DETERMINATION NO. HSD095
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005
TONI & GUY BLACKROCK LIMITED
(REPRESENTED BY CARLEY & CONNELLAN SOLICITORS)
- AND -
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)
Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Mr Nash
1. Appeal of a Rights Commissioner's Decision R-054076-HS-07/MMG.
2. The Worker appealed the Rights Commissioner's Decision R-054076-HS-07/MMG to the Labour Court on the 12th March 2009, in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act, 2005. A Labour Court hearing took place on the 21st May 2009. The following is the Determination of the Court:-
This is an appeal by Mr Paul O’Neill (the Claimant) against the decision of a Rights Commissioner in his claim of penalisation, by way of dismissal, against his former employer, Toni and Guy, Blackrock Ltd (the Respondent). The claim was made pursuant to s.27 of the Safety Health and Welfare at Work Act 2005 (the Act).
The Complainant was investigated by a Rights Commissioner who found against the Claimant. The Claimant appealed to this Court.
The Respondent is a hairdressing salon located in Blackrock Co Dublin. It is operated as a franchise. The Claimant was employed by the Respondent in his capacity as a colour technician between 2001 and March 2007 when he was dismissed. The Claimant contends that his dismissal resulted from having raised certain issues relating to health and safety with the Respondent and with the Health and Safety Authority. The Respondent denies that the decision to dismiss the Claimant was influenced by the complaints which he had made. It contends that the Claimant was dismissed for persistent lateness and other acts of misconduct.
In evidence the Claimant told the Court that the current franchisees took over the business in or about August 2006. He said that it was necessary to wear latex gloves while handling colouring agents, which contained chemicals. These gloves were supplied by the Respondent. In or about September 2006 the Respondent started to provide staff with cheaper and lower quality gloves. The Claimant told the Court that he regarded these gloves as inadequate on health and safety grounds. He informed Ms McGrath, one of the franchisees, of his concerns in that regard. According to the Claimant Ms McGrath dismissed his concerns in robust language and told him to buy his own gloves. He said that he raised the matter with the Health and Safety Authority and was advised that he should use suitable gloves when working with chemical substances. He made the Respondent aware that he had contacted the HSA in the matter.
It was the Claimant’s evidence that he purchased suitable gloves from his own resources which he used in the course of his work. He said that he continued to raise the matter with the Respondent. He also made a complaint to the National Employment Rights Authority.
The Claimant told the Court that prior to these occurrences he had never experienced difficulty in his employment. After having raised his concerns in relation to the health and safety issues the Respondent’s attitude towards him changed and he was generally ignored by the franchisees. He said that an issue arose with the Respondent in or about September 2006 when he was approximately ten minutes later for work. Ms McGrath gave him a verbal warning. Sometime later he was unable to report for work through illness and he asked his sister to inform the Respondent. The Respondent took issue with his failure to phone in personally. He said that the Respondent purported to issue him with a written warning in respect of this matter. He refused to accept the warning because he considered it unjustified. He said that he was later accused of stealing stock from the shop.
On 14th March 2007 he was asked to attend a meeting with the franchisees of the business. He was handed a letter of dismissal. He asked the reason for the dismissal but was refused an explanation.
In cross-examination the Claimant denied that he had often left the shop early by the back door. He said that he and others often used the back door when leaving the premises. He accepted that he had left on one occasion early because he had worked from 10am to 8pm without a break. The Claimant also denied that he was aware of issues concerning the loss of stock from the salon.
Ms Audrey McGrath gave evidence. Ms McGrath is a joint franchisee of the business. She told the Court that she took over the business in August 2006. She said that it was necessary to cut back on expenditure and to this end she decided to discontinue the purchase of a particular type of gloves previously supplied to staff. She said that cheaper gloves were acquired and supplied to staff. According to the witness the Claimant objected to using the newly supplied gloves but that she told him that it was necessary to cut back and expressed the view that the gloves provided were adequate for the purposes for which they were required. It was Ms McGrath’s evidence that the Claimant used the gloves with which he was supplied without further complaint.
The witness told the Court that the Claimant was persistently late for work and that he had often left the salon early by the back door. He also failed to ring in personally on occasions on which he was unable to attend work due to illness. The Court was also told that stock was being lost and that the Claimant was found to have had a key to the press in which the stock was held.
According to Ms McGrath the Claimant was issued with a verbal warning, a written warning and a final written warning in relation to his time keeping and other matters. However, the Court was told, the Claimant refused to accept these warnings. Ms McGrath said that she consulted with the head office of Toni and Guy and was advised to keep the warnings on file. On the morning of 14th March 2007 the Claimant arrived for work some 20 minutes late. Ms McGrath told the Court that she discussed the situation with her co franchisee, Ms Moloney, and it was decided to dismiss the Claimant. A letter of dismissal was prepared. When the Claimant arrived for work he was summoned to a meeting with the witness and Ms Moloney and given this letter. The Claimant was dismissed with immediate effect and without notice.
The witness could not recall the content of the warnings issued to the Claimant nor the dates on which they were issued. Records of such warnings were not
made available to the Court. Ms McGrath also accepted that the decision to dismiss the Claimant was taken before the meeting with him on the morning in question.
In cross-examination the witness told the Court that the Respondent has a health and safety policy but she could not recall what it said in relation to the use of chemicals. The witness also confirmed that the Respondent had a disciplinary policy which, she said, provides for three warnings before an employee can be dismissed.
In reply to questions from the Court the witness said that a warning would normally last for six months during which the employee would be given an opportunity to deal with the issues giving rise to the warning. The witness also agreed that the issue of stock loss had not been a factor leading to the Claimant’s dismissal. Ms McGrath said that the reason for the dismissal was the Claimant’s poor time-keeping, “sneaking” off the premises by the back door and having others ring in for him when he was sick.
Conclusions of the Court
The law applicable
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 20005. 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 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.
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—
(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).
(5) [not relevant]
(6) [not relevant]
(7) [not relevant]
It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus 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 suggested 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 determent.
Burden of Proof
The act is silent on the question of how the burden of proof should be allocated as between the parties. This question was considered by this Court in Department of Justice Equality and Law Reform and Philip Kirwan (Determination HSD082). Here the Court held as follows: -
It is clear, however, that in the absence of any contrary statutory provision, the legal burden of proof lies on the person who asserts that a particular fact in issue is true (see Joseph Constantine Steamship Line v Imperial Sheltering Corporation  A.C.154 where this rule of evidence was described by Maugham V.-C. as “an ancient rule founded on considerations of good sense and it should not be departed from without strong reasons”)
Later, in Fergal Brodigan T/A FB Groundworks and Juris Dubina Determination (HSD0810) the Court qualified the statement made in the Kirwan case as follows: -
It is, however, settled law that in civil matters there is an exception to this rule known as the peculiar knowledge principle. This is a rule of evidence which provides that where it is shown that a particular fact in issue is peculiarly within a defendant’s knowledge the onus of proving that fact rests with the defendant (see Mahoney v Waterford, Limerick and Western Railway Co.  2.IR 273, per Palles C.B.)
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. That is something which is peculiarly within the knowledge of the Respondent. It would be palpably unfair to expect the Claimant to adduce direct evidence to 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.
Having regard to these considerations, it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.
The Court has carefully considered all of the evidence tendered in this case. In many material particulars there was a significant conflict in the evidence of the Claimant compared to that of Ms McGrath relating to the issuance of warnings and the subject matter of those warnings. The Court is, however, satisfied that the Claimant did make complaints concerning health and safety matters arising from the change in the quality of gloves provided by the Respondent. The Court is also satisfied that following on from those complaints the Respondent appeared to take issue with the Claimant in respect of employment related matters which had not previously been a source of difficulty.
It also appears to the Court that the Respondent adopted a formalistic approach to the use of its disciplinary procedure and appeared to proceed, with inordinate haste, from one stage to the next until the point was reached where the Claimant’s employment was terminated. The whole exercise was characterised by an absence of procedural fairness. In these circumstances it is difficult for the Court to avoid the conclusion that the Respondent, whether consciously or unconsciously, was proceeding with a predisposition that the Claimant’s employment should be brought to an end.
The Court has no doubt that there were other employment related issues with the Claimant, of which the Respondent has justifiable cause to complain. Nonetheless, the Court is satisfied, as a matter of probability, that, were it not for his complaints regarding health and safety, those issues would not have resulted in his dismissal. Accordingly the Court must hold that the aforementioned complaints were an operative reason for his dismissal and that his complaint of penalisation has been made out.
The appeal herein is allowed. The decision of the Rights Commissioner is set aside and substituted with a finding that the within complaint is well founded. The Court further determines that the appropriate redress is an award of compensation. The Court measures the amount of compensation which is just and equitable having regard to the circumstances of the case at €20, 000.
Signed on behalf of the Labour Court
18th June, 2009 ______________________
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.