outlined above this appears to refer to one training event. It is submitted that there is no evidence put forward that supports that this was an act of penalisation.
• Habitually dealing with the Claimant in an intimidating and/or aggressive manner, including on the issue of housing the storage tubs and the in-store lift. It is submitted that the generality of this statement is not supported by evidence or facts.
• Insinuating that the Claimant formed the subject of discussions without informing to what purpose. The Respondent does not understand what the Complainant is alleging.

It is accepted that the burden of proof is firmly on the Defendant to satisfy the court that there were “duly justified grounds” for the act or omission. However, it is submitted that the Complainant must in the first instance establish that he has suffered a detriment and it is submitted that he has failed to do so.

In conclusion, throughout the period, Mr D continued to support and advocate for the Complainant. This is demonstrated when March 2022, he worked on a proposal to have him and his assistant store manager recognised for a merit increase leading to a significant financial uplift in salary for him.             Mr D submitted the proposal and was then required to give additional detail to justify the increased cost. In addition, Mr D continues to work with the Complainant on day-to-day issues. It is deeply unfortunate that the Complainant feels he has to make such serious allegations against the Company to both the Health and Safety Authority and to the WRC. All allegations are manifestly untrue and have been defended in full to the HSA and as outlined in this submission. It is disingenuous and entirely untrue to suggest that issues have been raised which have not been investigated. Next has investigated every complaint raised by the Complainant. He has never been disciplined or suffered penalisation. He may have a perspective on matters and may not be satisfied by the outcomes but he has suffered no detriment as a result. Next welcomes all forms of concern from their employees and will continue to do so. In this case, we ask that the WRC declare that the Complainant’s case is not well founded.

Sworn evidence was given by 4 managers, Mr D, Mr H and Ms S and Ms K.  All confirmed the interactions they had with the Complainant.   Mr D who is the Complainant’s Area Manager said he wanted the Complainant to contact Mr H following the audit as this was the practical thing to do.  He said the conversation was difficult but not aggressive.  He said he did not deliberately delay signing the expenses.  Sometimes, if there was a delay, other colleagues would just give him a reminder and he would attend to it immediately.

Findings and Conclusions:

Time Limits

The complaint was received on 20th January 2023.

The Respondent submitted that some of the issues raised are clearly out of time.

Section 41 (6) of the Workplace Relations Act 2015 provides:

“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.

Section 41 (8) provides:

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after 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 complaint deals with issues raised by the Complainant in relation to protected disclosures and penalisation.  The history seems to be divided into two periods:

The first period was in 2018 and 2019.

The second period was in 2022 and 2023.

The first period involves an issue concerning a colleague and the handling of this by the Respondent.  The meetings and emails between the Complainant and Management and his subsequent grievance issue regarding approval of expenses all took place in 2018 and 2019, some 5 years before this current complaint.

I find that the matters in 2018 and 2019 are out of time and I have no jurisdiction.

The Complainant had a number of complaints, grievances and protected disclosures, some of which overlap in the legislation and it is well established in the doctrine of res adjudicata that a matter that has been litigated in one situation cannot be re-heard in another.   

In this decision, I outline what can be summarised from the submissions and evidence as to what complaints lie under which legislation.

CA-00054585-001           Safety, Health & Welfare at Work Act 2005  

Section 27 of the Act provides:

• (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.

It appears that, aside from the 2018 incident which is out of time, the current set of disputes the Complainant has with the Respondent have their origin in the Loss Prevention Audit which took place in August 2022 by the Senior Loss Prevention Auditor Mr H.  The evidence given by Mr D is at odds with the evidence given by the Complainant in that Mr D appears to have been trying unsuccessfully to get the Complainant to simply contact Mr H and see where the problem was and what could be done.  The Complainant was unwilling to go that informal route and from then the matter became more complicated and contentious.   The Complainant’s submission is that he was intimidated and undermined when he raised the complaint.  The question is did the complaints by the Complainant constitute complaints under the Act and was a detriment suffered by him as a result?

The Complainant complained that he was not in agreement with the contents of the loss prevention audit.  He questioned the accuracy of some of the information as it pertained to the storage of tubs inside the store.  He was in disagreement that there was safe room inside for the storage.

He made a complaint to the Health & Safety Authority about both the direction in relation to the storage of the tubs and the issue of the lift not having a safety feature.  This is addressed in the decision on his complaint under the Protected Disclosures Act.

He made a complaint of harassment against his manager which was not upheld.

He complained to the Health & Safety Manager about the lift in store and was unhappy about the length of time it took to resolve.   All of these issues can be described as constituting complaints to his employer about matters relating to safety, health and welfare at work.

Whether or not they were resolved to the satisfaction of the Complainant (and they clearly were not) is a separate matter.  I find that the Complainant made complaints to his employer on matters relating to safety, health and welfare at work.

I now turn to whether the Complainant was penalised for his action.

• (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.

(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.

The Complainant’s contention that he was bullied and harassed by his manager Mr D was investigated and not upheld in November 2022.  He did not appeal the decision.  A reading of the report indicates that the matter was addressed in a practical manner and the explanation was that the area manager was simply seeking for the Complainant to contact Mr H about the report.  The investigation document then offered mediation.  I do not find this constitutes penalisation.

The issue of the in store lift was the subject of many emails and communications between the Complainant and the Health & Safety Manager Ms S and a chart showing the communications was submitted by the Respondent which showed the communications between the two.  This showed Ms S proactively following up with the Complainant to follow up for quotes and commissions to fit the autodialler and specific instructions from Ms S (4/11/2022) not to use the lift until the autodialler has been fixed.  While the Complainant has not been satisfied with the situation, I note the Health & Safety Manager’s note (30/11/2023) that on a visit to the store the Complainant “would not agree to the fact that he should not have used the lift even though I had repeatedly said that the contractor had told him not to even though he was cc’d in on emails from myself saying that the lift was not being used.  In the end we had to agree to disagree.”  This puts the position of the Respondent and the Health & Safety Manager clearly.  I find this does not constitute penalisation.

I do not find the complaint to be well founded.

CA-00054585-002           Protected Disclosures Act 2014

Section 5 (1) of the Act provides:

For the purposes of this Act “protected disclosure” means…a disclosure of relevant information…

Section 5 (3) (d) of the Act provides that the following matters are relevant wrongdoings …

(d) that the health and safety of any individual has been, is being or is likely to be endangered,

In October 2022, the Complainant made a protected disclosure to the Health & Safety Authority regarding the lift and the storage of tubs.  This was a protected disclosure dealing with his concerns about the storage of tubs and the in store lift.  I find the Complainant did make a protected disclosure.  The question now is was he penalised for so doing?

Section 12 (7C) of the amended Act provides:

In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds.

The HSA carried out an inspection and reported in November 2022.   It was the Respondent’s position that they did not in fact know who had made the protected disclosure until they saw the Complainant’s submissions to the WRC in this case, on 10th August 2023. The Respondent could therefore not have penalised the Complainant on foot of a protected disclosure when they did not know the discloser was the Complainant.     

A summary of the Complainant’s complaints which he submitted were protected disclosures are:

In August 2023 he made a complaint to his line manager about the content of the loss prevention audit.  I find this was not a protected disclosure.  It was a dispute he had about the contents of the audit report.

The Complainant submitted that he was forced to relinquish his title of “delivery champion”.                                I note the voluntary nature of this role and the fact that it does not carry any extra remuneration.                       I find no detriment has been suffered by the Complainant relinquishing a voluntary role.

The Complainant has submitted that he was penalised for his actions by having his expenses approval delayed.

I note and accept the Respondent’s evidence of the following:

The Complainant has made 31 expenses claims between 1 January 2019 and 25 August 2023, they have all been paid. The average number of days (including Saturday and Sunday) between the employee submitting the expense and the expense being repaid is 8.84 days.

By no stretch of the imagination can this time period be considered unreasonable or penalising on the Complainant.  

The Complainant has had complaints regarding delays in approvals of his expenses, and some complaints dating back to the period before this current complaint, the Respondent has endeavoured to ensure any delays would be minimised going forward.  I find that the Complainant has not established a link between his making complaints and has not established that he has suffered a detriment.

I do not find the complaint to be well founded..

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00054585-001           Safety, Health & Welfare at Work Act 2005

Based on the evidence and findings above, I have decided that the complaint is not well founded.

CA-00054585-002           Protected Disclosures Act 2014

Based on the evidence and findings above, I have decided that the complaint is not well founded.

Dated:   30th May 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: