FULL RECOMMENDATION
SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : DEPARTMENT OF JUSTICE EQUALITY & LAW REFORM (REPRESENTED BY CHIEF STATE SOLICITOR) - AND - PHILIP V. KIRWAN (REPRESENTED BY MARTIN MORAN & CO. SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal Against Rights Commissioner's Decision R-037585-Hs-05/Jh
BACKGROUND:
2. The worker referred his case to the Labour Court on the 13th of December, 3006, in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act, 2005. A Labour Court hearing took place on the 21st May, 2007. The following is the Court's determination:
DETERMINATION:
The Claimant, Philip Kirwan, is a member of An Garda Siochana of garda rank. At all times material to this case he was engaged in duties involving the protection of public buildings. Because he could not be relieved in the course of his shift this duty attracted the payment of a subsistence allowance. By letter dated 6th April 2005 the Claimant made a complaint to the Equality Officer, Human Resources Section, Garda Headquarters, alleging certain infringements of the Health, Safety and Welfare at Work Act, 1989, in relation to his employment.
The Claimant contends that following the making of that complaint the subsistence allowance which he had been receiving was discontinued. He also claims that the amount of overtime made available to him was reduced considerably at that time in consequence of which he suffered a substantial loss of earnings. The Claimant alleges that this occurred because of his complaint and that it amounts to penalisation within the meaning of Section 27 of the Safety, Health and Welfare at Work Act, 2005, (the Act).
The Claimant made a complaint to a Rights Commissioner pursuant to Section 28 of the Act alleging that he had been penalised by garda management in contravention of Section 27 of the Act. The Rights Commissioner concluded that the events giving rise to the complaint occurred prior to the passing of the Act. On that basis the Rights Commissioner held that she had no jurisdiction in the case. The Claimant appealed to the Court.
The Court notes that Section 29 of the Act provides that a party concerned may appeal to the Court from a decision of a Rights Commissioner under Section 28. Section 28 provides that a decision of a Rights Commissioner under that section shall,inter alia, declare that the complaint was, or as the case may be, was not well founded. In the instant case the Rights Commissioner found that she lacked jurisdiction in the case. However, both parties submitted, and the Court accepts, that the decision in substance is that the complaint was not well founded.
Position of the Parties
Both parties submitted that the Court should deal only with the preliminary issue of whether the facts contended for by the Claimant disclose any cause of action by reason of the time at which they are alleged to have occurred.
The Respondent denied that the Claimant was subjected to any form of treatment which is capable of constituting penalisation. Without prejudice to its submissions in that regard the Respondent contends that the acts alleged by the Claimant to constitute penalisation occurred in April and May, 2005, whereas the Act only came into operation on 1st September, 2005. It was pointed out that the Claimant’s case is that he was penalised for having made a complaint regarding health and safety in April, 2005.
Counsel for the Respondent submitted that the protection of the Act could only avail the Claimant if he suffered unfavourable treatment of the type referred to at Section 27 of the Act after 1st September, 2005, in consequence of having made complaints in relation to health and safety after that date. Since, on the Respondent’s submission, the complaints in relation to health and safety relied upon by the Claimant were made in April 2005, and the alleged unfavourable treatment occurred in May 2005, the Rights Commissioner was correct in holding that she had no jurisdiction to entertain the complaint.
Counsel for the Claimant submitted that the Act should be construed as applying to penalisation which occurred after the coming into operation of the Act although the complaint from which it arose was made before the commencement of the Act. It is a central plank of the Claimant’s case that in the period after the commencement of the Act he was denied the opportunity to work overtime because of the complaints which he had made in April 2005. It was submitted on the Claimant’s behalf that the Respondent made a series of stand-alone decisions to withhold overtime and subsistence from the Claimant. Some of these decisions were made before the commencement of the Act and others after its commencement. The Court was told that the Claimant was only seeking redress in respect of the loss of his subsistence and overtime in the period after the commencement of the Act.
The law applicable
Statutory provisions
The Act came into operation on 1st September 2005. Section 27 provides in relevant part as follows: -
- 27.—(1) In this section "penalisation" includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.
(2) Without prejudice to the generality of subsection (1), penalisation includes—
- (3) An employer shall not penalise or threaten penalisation against an employee for—
The term“relevant statutory provisions”is defined by s 2 of the Act as meaning -
- “existing enactments and this Act and any instrument made under this Act for the time being in force”
The term “existing enactments” is defined as meaning: -
- “(a) the enactments specified in Part 1 of Schedule 2 and any instruments made under those enactments for the time being in force, and
(b) the regulations made under the European Communities Act 1972 for the time being in force specified in Part 2 of Schedule 2”
Section 4(2) of the Act provides that the existing enactments set out at Part 1 of Schedule 2 are repealed.
Rule against retrospectivity
It is clear beyond argument that the Act cannot be applied retrospectively and this is correctly acknowledged by Counsel for the Claimant. Legislation is deemed to be retrospective in effect when it takes away or impairs any vested right acquired under existing law or creates a new obligation, or imposes a new duty or attaches a new disability in respect of transactions or considerations already past (Hamilton v Hamilton[1982] IR 466. However past events can be taken into account in applying a statute without infringing the rule against retrospectivity. This was noted by Barron J. inO’H v O’H[1990] 2 I.R. 558, as follows: -
- “In considering whether a statute should be construed retrospectively, a distinction is to be drawn between applying the new law to past events and taking past events into account. To do the latter is not to apply the Act retrospectively”.
This statement of the law was adopted by the Supreme Court inDublin City Council v Fennell[2005] 2 ILRM 288. The point was further illustrated by Kearns J in that case by reference to the decision of the Court of Appeal for England and Wales inAntonelli v Secretary of State for Trade and Industry[1998] Q.B. 948. Here the court had to consider the application of a provision of theEstate Agents Act 1979in light of the rule against retrospectivity. The provision at issue authorised the making of an order prohibiting a person from engaging in estate agency work if he appeared unfit to practise on various grounds, including that he had a previous conviction for an offence involving fraud or dishonesty or violence. It was held that a conviction incurred before
the commencement of the Act could be taken into account as it indicated unfitness just as much as a conviction incurred after the commencement would.
It appears from the wording of Section 27 that where an employee does something of the type referred to at subsection (3), before the Act was passed, and after the passing of the Act is subjected to unfavourable treatment by his or her employer on that account, that unfavourable treatment is penalisation. This seems clear from the meaning ascribed to the terms “relevant statutory provisions” and “existing enactments” by Section 2 of the Act and recited above in this determination.
The combined effect of these definitions is that the relevant statutory provisions referred to at paragraphs (a), (b) and (d) of subsection (3) of Section 27 includes statutes which were repealed by virtue of Section 4(2) of the Act on its coming into effect. It is thus clear that Section 27 provides protection,inter alia,against penalisation for conduct which was compliant with or pursuant to a repealed enactment. By definition such conduct could have occurred before the passing of the Act.
Under the scheme of the Act if the complaints made by the Claimant in April, 2005, came within the ambit of either paragraph (a) or (b) of Section 27(3) (if it involved acting in compliance with a provision of the Safety, Health and Welfare at Work Act 1989 or performing a duty under that Act) it could not be seriously argued that subsequent penalisation on account of those complaints would not be unlawful. There is no reason in principle or in logic as to why a complaint coming within the scope of paragraph (d) of the subsections should not be similarly protected.
The Court is of the view that Section 27 should be construed as providing that penalisation can arise where, after the commencement of the Act, a worker is subjected to unfavourable treatment of the type referred to at subsection (2) of that Section in consequence of having made a complaint to his or her employer as regards any matter relating to safety, health or welfare at work notwithstanding that such complaint was made before the commencement of the Act.
The Court has considered if, having differed from the Rights Commissioner on this point, it should remit the matter to the Rights Commissioner for investigation of the substantive issues arising in the case. The Court has concluded that it has no statutory warrant to remit a case and that it must hear and determine all matters arising in the appealde novo.
The question of whether the Claimant was subjected to such unfavourable treatment after the commencement of the Act, and if so whether the treatment arose from the making of a complaint relating to health and safety is a matter of evidence.
The Court proposes to proceed to hear evidence these matters.
Signed on behalf of the Labour Court
Kevin Duffy
13th June, 2007______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.