The Complainant was employed as a Motor Mechanic with the Respondent from November 2018 to the 14th of March 2019. The Complainant alleged that he had been unfairly dismissed by the Respondent and had been victimised by the Respondent on grounds of race.

The Complainant was in bed in a house used by employees as lodgings. The Complainant claimed that the Respondent Owner/Manager, Mr. S, assaulted the Complainant in a very rough physical manner, and ejected the Complainant from the lodgings, telling the Complainant “never to come back”.  It was also alleged that the Respondent threatened to shoot the Complainant if he ever returned and made a hand gesture imitating a handgun/pistol.  The Complainant never worked at the Respondent premises after this incident.

The Complainant is of Lithuanian nationality, and he submitted that he was often reminded that he was an immigrant in Ireland and that no other Employee of Irish origin was treated in this manner. In addition, the Complainant alleged that he had raised health and safety concerns by letter (from a Solicitor) with the respondent on the 21st of February 2019 and it was this letter that is alleged to have motivated the removal of the Complainant from the lodging house.  The Complainant argued that this was a penalty contrary to Section 27 of the S, H & W Act, 2005.

The Respondent maintained that no actual dismissal from Employment had taken place. They argued that they wrote to the employee following the ejection from the property querying his sickness status and took his lack of response, along with a letter from the Complainant on the 15th April as a resignation.  It was accepted that he had been asked to leave the company lodging house as he was not paying his rent.  The Respondent argued that the claim had no merits and should be dismissed, denying any and all grounds of discrimination and/or victimisation.  The Respondent pointed out that they had a large multinational workforce with many non-Irish staff having long employment records with the Company.

The Respondent added that the Complainant never made any formal complaint regarding Health and Safety and stated that the company was committed to a Safe working environment and any complaint would have been treated most seriously. Language was not an issue as there were plenty of staff available to interpret or even use Google Translate.

In relation to the Health and Safety penalisation, the AO found that the evidence led to, on the balance of probabilities, the conclusion that the Complainant was Penalised under Section 27 of the Act by being dismissed on the 14th March 2019.  Accordingly, and in review of all the evidence the adjudication officer made an award of €5,000 for the Penalisation under the Safety, Health & Welfare at Work Act, 2005. The Complainant was also awarded notice pay but the AO found insufficient prima facie basis for a complaint of discrimination and the Complainant did not pursue the UD Act 1977 complaint.

Practical Guidance for Employers

This case demonstrates the importance of having clear guidance for employees in relation to Health and Safety and other important HR policies and procedures and outlining to employees how to raise any concerns regarding same.  While there was no finding of discrimination in this case, it is important for employers to be mindful that policies and procedures are communicated clearly to all staff, including those who may require assistance in understanding due to a disability or a language barrier. 
https://www.workplacerelations.ie/en/cases/2022/january/adj-00021420.html