FULL RECOMMENDATION
SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : DEPARTMENT OF JUSTICE EQUALITY & LAW REFORM (REPRESENTED BY CHIEF STATE'S SOLICITORS OFFICE) - AND - PHILIP KIRWAN (REPRESENTED BY MARTIN MORAN & CO SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Hearing arising from HSD071
BACKGROUND:
2. Determination No. HSD071 issued on the 13th June, 2007. In it the Court decided that a second hearing would take place to hear witness evidence. This hearing took place on the 10th December, 2007. The following is the Court's determination:
DETERMINATION:
Introduction:
This is an appeal from the decision of a Rights Commissioner in a complaint of penalisation made by Garda Philip Kirwan against the Department of Justice Equality and Law Reform. The complaint was made pursuant to Section 27 of the Safety Health and Welfare at Work Act 2005 (the Act). For ease of reference the parties are referred to in this Determination using the same designation as they had at first instance. Hence, Garda Kirwan is referred to as the Complainant and the Department of Justice Equality and Law Reform is referred to as the Respondent.
In Determination HSD071,Department of Justice Equality and Law Reform and Philip Kirwan,issued on 13th June 2007, the Court dealt with a preliminary matter relating to its jurisdiction to investigate this complaint.
Background.
At the times material to his complaint the Complainant was assigned to protection duty on two public buildings, namely the offices of the Respondent and those of the Dublin Metropolitan Regional Headquarters of An Garda Siochana at Harcourt Square. He was stationed at the Harcourt Terrace Garda Station. His tour of duty involved remaining at his post for eight continuous hours. He was entitled to payment of a subsistence allowance by reason of the fact that he was required to remain away from his station for this period without facilities for the taking of refreshments. The Complainant also had a history of having significant overtime earnings.
In April, 2005, the Complainant made certain complaints to his superiors in relation to what he considered to be breaches of the Safety, Health and Welfare at Work Act, 1989. Thereafter a decision was made by the Complainant’s superiors to alter the arrangements for providing security at protection posts. Under the revised arrangements these duties would be limited to four hours in duration after which the member concerned would return to his or her station for refreshments. This new arrangement was applied to the Complainant. A consequence of this new arrangement was that those assigned to this duty ceased to be entitled to subsistence allowance.
The Complainant also contends that following the making of his complaints he suffered a significant reduction in overtime earnings. He complains that the withdrawal of the subsistence allowance that he had previously received and the reduction in the overtime made available to him was in consequence of having made complaints in matters related to health and safety. He claims that this constituted unlawful penalisation under Section 27 of the Act.
The evidence
The Complainant
The Complainant gave evidence in relation to complaints which he had made concerning the conditions under which he was expected to work while on protection duty. His complaints were made by letter dated 6th April, 2005. He told the Court that on or about 14th April 2005 he received a phone call from Sergeant Aiden Weir who informed him that in future he would be relieved for a 45 minute meal break after four hours duty. The Complainant understood that he would lose his subsistence allowance in consequence of this new arrangement. He told the Court that he asked for this instruction in writing and that this was refused. As the Complainant understood it, other members on protection duty were continuing with an eight-hour duty pattern and were retaining their subsistence allowance.
The Complainant told the Court that he subsequently raised the matter with Superintendent Conway. An instruction was then issued to all units in Harcourt Terrace Station involved in protection duty limiting them to a four-hour duty pattern. The Complainant told the Court that this instruction was resented by the members affected because of the loss of subsistence which it entailed. He was blamed for having brought that situation about. He told the Court that he was ostracised by his colleagues and his life became unbearable.
The Complainant gave evidence that he did not receive subsistence allowance for the months of April, May, June, July, August, September, October and November 2005. The value of this allowance was approximately €780 per month. In the interim, Superintendent Conway was transferred on promotion and was replaced by Superintendent John Twomey. The Complainant told the Court that as a result of having discussed the matter with Superintendent Twomey he was reverted to eight hour tours of duty and his subsistence was restored in November, 2005.
The Complainant also told the Court that after he made his complaints he noticed that he was not being called in for overtime on his rest days. He said that he always made himself available for overtime and had been one of the highest overtime earners in his unit. He said that in 2004 he had ranked 5th in terms of overtime earnings but this fell to 9th in 2005. The Complainant gave the Court a list of occasions on which, he said, he had been overlooked for overtime despite having made himself available for additional duty. He said that he was being unfairly denied opportunities to work overtime up to April, 2007, (at which time his appeal was due for hearing before this Court) when he was again rostered for overtime in line with his previous pattern.
The Complainant referred the Court to a report dated 2nd March, 2007, which he had prepared for the purpose of the present case showing dates on which he claims to have been overlooked for overtime. This report covered overtime allocation for the roster periods from 21st November, 2005, to 11th March, 2007. This, it was submitted showed that overtime was not been distributed fairly and that the Complainant was being denied overtime for which he was available.
The respondent
Chief Superintendent Thomas Conway gave evidence. This witness was Superintendent with responsibility for B Division which covered policing out of Pearse St. and Harcourt Terrace stations. He told the Court that there were a number of security posts within that division including The Department of Justice Equality and Law Reform, and Harcourt Square, to which the Complainant had been assigned.
The witness gave evidence in relation to the circumstances in which members of the force are paid subsistence allowance. He said that this is compensation for expenses incurred by members who are required to remain on duty outside their station for a defined number of hours. The rate payable varies depending on the length of time spent away from the station. No allowance is payable for periods of up to four hours. Superintendent Conway said that the allowance is intended to cover expenses actually incurred and is not regarded as remuneration. It is not subject to deductions of PAYE or PRSI.
In relation to the Complainant’s complaints, the witness said that the allowance was not withdrawn. Rather the duty pattern was changed and in consequence the Complainant could no longer claim the allowance within the applicable regulations.
Superintendent Conway outlined the circumstances in which the duty pattern came to be changed. He said that in respect of each security post a Protection Order is issued. This Order specifies,inter alia, the duration for which an individual member is to be assigned to the post. In respect of Harcourt Sq the Order specified that four hour duties should apply. He had concerns about health and safety issues arising from the use of eight-hour duties and he also had concerns about their affect on his budget.
The witness told the Court that he had discussion with the Sergeants in his division about the matter. As a result of these discussions he decided that these duties should be carried out on a four-hour basis in all case. This necessitated the member concerned returning to his or her base after four hours and being relieved in the post by another member. This decision impacted on members other than the Complainant. The witness told the Court that other members made no complaint in relation to the change. The witness denied that the decision to introduce this change was motivated by the Complainant’s complaints.
This witness was transferred on promotion in July 2005. He understood that this decision was reviewed by his successor. This, he said, was normal practice within the force.
In respect of overtime the witness said that an overtime book was maintained at the station in which members listed their availability for overtime. He had issued an instruction that overtime was to be allocated equitably amongst those who indicated their availability. He said that the allocation of overtime to the Complainant was covered by that instruction.
Evidence was given by Chief Superintendent John Twomey. This witness took over responsibility for B division in July 2005. He has since been promoted to the rank of Chief Superintendent in charge of the Dublin Metropolitan Region, West.
The witness told the Court that he carried out a review of Protection Orders in force within the Division. In so doing he had regard to the operational requirements of the division as a whole. He came to the view that a facility should be provided for the utilisation of eight-hour duties in circumstances in which this was necessary for operational reasons. The witness told the Court that in or about October, 2005, he had prepared draft amendments to the Protection Orders which were finally approved in or about November, 2005.
The witness told the Court that he could not recall when he became aware that the Complainant had made official complaints. He denied, however, that his decision to restore eight-hour duties was in any sense in response to these complaints or to the fact that the Complainant had presented the instant complaint on 5th October 2005.
The witness also gave evidence of having become aware of the Complainant’s complaints concerning the allocation of overtime. He said that he had investigated these complaints and had concluded that the Complainant was receiving his fair share of the available overtime.
Evidence was given by Inspector Brendan Connelly.
This witness gave evidence in relation to the amount of overtime worked by the Complainant relative to that worked by other members of the force. The witness had prepared his report in response to the report compiled by the Complainant, dated 2nd March 2007, to which he had referred in his evidence-in-chief.
The witness provided the Court with details of the overtime worked by the Complainant in the roster periods to which he (the Complainant) had referred in his report. The witness also gave evidence of the overtime worked by other members to whom the Complainant had referred in his report. The witness told the Court that on the figures presented the Complainant was the third highest earner of overtime in Harcourt Terrace Station. The witness also provided a report of the overtime worked by the Complainant, and that of other members, which attracted a double time payment. Finally the witness provided details of all overtime worked by the Complainant since 2002.
Further evidence was given by Sergeants Denis Palmer, Sergeant Ciaron McCarthy and Sergeant Aiden Weir in relation to how overtime is allocated within the Division. The Court was told that there are a number of Units each of which is headed by a Sergeant. Sergeant Palmer is in charge of Unit D in Harcourt Terrace, Sergeant McCarthy is in charge of Unit B and Sergeant Weir is in charge of Unit C.
The Court was told that the Sergeant is responsible for allocating overtime within his or her unit. Overtime is first offered to available members attached to the unit in which it arises. It was only where no members of the unit were available that a member from another unit would be contacted and offered overtime. Each of these witnesses agreed that the Complainant consistently held himself available for overtime. However they did not agree that he made himself available more frequently than other members.
Each of the Sergeants told the Court that they had never been instructed to withhold overtime from the Complainant nor had they do so. The import of their evidence was that the same criteria were applied in considering the Complainant for overtime as was applied to all other members who held themselves available for extra duty.
Conclusions of the Court
The Law Applicable
The relevant statutory provision in this case is s 27 of the Safety Health and Welfare at work Act 2005. This provides 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 ofsubsection (1), penalisation
includes—
(3) An employer shall not penalise or threaten penalisation against an employee for—
Burden of Proof
The parties did not make submissions on how the burden of proof should be allocated in cases such as this, nor did the Court invite submissions on that point. According the Court cannot be taken as expressing a concluded view on that question.
It is clear, however, that in the absence of any contrary statutory provision, the legal burden of proof lies on the person who asserts that a particular fact in issue is true (seeJoseph Constantine Steamship Line v Imperial Sheltering Corporation[1942] A.C.154 where this rule of evidence was described by Maugham V.-C. as“an ancient rule founded on considerations of good sense and it should not be departed from without strong reasons”)
Hence, in order to succeed the Complainant must first establish that an act or omission on the part of the Respondent affected his terms or conditions detrimentally. He must then establish, in a prima facie way at least, that a causal connection exists between the impugned act or omission and the Complainant’s complaint regarding health and safety matters.
The Scope of the Act
There are also two other points which must be established in the instant case. Firstly, since the Act is not retrospective, it must be established that the acts or omissions alleged to constitute penalisation occurred after the enactment of the Act on 1st September 2005. Secondly, the Court must be satisfied that the activity complained of comes within the intendment of subsections (1) and (2) of Section 27 in that it relates to a term or condition of the Complainant’s employment.
Subsistence Issue
The Respondent submitted that subsistence is a reimbursement of an expense and if the expense to which it relates is not incurred there can be no detriment in withholding the allowance. Subsistence is payable as a tax-free allowance on the basis that it is in respect of an expense wholly, exclusively and necessarily incurred in the performance of duty.
Counsel for the Complainant, Mr O’Sullivan B.L., advanced the argument that while the Complainant was on an eight-hour duty pattern he received an allowance to defray the cost of his meals. When he was required to return to the station he still had to purchase his meals but could no longer claim the allowance. This, it was submitted, amounted to a worsening of the Complainant’s conditions of employment.
In the Court’s view there is logic in that argument. However the Complainant can only validly complain at the decision to alter his duty pattern from eight-hour shifts to four-hour shifts. The loss of subsistence was an inevitable consequence of that decision since the Respondent could not lawfully pay the allowance while the Complainant was doing a four-hour tour of duty.
It seems to the Court that the act of the Respondent giving rise to the Complainant’s complaint was the decision to order that the protection duty to which he was assigned be conducted on four-hour tour of duty. This, he contends, was to his detriment because he was no longer in a position to claim a subsistence allowance. That may or may not be correct, but the impugned decision was made and implemented on or about April, 2005. That was some five months before the enactment of the Act. Mr Kerr B.L., for the Respondent, submitted that since the Act cannot have retrospective effect the Court has no jurisdiction to entertain that aspect of the complaint. Mr O’Sullivan B.L. submitted that the loss of subsistence suffered by the Complainant subsisted in the period after the enactment of the Act and was cognisable by the Court in respect of that period. He likened the position to that of a woman whose rate of pay was fixed, before the enactment of equal pay legislation, at below that of a man engaged in like work. Counsel pointed out that the woman could not be denied equal pay after the enactment of the Act because the decision fixing her rate below that of a man was lawful when taken.
The Court is satisfied that the position in this case is substantially different to that in the paradigm case postulated by Counsel for the Complainant. Equal pay and employment equality legislation provides men and women with a continuing and ongoing right to equal treatment in pay and conditions of employment provided they are engaged in like work. There is no ongoing or continuous entitlement to subsistence payments. The entitlement to this allowance is entirely dependant on the recipient being engaged in duties which attract the allowance by reason of having incurred (or being deemed to have incurred) a particular expense.
The Respondent decided to alter the Complainant’s duty pattern before the enactment of the Act and this meant that he could no longer claim subsistence allowance nor could it be lawfully paid to him. In its earlier preliminary decision in this case the Court adopted the definition of retrospectivity in legislation enunciated by O’Higgins CJ inHamilton v Hamilton[1982] IR 466, as follows: -
- “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”
Even if the decision to alter the Complainant’s duty pattern was motivated in whole or in part by his complaint (and the Court makes no finding on that point) the decision was perfectly lawful at the time it was implemented. If, on the enactment of the Act, the Respondent became obliged to reverse that decision it would amount to imposing a new duty or attaching a new disability in respect of a transaction already past. This would be to give the Act a retrospective application for which there is no warrant.
On this point the Court was referred to the Judgment of the Supreme Court in AerLingus v The Labour Court[1990] ELR 113. Here a number of women cabin crew members employed by Aer Lingus had been forced to retire on marriage before the enactment of the Employment Equality Act 1977. They were subsequently re-employed but lost their prior accrued service. They claimed that this amounted to unlawful discrimination. In rejecting their claim Walsh J., in a judgement concurred in by Griffen and Hederman JJ, said the following: -
- “In view of the non-retrospective character of the Act in effect the slate is wiped clean in respect of matters occurring before the Act. The present claim is an effort to give the Act a retrospective character asserting that every consequence of the seniority situation must be deemed to be an act of discrimination when the seniority situation itself cannot be established to be an illegal discrimination because it is traceable to a situation which was not illegal and was a discrimination which was exhausted many years before the enactment of the 1977 Act. Failure to recognise previous service may be thought to be inequitable but it does not amount to illegal discrimination.”
In the Court’s view the position in relation to the Complainant’s complaints regarding the loss of subsistence allowance is entirely congruent with than in the Aer Lingus case. Accordingly, the Court must hold that this aspect of the complaint relates to a time before the enactment of the Act and cannot be entertained in these proceedings.
Overtime.
Overtime is allocated on a weekly basis. The Complainant’s complaint in respect of that matter is clearly in a different category to his complaint regarding subsistence. If the Complainant was denied overtime in a period after 1st September 2005, on account of his complaints, that would amount to unlawful penalisation.
The Court has reviewed the extensive documentation put in evidence in relation to this aspect of the case. The Court has also had the benefit of hearing evidence from the Complainant and from those involved in the allocation of overtime at the material times.
Having carefully reviewed that evidence the Court cannot see any basis upon which it could hold that the Complainant was treated unfairly or differently to others in the allocation of overtime. The evidence disclosed that the Complainant worked 561 hours ordinary overtime and 88 hours Sunday / Public Holiday overtime in 2005. In 2006 he worked 1,020 hours ordinary overtime and 126.5 hours Sunday / Public Holidays overtime. By contrast, in 2004, the year before he made his complaint, the Complainant worked 782 hours ordinary overtime and 125 hours Sunday / Public Holiday overtime. While the Complainant’s overtime earnings for 2005 were down relative to those in 2004, this was adequately explained by operational factors unrelated to the Complainant’s complaints. It is also noteworthy that his ordinary overtime in 2006 was greater than that in 2004 and his Sunday / Public Holiday overtime in that year was the same as in 2004. Overall the Court does not believe that this pattern is indicative of unfairness or a disposition to deprive the Complainant of overtime earnings.
In all the circumstances the Court accepts that the Complainant’s complaint in relation to the allocation of overtime has not been made out.
Determination
The complaint herein is not well founded and it is dismissed.
Signed on behalf of the Labour Court
Kevin Duffy
16th January, 2008______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.