Case Number: ADJ-00000081. Workplace Relations Commission

CourtWorkplace Relations Commission
Docket NumberADJ-00000081
Date20 April 2016
PartiesA worker v A Respondent
ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000081

Complaint(s)/Dispute(s) for Resolution:

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-00000125-001

07/10/2015

Date of Adjudication Hearing: 03/02/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 28 of the Safety, Health and Welfare at Work Act, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

1: Summary of Complainant’s Submission and Presentation:

1:1 I raised an issue with my employer in relation to myself and staff working excessive hours:

1:2 I stated to management that this was a Health and Safety issue.

1:3 I was signed off sick from work after falling asleep at the wheel, due to exhaustion from excessive hours, on my way home from work.

1:4 When I returned to work I was dismissed, management used probation period clause in contract in a non transparent and exploitative manner. My dismissal was unfair and outside of all fair procedures.

I was not informed in advance of the dismissal /probationary review meeting of the nature of the meeting. I was not given any rights to be represented and not afforded the opportunity of an appeal

1:5 Prior to my raising the H&S issue no issues were raised in relation to my work performance and no formal reviews were ever carried out. I was sent on a Company Training course in Texas in the USA and a “First response” three day course with Dublin Fire Brigade.

These courses did not indicate an employer who was unhappy with an employee’s performance.

There was no offer, as mentioned in my contract, to extend my probationary period and carry out a later review.

1:6 The Employer did not elaborate on what “not suitable for the role” meant.

1:7 It is my opinion that the company dismissed me for raising the H &S issue and for being off work. It is my opinion that I have been penalised under the safety, health and welfare at work act 2005 section 27 protection against dismissal and penalisation

2: Summary of Respondent’s Submission and Presentation:

2:1 The Complainant was first employed on the 16th February 2015 and the employment ended on the 28th May 2015 following a Probation review.

2:2 The Respondent strongly contested that the Complainant had ever raised a Health and Safety complaint of the nature required to satisfy the Safety, Health and Welfare at Work Act 2005. As a senior Manager he was fully conversant with all H&S procedures and would have known how to raise a formal complaint had he chosen to do so.

2:3 The Respondent’s business went through an exceptional period of difficulty for approximately 8 to 10 days in April 2015, related to the introduction of a new IT system and the commissioning of a very large new warehouse.

The IT system did not perform as expected and all staff, especially Managers of the Complainants grade, had to work exceptional hours in the Go Live period.

The complainant did raise at meetings during this period the very long hours being worked by all staff during this initial period but as an expected managerial issue not a formal H&S complaint.

2:4 It was acknowledged that the complainant had a period of Sick Leave in May 2015. The Respondent did not feel that the Sick Leave period had any causative link to the ending of the employment at the Probation review.

2:5 The Respondent stated that the Company had formed the view that there was a mismatch between the team performance, skill set and style of the complaint and the requirements of the position. Accordingly the employment was terminated under a probationary review.

The Respondent was perfectly within its rights to conduct a probationary assessment and bring the complainant’s employment to a conclusion as a result.

2:6 In summary the Complaint’s employment ended as a result of a valid Probationary Review process and had no linkage to any other issues either Sick Absence or alleged Health and Safety complaints.

2:7 The Complainant has failed to satisfy the requirements of Section 27 of the Safety, Health and Welfare at Work Act 2005 and the claim is misconceived.

3: Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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 a complaint of a contravention of Section 27 of that Act.

4: Issues for Decision:

The key issue involved is whether or not the dismissal of the Complainant was in contravention of Section 27 of the Safety, Health and Welfare at Work Act 2005.

Protection against dismissal and penalisation.

5: Legislation involved and requirements of legislation

5:1 The Labour Court in Determination no HSD095 has given clear guidance for cases of this nature.

This matter is a complaint of penalisation within the meaning ascribed to that term by s. 27 of the Act of 2005.

My 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 relevant statutory provision is as follows: -

(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 undersection 11or appointed undersection 18to 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...

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