In the case of A Forklift Driver v A Paint/Coatings Supplier (ADJ-00024139), an employee, who was found to be unfairly dismissed after she raised safety concerns with her employer, was awarded a sum of €84,759 by the Workplace Relations Commission (the WRC).
What happened?
The employee, a female forklift operator, was employed by a paint and coatings supply firm (the Company). She was accused of stealing used paint tins (misappropriation of Company assets) and adding her personal rubbish to the Company’s refuse. During the investigation and disciplinary processes, the employee explained that she had express permission from her line manager to do the foregoing. The employee was dismissed without notice for gross misconduct and her appeal was unsuccessful without reasons being provided to her.
The employee pointed to her “unblemished record” of 31 years and argued that the real reason behind her dismissal was that her employer regarded her to be a “troublemaker” for raising a number of health and safety concerns throughout her employment including:
- the use of an improper loading ramp. Nothing was done to remedy the situation. 6 weeks prior to her dismissal the employee’s forklift collapsed the defective ramp;
- the use of the chemical DB20 in the power washing water supply, which she claimed was dangerous to employee health; and
- having to sweep titanium powder and talc from the floor of the workplace. She claimed sweeping the powders caused them to lift from the ground resulting in an adverse reaction to her nose and scalp. Her request for a vacuum cleaner was denied.
What did the WRC find?
The Adjudication Officer (AO) agreed that the purported reason for the employee’s dismissal was “contrived“. The AO found that the employee was dismissed as a result of raising health and safety concerns with her employer. This dismissal constituted less favourable treatment and amounted to penalisation under the Safety, Health and Welfare at Work Act 2005. She was awarded €82,531.
The AO awarded an additional €2,228 for the employer’s failure to provide the employee with written terms of employment.
In determining that the level of award was just and equitable, the AO took account of the employee’s unblemished work record and the likelihood that the employer had conducted itself in such a manner as to discourage other employees from making similar complaints.
Conclusion
This recent decision is a timely reminder to employers that the level of compensation for penalisation under health and safety legislation in Ireland is potentially unlimited. The AO in this case was satisfied that the significant level of compensation was “just and equitable” in the circumstances and expressly confirmed that such an award was intended to act as a “deterrent” to future conduct.
Contributed by Elaine Egan
