FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : ST.JOHNS NATIONAL SCHOOL (REPRESENTED BY MASON HAYES & CURRAN SOLICITORS) - AND - MS JACINTA AKDUMAN (REPRESENTED BY I.N.T.O) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal against Rights Commisioner's Decision r-038736-hs-05/TB.
BACKGROUND:
2. The Complainant is employed as a teacher in St John's National School since February 2001. On 1st December 2005, the Complaint referred a complaint, under the Health, Safety and Welfare at Work Act, 2005, to the Rights Commissioner Service of the Labour Relations Commission. The substance of the complaint was that the Board of Management of St John's National School failed to exercise its statutory duty of care in a situation where serious complaints of bullying and harrassment were made. On 10th May 2007, the Rights Commissioner issued the following decision:
- 'On the basis of the submissions of the parties it appears that most of the matters complained of by the claimant occurred prior to the coming into operation of the legislation. Her initial complaint appears to have been made in November 2003 and the agreed procedures for dealing with it commenced in April 2004. The procedures were followed and progressed through 2004 and 2005.
While there appears to have been an inordinate delay of nine months between May 2005 and February 2006 in putting in a mediator, most of that period was before the coming into operation of the legislation and therefore cannot be considered as part of the complaint referred under the Act.
It seems to me that the essence of the complaint is that the delay in implementing agreed procedures was in itself a form of penalisation and is therefore contrary to the provisions of Section 27.
Allowing that I can only have regard to the complaint as it relates to the period September to December 2005 I do not consider that the matters complained of relating to that period constituted penalisation as outlined in Section 27 of the Act.
The Complainant appealed the decision to the Labour Court on the 20th June, 2007, in accordance with Section 29(1) of the Health, Safety and Welfare at Work Act, 2005. A Labour Court hearing took place on the 17th December, 2009. The following is the Court's determination:- 'On the basis of the submissions of the parties it appears that most of the matters complained of by the claimant occurred prior to the coming into operation of the legislation. Her initial complaint appears to have been made in November 2003 and the agreed procedures for dealing with it commenced in April 2004. The procedures were followed and progressed through 2004 and 2005.
DETERMINATION:
This is a complaint by Ms. Jacinta Akduman (the Complainant)
alleging that her employer, St. John’s National School (the Respondent) contravened Section 27 of the Safety Health and Welfare at Work Act 2005 (the Act). The Complainant complained that she suffered penalisation as defined under Section 27(1), due to the Respondent’s acts or omissions and further and in particular as defined under Section 27 (2)(c) and (e) in circumstances where she had made a complaint to her employer relating to her safety, health and welfare at work.
The complaints were investigated by a Rights Commissioner who found that most of the matters complained of occurred prior to the coming into operation of the Act. He found that the only period for which he had jurisdiction to hear her complaints under the Act was the period from 1st September 2005 to 1st December 2005 and he found that the matters complained of during that period could not be considered as penalisation within the meaning of Section 27 of the Act and consequently held that the complaints were not well-founded. The Complainant appealed to this Court.
The Complainant’s Case
The Complainant, a teacher in the Respondent School, made a complaint concerning an allegation of bullying to the Board of Management (“BOM”) in January 2004. She contended that her employer penalised her contrary to the Act, (a) when her complaint of bullying and harassment was not dealt with expeditiously in accordance with the agreed “Working Together” policy and (b) by her employers failure to take account of the potential impact on her wellbeing while the process was in train.
Mr. Noel Ward, the trade union representative for the Complainant contended that the continuation of the campaign of bullying and harassment after the complaint was made constituted penalisation for the purposes of Section 27(1) of the Act as it included acts and omissions by the Respondent that affected her to her detriment with respect to her terms and conditions of her employment. He asserted that the right not to be bullied and harassed is a term and condition of her employment.
He submitted that the Respondent permitted the actual processing of the complaint to be subverted by the alleged perpetrator and the Board of Management (BOM). He stated that formal meetings under the procedure became occasions of further bullying and harassment of her. He contended that the utterly inexcusable delay in processing the complaint constituted penalisation for the purposes of Section 27. He said that there were threats to her job security, changes made to her work location, that verbal complaints were made about her in front of pupils, that she was physically intimidated by being followed around the school and she was denied her right to pursue certain complaints and asked to withdraw them. These allegations were detailed as follows:
•The Complainant asserted that the Respondent’s promise on 25th May 2005 to have mediation in place by 1st September 2005 and its utter failure to resolve matters in an expeditious manner constitutes penalisation. There was a delay from 25th May 2005 until February 2006 in putting the mediation process in place.•The Complainant asserted that her change of classroom in 2004 constituted a form of penalisation under the Act when she was allocated a poorly equipped classroom. She further submitted that her exclusion from the Homework Club for the academic year 2005 – 2006 constituted penalisation by the Respondent.•The Complainant asserted that verbal complaints were made in front of her pupils on 29th November 2005 by the alleged perpetrator and when she attempted to speak to him about this she was physically intimidated when he followed her around the school.•The Complainant said that at the "Working Together" policy Stage 3 meeting on 13th April 2005 the Chairman of the BOM denied her her right to pursue certain complaints and he demanded that she withdraw them.
On the question of the Court’s jurisdiction, Mr. Ward held that the Court should take into account penalisation which took place before the coming into force of the Act. He cited a recent Labour Court DeterminationGarda Philip Kirwan v Department of Justice Equality and Law Reform[2008] 19 ELR 89where the Court heldas follows :
- “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 Respondent’s Case
Ms. Marguerite Bolger, Senior Counsel on behalf of the Respondent denied the allegation that the Complainant had been penalised within the meaning of section 27 as alleged or at all. She stated that she did not accept that the matters complained of could come within the definition of penalisation as set out in that section. She contended that the law requires the taking of some concrete act or pursuit of some course of action by the employer which itself could be regarded as causing a detriment to the employee, i.e. there must be some positive act or stance taken by the employer as a direct method of penalisation. This is clearly not the same as a delay or the manner in which a procedure is applied, which was what the Complainant sought to rely on. She held that a delay, while regrettable, is an incidental by-product of a procedure rather than the positive type of act or conduct envisaged by Section 27.
Ms. Bolger submitted that while a delay may be actionable in another forum, it was not so under this Court’s jurisdiction.
Ms. Bolger further submitted that the Respondent took all reasonable steps in order to deal with the Complainant’s complaints of bullying and harassment and held that the Complainant never raised her apparent concerns about the delay.
In relation to the specific complaints referred to Ms. Bolger submitted the following:
•The Respondent in evidence stated that the delay was due to a misunderstanding concerning the alleged perpetrator’s willingness to participate in the proposed mediation process. There was a requirement to have written consent from both parties before mediation could commence. While the Complainant had given written consent on 28th June 2005, the alleged perpetrator did not do so until December 2005. Notification of the commencement of the mediation process was made on 25th January 2006 and the first meeting held on 10th February 2006.
•The Respondent asserted that there was nothing detrimental in the change of classroom. It was the prerogative of the Principal in running the school to assign the classrooms available to him to the members of the teaching staff, having regard to the needs of the pupils. In any event the classroom to which the Complainant was assigned was the same size as four other classrooms in the school, with a better view.
•The Respondent submitted that given the fact the Homework Club was financially remunerated, the Principal had always attempted to distribute the task fairly among the teaching staff. As the Complainant held a Post of Responsibility he made a decision to assign these duties to a more junior member of staff without such a Post for the academic year 2005 – 2006.•The Respondent denied the complaints that the Complainant was subjected to verbal complaints in front of her pupils and /or physical intimidation.•The Respondent denied that the Chairman of the BOM ever abused his position to denigrate the Complainant’s complaints and/or to intimidate her and/or denied her a right to pursue complaints and/or demanded that she withdraw them. The Complainant was given advice about use of language by the Chairman of the BOM but, in any event, this occurred well before September 2005 and was therefore not a matter for this Court.
Without prejudice to the foregoing, Ms. Bolger submitted that most of the matters complained of by the Complainant occurred prior to the coming into effect of the Act and were therefore outside the jurisdiction of this Court. Likewise, in so far as the Complainant claimed that the Respondent was in breach of its obligations pursuant to section 8 of the Act, the Respondent denied those allegations and submitted that the Court had no jurisdiction to hear such complaints. The Respondent submitted that the protection of the Act can only be available to the Complainant if she suffered unfavorable treatment of the type referred to at Section 27 (2) of the Act in the period between 1st September 2005 and 1st December 2005, in consequence of having made complaints in relation to health and safety in that period. Since, on the Complainant’s submission, the complaints in relation to health and safety relied upon by her were made in January 2004, and the alleged unfavourable treatment occurred from 2003 to 2006 the Labour Court should not entertain the complaint.
Preliminary Issue – Jurisdiction of the Court
The Act came into force on the 1st September 2005, and the Complainant lodged an application alleging penalisation with the Rights Commissioner Service on 1st December 2005.
Under Section 28(4) of the Act, a Rights Commissioner (and the Labour Court on appeal) cannot entertain a complaint unless it is presented within a period of 6 months beginning on the date of contravention to which the complaint relates (or such further period not exceeding 6 months as the Rights Commissioner considers reasonable).
Retrospectivity
The first question the Court must consider is whether the Act can have any retrospective effect. This subject was already considered by this Court in a preliminary ruling in the case ofGarda Philip Kirwan v Department of Justice Equality and Law Reform[2008] 19 ELR 89. Here the Court concluded: -
“It is clear beyond argument that the Act cannot be applied retrospectively….. 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 the Estate Agents Act 1979 in 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 practice 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 Complainant 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.”
Findings of the Court
The substance of the Determination inKirwanis that where complaints were made under the relevant provisions prior to the coming into force of the Act and the Complainant was penalised after the coming into force of the Act, then the Complainant is entitled to rely on the provisions of Section 27 when bringing a claim of penalisation. However, it must be established that the acts or omissions alleged to constitute penalisation occurred after the enactment of the Act on 1st September 2005. In order to succeed, the Complainant must establish that the acts or omissions on the part of the Respondent affected her terms or conditions detrimentally. She must then establish that there is a causal connection between these acts of omissions and her complaint regarding health and safety matters.
It is therefore the finding of the Court that the Complainant is entitled to pursue her claims of penalisation against the Respondent with respect to any allegation of penalisation which occurred in the period 1st September to 1st December 2005, the latter date being the date upon which the Complainant made her formal complaints to the Rights Commissioner under the Act.
The Complainant contended that three complaints of penalisation fall into this time period: (i) the inexcusable delay in putting the mediation process into place from 25th May 2005 to 25th January 2006; (ii) her exclusion from the Homework Club in September 2005 and (iii) verbal complaints made by the alleged perpetrator in front of her pupils on 29th November 2005.
The Law
Whether the delay and the other two actions do in fact constitute penalisation within the meaning of the Act must first be considered by the Court.
Section 27 of the Act 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.
(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.
(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.
(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.
(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.
In every case in which an employer fails or neglects to fulfil its duty under the general provisions of the Act, the health and safety of workers are put at risk, but this Court has not been given the jurisdiction to investigate such transgressions. By contrast, penalisation in respect of which this Court has been given jurisdiction, involves the imposition of some separate or independent detriment on an employee which, if undeterred, could undermine the effective operation of the general provisions of the Act.
Therefore, the Court must be careful not to claim jurisdiction which it does not have by classifying as penalisation conduct, by act or omission, which is properly classified as a failure to fulfil a general duty imposed by the Act. Accordingly, the Court must now consider if the subject-matter of the within complaints, taken at their height, should properly be classified as penalisation as opposed to a contravention of the general health and safety imperatives of the Act.
Subsection (1) of this Section defines penalisation in broad terms and can include a failure to act which results in a detriment to an employee in terms of his or her conditions of employment. Crucially, however, what is rendered unlawful by Section 27(3) is acts or omissions of the type referred to at Subsection (2) directed at an employeeforhaving committed an act protected by that Subsection. Hence the decisive consideration is that of causation.
It is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arisebecause ofan act protected by Subsection (3) andbut forthe protected act the employee would not have suffered the detriment complained of (see Determination No HSD095,Toni & Guy Blackrock Ltd and Paul O’Neill).
“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the deteriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”
The failure to investigate or otherwise deal with the Complainant’s complaint and the other actions complained of, may or may not amount to an infringement of other provisions of the Act, but are matters which are outside of this Court’s jurisdiction. The only question for this Court is whether the delay was caused or contributed to by the complaint itself in the sense that had the complaint not been made the Complainant would not have suffered the detriment occasioned by the delay. Likewise, the Court must also consider whether the alleged campaign of bullying and harassment by the alleged perpetrator (including the exclusion from the Homework Club and the verbal complaints made in front of her pupils) was similarly caused or contributed to by the complaint made in January 2004. The Complainant contends that the bullying of which she complained continued after the complaint was made. The Court is of the view that if the alleged conduct was initiated before the complaint was made and continued thereafter, it could hardly be said that the conduct wasbecause ofthe complaint or thatbut forthe complaint it would have ceased.
Therefore, it seems to the Court that it would be illogical, on the facts of the instant case, to find that the delay and the other actions complained of were caused or contributed to by the complaint made in January 2004.
Conclusion
While the Court makes no finding on the veracity of the complaints of bullying or on the complaints of delay, it is clear that the Respondent had a duty to provide the Complainant with a workplace free from bullying. The Respondent also had a duty to investigate complaints of bullying expeditiously.
Other matters
In the course of the hearing evidence was tendered of other incidents and events which, it is alleged, constituted acts of penalisation. However, they all occurred either before the enactment of the Act or after the within complaint was referred to the Rights Commissioner. Accordingly they are not properly before the Court.
Determination
While any delay in the investigation of a complaint of bullying is to be deprecated, the Court cannot, for the reasons set out in this Determination, hold that the Complainant was penalised within the statutory meaning of that term. Accordingly the appeal is disallowed and the Decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th February, 2010______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.