FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : BOARD OF MANAGEMENT, ST DAVID'S CBS SECONDARY SCHOOL ARTANE (REPRESENTED BY MASON HAYES & CURRAN) - AND - SIOBHAN MCVEIGH (REPRESENTED BY ASTI) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appealing against a Rights Commissioner's Decision r-087849-hs-09/SR.
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision R-087849-hs-09/SR to the Labour Court on the 16th December, 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 2nd June, 2011. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal from the Decision of a Rights Commissioner in a relation to a complaint of penalisation made by Ms. Siobhán McVeigh against the Board of Management, St. David’s CBS Secondary School Artane. The complaint was made pursuant to Section 27 of the Safety Health and Welfare at Work Act 2005 (the Act). The Rights Commissioner found in favour of Ms. McVeigh and awarded her compensation in the sum of €2,500.00. The Board of Management of St. David’s CBS Secondary School Artane appealed the Decision to the Court.
For ease of reference the parties are referred to in this Determination using the same designation as they had at first instance. Hence, Ms. Siobhan McVeigh is referred to as “the Complainant” and the Board of Management, St. David’s CBS Secondary School Artane is referred to as “the Respondent”.
Ms. Marie Mulcahy, ASTI on behalf of the Complainant submitted that the substance of the Complainant’s claim is that in response to a letter from the Complainant which included a request for a copy of the schools' bullying and harassment policy, the Principal of the school informed the Complainant that she would now be subject to stage two of the school’s disciplinary procedures. This, the Complainant alleged constituted penalisation within the meaning of Section 27(3)(c) of the Act.
The Complainant, a teacher in the School, submitted the letter to the Principal of the school dated 4th June 2009 in which she outlined her willingness to volunteer for supervisory duties. This letter was in response to the Principals' letter dated 25th May 2009 concerning her refusal to volunteer for the supervisory duties. In her letter the Complainant also requested a copy of the “Bullying and Sexual Harassment” policy. By letter dated 8th June 2009 the Respondent replied to the Complainant outlining the School’s position on her unwillingness to carry out supervisory duties as requested, it also referred to her request for the policy and finished by stating that she was now being proceeded to stage two of the disciplinary procedure. The Complainant submitted that by inquiring and invoking the anti-bullying procedure she was subsequently penalised by the Respondent as he activated the disciplinary process against her.
As a preliminary matter, Ms. Máiread McKenna, B.L. instructed by Mason, Hayes & Curran Solicitors, on behalf of the Respondent submitted that the Complainant did not have the necessary ingredients to successfully prosecute a claim pursuant to Section 27 of the Act. The Respondent contended that the requesting of a school policy cannot amount to a protected act under Section 27 and furthermore, held that the invocation of stage two of the disciplinary procedure cannot amount to disciplinary action under 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) 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,
- 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.
(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
(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.
The Complainant referred a complaint to the Rights Commissioner in December 2009 under the Act claiming that she had been penalised pursuant to Section 28 of the Act. The Union stated that the complaint of penalisation was grounded on Section 27(3)(c). The Respondent disputed that Section 27(3)(c) could have any application here and that had the Complainant grounded her complaint under Section 27(3)(b) it may have been applicable. Ms. McKenna held that the fact that the complaint was not properly grounded under Section 27 means that it cannot be processed by the Court.
The Court is of the view that it is clear from the recent decision of the High Court inCounty Louth Vocational Educational Committee v The Equality Tribunal, (Unreported, High Court, 24th July 2009, McGovern J) that in advancing a claim under the Equality Acts a Complainant is not limited to what is contained in the originating form. In that case the Complainant sought to extend the ambit of the terms of complaint referred to the Equality Tribunal. McGovern J held that it should be permissible to amend a claim so long as the general nature of the complaint remains the same.
While the circumstances in theCounty Louth VECcase were somewhat different to the circumstance in the instance case the Court is however, satisfied that a claim alleging penalisation by the Respondent has been submitted and the fact that the Union relied on Section 27(3)(c) instead of (3)(b) to ground its complaint does not detract from the fact that the claim of alleged penalisation essentially remains the same. In addition the Court is of the view that the Complainant was exercising a protected right under the Act when she requested a copy of the anti-bullying policy. Under Section 8 of the Act her employer was under a duty to provide such information as was necessary to ensure as far as practicable her health, safety and welfare at work. The Court is in no doubt that a request for a copy of a Bullying and Sexual Harassment Policy comes within the ambit of that Section.
In light of this preliminary finding, the Court will proceed to determine the sustainability of the claim under the Act. The question as to whether the invocation of the disciplinary procedure can be regarded, as penalisation will be dealt with during the course of the determination.
The Complainant’s Case
Ms. Mulcahy told the Court that there had been a history of differences between the Principal of the School and the Complainant and this lead to her requesting a copy of the “Bullying and Sexual Harassment” policy. She did so because she was upset about the Principal’s treatment of her. Ms. Mulcahy maintained that no new incident occurred between the date the letter was sent by the Complainant on 4th June 2009 and the writing of the letter by the Respondent on 8th June 2009 and it was the mere enquiry of the policy which prompted the referral to a more serious stage of the disciplinary process which had the capacity to impose sanctions against the Complainant. She said that all previous matters which had been the subject of a disciplinary process had been disposed of and settled and save for the alleged lack of supervision there were no issues outstanding against the Complainant.
The Respondent’s Case
Ms. McKenna disputed the Complainant’s contention that the mere request for a copy of the Bullying and Harassment policy prompted the Principal to invoke the disciplinary procedure. She said that the Complainant had already received two warnings, in January and April 2009, that matters could potentially be referred to stage two of the procedure if she continued to undermine the authority of the Principal. The Complainant was already aware of the policy, as she had referred to it in her letter to the Principal on 19th January 2009. In any event she had not invoked the policy after the Principal sent the letter dated 8th June 2009 or at any other time.
Ms. McKenna submitted details of all correspondence between the parties from January 2009 until the outcome of the disciplinary process in December 2009. She emphasised again that in her letter dated 19th January 2009, that the Complainant had referred to the school’s Dignity in the Workplace Charter (i.e. the Bullying and Sexual Harassment policy referred to in the letter of the 4th of June 2009). There followed a sequence of correspondence between the parties which culminated in a letter from the Complainant to the Principal dated 3rd April 2009 in which she statedinter aliathat she fully accepted his authority as Principal. Following receipt of that letter the Principal wrote to her on 20th April 2009 acknowledging her formal commitment to undertakings given at the meeting in January 2009 under stage one of the disciplinary procedure.
In relation to the sequence of events giving rise to the actions complained of, Ms McKenna stated that in May 2009 the Principal requested the Deputy Principal to carry out a report into the issue of Yard Supervision for Summer Tests. This was a procedure where in return for three days off in May, each teacher was required to attend school for one 15-minute supervisory slot in the period Tuesday 26th May to Friday 30th May 2009. In this report, dated 27th May 2009 the Deputy Principal reported that the Complainant had filled in a slot for supervisory duties on the pinned up rota, which was not available. When this was brought to her attention she refused to take the only available slot as it was timed for 1.00pm to 1.15pm and she said that ‘she does not do lunchtimes’. Ms. McKenna stated that it was this apparent refusal on the part of the Complainant which gave rise to the Principal’s letter of 25th May 2009 accusing her of once again undermining his authority and the subsequent letter from the Principal dated 8th June 2009 must be seen and understood in the context of his earlier correspondence.
Ms. McKenna also disputed the Complainant’s contention that no new incident occurred between 4th June and 8th June 2009. She said that this ignores the serious issues, which arose in May 2009 as referred to in the report from the Deputy Principal. She explained that until May 2009 every teacher, including the Complainant, had participated in the supervision duties and a refusal by even one teacher had the potential to undermine the practice which had been carried out for many years.
Findings and Conclusion of the Court
Section 27 provides that where an employee performs an action of the type referred to at subsection (3) and then is subjected to unfavourable treatment by his/her employer on that account, that unfavourable treatment is penalisation.
The Court has already found that the request for the policy was a protected action within the meaning of Section 8 and therefore the only remaining matter for the Court to consider is whether the decision to refer the Complainant to stage 2 of the disciplinary process constituted penalisation.
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 Complainant must have suffered a detriment of a type referred to at subsections (1) and (2) of Section 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.
Having considered the submissions made, the Court is satisfied that the Complainant exercised her right to information and that his action comes within the ambit of Section 27(3) of the Act.
The Court is therefore satisfied that it has the power to investigate the subsequent actions of the Respondent to examine whether those actions constituted penalisation of the Complainant under the provisions of Section 27(3) of the Act i.e. was the Complainant penalised for seeking information on the Respondent’s anti-bullying policy.
The letter from the Complainant to the Principal dated 4th June 2009 states:
- In reply to your letter of 25th May 2009 I wish to inform you that I stated clearly during my meeting with [the Deputy Principal] on Monday 25th May 2009 and I reiterate here that I have no problem with volunteering to supervise the students for a 15-minute period during the summer exams. I clearly stated to [the Deputy Principal] on Friday May 22nd 2009 that I was available to supervise the students at any time on any day other than the 1:00pm slot on Wednesday 27th May 2009.
I have an objection to the conclusion you drew, arising from my being unavailable to supervise for that particular 1:00pm slot. I also consider your response to be an exaggeration.
Can you please forward to me, a copy of the "Bullying and Sexual Harassment" policy document for St. David's C.B.S Artane.
Yours sincerely,
- Thank you for your letter dated 4/6/09. Please note the following:
You state that you are willing to supervise during the exams. It is worth nothing that you did not, in fact, supervise during the exams in May this year.
You say that you stated clearly to Mr Ward that you were available “at any time on any day other than the 1pm slot on Wednesday 27th May 2009. Mr Ward has informed me that his recollection is otherwise.
Your statement also begs the question – If you were willing to supervise, why did you not do so? There were slots available on Tuesday at 1pm, on Thursday at 12:45am and 1:15pm. I cannot understand how you failed to supervise when you were willing to do so and there were slots available. Did you attempt to swap with another member of staff?
I also cannot understand how you put your name down at a time when there were no slots available. Why was it necessary to do this if you were not refusing to supervise at 3 other available times?
You say that you object to the conclusion I drew in my letter. I assume you are referring to the following paragraph:
“ You have previously undertaken not to undermine my authority. If, through your actions, I cannot properly arrange a system to safely organise the Summer exams, then you are consequently undermining my authority.”
I came to this conclusion for the following reasons.
You had indicated in what you said to Mr Ward that you were refusing to provide appropriate supervision.
You also indicated this by your actions of ignoring 3 available slots and choosing to create a slot which did not exist.
Therefore, you had made it very clear that you were only willing to do supervision at a time of your own choosing and not at a time that was required by the management of the school. This is clearly a repetition of previous problems about which I had indicated my unhappiness.
You say that my response was an exaggeration but you do not
elaborate. Perhaps I might pose the question - What if other / most / all teachers were to behave in a similar manner, i.e. be prepared to supervise only when it suited them and ignore the lack of supervision at other times? Such a situation would lead to chaos and danger for students as well as leaving me with no authority at all in the school. If other teachers cannot behave that way, then neither may you.
I refer to your request for a copy of our "Bullying and Sexual
Harassment" policy. Please find it enclosed. An implication from this request could be that you feel that you are being bullied by me. At the same time I feel that you continue to undermine my authority. Clearly, neither of us is happy with the ongoing situation. I had thought we had recently brought matters to a conclusion when we concluded Stage One of the Disciplinary Procedure but obviously this is not the case.
Therefore, I have no alternative but to proceed to the next level of
the disciplinary process, i.e. Stage Two. This matter will be brought to the, attention of the Board of Management at its next meeting on 12/6/09 and a special meeting of the Board will be convened shortly afterwards to make appropriate decisions.
I will be in contact with you again in due course
Yours sincerely
1.The Complainant had put her name down on the rota at a time, which would not have been in dispute when it was first put up on the notice board. However, that rota was taken down and a second one was put up. This second rota did not provide her an opportunity to volunteer for the times she had originally indicated she was available for. The letter of 25th May 2009 was silent on the fact that she had put her name down for supervision but instead referred to her refusal to undertake supervisory duties.
2.In his letter dated 25th May 2009, the Principal wrote to the Complainant about her refusal to undertake supervision duties at 1pm on Wednesday 27th May 2009 on the basis that she said she was not available at lunchtimes, as was reported to him by the Deputy Principal. He pointed out to her that her refusal put the entire system at risk and he reminded her that she had previously undertaken not to undermine his authority. However, he did not invoke Stage Two of the disciplinary process at that stage or even threaten to do so.
3.No new incident occurred between the date the letter was sent by the Complainant on 4th June 2009 and the writing of the letter by the Respondent on 8th June 2009.
The Court considers it significant that the Principal in his letter of 25th May 2009 had not invoked the second stage of the disciplinary process; it was therefore reasonable for the Complainant to believe that at that stage all previous matters had been disposed of. There was no other incident after that date other than her letter of 4th June 2009. In such circumstances the Court can only conclude that the latter was the impetus for invoking Stage Two. In other words‘but for’the request for a copy of the policy in the letter of 4th June 2009 there was no indication to show that the Respondent intended to invoke a more serious stage of the disciplinary process, one which had the capacity to impose sanctions against the Complainant.
By application of the test outlined inToni & Guy, the Court is satisfied on the facts of the case, that the Respondent’s response to the Complainant’s letter of 4th June 2009 is capable in and of itself of being an act of penalisation within the meaning of Section 27(3) of the Act.
Determination
For the reasons set out above the Court is satisfied that the Complainant has established that her complaint of penalisation comes within the ambit of Section 27 of the Act. Accordingly, the Decision of the Rights Commissioner is affirmed, the Court upholds the compensation award of €2,500. The appeal is disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th July, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.