The case of Patrick O’Connor v Wexford County Council ADJ-00040852 involved a complaint under Section 28 of Health and Safety at Work Act (the “Act”) by the Complainant that he was penalised by the Respondent for raising a health and safety complaint of a very serious nature.
The Complainant alleged that in November 2020, he was travelling with a co-worker, Mr Gardiner, when Mr Gardiner assaulted him by choking him with a seatbelt of the van in which they were travelling. The assault was prolonged and when released, the Complainant was forced from the van, causing him to fall to the pavement and vomit. The Complainant did not pursue a complaint at this stage.
The Complainant alleged that in July 2021, Mr Gardiner threatened him verbally. This he said occurred during a dispute over the Complainant’s work when Mr Gardiner told him if he didn’t shut his mouth “he would do it for him” and that he would “meet him … and sort him out”. The Complainant alleged that when he threatened to report him, Mr Gardiner put his hands to his own neck in a choking gesture. Given the previous incident, the Complainant perceived this as a threat.
The Complainant was extremely distressed after this encounter and reported Mr Gardiner to the Respondent in July 2021 and an incident report form was completed.
Immediately after making this complaint, the Complainant said he was left to work alone, and his overtime was blocked. Prior to the complaint, he had been doing overtime regularly for five years. When he queried this with the Respondent, he was told that another staff member would be doing it. The Complainant provided further examples of detriment suffered following his complaint. The parties were in dispute as to the reasons and extent of the reduced overtime after the complaint was made, however the Respondent did not provide evidence to challenge the Complainant’s view that he was isolated pursuant to making the complaint. The Respondent also failed to provide supporting documentation regarding its position in relation to the Complainant’s overtime.
The Respondent gave evidence that the complaint only reached Human Resources (“HR”) in January 2022 and that it was then addressed and not upheld.
Decision: The Adjudicator, Niamh O’Carroll, referred to the decision in Toni & Guy v Paul O’Neill [2010] 21 E.LR which established that in a claim of penalisation such as in this case, the burden of proof is on the Complainant to show that a protected act occurred and that he suffered a detriment.
The definition of a “protected act” is broad and it has been held that simply asking for the bullying and harassment policy can amount to a “protected act” (Board of Management of St David’s CBS Secondary School Artane v Siobhan McVeigh HSD 118, 8th July 2011).
It is further established that the reporting of a complaint need not be via an employer’s grievance procedure and the Adjudicator referred to the decision in Stobart Ireland Driver Services v Carroll [2013] IEHC 581 in this regard.
On considering the evidence and case law, the Adjudicator found that the Complainant had properly reported a “protected act” and suffered a detriment in that he did not receive the usual overtime, he worked alone, and he was not permitted to provide cover for his co-workers’ absences. The Adjudicator found that this amounted to a breach of section 27 (2) (c) of the Act which provides that a detriment includes a “transfer of duties, change of location of place of work, reduction in wages or change in working hours”.
Therefore, the burden of proof shifted to the Respondent to show that any detriment suffered was not as a result of the Complainant reporting a protected act. The Adjudicator criticised the Respondent for the delay in dealing with the complaints and preferred the Complainant’s evidence in relation to the issues relating to his overtime and his isolation.
The Adjudicator concluded as follows:
“I have no doubt that the detriments set out by the Complainant were as a result of the protected act. There were no examples given of the type of behaviours the complainant was subject to that occurred before to [sic] the complaint was lodged. There was uncontroverted evidence that his overtime hours were reduced, and his duties diminished.”
The Adjudicator upheld the Complainant’s penalisation complaint. In awarding €20,000 to the Complainant, the Adjudicator stated that the level of award was appropriate in light of the seriousness of the allegations and the Respondent’s failure to act being at the highest end of the scale.
Takeaway for Employers: Physical assault and repeat assaults of any nature must be addressed promptly in order to ensure the protection of employees, but also to be able to properly demonstrate that an employer acted reasonably.
This case may be appealed due to the dispute regarding the level of overtime provided to the Complainant after the date of the complaint, and in light of the level of award.
Link – https://www.workplacerelations.ie/en/cases/2023/june/adj-00040852.html
Authors – Nicola MacCarthy, Jenny Wakely and Anne O’Connell
30th June 2023