FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1); SAFETY; HEALTH AND WELFARE AT WORK ACT; 2005 PARTIES : FINGLAS CABS LIMITED - AND - MARGARET REDMOND (REPRESENTED BY EARLY & BALDWIN SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appealing against a Rights Commissioner's Decision r-099544-hs-10/JW
BACKGROUND:
2. The Employee appealed a Rights Commissioner's Decision to the Labour Court on the 21st July 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 14th November, 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. Margaret Redmond against Finglas Cabs Limited. 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. Redmond and awarded her compensation in the sum of €3,000.00. Ms. Redmond appealed against the quantum of compensation awarded. There was no cross-appeal by Finglas Cabs Limited.
For ease of reference the parties are referred to in this Determination using the same designation as they had at first instance. Hence, Ms. Margaret Redmond is referred to as “the Complainant” and the Finglas Cabs Limited is referred to as “the Respondent”.
Summary of the Complainant’s case
Ms. Christina Ryan B.L. instructed by Early & Baldwin Solicitors, on behalf of the Complainant submitted that the substance of the Complainant’s claim is that following the making of complaints concerning the inappropriate and menacing behaviour of a work colleague towards her, she was placed on unpaid suspension. This, the Complainant alleged constituted penalisation within the meaning of Section 27(3)(c) of the Act.
The Complainant was employed as a Base Controller with the Company since August 1994. Ms. Ryan stated that on or about 1st September 2010 the Complainant made complaints to management and the Taxi Regulator about the work colleague’s behaviour towards her and advised management that if this behaviour continued she would report the matter to the Garda�. When a further altercation occurred on or about 16th September 2010 during which the colleague used threatening and abusive language towards her she made a further complaint to management. Management did nothing to reassure her and informed her that the work colleague “was getting a solicitor”. On 21st September 2010 when her employer directed her to serve the colleague in question, he told her that if she did not serve him she would be “sacked” and proceeded to call her names such as “dirt”, “filth” and “inner city scum” and told her that they would “get her”. She felt very threatened by these comments and she advised her employer that if he did not protect her health and safety she would report the colleague and her employer to the relevant authorities. When the behaviour continued to deteriorate she contacted the Health and Safety Authority on 22nd September 2010 and also contacted the Garda�. On 23rd September 2010 the Complainant was issued with a registered letter from her employer regarding her alleged conduct and on 5th October 2010 she was furnished with a letter dated 28th September 2010 placing her on unpaid suspension. She remains suspended without pay since that date.
By letter dated 28th April 2011 the Complainant wrote to the Directors of the Company requesting a return to work in light of the fact that she had been suspended for almost seven months at that stage without any investigation being conducted. She received no response.
Counsel for the Complainant submitted that the quantum of compensation awarded by the Right’s Commissioner was not adequate or reasonable in all the circumstances of the case. Reference was made to the decision of the ECJ inVon Colson and Kamann -v- Land Nordrhein Westfalen 1984 ECR 1891which held that sanctions for breaches of Community rights must ensure that they are effective and have a deterrent effect, and must amount to more than purely nominal compensation.
Summary of the Respondent’s Case
Mr. Derek Arnold and Mr. Martin Power, Directors of the Company submitted that the Complainant was suspended because she refused to carry out her duties when she refused to serve the colleague in question. Mr. Power told the Court that he had spoken to the work colleague after the Complainant had made the complaint. He said that the difficulties, which arose between the Complainant and her colleague, were due to bad communications, misunderstandings and hot headiness. He stated that there were no witnesses to the matters complained of.
Mr. Arnold referred to a letter dated 21st September 2010 to the Complainant in which the Directors of the Company stated that they had no alternative other than to issue a written warning to her regarding her conduct and stated that unless her conduct improved further action would be undertaken. In a further letter dated 28th September 2010 the Directors stated that they were deeply concerned with the Complainant’s failure to carry out her duties and therefore issued her with a second and final written warning.
Mr. Arnold stated that that at all times the Respondent had acted in good faith and in accordance with proper procedures.
Findings and Conclusions of the Court
The Law Applicable
Section 27 provides that where an employee does something of the type referred to at subsection (3) and then is subjected to unfavourable treatment by his or her employer on that account, that unfavourable treatment is penalisation.- Section 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) 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 under section 11 or appointed under section 18 to perform functions under this Act, or
- (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,
InO’Neill v Toni & GuyBlackrock21 ELR 1 this Court held that in order to make out a complaint of penalisation it is necessary for a Complainant to establish that the detriment of which he or she complains was imposed“for”having committed one of the acts protected by subsection 3. The Court held that:- “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 suggested 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.”
As was pointed inToni & Guy, 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 Court is satisfied from the evidence given that the making of complaints by the Complainant in September 2010 to both members of management and other relevant authorities concerning her health and safety in the workplace can be considered as coming within the terms of Section 27(3)(c).
The Court must now consider whether the Respondent’s decision to place the Complainant on unpaid suspension from 5th October 2010 onwards was influenced by the making of those complaints.
The Court has considered the submissions of both parties. The Respondent stated that the reason for placing the Complainant on unpaid suspension was due to her refusal to carry out her duties. At this stage the Complainant had made a number of attempts to deal with the difficulties she was encountering in the workplace and had made formal complaints to management and other authorities about the conduct of one of its agents. The Court is satisfied from the evidence given that there was no real attempt made to resolve the situation and management expected her to put up with the situation. One of the Directors told the Court that this sort of thing happens everyday.
The Court is of the view that the placement of the Complainant on unpaid suspension must be viewed as a severe disciplinary sanction in circumstances where she was refusing to have any dealings with a colleague who was abusive and where management were not supportive of her attempts to resolve the situation. This disciplinary sanction was in the Court’s view totally inappropriate in the circumstances.
Therefore, the Court is satisfied, as a matter of probability, that, were it not for her complaints regarding health and safety, the refusal to carry out her duties would not have arisen and she would not have been placed on unpaid suspension. Accordingly, the Court must hold that the aforementioned complaints were an operative reason for the sanction taken against her and that her complaint of penalisation has been made out.
The Court decides that the appropriate form of redress in this case is an award of compensation to the Complainant and in measuring the quantum of compensation which is fair and equitable in the circumstances and following the decision of the ECJ inVon Colsonthe Court sets the level of compensation at €8,000.00. No element of this composite award is by way of compensation for loss of earnings.
Accordingly, the Court varies the Rights Commissioner’s Decision and upholds the appeal.
The Court so Determines. - Section 27
Signed on behalf of the Labour Court
Caroline Jenkinson
30th November, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.