FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : ELECTRICAL REWIND SERVICE (LIMERICK) LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - JAMES EARLS (REPRESENTED BY MCMAHON ENGLISH SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-081195-hs-09.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 12th April 2008, and a Labour Court hearing took place on 10th January 2012.
DETERMINATION:
This is a claim by Mr James Earls against the decision of a Rights Commissioner in his claim of penalisation, within the meaning of s.27 of the Safety Health and Welfare at Work Act 2005, (the Act) against Electrical Rewind Services (Limerick) Limited. In this Determination the parties are referred to as they were at first instance. Hence, Mr Earls is referred to as the Claimant and Electrical Rewind Services (Limerick) Ltd is referred to as the Respondent.
The Claimant’s complaints were investigated by a Rights Commissioner who found them not to be well founded.
Background
The Complainant was employed by the Respondent from 1971 onwards as an electrical rewinder. In or about June 1991 he was elected by his co-workers as safety representative in the employment. He held that position for two years. In or about 1992 he was appointed as safety officer in the Company. This was a part-time position involving the provision of safety training, general safety policy within the employment and administering first-aid when necessary. The Claimant contends that from some time in 2007 onwards he was subjected to a regime of bullying and harassment by his co-workers. In March 2009 the Claimant instructed solicitors in relation to the treatment referred to and the matter was raised with the Respondent by his solicitors. The Respondent then instituted an independent investigation into these complaints. This independent investigation concluded that the Claimant had not been subjected to bullying as alleged. An avenue of appeal was provided to another external independent person who confirmed the findings of the original investigation.
The Claimant contends that he reported the bullying to which he was subjected to the General Manager of the Respondent on a number of occasions but no action was taken to prevent the treatment of which he complained. The Claimant contends that the failure of the Respondent to deal with his complaints adequately or at all, until the matter was raised by his solicitor, constituted penalisation within the meaning of s.27 of the Act. He made a complaint to a Rights Commissioner, pursuant to s.28 of the Act on 5thJuly 2009. The Rights Commissioner took the view that, having regard to the six-month time limit prescribed by s.28(4) of the Act, the cognisable period in relation to this complaint was the period beginning on 4thJanuary 2009. The Rights Commissioner refused an application to extend this time limit in accordance with subsection (4). He concluded that the Claimant had not been penalised within the statutory meaning during that period.
The Claimant’s case
The Claimant gave evidence in which he told the Court that he had been subjected to verbal abuse by his work colleagues over a prolonged period. He gave details of the type of conduct to which he had been subjected. He said that he had informed the General Manager of this conduct and asked that action be taken to have it stopped. He said that no action was taken by the Manager and the behaviour of which he complained continued. He said that this conduct had a profound effect on his general health and well-being. When asked to what he attributed this conduct he said that he believed that it was due to what he described as “begrudgery”. He told the Court that he felt that his colleagues may have felt that he was too close to the management of the Respondent or that he was seeking to get promoted.
The Claimant contends that the failure of the Respondent to deal with his complaints of bullying effectively or at all constitute a continuing act of penalisation and in these circumstances the Rights Commissioner’s application of a six-month time limit was inappropriate. In the alternative it was submitted that the time should be extended by a further six-months as provided for by s.28(4) of the Act.
The Respondent’s case
The Respondent denies that it failed to respond to the Claimant’s complaints of bullying. It contends that this matter was first raised with a Director of the Respondent on 7thJanuary by the Claimant. He was advised to put his complaint in writing in view of the seriousness of what was alleged. On or about 9thJanuary 2009 the Claimant went on sick leave. The certified cause of the Claimant’s absence was given as “acute stress in the workplace”. On 18thMarch the Respondent received a letter from the Claimant’s solicitors setting out complaints of bullying. Further correspondence ensued between the Respondent’s solicitors and the solicitors for the Claimant. The Respondent initiated an independent investigation into the Claimant’s complaints. This investigation finally reported in or about May 2010. It did not uphold the Claimant’s complaints of bullying. An independent appeal was then provided which upheld the original findings.
The Respondent denies that the Claimant made any complaint of bullying before January 2009.
The Respondent further submitted that the Rights Commissioner was correct in holding that any occurrences or omissions relied upon by the Claimant in the period before 4thJanuary 2009 are outside the time limit prescribed by s.28(4) of the Act and cannot be entertained in the present proceedings. The Respondent further contends that there is no basis upon which an extension of time should be granted.
Conclusions of the Court
In this case the Claimant is seeking redress for penalisation within the meaning of s.27 of the Act. In essence, the Claimant’s case is that the failure of the Respondent to prevent the bullying to which he was subjected constituted a continuing act of penalisation. That is the only matter before the Court and the case must be decided by applying the provisions of the Act to the facts established in evidence in so far as they related to the Claimant’s complaints of penalisation.
A number of issues were raised by the parties in the course of argument concerning the application of the statutory time limit and the associated question of whether or not the acts or omissions upon which the Claimant relied were a continuum. There were also questions of fact in issue concerning when the Respondent became aware of the Claimant’s complaints of bullying and the effectiveness of its response.
A further and more central issue arose as to whether the acts or omissions upon which the complaint is grounded are capable of being considered penalisation within the statutory meaning so as to give the Claimant a cause of action under the Act. This is a mixed question of law and fact involving an interpretation of the relevant statutory provision and applying the result to the facts established in evidence or admitted by the parties.
The Law
Penalisation is defined by s.27 of the Act 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,
Subsection 3 of s.27 prescribes the circumstances in which penalisation is rendered unlawful under the Act. It provides: -
- (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) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions
(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.
- (a) acting in compliance with the relevant statutory provisions,
What appears from these statutory provisions is that in order to constitute unlawful penalisation the act or omission relied upon must:-
- (a) involve an act or omission which detrimentally affects an employee with respect to any term or condition of his or her employment, `
(b) be an act or omission of his or her employer or of a person acting on the employer’s behalf, and
(c) be causally connected to one or more of the matters referred to at subsection (3) of s.27.
InIurie Panuta v Watters Garden World Ltd[2010] ELR 86 (a case involving victimisation under the Employment Equality Acts 1998 – 2011) this Court held that the concept of victimisation should be construed as widely and liberally as can fairly be done and should be given a wide ambit. A similar approach should be adopted in construing penalisation under the Act of 2005. However, while s.27(1) is cast in broad terms as including“any act or omission”, in accordance with the rules of statutory construction, these general words are limited in their broad and ordinary meaning by the context in which they appear and from the particular words that follow in subsection (2) of that section. Hence, the impugned conduct must be of a type referred to in subsection (2) or involve other punitive or detrimental conduct similar in nature to that referred to in subsection (2).
The Judgment of the House of Lords inShamoon v Chief Constable of the Royal Ulster Constabulary[2003] UKHL 11 (per Lord Hope at par 33) is authority for the proposition that the test for what constitutes a detriment is an objective one and the Court should consider if a reasonable worker would or might take the view that the treatment complained of was, in all the circumstance, to his or her detriment (see also the Judgment of Brightman LJ inMinistry of Defence v Jeremiah[1980] QB 87,at 104).
Section 27(1) of the Act also makes it clear that the determinant complained of must relate to the workers conditions of employment. It is the Court’s view that every contract of employment contains an implied term that the worker will be provided with a workplace free from bullying and harassment. Consequently, a failure by an employer to comply with that implied term can amount to the imposition of a determent in respect to the workers conditions of employment similar in nature to those mentioned in s.27(2).
Crucially, however, in order to come within the prohibition of the Act it is essential that the detriment be causally connected to one or more of the matters referred to at subsection (3) of s.27. Hence, a mere failure on the part of an employer to deal with a complaint of bullying and harassment (where such a failure is established on evidence) may amount to a contravention of other provisions of the Act or may give rise to liability at common law, it does not amount to unlawful penalisation within the statutory meaning if it is not so connected. Hence, as this Court has held inPaul O'Neill v Toni & Guy Blackrock Limited[2010] ELR 21, the detriment must have been imposed“for”having committed a protected act within the meaning of s.27(3) of the Act.
The Facts
The Claimant gave evidence in which he described the treatment to which he was subjected in considerable detail. In the course of his evidence he did not allege that either this treatment or the alleged failure of the Respondent to deal with his complaints was in any way connected to any of the matters referred to at s.27(3) of the Act. Rather, the Claimant attributed the conduct of his co-workers to personal animosity towards him. Furthermore, he did not seek to show any nexus between the claimed failure of the Respondent to prevent the conduct of which he complained to any protected act within the meaning of s.27(3) of the Act.
Findings
In these circumstances, even if the conduct complained of occurred, and even if the Respondent had failed to deal with these complaints as alleged, (and the Court makes no finding on either point) it would not amount to unlawful penalisation under the Act. In these circumstances the Court must conclude that the Claimant’s complaints of penalisation are misconceived.
In these circumstances it is unnecessary for the Court to address the other points raised in the appeal.
Determination
For all of the reasons set out herein the Court determinants that the decision of the Rights Commissioner be affirmed and the appeal disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
24th January, 2012______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.