HSD105

FULL RECOMMENDATION

HSC/10/5

DETERMINATIONNO.HSD105

(r-088754-hs-09/EH)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005

PARTIES :

A CHARITABLE ORGANISATION
(REPRESENTED BY ADVOKAT COMPLIANCE LIMITED)

- AND -

A WORKER

DIVISION :

Chairman: Mr Duffy
Employer Member: Ms Cryan
Worker Member: Ms Ni Mhurchu

SUBJECT:
1. Appeal against a Rights Commissioner’s Decision No. R-088754-HS-09/EH.

BACKGROUND:

2. The Employee appealed a Rights Commissioner's decision to the Labour Court on the 14th July 2010, in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act, 2005. A Labour Court hearing took place on the 10th November, 2010. The following is the Determination of the Court:-

DETERMINATION:

This is an appeal against the decision of a Rights Commissioner in the Claimant’s complaint of penalisation against the Respondent. The material facts are not in dispute and can be summarised as follows.

In or about June 2009 the Claimant made a complaint of bullying against the Chief Executive Officer of the Respondent. Various efforts were made to investigate the complaints but agreement was not reached between the parties on a mutually acceptable investigator. Eventually the matter was referred to a Rights Commissioner.

In consequence of the making of these complaints the working relationship between the Claimant and the Chief Executive Officer became strained. The Respondent decided to change the Claimant’s reporting structure and it was decided that henceforth she should report to the Head of Human Resources. This change was to be an interim arrangement pending the finalisation of the investigation of the Claimant’s allegations of bullying. The Claimant objected to this change believing it to be a demotion.

The Claimant was also instructed to apply for and obtain prior approval before attending external meetings in the course of her employment. This instruction followed on from what the Respondent regarded as difficulties in obtaining adequate reports from the Claimant on her work related activity involving external parties. The Claimant refused to comply with that instruction. The Respondent then invoked its disciplinary procedure against the Claimant and she was advised that this could lead to her dismissal.

The Claimant then became ill and took certified sick leave. At the date of hearing of this appeal she remains on sick leave. In consequence neither the investigation of the bullying allegations nor the proposed disciplinary process has proceeded.

Against that background the Claimant brought a complaint pursuant to s.28 of the Safety Health and Welfare at Work Act 2005 (the Act) alleging penalisation contrary to s.27 of the Act. The substance of this complaint is that the change in the Claimant’s reporting structure constituted a demotion contrary to s.27(2)(b) of the Act. She further contends that the invocation of the internal disciplinary procedure amounts to a treat of dismissal contrary to s.27(2)(e) of the Act.

The complaint was investigated by a Rights Commissioner who found that the Claimant had not been penalised within the meaning of the Act. The Claimant appealed to this Court.

Position of the Parties

The Claimant contends that the change in her reporting arrangements, from the Chief Executive Officer to a lower ranking member of management, amounted to a demotion. This, she contends, was a direct consequence of the complaints of bullying which she made. The Claimant further contends that the invocation of the disciplinary procedure by the Respondent was also connected to her complaint and amounted to a further act of penalisation.

The Respondent’s position is that the change in the Claimant’s reporting arrangement could not amount to demotion. It was pointed out that the Claimant retained her salary, job title and responsibilities. It was submitted that the impugned change was made in ease of both the Claimant and the Chief Executive and conformed to accepted good practice in cases where allegations of bullying are being pursued.

With regard to the invocation of the disciplinary procedure, it is the Respondent’s position that this was solely in consequence of the Claimant’s refusal to comply with the reasonable and lawful instructions of the Respondent.

Conclusions of the Court

The Applicable law

The relevant statutory provisions are at s.27 of the Act. This section provides: -

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.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(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 undersection 11or appointed undersection 18to perform functions under this Act, or(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

As was pointed out by this Court inO’Neill v Toni & GuyBlackrock21 ELR 1, there are two tests inherent in the statutory definition of penalisation. Firstly the Claimant must have suffered a detriment of a type referred to at subsections (1) and (2) of s.27. Secondly, the detriment complained of must have been imposed for having committed a protected act or omission of a type referred to at subsection (3) of the section, in the sense that ‘but for' the protected act or omission having been committed the detriment would not have been imposed. This imports a requirement to show a chain of causation between the impugned detriment and the protected act or omission.

Applying these legal principles to the facts of the instant case the Court has reached the following conclusions.

Demotion
In the instant case the change in the Claimant’s reporting relationship was in consequence of her complaint of bullying against the Chief Executive Officer. Hence, the net question for consideration is whether the impugned change amounts to a demotion, as contended by the Claimant. Section 27(2)(b) provides that a demotion can constitute penalisation. The Claimant expressly relied on this provision in advancing her claim. However the statute does not define the term ‘demotion’. It must, therefore, be given its normal and natural meaning.

A demotion arises where a person is placed in a lower grade, has his or her salary reduced or is assigned to duties which are regarded as appropriate to a lower position within the organisation. None of these factors apply in the present case. The Court is satisfied that having regard to the strained relationship between the Claimant and the Chief Executive Officer, the Respondent took the reasonable step of relieving both parties for the requirement to regularly interact with each other. In these circumstances the Court is satisfied that the impugned change in the Claimant’s reporting structure did not amount to a demotion within the meaning of s.27(2)(b) of the Act. Accordingly this aspect of the Claimant’s complaint cannot succeed.

Invocation of the Disciplinary Procedure
It is conceded that the invocation of a disciplinary procedure, carrying with it the possibility of dismissal, can constitute penalisation if it is in reaction to, or because of, having committed a protected act.

The Court is satisfied that in consequence of the difficulties in maintaining a normal working and reporting relationship between the Claimant and the CEO the Respondent found it necessary to put new arrangement in place by which the Claimant was required to obtain prior clearance before engaging professionally with external bodies. In the circumstances of this case that requirement was, in the Court’s view, reasonable. The Claimant refused to comply with the new arrangement and this was the dominant and causal reason for the Respondent’s decision to invoke the disciplinary procedure. In these circumstances the Court is satisfied that the invocation of this procedure cannot be regarded as penalisation within the statutory meaning.

In these circumstances that aspect of the complaint must also fail.

Determination

For all of he reasons set out in this Determination the Court is satisfied that the decision of the Rights Commissioner should be affirmed and the appeal disallowed.

Signed on behalf of the Labour Court

Kevin Duffy
6th December, 2010______________________
MG.Chairman

NOTE

Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.