This case involved an employee-a warehouse operative-who brought a claim to the WRC (Workplace Relations Commission) that he was penalised for having made a complaint about health and safety in the workplace under the Safety, Health and Welfare Act, 2005.
The employer is a logistics company providing services to a large retailer in Ireland.
The employee was a safety representative and SIPTU shop steward and claimed he was penalised for having brought valid, legitimate concerns to the employer about health and safety matters.
He was subjected to a disciplinary procedure in 2019 which led to his dismissal. He appealed this successfully but was left with a final written warning on his file. He lost 5 weeks’ wages as a result of the dismissal.
The employee had been invited to a meeting in January 2019 at which the company health and safety specialist put it to the employee that he had raised so many safety concerns that the employer was concerned he was trying to “frustrate the process”.
He was invited to an investigation meeting in mid 2019 and a number of issues were put to him including:
- The number of safety net forms he had submitted
- Not reporting a fault cage
- Causing himself an injury
- Working away after he had felt a twinge in his shoulder
The disciplinary which followed led to his dismissal with immediate effect. One of the reasons given was he had
“demonstrated not only a disregard for your own training and safety but that you have used a process that is designed to protect our employees to defend an injury to yourself. This is wholly unacceptable in an environment such as ours”
The employee appealed this decision and was successful. He was reinstated with a final written warning. The employee was unhappy, however, as he had lost 5 weeks’ wages and had been caused a great deal of stress as a consequence of the dismissal.
The employer submitted at the hearing that no penalisation had occurred, and the employee had failed to show any detriment. Not only that but the employee had, in fact, failed to report a health and safety issue.
The employer relied on the cases Toni & Guy Blackrock Limited v Paul O’Neill (HSD095) and Citizens Information Board v John Curtiss (HSD101).
The relevant law is
Safety, Health and Welfare at Work Act 2005, which states:
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
28.—(1) Without prejudice to section 27 (4), an employee may present a complaint to a rights commissioner that his or her employer has contravened section 27 .
(2) Where a complaint under subsection (1) is made, the rights commissioner shall—
(a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint,
(b) give a decision in writing in relation to it, and
(c) communicate the decision to the parties.
(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:
(a) declare that the complaint was or, as the case may be, was not well founded;
(b) require the employer to take a specific course of action;
(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances.
(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of the contravention to which the complaint relates or such further period not exceeding 6 months as the rights commissioner considers reasonable.
(5) (a) A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.
(b) A copy of a notice under paragraph (a) shall be given to the other party concerned by the rights commissioner concerned.
(6) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public.
(7) A rights commissioner shall furnish the Labour Court with a copy of any decision given by the commissioner under subsection (2)
Claiming penalisation under the act is considered by referring to the principles in Paul O’Neill v Toni and Guy Blackrock Ltd (2010) 21 ELR 1.
The adjudicator held that firstly there must be a protected act, as apprehended by the Safety, Health and Welfare Act.
He found that “In Paul O’ Neill v. Toni and Guy Blackrock Ltd (2010) 21 ELR 1 the Court set down that the requirement in this regard is that ‘…the claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety.’ I am satisfied, in the instant case, that this has been established.”
Secondly, the employee must prove he suffered a detriment for having raised a concern protected by the act.
In looking at the detriment allegedly suffered by the employee the adjudicator held being subject to an investigation is not a detriment but a necessary process in the workplace. As for the stress suffered by the employee as a consequence of the dismissal and the subsequent loss of pay the adjudicator held that this was a detriment.
He did not find the issuing of a final written warning was a detriment as it flowed from a fair procedure and was gone from his record by the time of the hearing, in any event.
In looking at the action of the employer the adjudicator had to decide if the protected acts led to the detriment suffered.
The adjudicator found that the employee was treated more harshly than his colleagues and had suffered a detriment as a result of raising his concerns under the Safety, Health and Welfare at Work Act. He decided there was a causal connection between the protected act and the detriment and awarded compensation of €7,500.