HSD135

He made a formal complaint under Section 28(1) of the Act to the Labour Relations Commission in August 2011. A Rights Commissioner investigated the complaint and by a Decision dated 16^thFebruary decided that it was not well founded. The Complainant appealed against that Decision to the Labour Court. The case came on for hearing on the 11^thJune 2012. Following initial submissions the Court adjourned the hearing to allow for further submissions by both parties. The matter came before the Court again on the 22^ndJanuary 2013.

Complainant’s Position:

The Complainant submits that on examining turntable ladder TTL 09 D at the commencement of his shift on 20 February 2011 he recorded a defect in the vehicle and reported it to the Station Officer in Tara Street fire station. He submits that as the vehicle was unsafe to drive and was not inspected and repaired or approved by a qualified mechanic he refused on health and safety grounds to drive the vehicle until it was safe and fit for purpose. He submits that he was immediately thereafter transferred to other duties and the vehicle was assigned to another fire fighter for the duration of the shift.

He submits that on commencing his shift on the 27^thApril 2011, at Dun Laoghaire Fire Station, he carried out an inspection of turntable ladder TTL 84D and discovered a number of defects in the vehicle. He reported the defects to the Station Officer who instructed him to take the vehicle to the mechanical maintenance section for examination and repair. The garage mechanic was not in a position to make good the defects and decided to take the vehicle out of service. The Complainant reported back to the fire station. No replacement turntable ladder was available at that time. The Station Officer transferred him to Donnybrook Fire Station where he was assigned to drive a water tanker vehicle for the remainder of the shift. The Complainant submits that transfer to another station constituted an infringement of the Act and amounted to penalisation within the meaning of Section 27(c) of the Act.

On inspecting his equipment at the commencement of his shift on 13th June 2011 the Complainant identified a number of defects in turntable ladder vehicle TTL84D and submitted a verbal report outlining the details to the Station Officer in Tara Street Fire Station. He submits that the Station Officer indicated that no replacement vehicle was available and asked the Complainant and another named fire fighter to drive the vehicle. Both of them refused to do so. He submits that the Station Officer then called a meeting of all staff who were qualified to drive the impugned vehicle at which they were asked to volunteer to drive it for the duration of the shift. The Complainant submits that he was excluded from that meeting. Another fire fighter volunteered to drive the vehicle. The Complainant was assigned to other duties. The Complainant submits that he suffered penalisation within the meaning of the Act by being isolated and excluded from that meeting.

The Complainant submits that on the 17^thJune 2011 he was called to a meeting by a Station Officer and a discussion ensued in which his concerns regarding Turn Table Ladder vehicle TTL84D were discussed. He submits that there were three Fire Officers present at the meeting and that he was not given the opportunity to be accompanied or represented at the meeting. He submits that he was put under pressure regarding the complaints he made relating to TTL 84D. He submits that he was asked to account for his decision to refuse to drive the vehicle. He submits that he was then “threatened” with further training on the equipment. He submits that these actions amounted to penalisation within the meaning of Section 27 of the Act.

Respondents Position:

The Respondent rejects the Complainants submissions and denies having penalised him in respect of any of the incidents before the Court.

It submits that the Complainant is required to carry out equipment inspections at the commencement of each shift. The purpose of the inspection is to ensure that all equipment is fit for purpose, to record and report defects and to repair or replace faulty items of equipment. It submits that carrying out such an inspection and recording and reporting defects is an obligatory procedure that must be followed at the commencement of each shift and cannot in itself amount to a complaint within the meaning of Section 27 of the Act.

It submits that the Complainant was assigned to drive TTL 09D on Saturday 19^thJanuary 2011. It submits that in the course of the mandatory inspection of the vehicle at the commencement of the shift the Complainant recorded some defects with the field of operations of the equipment that limited its functionality for certain types of rescue but did not render it unsafe for use. The mechanical engineer on duty addressed the defect and the Complainant continued to drive the vehicle for the remainder of the shift. It submits that the Complainant made no complaint or representation within the meaning of the Act. It further submits that he suffered neither penalisation nor a detriment within the meaning the Act.

It submits that the Complainant inspected turntable ladder TTL 09D at the commencement of his shift on 20 January 2011 and identified some limitations on the vehicles field of operations and refused to drive the vehicle on safety and health grounds. He was assigned to other duties without adverse consequence for his terms and conditions of employment. The officer in charge was satisfied that while the vehicle had limited manoeuvrability it was safe to put into operation and accordingly was assigned to another fire-fighter for the remainder of the shift.

It submits that on the 27^thApril 2011 the Complainant in the course of the mandatory equipment inspection at the commencement of his shift identified, recorded and reported a defect with Turn Table Ladder 84D. He was instructed to take the vehicle to the mechanical engineering section for examination. The mechanical engineer on duty took the vehicle out of service and the Complainant reported for duty. As no replacement TTL vehicle was available, the Complainant was surplus to requirements in Dun Laoghaire fire station. There was a requirement in the Donnybrook Fire Station for a “Water Tanker” driver. The Complainant was licensed to drive a Water Tanker and accordingly was transferred to that station for the remainder of his shift. It submits that a liability to inter station transfer is a condition of employment for all fire fighters and occurs routinely in the Fire Brigade in order to match skills and operational needs on any given day. It submits that the Complainant suffered no detriment as a result of the reassignment. Instead he received an additional subsistence payment because he was relocated from his base that day. It submits that all other terms and conditions of his employment remained unchanged and unaffected by the transfer. It submits that another fire fighter on duty in Dun Laoghaire Fire Station who might have been transferred in place of the Complainant had been assigned other duties at that time and accordingly it was operationally more appropriate to reassign the Complainant for whom no alternative duties were available in Dun Laoghaire.

With regard to the incident on the 13^thJune the Respondent submits that the Complainant refused to drive TTL 84D. The Mobilisation Officer on duty took the view that the vehicle was fit for purpose as it had been inspected and granted certificates of road worthiness by specialist external suitably qualified consultants . Accordingly when the Complainant refused to drive the vehicle he sought an alternative driver from amongst those qualified fire fighters on duty. The Complainant was not isolated in this process. He was put under no pressure to drive the vehicle and suffered no detriment for so refusing to do so.

On 17^thJune the relevant officers of the Brigade decided that they needed to address the Complainant’s difficulties with TTL 84D. He was called to a meeting to discuss his concerns with a view to developing a plan to addressing them. This was not a disciplinary meeting and was not represented to him as such.

The Officers explained the findings of the external consultants and their recommendation that the operator be offered additional training to address his concerns. The Fire Brigade has a statutory obligation to ensure that staff members are sufficiently trained to carry out their duties. In this case it was clear that the Complainant was concerned about the safety of the vehicle and the Officers took the view that this could be addressed by way of further training. It submits that training involves no detriment for the Complainant and has no adverse impact on his status or terms and conditions of employment. It noted that following a subsequent meeting with another senior officer on this matter the Complainant agreed to drive the impugned vehicle without further training. No action was taken against the Complainant by the Respondent.

Findings of the Court

The Law:

Section 27 of the Act prohibits penalisation. The relevant parts of the Section provide;

• • 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 ofsubsection (1), penalisation includes:
    

    • (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—
    • (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,
    In this case the Employee submits that he made a complaint or representation within the meaning of Section 27 (3) (c) and that as a result he was penalised within the meaning of Section 27 (1) and in particular Section 27 (2) (c) (d) and (e) .

    There are therefore two issues for the Court to consider:

  
  1. Did the Complainant make a complaint or representation within the meaning of Section 27.

  2. Was he penalised as result within the meaning of Section 27 (2) (c) (d) or (e) ?.

• The Court does not accept that such mandatory inspection reports of themselves amount to a Complaint within the meaning of the Act. They are inspections and reports that all fire fighters are obliged to complete at the commencement of each shift. The question is do they become “complaints “ or “representations” when a defect is discovered and reported in the machinery or equipment being inspected. More importantly, if the person making the report is penalised as a result, does that convert the report into a complaint or representation.

  The Court takes the view that the protection afforded by the Act would be rendered nugatory if such reports were not considered to be complaints or representations within the meaning of the Act. Most issues regarding Health and Safety arise from what might on the face of them be termed reports. In making such a report the person outlines concerns and issues that may need to be addressed by the Employer. The Employee has identified issues which make it unsafe, in the Employee's opinion, to continue to use the equipment and in some cases to perform their duties and therefore, that report must come within the meaning of Representation under Section 27 (2)

In relation to the first representation on the 20^thFebruary 2011 the Employer took no action against the Complainant for making that representation and no evidence was presented to the Court that would show that he suffered any detriment as a result of that representation. Accordingly the Court finds that the complaint that he was penalised for making a representation or complaint regarding health and safety matters on 20th February 2011 is not well founded.

In relation to the representation submitted on 27th April 2011 The Court finds that as the vehicle was taken out of commission on foot of that report, the Complainant was then surplus to requirements in Dun Laoghaire Fire Station. As the Complainant is contractually liable to routine transfer between fire stations in the Dublin area and as his skills were in demand in Donnybrook Fire Station that night, the Court finds that the he was transferred in order to facilitate the decommissioning of the vehicle and to meet the operational needs of the service. The Court finds that this does not amount to penalisation within the meaning of the Act as the Complainant did not suffer a detriment with regard to his terms or conditions of employment for having made a complaint or representation.

In respect of the representation made on 13th June, 2011 the Court finds that the decision to assign other duties to the Complainant when he refused to drive TTL84D that day was taken in order to accommodate his health and safety concerns rather than penalise him for reporting them to his supervisor. Accordingly the Court finds that this complaint is not well founded.

Isolating an Employee who has made a complaint or representation under the Act would amount to penalisation within the statutory meaning of that term. However, the Court finds that the Complainant was not isolated when he was not invited to the meeting called by the Station Officer that day. The meeting was called to seek volunteers to drive the impugned vehicle after the Complainant indicated he was not prepared to drive it. As it was clear that the Complainant would not volunteer it was not unreasonable for the Officer involved to call those fire fighters that might volunteer to a meeting to address the issue. No other matters were discussed at the meeting and the Complainant was not excluded from involvement in any issues that would have affected him. Accordingly, the Court finds the complaint unfounded.

Finally the Court finds that the engagement between the Complainant and his line supervisors on 17th June did not amount to coercion or intimidation within the meaning of Section 27 (3) (e). The Officers involved had investigated the complaints he had made and established that the impugned vehicle was roadworthy and safe to drive. Nevertheless the Complainant continued to express doubts about the safety of the vehicle. When the external consultants suggested that he might benefit from additional training the Officers called him to a meeting to review matters and discuss the possibility of providing him with additional training in order to allay his fears. The Court finds that this does not constitute penalisation within the meaning of the Act.

Determination

The Court determines that the Complaints are unfounded and upholds the Decision of the Rights Commissioner.

The appeal is rejected.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
12th March, 2013______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.