Complainant

Respondent

Parties

Luiz  De Sousa Correa

Clare Distribution Services Limited

Representatives

 Brian Hallissey B.L. instructed by De Búrca Greene Solicitors

 Stephen Sands HR Consultant

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-00062620-001

05/04/2024

The complainant was employed by the respondent as a Van Delivery Driver from 26th May 2023 until on or about 20th October 2023. The complainant was dismissed from his employment and contends that his dismissal was an act of penalisation in contravention of the Safety, Health and Welfare at Work Act, 2005. Both parties were represented at the adjudication hearing and the complainant was assisted by an interpreter appointed by the WRC.

The complainant’s position is that he was driving in bad weather on 18th October 2023 and his vehicle stopped after he drove into a flood. The complainant stated that he rang his employer and was told to stay with the vehicle. The complainant stated that he was concerned about the rising water levels and rang his partner. The complainant stated that he got out of the vehicle and onto the roof where he was eventually rescued by passers-by in a truck and brought to a nearby petrol station.

The complainant stated that he was subsequently told by management not to attend work the next day and was called to a meeting and dismissed on Friday 20th October 2023 having been told that the extensive damage to the vehicle was due to his recklessness and that his employment was being terminated as a result.

Legal Submissions

Counsel for the complainant stated that the complainant is relying on Section 27(3)(f) of the Safety, Health and Welfare at Work Act, 2005 which states as follows:

27(3) An employer shall not penalise or threaten penalisation against an employee for –

((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.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

Evidence

The complainant gave evidence by affirmation at the adjudication hearing. The witness stated in evidence that after driving into the flood his vehicle would not start and he telephoned his employer and his wife. The witness further stated that he was told to stay in the vehicle, to close all the windows and to do nothing else. The witness also stated that no one from the employer came to help and that eventually as the water levels were rising, he climbed out of the vehicle and on to the roof where he was rescued by a passing truck and brought to a petrol station. The witness stated that he made his own way home and was called to a meeting two days later and dismissed.

Closing submissions

In closing submissions, counsel for the complainant stated that the complainant was unaware that the meeting of the 20th October 2023 would lead to his dismissal from his employment. Counsel further stated that the complainant was informed that he was being dismissed for leaving the vehicle. Counsel added that there was no question that the complainant was in serious and imminent danger on the day in question and the legislation protects employees in those circumstances. Counsel stated the complainant’s evidence was not challenged and that he was clearly penalised in contravention of the legislation. The complainant is seeking real and meaningful compensation in respect of his complaint.

The respondent stated that the complainant drove into a flooded road on 18th October 2023 while on deliveries. The respondent stated that the complainant had received the appropriate training on driving in adverse weather conditions and his actions on the day resulted in significant damage to the vehicle which was written off. The respondent confirmed that the complainant was dismissed on 20th October 2023 due to a failed probationary period as a result of the situation. The respondent argued that the complainant did not commit a protected act in line with the provisions of the legislation and accordingly, his dismissal was not an act of penalisation as claimed. The respondent stated that it was many months after the dismissal that the complainant claimed that he had raised health and safety concerns and was dismissed for so doing.

Evidence

A principal of the respondent also gave evidence by affirmation. The witness stated that the complainant had driven into a flooded road and that the vehicle had stopped. The witness stated that during a phone call the witness was asked about the height of the water levels and said the water was coming in the driver’s door. The witness stated that they lost telephone contact with the complainant and when the respondent called him back, he was standing on the roof of the vehicle. The witness stated that the complainant was told to get back into the van as standing on the roof of the vehicle was too dangerous. The witness stated that the next time the complainant made contact was when he was on his way to the petrol station.

Closing submissions

The respondent’s representative stated in closing submissions that the complainant received the appropriate training and should have been aware that he should not drive into a flooded road if he was unsure as to the depth of the water. The respondent stated that there was no explanation given by the complainant for his actions and he did not admit to any wrongdoing. In the circumstances the respondent stated that it was an unsuccessful probationary period that led to his dismissal and not an act of penalisation as claimed.

The complainant alleges that his dismissal is an act of penalisation having raised health and safety concerns to his employer relating to the incident in question.

In relation to claims of penalisation, the Labour Court in Toni & Guy Blackrock Limited v. Paul O’Neill HSD095, stated as follows:

This Court has held that a causal connection must be established between the employee exercising their rights under Section 27(3) and the employer’s alleged subsequent ‘penalisation’ actions under Section 27(2), if any. In ‘This matter is before the Court by way of a complaint of penalisation within the meaning ascribed to that term by s.27 of the Act of 2005. Hence, the Court is not concerned with the fairness of the dismissal per se. Its sole function is to establish whether or not the dismissal was caused by the Claimant having committed an act protected by s.27 (3) of the Act.’

The Labour Court confirmed that in order to be successful in bringing a complaint of penalisation it is necessary for a complainant to establish that the detriment which s/he submits was imposed was in fact “for” having committed one of the acts protected by s.27(3).

The Complainant would have to prove that the detriment he claims to have suffered must have occurred because of, or in retaliation for having committed a protected act. That is, the alleged detriment would not have arisen "but for" the employee having committed one of the acts under Section 27 (3).

The Labour Court in the case of Citizens Information Board v. John Curtis HSD101 stated:

‘It is clear that, redress under the Act is only available where (a) an employee commits an act protected by subsection (3) of s.27, and (b) the employer imposes a detriment on the employee because of, or in retaliation for, having committed the protected act’’. The claim resting with the Complainant’s allegation of penalisation is without foundation as the employer did not impose a detriment on the employee because of,or in retaliation for, having committed the protected act’’.

In the circumstances of the within complaint, the complainant was dismissed following the incident where he drove into a flood and there was significant damage caused to a company vehicle. The complainant contends that the dismissal was an act of penalisation in retaliation for his making a protected act under Section 27(3)(f) of the Safety, Health and Welfare at Work Act, 2005, namely conveying his health and safety concerns to management during the incident in question. The respondent’s position is that the dismissal was not in retaliation for the complainant raising health and safety concerns. The respondent stated that the complainant was dismissed following an unsuccessful probationary period which also considered matters that occurred on the 18th October 2023 in circumstances where the complainant had received training in relation to driving in adverse weather conditions.

Having considered the submissions and evidence of both parties to this complaint, I find that the complainant’s dismissal did not arise because of, or in retaliation to, his health and safety concerns. I find, on the balance of probabilities, that the complainant failed his probationary period due to his negligent actions on 18th October 2023 and was dismissed accordingly. While the decision to dismiss may have been arrived at in haste without recourse to proper procedures, the within complaint requires the complainant to prove that the dismissal was brought about as an act of penalisation in contravention of the Safety, Health and Welfare at Work Act, 2005. In all of the circumstances of the complaint, I find that the complainant has failed to prove that his dismissal was an act of penalisation.  Accordingly, the complaint fails.

For the reasons stated above, I find that the complaint is not well founded.

Penalisation, Safety, health and welfare at work.