HSD113

FULL RECOMMENDATION

HSC/11/3

DETERMINATIONNO.HSD113

(r-093437-hs-10/JT)

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

PARTIES :

FAS

- AND -

TERRI RYAN

DIVISION :

Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Mr Nash

SUBJECT:
1. Appeal against a Rights Commissioner’s Decision No. R-093437-HS-10/JT.

BACKGROUND:

2. The Employee appealed a Decision of a Rights Commissioner to the Labour Court on the 11th January, 2011, in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act, 2005. A Labour Court hearing took place on the 23rd February 2011. The following is the Determination of the Court:-

DETERMINATION:

Introduction

This is an appeal by Terri Ryan (hereafter the Claimant) against the decision of a Rights Commissioner in her claim of penalisation against FAS (hereafter the Respondent) brought under the Safety Health and Welfare at Work Act 2005 (hereafter the Act).

The Claimant is employed by the Respondent in an administrative post in Galway. She brought a complaint of penalisation against the Respondent pursuant to s.28 of the Act alleging a contravention by the Respondent of s.27 of the Act. 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.

The complaint was investigated at first instance by a Rights Commissioner who found that the Claimant had not presented any evidence of penalisation within the statutory meaning of that term. On that basis the Rights Commissioner found that the complaint was not well founded. The Claimant appealed against that decision to the Court.Position of the parties

The substance of the Claimant case is that, having made a complaint of bullying, the outcome of the investigation was detrimental to her interests in a number of material respects.

The Respondent contends that the facts relied upon by the Claimant do not support her claim of penalisation under the Act.

Conclusions of the Court

The essence of the complaint made by the Claimant is relates to the outcome of the investigation into the complaint of bullying which she made under the Respondent’s Dignity at Work Policy.

InPaul O’Neill v Toni and Guy Blackrock Limited[2010] 21 ELR 1 this Court set out the test to be applied in considering if an act or omission complained of is capable of being construed as penalisation within the meaning of the Act. The Court said the following: -

“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 detriment 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.”

By application of that test, and taking the Claimant’s case at its height, it seems to the Court that, on the facts of this case, the employer’s response to the Claimant’s complaint is not capable in and of itself as being an act of penalisation.

Determination

For the reasons set out above the Court is satisfied that the Claimant had not established her complaint of penalisation within the meaning of s.27 of the Act. accordingly the decision of the Rights Commissioner is affirmed and the appealis disallowed.

Signed on behalf of the Labour Court

Kevin Duffy
8th March, 2011______________________
MG.Chairman

NOTE

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