FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : MINISTER FOR JUSTICE EQUALITY AND LAW REFORM & THE GARDA COMMISSIONER (REPRESENTED BY MR ANTHONY KERR B.L., INSTRUCTED BY THE CHIEF STATE SOLICITOR) - AND - JOHN HEALY (REPRESENTED BY MC GOVERN WALSH & CO. SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of a Rights Commissioner's Decision R-0912284-HS-10/SR.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of Rights Commissioner's Decision R-0912284-HS-10/SR. The dispute relates specifically to the Worker's claim that he has been treated in an inequitable manner by his Employer when he was redeployed to an alternative division of his employment having raised concerns on health and safety issues associated specifically with his role. The Employer rejects the Worker's claim, arguing that the Worker was redeployed to alternative employment in an effort to facilitate and address the Worker's health and safety concerns.
The Worker referred his case to the Rights Commissioner under Section 27 of the Health, Safety and Welfare at Work Act, 2005. The Rights Commissioner issued his Decision on the 14th January, 2011 as follows:
"I am satisfied that the Claimant was redeployed from the traffic corps by the Respondent because of the Claimant's perceived difficulties with performing all MAT duties and the fact that he was continuing to decline to perform these duties despite the expert medical evidence that it was safe to do so (with reasonable precautions)- and I am satisfied that this was the main reason for the decision to redeploy the Claimant. This was a reasonable decision for the Respondent to make in view of the evidence available to them, in particular the medical evidence and the continuing refusal of the Claimant to accept this medical evidence. I am satisfied that what occurred in this case does not constitute 'penalisation' as defined under the Act.
I declare that the complaint is not well founded; it is rejected and is not upheld".
The Worker appealed the Rights Commissioner's decision to the Labour Court on the 23rd February 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 24th October, 2012. A subsequent hearing took place on the 31st January, 2013. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by John Healy against the Decision of a Rights Commissioner in his complaint of penalisation against the Minister for Justice Equality and Law Reform and the Garda Commissioner. The claim was made pursuant to s. 27 of the Safety Health and Welfare at Work Act 2005. In this Determination John Healy is referred to as the Claimant and the Minister and the Garda Commissioner are jointly referred to as the Respondent.
Background
The relevant facts of this case are not in dispute and can be briefly summarised.
The Claimant is a member of An Garda S�ochána of Garda Rank. At the times material to his claim he was assigned to the Garda Traffic Corps and based in Letterkenny Garda Station. His duties included conducting mandatory alcohol tests. In or about July 2009 the Claimant became concerned that the hand held alcolyser device used to take breath samples from drivers could put the operator in danger of contacting or spreading the H1 N1 virus (swine flu).
The Claimant prepared a report setting out his concerns which he sent to the Sergeant in –charge of the Traffic Corps in Letterkenny. This report was passed through the management structure of the Force in Donegal. It was decided that advice should be obtained from the Chief Medical Officer of the Force on the matters raised by the Claimant. A report was subsequently received from the Chief Medical Officer dated 19thNovember 2009. In this report the Chief Medical Officer concluded that “With reasonable precautions the risk in this work can be well controlled”. The report went on to set out a number of precautionary measures that should be taken by those operating hand held alcolyser devices.
In the interim the Claimant had refused to conduct mandatory breath tests. He subsequently notified his superiors that he would not travel in any Garda vehicle in which an alcolyser was being transported. The Claimant’s concerns were not assuaged by the report of the Chief Medical Officer and he persisted in his refusal to undertake duties involving the transport or use of an alcolyser device.
The matter eventually came to the attention of the Chief Superintendent in charge of the District. The Chief Superintendent decided to redeploy the Claimant to normal policing duties in which he would not be required to undertake mandatory breath testing. While the Claimant was removed from the Traffic Corps he remained stationed in Letterkenny.
Position of the parties
The Claimant contends that his redeployment amounted to penalisation within the meaning of s.27 of the Act. This section provides: -
- 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.
(5)[not relevant]
(6) [not relevant]
(7) [not relevant]
Evidence
Evidence was given by Chief Superintendent Michael O’Sullivan who made the decision to redeploy the Claimant. This witness told the Court that he was informed that the Claimant was refusing to follow instruction to undertake mandatory breath test on motorists. He reviewed the file on the case. He noted the content of the Claimant’s report to his superiors and the concerns that he expressed therein. He also noted the report of the Chief Medical Officer in which it was stated that the risks of infection from the use of the alcolyser device were slight.
Chief Superintendent O’Sullivan testified that he considered if disciplinary action was appropriate but he decided against such a course because he believed that the Claimant’s stated concerns were genuinely held. In these circumstances the witness decided that the most appropriate course of action was to reassign the Claimant to other duties in which he would not be required to undertake the type of work to which he objected. The witness referred the Court to a letter which he had sent to the Superintendent in Letterkenny directing the redeployment of the Claimant. In this letter Chief Superintendent O’Sullivan pointed out that the Claimant should be assured that the redeployment was in response to his employer’s duty of care in accordance with Health and Safety legislation and nothing more. The Claimant was so informed in the subsequent notification which he received confirming his redeployment.
In cross-examination the witness denied that once assigned to the Traffic Corps members remain there unless they seek redeployment. He said that he could recall having redeployed members out of the Corps on two or three occasions for operational reasons. The witness also told the Court that it would be operationally impossible to relieve a member of the force assigned to the Traffic Corps from the duty of carrying out breath testing.
Conclusion
The essence of penalisation within the meaning of s.27 of the Act is that an employer imposes a detriment on an employee in retaliation for, or because of, the employees having committed a protected act of a type referred to at subsection (3) of the section. Thus the motive or reason for the employer’s actions is decisive. In this case Chief Superintendent O’Sullivan was faced with a situation in which the Claimant was refusing to undertake work that was an integral part of the duties of an Officer in the Traffic Corps. The Chief Medical Officer had found that the risks complained of by the Claimant were slight and could be ameliorated with reasonable precautions. The Claimant’s concerns were not assuaged by this advice.
In these circumstances the Chief Superintendent acted reasonably and was motived solely by a concern to accommodate the Claimant with duties that did not involve him in undertaking the work to which he objected. In these circumstances the decision to redeploy the Claimant could not be regarded as penalisation.
Accordingly the Court is satisfied that the decision of the Rights Commissioner should be affirmed and the appeal disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
6th February 2013______________________
SCChairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.