FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : BUS EIREANN - AND - DENIS P. O'DWYER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal Against Rights Commissioners Decision R-047106-HS-06/POB.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 24th June 2008, and a Labour Court hearing took place on 16th September 2008.
DETERMINATION:
This is an appeal from the decision of a Rights Commissioner in a relation to a complaint of penalisation made by Mr. Denis O’Dwyer against Bus �ireann. 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, Mr. Denis O’Dwyer is referred to as the Complainant and Bus �ireann is referred to as the Respondent.
The substance of the Complainant’s claim is that he was subjected to bullying and harassment when he complained of unresolved issues concerning an unsuccessful application for a vacancy as an Inspector Class I, which was a lower graded position i.e. the “County Mobile” position in March 2004. By letter dated 2nd September, 2005, to the Manager, Personnel and Training, the Complainant made a complaint of bullying and harassment stating that following a meeting he had with the Services Manager on 9th March 2005 to discuss his failed application, he was subjected to a campaign of bullying and harassment. In that letter he also raised 16 other matters regarding different health and safety issues. It was pointed out to the Complainant that the Court has no jurisdiction to hear allegation of breaches of safety, health and welfare under the Act and that such allegation cannot in themselves form part of his allegations of penalisation or unfavourable treatment within the meaning of Section 27 of the Act.
Section 27 provides that where an employee does something of the type referred to at subsection (3) and then is subjected to unfavourable treatment by his employer on that account, that unfavourable treatment is penalisation. The Complainant was dissatisfied with the investigation into his complaints of bullying and harassment and the lack of progress on the health and safety matters he raised. However, he did not specify how he had been penalised for invoking the Act and he did not state how he had been treated unfavourably as outlined under section 27 of the Act.
Section 27 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 of subsection (1), penalisation includes—- (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,
(b) demotion or loss of opportunity for promotion,
(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,
(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and
(e) coercion or intimidation.
- (a) acting in compliance with the relevant statutory provisions,
(b) performing any duty or exercising any right under the relevant statutory provisions,
(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,
(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,
(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or
- (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,
Following a number of attempts to deal with his complaints, a formal investigation commenced in December 2006 and was completed in October 2007. However, the issues remain unresolved.
While the internal investigative process was in progress, on 3rd of November 2006 the Complainant lodged a complaint of penalisation within the meaning of Section 27 of the Act with the Rights Commissioners Service. The Rights Commissioner found that no penalisation had occurred and the Complainant has appealed that decision to this Court.
Section 28 (4) of the Act states:
- “A rights commissioner shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of the contravention to which the complaint relates or such further period not exceeding 6 months as the rights commissioner considers reasonable.”
In view of the complexity of his complaints, the Complainant was asked by the Court at the commencement of the hearing whether he could identify any instances of penalisation or unfair treatment which had occurred within the six months prior to him bringing his complaint i.e. the period between the 4th of May 2006 and the 3rd of November 2006. He stated that he could not. His main complaint was the lack of progress of the Respondent in dealing with his original allegation of numerous breaches of the Act. He could not however point to any action by the Respondent within the time limit set out in the Act which would constitute penalisation or unfavourable treatment as set out in Section 27 of the Act.
That being the case, and the Court having no statutory authority to deal with the Complainant’s other complaints as they involve alleged breaches of health and safety the Court cannot find in favour of the Complainant and dismisses the appeal. The Rights Commissioner’s decision is upheld albeit on different grounds. The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th October, 2008______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.