Dave works as a team leader/charge hand in a boning hall of a meat processing plant. He receives €50 a week extra for the responsibility of making sure his fellow workers in his area perform to target. Dave gets on well with his colleagues and has a genuine concern for their welfare in the workplace. Recently Dave noticed that certain shortcuts were being taken with regard to health and safety standards at the plant. Workers who were allocated cleaning duties were instead called upon to remain on the line because the demand for beef was high. This resulted in an accumulation of heavy layers of grease on the floor. A work colleague had a nasty fall but fortunately only slightly injured his arm and was able to return to work after a week’s sick leave. Dave also noticed that the blade guard on the band saw was broken and was not being replaced. The saw had clearly seen better days and was not fit for purpose. On numerous occasions he brought both matters to the attention of a junior manager, who was also the safety representative, but no action followed. Dave, who was never a union activist, felt he had no option but to contact his union who in turn made immediate representations. The Union threatened that the matter would be brought to the Health and Safety Authority (HSA) if no action was forthcoming. Regular cleaning resumed within a few days and a new band saw was installed. Dave became an instant hero with his colleagues but his stock was seen to diminish in the eyes of management. A week later Dave was called into the line manager’s office and told that his role was managerial but that his attitude seemed to be pro worker. He was told that his health and safety complaints had cost the company a considerable sum of money in the re-allocation of cleaning duties and the purchase of a new saw. He was being demoted back to meat hall boner as and from the following Monday with a subsequent loss of €50 a week to him.
What can Dave do?
The union can take a case on behalf of Dave under section 27 of the Safety, Health and Welfare at Work Act, 2005 for penalisation by the employer. Dave suffered a detriment i.e. demotion and a loss of income as a result of asserting health and safety rights.
How is penalisation defined under this section?
Penalisation includes dismissal, suspension or the threat of any of these actions. Furthermore, it includes demotion or loss of opportunity for promotion, transfer of duties, change of location of place of work, reduction in wages or change in working hours, the imposition of any discipline, reprimand or other penalty (including a financial penalty) and coercion or intimidation.
Where does the union bring the claim on behalf of Dave and what type of redress are we talking about?
The union has six months from the demotion to take a case on behalf of Dave to the Rights Commissioner (and the Labour Court on appeal). The Rights Commissioner can:
a) Declare that the complaint was, or, as the case may be, was not well founded;
b) Require the employer to take a specific course of action e.g. it could here recommend that Dave would be re-instated as a supervisor.
c) Require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to to all the circumstances.
Interestingly, there is no maximum level of compensation set, like for example the cap of two years’ salary under the Unfair Dismissals Acts. Furthermore, it goes beyond just economic loss and Dave in this instance can get a sum which is considered “just and equitable having regard to all the circumstances”. This could include taking into account a deterrent factor for the company.
What must Dave show at the hearing if his claim is to be successful?
Firstly, Dave must establish, on the balance of probabilities, that he made complaints concerning health and safety – which should be straightforward enough in this case. The more difficult aspect is to show the complaints were the reason for the demotion. Companies will invariably try to quote other reasons like lack of performance etc. If on the face of it, these two arguments are established, the company must show that the health and safety complaints did not influence their decision. It would be difficult for the company to do so in this case.
In conclusion, the penalisation clause under the Safety, Health and Welfare at Work Act is a very useful protective tool to use when a worker is threatened with, or actually receives some type of punishment for making a health and safety complaint. As always, seek the advice of your union official or representative before you contemplate lodging such a claim.