FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : OGLAIGH NAISIUNTA NA HEIREANN TEORANTA (REPRESENTED BY GRIFFITH HOGAN & CO SOLICITORS) - AND - MICHAEL MC CORMACK (REPRESENTED BY QUINN, DILLON & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appealing against a Rights Commissioner’s Decision R-073634-HS-08/SR
BACKGROUND:
2. The Worker appealed a Rights Commissioner's Decision to the Labour Court on the 30th September, 2009, 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:
This is a complaint by Mr. Michael McCormack (“the Complainant”) alleging that his employer Oglaigh Naisunta Na hEireann Teoranta (“the Respondent”) contravened Section 27 of the Safety Health and Welfare Act, 2005 (“the Act”). The Complainant referred a complaint of penalisation under Section 27 of the Act due in the main to the Respondent’s failure/refusal to deal with his complaint of bullying in circumstances where he had made a complaint to his employer relating to safety, health and welfare at work.
The complaints were investigated by a Rights Commissioner who found against the Complainant.
Background
The Complainant was employed as House Manager to run Beechwood House, which provides accommodation for ex-service personnel of the Irish Defence Services. He was employed from 1st March 2004 until his dismissal on 19th December 2008.
In 2006 the Complainant was appointed as Administrator of a project called“The Forgotten Soldiers of Peace”a research project undertaken on behalf of the Respondent with funding provided by the EU Programme for Peace and Reconciliation. In April 2008 the Complainant was involved in the launch of the project. The Complainant subsequently released a press release concerning the project without the approval of the CEO and in contravention of his terms and conditions of employment.
The Complainant was called to a disciplinary meeting by the CEO on 16th May 2008 and was subsequently issued with a written warning on 30th May 2008. On 7th August 2008 the Complainant’s solicitor’s wrote to the CEO statinginter aliathat their client had been bullied by the CEO at the disciplinary meeting on 16th May 2008, and consequently was compelled to take sick leave by reason of his depression/stress.
This accusation was further expanded upon in a letter from the Complainant’s Solicitors to the Respondent dated 13th October 2008, in which they stated that the Complainant had been the subject of victimisation and bullying at the hands of the CEO, acting in collaboration with a Director.
Further articles written by the Complainant were published in the“Letterkenny Post”on 6th November 2008. In those articles the Complainant referred to himself as spokesman for the Respondent. On 4th December 2008 the CEO wrote to the Complainant regarding the publication of those articles.
On 19th December 2008 the Complainant was dismissed. The reasons given for his dismissal were his unwillingness to adhere to the terms of his employment, his refusal of all efforts to resolve the bullying allegations he made through the Respondent’s internal procedures and his refusal to interact with the services of an independent investigator.
The Complainant’s Case
Mr. Cathal Quinn, Solicitor, on behalf of the Complainant submitted that the lack of any fair or objective response on the part of the Respondent to the Complainant’s complaints of bullying constituted penalisation. He submitted that the Respondent’s failure to conduct an objective enquiry to establish facts and the involvement of the alleged perpetrator in the conduct of the enquiry was further evidence of penalisation. The Complainant's loss of pay while out sick from 23rd July 2008 was also evidence of pensalisation. Furthermore, the Respondent’s actions in changing the lock of the Complainant’s office door while he was absent on sick leave and the unrequested return of all his personal belongings also constituted penalisation of him within the provisions of Section 27 of the Act.
Mr. Quinn submitted that the Respondent accepted and adopted, without verification, the CEO’s version of the relevant facts. It rejected the Complainant’s version of events, as was evidenced by the contents of a letter written by the Respondent’s Solicitor’s on the 29th August 2008, following a meeting between the Respondent’s Solicitor, its Chairman, its Secretary and the CEO.
Mr Quinn further submitted that it was inappropriate of the Respondent to involve the CEO in investigating the complaint of bullying and harassment against him by allowing the CEO to write to the Complainant’s witness, and allowing him to instruct the Respondent’s Solicitors prior to all communication with the Complainant’s Solicitors, thereby leading the Complainant to believe that the CEO retained control of the situation on behalf of the Respondent. This demonstrated a bias on the part of the Respondents in favour of the alleged perpetrator.
He submitted that this bias was so blatant that one of the Respondent’s Directors changed the locks on the Complainant’s office door without the Complainants prior knowledge or consent and without providing him with a key.
When the Complainant called to Beechwood House on 7th November 2008 to collect some personal belongings he failed to gain admission because the lock was changed. This caused him great personal distress. His personal items were subsequently delivered to his home.
Mr Quinn submitted that these actions were intended to convey to the Complainant that he was no longer welcome in Beechwood House; that the Respodent had no genuine interest in facilitating his return to work: moreover the Respondent had no intention of dealing with his complaint in a fair, balanced and unbiased manner.
Mr. Quinn also submitted that the Respondent’s failure to seek a medical report on the Complainant’s condition demonstrated it’s indifference to whatever damage the ongoing situation might be inflicting on his state of health and it’s indifference to facilitating his recovery and return to work.
Mr. Quinn further submitted that the Respondent’s Solicitor, in a letter dated 2nd December 2008, suggested the appointment of an investigator in relation to the allegation of bullying. However, the letter also accused the Complainant of being in breach of his terms and conditions of employment and in breach of the written warning issued to him on 30th May 2008 by the publication of articles concerning Oglaigh Naisunta Na hEireann Teoranta and purporting to be its spokesman.
Mr Quinn stated that as disquieting as the Complainant found this, what destroyed any hope he might have had of a fair consideration of his plight from the Board of Directors, was the reference in the letter to the fact that the Board had directed the CEO to write to him to seek “his views in relations to these issues”.
Two days later, by letter dated 4th December 2008, the CEO wrote to the Complainant repeating the above accusation and asking him to “give cause as to why you should not be dismissed”. He submitted that this demand was of a far more menacing nature than the mere seeking of the Complainant’s views, and therefore it was his contention that the Board of Directors had already issued their direction to the CEO.
Mr. Quinn submitted that the Complainant’s dismissal was the final act of penalisation on the part of the Respondent, which at the very least commenced upon receipt the letter dated 7th August 2008 and that the newspaper article was merely used as a pretext on which to dismiss the Complainant.
The Respondent’s Case
Mr. Kenneth O’Sullivan, B. L. instructed by Griffith Hogan & Company Solicitors, submitted that the Complainant’s employment was terminated by reason of his continued breach of the terms and conditions of his contract of employment and/or his continued refusal to engage in the resolution of his complaint of bullying and/or his incapacity to perform the terms of his employment.
He submitted that the Complainant’s primary responsibility was the running of Beechwood House and that it was a term of his employment that he would not act or be perceived to act as a spokesman for the Respondent and that all matters concerning the Respondent’s organisation at national level would be directed to the CEO, and at local level would be directed to the local committee.
He submitted that in April 2008, on the first occasion the Complainant breached that term the CEO met with him along with a colleague and he was subsequently issued with a written warning. The Complainant subsequently sent an email dated 5th June 2008 to the CEO stating that he had received the written warning and he would not be appealing that decision. On the 7th August 2008 the Respondent received a letter from the Complainant’s Solicitors stating that the Complainant did not recognise“the legitimacy of the disciplinary meeting”and accusing the CEO of bullying and harassing the Complainant. The letter also made various threats.
On 29th August 2008 the Solicitors for the CEO/Respondent replied to the foregoing and various correspondence flowed between the parties thereafter.
On 2nd December 2008 Griffith Hogan & Company the Respondents Solicitors wrote to the Complainant’s Solicitors proposing the names of three independent investigators to review/investigate the complaint of bullying. The choice of investigator was up to the Complainant.
The Complainant refused the proposal of an independent investigator.
Mr. O’ Sullivan noted that despite the Complainant’s absence due to depression/stress allegedly caused by the reaction to the first article, the Complainant continued to campaign against the closure of army barracks and he published a further article in the“Letterkenny Post”on 6th November 2008 wherein he again purported to act as a spokesman for the Respondent.
On 4th December 2008, the CEO wrote to the Complainant stating that his claim to be a spokesman for the Respondent in the said article was contrary to the terms of his contract of employment and requested a written explanation for same and to “give cause as to why you should not be dismissed” on or before 15th December 2008. While the Complainant’s Solicitors did respond in part, the Complainant did not.
Therefore, by letter dated 19th December 2008 the Complainant was dismissed by the CEO/Respondent for his unwillingness to continue to be employed under the terms of his employment contract and his refusal of all efforts to resolve the issues raised in accordance with the Respondent’s internal procedures and his refusal of the services of an independent investigator.
Mr. O’Sullivan submitted that the case was misconceived under the Act and the Court had no jurisdiction to hear the case.
Mr. O’Sullivan contended that the only argument put forward by the Complainant was that he was penalised for“having made a complaint to them about a matter relating to his safety, health or welfare at work, and that the complaint was a causative factor in his further penalisation.”
He contended that the Complainant had not submitted any evidence of the health and safety type complaint he asserts he made and for which he was subsequently allegedly penalised under Section 27(3) of the Act.
He stated that at most the case concerned the dismissal of the Complainant and/or the correctness of the procedures adopted by the Respondent in effecting the same. In that regard, he submitted that the Complainant had alternative remedies, such as the Unfair Dismissals Act 1977-2005, however he opted not to avail of those options.
CONCLUSIONS OF THE COURT
The Court must first consider whether there was in fact a complaint made under the Act and having made that finding must then consider whether the Complainant was penalised within the meaning of Section 27 (3) of the Act.
Having considered the extensive submissions made, the Court finds that the complaint set out in the Complainant's solicitors letter of the 7th August 2008 that their client had been bullied by the CEO constitutes a complaint under the Act. For the avoidance of any doubt, the Court makes no finding on the veracity of the bullying complaint.
The Court is therefore satisfied that it has the power to investigate the subsequent actions of the Respondent to see whether those actions constituted penalisation of the Complainant under the provisions of of Section 27(3)(c) of the Act i.e was the Complainant penalised for “(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”
The Court considered the range and complexity of issues raised by the Complainant in this case. Mr. Quinn put it to the Court that the claim under the Act encompassed events from 7th January 2007 until the Complainant’s dismissal on 19th December 2007. The Court is satisfied that the matters mentioned which predated the making of the complaint on 7th August 2007, cannot constitute “penalisation” within the meaning of the Act, as they predated the invoking of the Act. Therefore the Court cannot investigate the events of 7th January 2007 (the incident referred to at the finance meeting in Beechwood House), or the events of 16th May 2007 (the disciplinary meeting and the resulting written warning) as causes of action under the Act. Similarly the Court cannot investigate the dismissal as it predated the claim to the Rights Commissioner and was not encompassed within that complaint.
It is therefore the finding of the Court that the Complainant is entitled to pursue his claims of penalisation against the Respondent with respect to any allegation of penalisation which occurred in the period 7th August 2007 and 19th December 2007, the latter date being the date upon which the Complainant made his formal complaints to the Rights Commissioner under the Act. Applying this logic to the Complainant’s allegations of penalisation the Court will proceed to investigate the claims made relating to the following complaints:
�failure to conduct an objective enquiry into the allegation of bullying
�loss of pay while out sick
�changing the lock on the Complainant’s office door while he was absent on sick leave and the unrequested return of all his personal belongings
�failure to seek a medical report on the Complainant’s condition
�threat of dismissal as contained in letter dated 4th December 2007
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 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.
The continuing involvement of the CEO, against whom the allegation of bullying and victimisation was made, in terms of his continuing to correspond with the Complainant and the Complainant’s chosen witness was totally inappropriate and served to compromise the Respondent’s ability to deal with the complaint in an objective manner. The Court is of the view that upon receipt of the complaint on 7th August 2007 the Board should have ensured that the CEO disengage from any matters related to the Complainant to allow an objective investigation take place.
Had the Respondent sought an immediate objective investigation and a comprehensive medical report the Complainant could have returned to work and his loss of income would have been minimised.
The changing of the lock on the door of the Complainant’s office and the unrequested return of all personal items from the office to the Complainant was unquestionably ill judged. While the Respondent stated that they could not support this action and it was carried out without the knowledge of the CEO, it was however carried out by a Director of the Board who was fully aware of the Complainant’s situation and the Respondent did not at any stage explain this action to the Complainant personally. Furthermore, the Respondent ignored the matter when it was raised by the Complainant’s Solicitor in correspondence on two occasions. In the Court’s view the Respondent’s conduct in relation to this incident must be regarded as a retaliatory act in response to the Complainant’s complaint.
The Respondent proposed to appoint an independent investigator in its letter of 2nd December 2007. Such action was within the normal parameters to address a complaint of bullying. The Complainant’s refusal of such an offer was misjudged, and the Court is of the view that it was unfortunate that this proposal was not followed through as it was the most appropriate way to progress the matter. However, the letter also asked the Complainant for his views regarding an article in a local newspaper which the Respondent viewed as contrary to his contract of employment and this was quickly followed by a further letter of 4th December 2007 wherein the Complainant was asked to‘give cause as to why you should not be dismissed’in relation to this article. While the dismissal of the Complainant was not an issue before the Court, the Court is of the view that in this instance the Respondent did not give the Complainant an opportunity to have his views heard and acted with undue haste in the manner in which they dealt with this issue. While it is obviously necessary that any employee, the subject matter of disciplinary proceedings must be told of possible outcomes to those proceedings, the tone of this letter suggests that the decision to dismiss had already been taken and, the Court is of the view that on the balance of probabilities, this letter constituted further penalisation of the complainant for having brought an allegation of bullying.
Overall the actions of the Respondent, particularly in relation to the changing of the lock on the Complainant’s office door and the aftermath of same, and culminating in a threat of dismissal lead the Court to take the view that these actions constitute penalisation within the meaning of section Section 27(1) of the Act.
DETERMINATION
The appeal is allowed and the decision of the Rights Commissioner is set aside. The Court determines that the appropriate award is compensation and awards the Complainant the sum of €7,500 in compensation for the Respondent's breaches of the Act.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
18th March, 2011______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.