Background
The complainant was employed for over 34 years as an Office Manager in a small, family run drugs company. The complainant lodged claims under both the Unfair Dismissal Act 1977 – 2007 and Safety Health and Welfare Act, 2005. Employers are expressly prohibited under the 2005 Act from penalising employees who raise issues in relation to safety, health and welfare in the workplace.
The complainant elected to pursue the complaint under the Safety, Health and Welfare at Work Act, 2005 as relief cannot be granted under both Acts. The potential compensation which can be awarded under the Act is a sum which is “just and equitable in all the circumstances”. As such, there is no cap on a potential award for dismissal under the 2005 Act. The award given is at the discretion of the adjudicator officer or Labour Court Chair.
Summary of the Complainant’s Case
The complainants’ boss passed away and his widow subsequently took over the running of the business. The complainant had a difficult working relationship with her new manager and claimed that this was affecting her health. She raised these concerns to another Director of the company – her new manager’s son – however, no action or improvement in behaviours were forthcoming. The complainant lodged a formal grievance in relation to bullying and health and safety concerns.
The complainant submitted a grievance to her employer and two weeks later she was summarily dismissed. The dismissal letter made specific reference to her dismissal being related to her raising a grievance.
Summary of the Respondent’s Case
The respondent said that the complainant was not penalised within the meaning of the Act, rather that there was a breakdown in the relationship between the two parties. The respondent submitted that the complainant took on additional duties of her own accord, she took long unauthorised breaks, her expectation regarding annual leave was unreasonable and her attendance was unacceptable.
The respondent argued that the complainant was difficult to manage and refused to engage with her regarding operational issues. The respondent was unable to manage the complainant and for that reason wanted to dismiss her. A verbal warning was issued in May 2016.
Following the warning being issued, the complainant was absent from work due to work-related stress (stemming from the health and safety concerns in the workplace). The respondent argued that “they were deeply frustrated with the claimant’s behaviour and attitude to work. Her absence from work confirmed that for them, they could manage without her and that the atmosphere had improved in her absence and took the decision to terminate her employment. The question of health and safety or the Claimant’s expressed concerns were not factors in the decision.”
Finding
The Adjudication Officer said, “It is simply not credible that the complainant turned into the employee from hell as submitted by the respondent having given 30 years of unimpeachable service to the point at which it is alleged she acted in such an offensive and reprehensible manner.”
The Adjudication Officer also noted that if the claimant’s behaviour was unacceptable, the respondent should have managed this in line with company procedures. The Adjudication Officer found that the complaint was well founded and required that the respondent pay the complainant €159,705 in compensation for breach of s. 27 of the Act.
Learning Points
- Section 27 of The Health, Safety and Welfare Act, 2005 prohibits an employer from penalising or threatening to penalise an employee with respect to any terms or condition of his/her employment, where the employee is;
- acting in accordance with health and safety legislation or performing any duty or exercising any right under safety and health legislation,
- making a complaint or a representation about safety, health or welfare at work to his or her safety representative, to their employer or to the Health and Safety Authority,
- giving evidence at any prosecutions or other legal proceedings taken by the Authority, or on behalf of the Authority,
- a safety representative or an employee having duties in an emergency, or a competent person appointed under Section 18, or
- leaving or refusing to return to the place of work when he or she reasonably considers that there is serious or imminent danger which the employee could not reasonably have dealt with, or for taking or proposing to take appropriate steps to protect himself or herself or other persons from the danger considering the circumstances and the means and advice available to him or her at the relevant time.
- Where there are both misconduct issues and a grievance pending, it’s important to ensure both matters are dealt with in line with natural justice and fair procedure prior to reaching a decision to dismiss.
- An employee can elect to take a claim under the 2005 Act rather than the Unfair Dismissal Act. The scope for compensation under this Act is greater than the maximum two years’ remuneration under Unfair Dismissal legislation. The legislation clearly sets out an employer’s obligation to provide a safe place to work for their employees. If an employee raises health and safety concerns, it is important the concerns are addressed within an appropriate time frame to avoid exposure to litigation.
If you have any questions relating to this article please contact the advice line on 01 886 0350
