A plumbing firm has been ordered to pay an ex-worker €28,000 for penalising him when dismissing him after he raised health and safety concerns over an unsafe practice involving a drill at work.
In her findings, Workplace Relations Commission (WRC) Adjudicator, Emile Daly has described the conduct of employer, Dallan & Co Mechanical Services Ltd in the case as ‘egregious’.
Ms Daly stated that the €28,000 award to plumber, Ryan McMullan “is just and reasonable” where the employer was aware that another employee had been recently injured working with the unsafe drill equipment within a system of work that was inherently unsafe.
Based on the uncontested evidence of Mr McMullan, Ms Daly has also ordered the firm to pay Mr McMullan an additional €1,366 after finding that he was penalised by the firm under the Paternity Leave and Benefit Act 2016.
Mr McMullan commenced work with the firm on August 4th 2020 and Ms Daly said that she was satisfied that Barry Dallan dismissed Mr McMullan on September 23rd 2020 because he made a safety complaint and refused to work with the defective equipment.
Ms Daly said that Mr McMullan was treated by his employer “as a trouble-maker”.
Ms Daly said that had the employer not already been on notice of the earlier injury “I could make the observation that Mr McMullan was doing them a favour by raising this safety concern because it put them on notice of a risk that one of their workers could be injured, possibly more seriously given that they were drilling into concrete, sometimes at a height”.
She said that however, such an observation would be incorrect, because the firm were already on notice of this risk and yet they still insisted that Mr McMullan do this inherently unsafe work.
Ms Daly stated that the firm’s conduct appeared to be cavalier to the risk that one or indeed a number of their employees might be injured.
Profits
Ms Daly stated that “in this adjudication I am reminded of the observations made by the then High Court judge Mr. Justice Peter Kelly when he directed criticism at the director of a construction company which had committed serious breaches under the Health and Safety at Work Acts in the 1990s. He said “You are entitled to make profits on the sweat of your workers, but you are not entitled to make profits on the blood…of your workers…”.”
Ms Daly stated that the only fortunate aspect of this case is that Mr McMullan was not injured, unlike his co-worker, but this was not as a result of protections that his employer should have ensured were in place.
In his evidence, Mr McMullan - legally represented by solicitor, Andrew Turner of Hamilton Turner Solicitors - stated that he was required to work with a hand-held SDS Drill.
He explained that when this drill was used to drill concrete, it needed an additional part, an impactor, to stabilise its function.
If the drill is used on concrete without such an impactor the drill-bit can jam in the concrete and this is very likely to cause a wrist or arm injury to the user or more dangerously, if as Mr McMullan was drilling into a ceiling, it could cause a fall from a height.
When on Paternity Leave, Mr McMullan heard from co-workers that a colleague had injured his eye when using this drill and that this was because the drill did not have an impactor.
On return from leave, Mr McMullan said that he was very surprised when on the morning of September 23rd 2020 Barry Dallan instructed him to use the drill – again without an impactor.
Mr McMullan told Barry Dallan that he would not use it because it was dangerous and reminded him of the injury that had occurred the previous week to his colleague.
Mr McMullan said that Barry Dallan told him that if he would not use the drill, that there would be no work for him there.
Mr McMullan said that he went home and emailed his boss, Dave Dallan, a brother of Mr McMullan’s line manager, Barry Dallan to say he hoped the situation could be sorted because the workers had been looking for an impactor for a while.
Dave Dallan phoned Mr McMullan and said to him “We’ll leave it there.”
Mr McMullan then emailed Dave Dallan asking what he meant by “We’ll leave it there.”
At 13.44 Mr. Dave Dallan replied by email confirming that Mr McMullan was dismissed.
He said the reason he was being dismissed was because he had left the site without telling anyone and because of issues with the management.
The firm attended the first day of hearing but didn’t attend the second day and Mr McMullan was not cross-examined by his ex- employer on his evidence.
