HSD101

FULL RECOMMENDATION

HSC/09/13

DETERMINATIONNO.HSD101

(r-074661-h&s-09/TB)

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

PARTIES :

CITIZENS INFORMATION BOARD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

JOHN CURTIS
(REPRESENTED BY O'REGAN LITTLE SOLICITORS)

DIVISION :

Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr Nash

SUBJECT:
1. Appealing against a Rights Commissioner’s Decision R-074661-H&S-09/TB.

BACKGROUND:

2. The Worker has been employed since 1998 as a full-time Information Assistant (formerly Paper Keeper), clerical officer grade, reporting to the Manager, HR and Administration.

Following relocation of 53 employees to Hume House in July 2008 the Worker expressed some concerns to Management over some minor health and safety concerns he had including the overhead lighting above his desk and a fan of an air vent. These were dealt with by the Company once they were brought to its attention.

The Worker claims that he was penalised for acting in compliance with the relevant statutory provision, for performing his duty and exercising his right under the provisions.

The Company states that the Worker did not suffer any disciplinary action, neither was he reprimanded in any way and did not suffer any other penalty.

The Worker referred his complaint to a Rights Commissioner under Section 27 of the Safety, Health & Welfare at Work Act 2005. The Right's Commissioner issued his decision on the 9th July, 2009, as follows:-

"...... I find no breach of the Safety, Health & Welfare at Work Act. These complaints are not well founded."

The Worker appealed the Rights Commissioner's Decision on the 19th August 2009, to the Labour Court in accordance with Section 29(1) of the Safety, Health & Welfare at Work Act, 2005. A Labour Court hearing took place on the 27th January, 2010.

DETERMINATION:

The Claimant contends that he was subjected to penalisation contrary to S.27 of the Safety Health and Welfare at Work Act 2005 (the Act) by his employer, the Citizens Information Board (the Respondent)

The substance of the Claimant’s case is that he made a complaint to his manager to the effect that he was being asked to undertake inappropriate work. This complaint was made on or about 5th December 2007. It is alleged that in consequence of this complaint the Claimant had his duties changed and he lost a facility to work flexi-time.

The Respondent confirmed that the Claimant had a discussion with his manager on the date referred to but it contends that the subject matter of the discussion did not relate to issues of health and safety. It further denies that the Claimant suffered any detriment of the type referred to at S.27(2) of the Act.

Section 27 of the Act 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—
- (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.

It is clear that redress under the Act is only available where (a) an employee commits an act protected by subsection (3) of S.27, and (b) the employers imposes a detriment on the employee because of, or in retaliation for, having committed the protected act.

In this case the Court does not accept that the Claimant made any complaint, in the course of the discussions with his manager on 5th December 2007 which could reasonably be understood as referring to an issue of health and safety. It follows that any consequences that may have flowed from that discussion could not amount to penalisation under the Act. Further, and for the sake of completeness, the Court does not accept that the Claimant suffered any detriment coming within the ambit of S.27(2) of the Act in consequence of the matters raised by him on 5th December 2007.

Determination.

It follows from the forgoing that the Claimant was not penalised within the meaning of S.27 of the Act. His appeal is disallowed and the decision of the Rights Commissioner is affirmed.

Signed on behalf of the Labour Court

Kevin Duffy
4th February, 2010______________________
MG.Chairman

NOTE

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