Under Irish law employers are prohibited from penalising (defined as dismissal, demotion, transfer, imposition of duties, imposition of any discipline, reprimand or other penalty, coercion or intimidation) or threatening to penalise employees who exercise rights or who make any complaints relating to safety and health.
In a recent case before the Workplace Relations Commission, a Complainant employee, who worked as a postal operative, claimed that a warning he received constituted penalisation contrary to Health and Safety legislation.
The Complainant delivered post by bicycle as part of his duties and was requested to deliver a particular parcel as the van driver had deemed it too small to be delivered by van. The Complainant refused on the basis that the parcel was too long and could not be placed on the bicycle without sticking out, which he feared might cause injury to him or others. The Complainant raised this with his manager but after investigation the manager concluded there was no safety issue and instructed the Complainant to make the delivery by bicycle. The Complainant still refused and left the parcel on the sorting bench. The matter was subsequently dealt with as a disciplinary matter and the outcome was a warning being issued to the Complainant.
While the Adjudicator was satisfied that the Complainant made a protected act by raising concerns for his safety due to the size of the package, he concluded that the Respondent had not acted in a manner of bad faith because of the complaint raised. The Adjudicator noted that the Complainant was not disciplined for raising his concerns vis-à-vis the parcel and his bike, but the disciplinary action was taken because of his continued refusal to take the parcel after his manager had checked the situation out and was satisfied there was no risk to the Complainant. The Complainant’s complaint under the Safety, Health and Welfare at Work Act therefore failed.
What is important to note here is that in order to succeed with a complaint of penalisation it is essential for the Complainant to show that the detriment of which he or she complains of was as a result of raising the complaint. In this particular case it was evident that the action taken by the Respondent was not because of the complaint the Complainant raised but rather his failure to deliver an item of mail as instructed by his manager. If, after raising the concern, the Complainant had delivered the parcel as instructed by his manager he would not have faced any disciplinary action.