ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00053386

Parties:

Complaint:

Date of Adjudication Hearing:  15/01/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 28 of the Safety, Health & Welfare at Work Act 2005,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 matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.  The parties were given the opportunity to give evidence on oath or affirmation and the right of examination and cross examination was afforded.

Background:

The Complaint is that of penalisation under Section 27 of the Act.

Summary of Complainant’s Case:

The Complainant was employed by the Respondent as a Sport Shop Manager/ Sales Assistant Supervisor from the 12th of February 2024 until the 21st of May 2024 at the Respondent’s sporting goods shop.

The Complainant claims compensation for penalisation contrary to the Safety Health and Welfare at Work Act 2005.

The Claimant began her employment with the Respondent in mid-February in 2024 as a fulltime, permanent Sport Shop Manager. Prior to taking up this position she had held two previous roles for a combined twenty eight years in a similar sector.

As part of this role she had occasion to attend the on site warehouse to collect and check stock.

The floor in the said warehouse had several holes in the floor which had come about as a result of untreated water leaks in the warehouse roof falling onto the floor. Due to the poor state of the floor, on or about the 17th April 2024, the Complainant tripped and fell. The Complainant and a colleague undertook filling the hole, covering same with tape and putting a sign nearby to alert others as to the risk.

Following this fall, she reported the fall to the Warehouse Manager and noted in an Accident Log in the office. The Complainant said to the Warehouse Manager that it was her intention over time, to hire 5 staff and she did not want to hire them for them to come and get hurt at work.

The CEO was not on site at the time. When he returned, he met the Complainant and made her aware that he knew she had been involved in an incident. At the said meeting, despite highlighting the dangers of the unsafe flooring, including her own fall, the CEO informed the Claimant the floor would “cost thousands to fix”.

The Complainant was informed by the CEO at that meeting, that such instances should be reported to the CEO right away, regardless of where he was at the time of the incident. On this occasion, he was in England at the time. The Complainant undertook to do same in future but did tell him that she understood she had done what was required of her at the time, which was to report it to the Warehouse Manager.

Regrettably, despite this meeting, the Respondent failed, neglected or refused to rectify the unsafe work environment and the Complainant and her colleagues were forced to stuff and tape the most severe holes in the floor for fear of further falls. Most of the other holes were not addressed at all.

On or about early May 2024, the Complainant was again caused to be in the warehouse to drop off DPD packages when she noticed the forklift left sitting in the middle of the warehouse. She will give evidence that as she turned to move around the abandoned forklift she tripped over the forks (which were also left out). She again reported this accident to senior management. The Store Manager (Workwear) and another member of staff witnessed this incident. The Complainant noted the Warehouse Manager left the Warehouse almost immediately thereafter in the direction of the offices. It is the Complainant’s belief that the Warehouse Manager went to report the Complainant’s fall.

Approximately two weeks later, on the 16th of May 2024 the Complainant was asked to attend the office without notice wherein she was dismissed. The Complainant will say this is because of her raising the issues of health and safety. At the time of her dismissal, the unsafe flooring still had not been addressed. The Respondent’s position as to her dismissal, or so declared in that meeting was that she was being dismissed because she was “good at some things, and not at others” and she was “still in probation, so it is allowed.” The Complainant queried what it was she was good and/or bad at, but no answer was given.

The Complainant gave sworn evidence confirming that she was dismissed without being given proper reason.  She said that when she was being dismissed, the M.D. told her she was good at some things, and not at others.  She stated that she was called to a meeting with the M.D. on 16th April 2024 and was spoken to about the accident which occurred on 8th April 2024.  She said the M.D. was annoyed that she did not report it to him.  She denied that performance issues were discussed or that she was given a verbal warning. She said she did not receive performance feedback, had not been subject to any disciplinary procedures and was shocked to be dismissed in the circumstances.  She had to ask several times for a letter outlining the reasons for her dismissal and the answer she got was “absolutely none”.  She was convinced that the reason was she suffered two falls in the workplace.

Summary of Respondent’s Case:

The Respondent is a clothing supplier and wholesaler based in Waterford, established in 1979.

The Claimant was employed as a Shop Manager and commenced her employment with the Respondent on the 4th February, 2024.  The Claimants role included, overseeing the running of the retail shop and dealing with customers who attended the premises. She was also responsible for fulfilling online orders which required her to go into the warehouse, locate the clothing items from stock, package them, print shipping labels and leave the packages out for collection by DPD.

It is fully denied that the Claimant was penalised contrary to Health Safety and Welfare and Work Act 2005 (“the Act”) or that she made any protected act within the meaning of subsection (3) of s27 of the Act. Furthermore, it is the Respondents position that the Claimant was let go during her probationary period, as provided for in her contract of employment, due to inadequate performance and poor attitude.  

Sworn evidence was given by the Managing Director, Warehouse Manager, Safety Officer and Office Manager.  The Managing Director gave evidence of the procedure for reporting safety incidents.  He also stated that he gave a verbal warning to the Complainant on 16th April 2024 for unauthorised breaks and use of mobile phone.  He was not aware of the second accident in relation to the forklift until he received the Complainant’s solicitor’s letter.   He confirmed the reasons which led to the decision to let the Claimant go during her probationary period and none related to any workplace accident.   It is denied that the Claimant reported the alleged fall to the Warehouse Manager, she did not and the Directors only became aware of the alleged fall some days after it occurred through another employee. The Claimant, in breach of her terms of employment, set out in the employee handbook failed to report the accident to the Directors.

It is accepted that the Claimant was dismissed on the 16th May, 2024. It is denied that the Claimant raised any health or safety concerns, as set out above. The Claimant at the request of the Respondent logged an alleged fall nine days after it occurred and failed, refused or neglected to log an alleged second fall. The final act by the Claimant which crystallised the Respondent decision to let her go related to leave the Claimant had requested at short notice to attend the funeral of a friend’s parent. The Claimant, in contravention of the Company policy, contacted (via txt message) the Respondent at 21.41 on Sunday the 12th May, 2024 to advise that she wasn’t feeling well and would be unavailable to attend work on the following day.  The Respondent decision to let the Claimant go during her probationary period related solely to her inadequate performance and poor attitude.

The Respondent relies on case law to support the case that they did not dismiss the Complainant for having made a complaint under the Safety, Health and Welfare at Work Act 2005.

Section 27 of the Act provides:

“27.— (1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes— 

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(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.

(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.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

The jurisdiction of the WRC under s.27 of the 2005 Act is narrow. Section 27 of the 2005 Act only applies where an employer penalises or threatens penalisation against an employee for making a complaint or representation to their employer regarding a matter relating to safety, health, or welfare at work. In order to succeed in a claim under s.27 of the 2005 Act, the Claimant must demonstrate that she has (a) committed a protected act within the meaning of subsection (3) of s.27 of the 2005 Act; (b) suffered a detriment within the meaning of subsection (1) of s.27 of the 2005 Act; and (c) can show a causal connection between (a) and (b).

In considering a complaint of penalisation under s.27 of the 2005 Act, the WRC must, therefore, address three questions. First, the WRC must be satisfied that a protected act, or acts, within the meaning of subsection (3) of s.27 of the 2005 Act has or have taken place. Second, the WRC must be satisfied that the Claimant suffered a detriment within the meaning of subsection (1) of s.27 of the 2005 Act within the cognisable period. Third, the WRC must be satisfied that the Claimant suffered the detriment because of her commission of a protected act, or acts.

In Citizens Information Board v John Curtis (HSD101), the Labour Court held:

“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 employers imposes a detriment on the employee because of, or in retaliation for, having committed the protected act”.

In Paul O'Neill v Toni & Guy Blackrock Limited [2010] ELR 21, the Labour Court held that the detriment complained of must have been imposed “for” having made a protected act within the meaning of s.27(3) of the 2005 Act:

“The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that "but for" the claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment”.

 The Claimant was ‘let go’ three months into her six month probationary period due do her poor performance, inability to perform the job and bad attitude.

Sworn evidence was given by the Managing Director who gave an account of a meeting he held with the Complainant on 16th April 2024.  He stated that he gave her a verbal warning about her conduct, phone use and taking unauthorised breaks. 

Sworn evidence was given by the Safety Officer in relation to the two incidents, 8th April and 7th May 2024.  She told the Complainant she had to log these and tell the Managing Director.  The Complainant did not do either of these.  The Safety Officer then arranged to log the first incident on 17th April 2024.

Sworn evidence was given by the Warehouse Manager in relation to the two incidents.

Sworn evidence was given by the Office Manager in relation to the Complainant’s shortfalls in performance.

Findings and Conclusions:

The applicable law

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.

Application of the law

To succeed in her case, the accepted tests as outlined in Labour Court decisions are that the Complainant must have (a) committed a ‘protected act’ as contained in Section 27 (3), and (b) suffered a detriment because of it.

There was much conflict of evidence in this case.  An accident occurred on 8th April 2024.  The matter was not recorded properly as provided for in the Respondent’s procedures.  However, it was recorded in a handwritten note by the Safety Officer on 17th April 2024.  The conflict of evidence between the version of what transpired in the meeting between the Managing Director and the Complainant on 16th April 2024 is irreconcilable as there was no note of that meeting.

While there is no record of the 7th May 2024 incident, the evidence given during the hearing was that an incident with the forklift and a tripping issue did occur.

I conclude that the first test of committing a protective act is met.

The Complainant suffered a detriment in that her employment was terminated on 16th May 2024 and she was given no reason for her dismissal other than she “was good at some things and not good at others”.

The decisive consideration therefore in relation to the dismissal is that of causation.  The seminal case in relation to “but for“  committing a protected act, the employee would not have suffered the detriment complained of is in Labour Court Determination No HSD095, Toni & Guy Blackrock Ltd and Paul O’Neill.  In that case the Court found:

The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that "but for" the claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment”.

In that case the Court also stated (in relation to the peculiar knowledge principle) that:

In the instant case what is at issue is the motive or reason for the Claimant’s dismissal.  That is to be found in the thought process of the decision makers at the time the decision to dismiss the Complainant was taken.  This is something which is peculiarly within the knowledge of the Respondent.  It would be palpably unfair to expect the Claimant to adduce direct evidenceto show that the Respondent was influenced by his earlier complaints in deciding to dismiss him.  Conversely, it is perfectly reasonable to require the Respondent to establish that the reasons for the dismissal were unrelated to his complaints under the Act.

In this instant case, there was more than one causal factor In the chain of events leading to the dismissal of the Complainant in that the Complainant’s performance was considered unsatisfactory.  There was a conflict of evidence in relation to a meeting held with her on 16th or 17th April 2024.  There is no disagreement that she suffered two falls in the workplace.  The first incident on 8th April 2024 was recorded on 17th April 2024.  There was no evidence of the second incident which occurred on 7 May 2024 being recorded. The evidence of the Managing Director was that the Complainant was dismissed for poor performance and taking unauthorised breaks.  The M.D.s evidence was that the Complainant was given a verbal warning in relation to these issues.  While her contract provides that she may be dismissed during her probation for incompetence, due procedures were not followed.  Her contract provided for a probationary period of six months and no formal reviews were carried out during her probation.

It would have been open to the Respondent to extend the probationary period.  The whole situation in relation to the Complainant was characterised by an absence of procedural fairness. In these circumstances it is difficult to avoid the conclusion that the employer, whether consciously or unconsciously, was proceeding with a predisposition that the employee’s employment should be have been brought to an end and that the incidents on 8th April and 7th May 2024 played a part in his decision.

In Toni & Guy, the Labour Court had no doubt that there were other employment related issues with the employee, of which the employer had justifiable cause to complain. Nonetheless, the Labour Court was satisfied, as a matter of probability, that, were it not for their complaints regarding health and safety, those issues would not have resulted in their dismissal. 

In this instant case, I find that the Complainant’s accident on 8th April 2024, and the recording of same was an operative reason for the dismissal of the employee and that the complaint of penalisation has been made out.

I find the complaint to be well founded and I award the Complainant compensation in the amount of €10,025 which I consider to be just and reasonable in all the circumstances of this case.

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.

Section 28 of the Safety, Health & Welfare at Work Act 2005 requires that I make a decision in relation to the complaint under that Act.

Based on the reasons cited, I have decided the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €10,025 compensation.

Dated:  6th March 2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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