FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : BORD GAIS EIREANN - AND - SZYMON CIMEROWSKI DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal against a Rights Commissioner’s Decision R-092152-HS-10/TB.
BACKGROUND:
2. The Employee appealed a Rights Commissioner's Decision to the Labour Court on the 17th 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 27th May, 2011.
The following is the Determination of the Court:
DETERMINATION:
The dispute comes before the Court pursuant to Section 29(1) of the Safety, Health and Welfare at Work Act, 2005.
The Complainant submits that, contrary to the provisions of Section 27(3) of the Act, he was penalised by the Respondent Company arising out of complaints or representations he made to his employer regarding matters of safety health and welfare at work.
Section 27(1) of the Act states
- 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 hoursd) imposition of any discipline, reprimand or other penalty (including a financial penalty), and
- 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
- 27 (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.
Background:
The Complainant commenced working for the Respondent Company as a Computer Aided Drafting/Geographic Information System Technician on 18thApril 2007. He was employed on three successive contracts of employment. Those contracts were for the following periods: -
First Contract 18thApril 2007 - 18thApril 2008
Second Contract 18thApril 2008 - 17thApril 2009
Third Contract 18thApril 2009 – 18thDecember 2009
The Complainant’s contract of employment was not thereafter renewed.
Complainant’s Case:
The Complainant contends that he was employed in the Network Services Department and was assigned to various duties over the course of his employment. He contends that one of those appointments involved him working on projects designed to improve gas transmission safety systems. This involved him working on various teams and reporting through various different channels over the course of his employment. However he contends that at a particular point he was removed from those projects and confined to work related to the “Accelerated Renewals Programme” in preparation for his eventual dismissal from the Respondent Company. He contends that having so confined the nature of his work he was dismissed on the grounds that it had come to an end and his services were no longer required. He contends that this was contrived, partially or largely resulted from the representations he made to senior management regarding the development of safer systems of compressed gas transmission and amounted to penalisation within the meaning of Section 27(3) of the Act.
He submits that as a result of these representations he was physically isolated from the other staff in the GIS Office. He submits that his working conditions were cramped and unsuitable and not conducive to the performance of his work. He submits that he could not stretch his legs as there was a wall restricting his movement. He also submits that two other computers were placed on his desk that belonged to another Department that reduced the space available for him to work in. He submitted that he raised this issue with his superiors on a number of occasions to no avail.
He submits that he applied for other positions within Bord Gais Eireann to no avail. He submits that this amounted to a policy not to appoint him to a permanent position and partially or largely resulted from the representations he made to senior management regarding a revised and safer system of compressed gas transmission.
He submits that he was denied access to training courses contrary to the provisions of the Act. He submits that he applied for a training course in 2D and 3D Computer Aided Design Software. He said he was refused access to this course on the grounds that he was a fixed-term worker. He further submits that he was refused access to training partially or largely as a result of the representations he made to senior management regarding safe systems of compressed gas transmission.
He submits that in 2008 he was located to a new office away from his colleagues in the GIS department. He submits that he established that the gas infrastructure maps available in the Respondent Company did not contain details of the location of pipes and other elements of the network’s underground infrastructure including valves, etc. He submits that this was a source of delay in identifying and addressing failures in the gas distribution system. He submits that he developed proposals to address this including processes that would save money, time and in some situations, lives. He submits that he was reprimanded and instructed to cease dealing with this issue and to concentrate on the work to which he had been assigned. He submits that this amounted to penalisation and was a direct result of his consistent representations to the organization regarding safer systems of work and gas transmission.
He submits that in June 2009 he developed a proposal to improve the GIS information database to more accurately record the location and nature of internal gas installations. He submits that he was approved to undertake this work by his Manager a Mr Brendan O’Shaughnessy. He submits that after this work was nearly complete he needed assistance with some aspects of the GIS software and approached the relevant Administrator Mr Paul Ahern. He submits that the following day he was approached by another Manager Mr Robert Murphy who removed from his desk all of the drawings related to the project and instructed him not to engage on this matter further. He submits that this undermined his confidence in the management structure and his reporting relationships. He submits that these actions amounted to penalisation within the meaning of Section 27(1) of the Act.
He submits that, without his agreement, in 2009 his terms and conditions of employment were changed by the Respondent Company. He submits that he was transferred from the Department of Construction to the Department of Network Operation under the management of Ms Stella Corrigan. His former duties were dispersed to new recruits and other colleagues. He submits that this was done in order to put him in line for dismissal when the Renewals program was completed. In the event this turned out to be what happened to him, he submits. He submits that these actions were the result of the representations he made regarding the safe transmission of compressed gas through the network and amounted to penalisation within the meaning of the Act.
He submits that all other fixed-term workers in the GIS Office were given extensions to their contracts of employment in December 2009. He submits that he was moved to the Project Renewals Office in order to avoid extending his fixed-term contract of employment and that this was no more than a process that was designed to facilitate his dismissal so as to avoid the possibility of him gaining a contract of indefinite duration.
He submits that he was bullied and harassed. He specifically refers to the delay in renewing his contract of employment each time it came up for renewal. He submits that this caused him considerable stress and anxiety. He submits that he complained of the bullying and harassment to the appropriate personnel including his trade union. He submits that a meeting was arranged with management to address his complaints but that he never got into direct discussions on the issue. The talks took place through his trade union official. The meeting was adjourned and never reconvened.
The Complainant submits that he was dismissed at very short notice, without proper preparation and without any prior notification to the Personnel Department. He submits that he did not receive his termination payments on time as the decision to dismiss appears to have been hurriedly implemented.
He submits that all of these actions were wholly or largely a response to the representations he made to senior management regarding revised methods of gas transmission and other safety matters including revised methods for recording and locating gas infrastructure within the state.
Respondent’s Case:
The Respondent, represented by Arthur Cox and Company Solicitors, submitted that the Complainant had failed to make out any case under the Act.
The respondent submitted that the Complainant had failed to establish that he had performed any of acts that are protected by sub-section 3 of the Act. Specifically he had not established that he had been
- (a)acting in compliance with the relevant statutory provisions,
or
(b)performing any duty or exercising any right under the relevant statutory provisions,
or
(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,
or
(d)giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,
or
(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 Respondent submitted that having considered the evidence put before him the Rights Commissioner made the following Decision: -
“based on the evidence the claimant has not shown that any detriment that he considers he suffered was as a consequence of performing a protected action as outlined in Section 27(3)”.
The Respondent submitted that the Rights Commissioner’s Decision was correct in fact and in law and asked the Court to affirm it.
Conclusions of the Court:
Section 27(3) of the Act provides that “an employer shall not penalize or threaten penalization against an employee 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 Complainant submits that he made a representation to his employer relating to a matter connected with safety health or welfare at work. The nature of this representation was that he made suggestions to his superiors regarding a method of transmission of compressed gas through the network. The Respondent submitted that the proposals he made were technically inferior to the systems in use within the Respondent Company. They were not pursued further.
The Court is not satisfied that the representations the Complainant made were related to “safety health or welfare at work” within the meaning of the Act. The transmission of gas, whether compressed or otherwise, is a technical issue that is at the core of the Respondent Company’s operations. It is an engineering matter that the Court was told is kept under constant review by the relevant technical experts. The proposal in this case was in the nature of an engineering alternative to the method of gas distribution through the network. Whilst it may have had safety implications in general, as the distribution of gas inevitably has, it was not a matter connected with safety health or welfare at work.
Even if the Court is wrong in this conclusion, it can find no evidence to support the contention that the Complainant suffered any penalisation within the meaning of the Act resulting from the representations he made. Indeed it appears he was invited to develop the concept to a certain stage and given time and resources to do so. At a particular point the Respondent Company decided not to take the proposal any further and directed the Complainant to concentrate on other work. This appears to the Court to be a reasonable response by the Respondent Company and does not amount to penalisation within the meaning of the Act.
Moreover, the Court notes that some of the adverse treatment complained of by the Complainant predated his engagement with the compressed gas project. Accordingly, the Court can find no relationship between the representations, if any, the Complainant made regarding the proposed revised methods of compressed gas transmission and any alleged deterioration in his terms and conditions of employment that predated those representations.
The Court has considered the adverse conditions experienced by the Complainant that postdate the representations he made regarding the compressed gas transmission systems in use. These include aspects of his isolation from other staff in the department, the refusal of the Respondent Company to give him access to training courses for which he applied and the ultimate decision not to renew his contract of employment. On the information provided by the parties the Court can see no causal relationship between the representations the Complainant made regarding the compressed gas transmission systems and any of these events. The alleged isolation from other staff was explained by the Respondent Company as resulting from a shortage of space. The office in which the Complainant was located was shared with other members of staff both before and after his period of employment with the Respondent Company. When a desk became vacant in the main departmental office the Complainant was transferred to it until it was required for another staff member whose work was more closely integrated with other staff in that office. The Court does not find that the Complainant was denied access to training because of the representations he made to management regarding health and safety matters. The Court finds that this was related to the fixed-term nature of his employment and has addressed this issue in separate proceedings. The Court does not find that the termination of his employment was related to any representations he made regarding health and safety matters. The Court has addressed this issue in separate proceedings also.
Determination:
On the basis of the submissions made and the information presented to it the Court rejects the appeal and upholds the Decision of the Rights Commissioner.
Signed on behalf of the Labour Court
Brendan Hayes
16th April 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.