Unfair Dismissal and Penalisation for Raising Safety Concerns

Introduction to Protected Disclosures and Safety Concerns

If an employee contends that during the course of their employment, their employer breached the terms of the Safety Health and Welfare at Work Act, 2005 and they were penalised for having raised a complaint in relation to health and safety issues in their workplace, that employee may bring a claim, and the matter may be referred for investigation to the Workplace Relations Commission (WRC), pursuant to the Safety, Health and Welfare at Work Act.

Irish Health and Safety Law and Penalisation

It is clear from the language of the Safety, Health and Welfare at Work Act, that in order to make out a complaint of penalisation it is necessary for an employee to establish that the detriment of which they complain of was imposed “for” having raised health and safety concerns. 

Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the employee 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, up to and including dismissal, the commission of a protected act must be an operative cause in the sense that “but for” the employee having committed the protected act they 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.

Unfair Dismissal, Irish Employment Law & Health and Safety

It is noted that if an employee alleges that they have been dismissed because they raised health and safety concerns, the WRC or Labour Court will not be concerned with the fairness of the dismissal per se. Their sole function is to establish whether or not the dismissal was caused by the employee having committed an act protected by the health and safety legislation.

The relevant statutory provision of the Safety, Health and Welfare at Work Act is as follows: -

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 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 unfair dismissal if it results wholly or mainly from penalisation as referred to insubsection (2)(a).

This Section is intended to protect employees who exercise any of the rights referred to at Subsection (3) from retaliatory conduct by their employer. In applying the provision, the WRC or Labour Court must be careful to recognise the distinction between a detriment which may be suffered by an employee as a result of an employer’s failure to fulfil a duty under the health and safety legislation and a detriment amounting to “penalisation”.

What is a Penalisation?

Subsection (1) of the Safety, Health and Welfare at Work Act defines penalisation in broad terms and can include a failure to act which results in a detriment to an employee in terms of their or their conditions of employment. 

Crucially, however, what is rendered unlawful by Section 27(3) is acts or omissions of the type referred to at Subsection (2) directed at an employee for having committed an act protected by that Subsection.

Hence the decisive consideration is that of causation.

Burden of Proof in Penalisation Claim

The Safety, Health and Welfare at Work Act is silent on the question of how the burden of proof should be allocated as between the parties. 

This question was considered by the Labour Court in Department of Justice Equality and Law Reform and Philip Kirwan (Determination HSD082). 

“The Court is of the view that Section 27 should be construed as providing that penalisation can arise where, after the commencement of the health and safety legislation, a employee is subjected to unfavourable treatment of the type referred to at subsection (2) of that Section in consequence of having made a complaint to their or their employer as regards any matter relating to safety, health or welfare at work notwithstanding that such complaint was made before the commencement of the Act.”

Here the Labour 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[1942] 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 Labour 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.[1900] 2.IR 273, per Palles C.B.)

Motives for Dismissal

In any relevant case, what is at issue is the motive or reason for the employee’s dismissal. That is to be found in the thought process of the decision makers at the time the decision to penalise or dismiss the employee was taken. That is something which is peculiarly within the knowledge of the employer. It would be palpably unfair to expect the employee to adduce direct evidence to show that the employer was influenced by their earlier complaints in deciding to dismiss them. 

Conversely, it is perfectly reasonable to require the employer to establish that the reasons for the dismissal were unrelated to their complaints under the health and safety legislation.

Having regard to these considerations, it seems to the Labour Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in these penalisation cases. 

Thus, the employee must establish, on the balance of probabilities, that they made complaints concerning health and safety. It is then necessary for them to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that their complaints were an operative consideration leading to their dismissal. 

If those two limbs of the test are satisfied it is for the employer to satisfy the WRC or Labour Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the employee’s dismissal.

Failure of Duty v Penalisation

The WRC and/or Labour Court is not concerned as to whether the employer breached its health and safety obligations. What is critical is that an employee is not penalised for having raised those concerns. 

In every case in which an employer fails or neglects to fulfil its duty under the general provisions of the health and safety legislation, the health and safety of employees are put at risk, but the WRC and Labour Court has not been given the jurisdiction to investigate such transgressions. By contrast, penalisation in respect of which the WRC and Labour Court has been given jurisdiction, involves the imposition of some separate or independent detriment on an employee which, if undeterred, could undermine the effective operation of the general provisions of the health and safety legislation.

Therefore, the WRC and Labour Court must be careful not to claim jurisdiction which it does not have by classifying as penalisation conduct, by act or omission, which is properly classified as a failure to fulfil a general duty imposed by the health and safety legislation. Accordingly, the WRC or Labour Court must consider if the subject-matter of the complaints, taken at their height, should properly be classified as penalisation, as opposed to a contravention of the general health and safety imperatives.

Application - Penalisation Laws and Unfair Dismissal

Tony & Guy v Paul O’Neill (Determination No. HSD095)

In this case the employee alleged that he had been dismissed having raised certain concerns regarding health and safety issues.

The Labour Court was satisfied that the employee did make complaints concerning health and safety matters arising from the change in the quality of gloves provided by the employer. The Labour Court was also satisfied that following on from those complaints the employer appeared to take issue with the employee in respect of employment related matters which had not previously been a source of difficulty.

It also appeared to the Labour Court that the employer 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 employee’s employment was terminated. 

The whole exercise was characterised by an absence of procedural fairness. In these circumstances it was difficult for the Labour Court 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.

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. 

Accordingly, the Labour Court held that the aforementioned complaints were an operative reason for the dismissal of the employee and that their complaint of penalisation had been made out.

Sky Handling Partner Ltd V An Employee (Determination No. HSD126)

The employee submitted that they had made a complaint or representation to their employer as regards a matter relating to safety, health or safety at work in late November 2009.

The employee further submitted that she suffered penalisation within the meaning of the health and safety legislation when she was coerced by their superiors; was threatened with a change of work location; lost wages and shift pay whilst on sick leave and was subsequently dismissed by their Employer. 

The employer acknowledged that the employee did raise a grievance regarding health safety and welfare at work in November 2009. The employer submitted that the company addressed the issues raised, advised the employee accordingly and there the matter rested.

Whilst the Labour Court could see some evidence of a difficult working relationship between the employee and some of her managers, the Labour Court could see no evidence that these difficulties arose out of the complaint they made in November 2009. Indeed, the evidence suggested that these difficulties both pre and post-dated that complaint.

Furthermore, the Labour Court found that the interactions between the employee and the employer company, after the employee went on sick leave in July 2010, did not amount to penalisation within the statutory meaning of that term. The employer may have been deficient in the manner in which it dealt with the employee, but that deficiency was not, on the balance of probability, the consequence of the complaint made in November 2009.

G4S Secure Solutions Ltd t/a G4 v Colm Wogan (Determination No. Hsd144)

Section 27(2) (c) of the health and safety legislation defines penalisation as 'transfer of duties, change of location of place of work, reduction in wages or change in working hours'.

The employer gave no reason to the employee or to the Labour Court as to why it was necessary at short notice to transfer two people who made a complaint to the Health and Safety Officer on the 25 September. The Labour Court noted that the short notice transfer took place two days after that complaint was lodged.

In those circumstances the Labour Court found that the employee has discharged the burden of proving that they made a complaint under the health and safety legislation to both their employer and to the Health and Safety Officer. He had also established that he was transferred from the original site where he worked and that he suffered the loss of a site specific allowance as a result of the transfer.

The employer did not offer a compelling or indeed reasonable explanation for the short notice transfer imposed on the employee. It stated that it arose as a consequence of his failure to carry out a specific training duty on 13 August. However, it showed no connection between those two events. It did not explain the delay in dealing with the matter. Neither did it explain the alleged need to effect the transfer at such short notice. Finally, it failed to explain why it did not put to the employee details of their alleged infringements and give him an opportunity to offer a defence for their actions.

On that basis the Labour Court found that the most likely explanation for the decision to transfer the employee from the original site was to be found in the safety and health complaint he made on 25 September 2009. The sequence of events between the 25 and the 27 September offer a full and complete explanation for the speed at which the transfer was decided upon and effected. The reference to an incident that took place on the 13 August that was not pursued further with the employee appears to be no more than a cover for that decision.

In this case the employee was transferred and as a consequence they suffered the loss of a site allowance.

The Labour Court determined that the action taken against the employee constituted a penalisation within the meaning of the health and safety legislation.