FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : AN GARDA SIOCHANA - AND - MS MAIRE O' REILLY DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-122705-hs-12/RG.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 26th February, 2013 and a Labour Court hearing took place on 23rd May, 2013.
DETERMINATION:
This is an appeal by Ms Márie O’Reilly against the decision of a Rights Commissioner in her complaint of penalisation against the Commissioner of An Garda S�ochána. The complaint was made pursuant to the Safety Health and Welfare at Work Act 2005 (the Act).
Ms O’Reilly is referred to herein as the Claimant and the Commissioner of An Garda S�ochána is referred to as the Respondent.
The complaint relates to the removal of the Claimant from the payroll of the Respondent on 2ndSeptember 2011. The complaint was referred to a Rights Commissioner on 14thMay 2012. The Rights Commissioner found that the complaint was out of time and that there was no basis upon which time could be extended.
The Claimant contends that her removal for the payroll arose as a reaction to a complaint that she made to the Respondent alleging bullying by a number of members of An Garda S�ochána and constitutes penalisation within the meaning of s.27 of the Act.
The Rights Commissioner found that the act alleged to constitute penalisation occurred on 2ndSeptember 2011. In consequence, the Rights Commissioner found that when the complaint was referred on 14thMay 2012 it was outside the time limit prescribed by Section 28(4) of the Act.
The Court is satisfied that the removal of the Claimant from the payroll on 2ndSeptember 2011 was the act relied upon in grounding her claim of penalisation. While the Claimant remains off the payroll, the fact that she is not now in receipt of remuneration is a consequence of the original act rather than a continuum of separate acts upon which a complaint of penalisation can be grounded. On that basis the Rights Commissioner was clearly correct in holding that the within claim was presented outside the statutory time limit.
The Court is further satisfied that no reason has been advanced which explains the delay and provides a justifiable excuse for the delay. According the Rights Commissioner was correct in not extending time within her discretion under Section 28(4) of the Act.
Finally, and for the sake of completeness, the Court should address the Respondent contention that the within claim is the same as that previously dealt with by this Court in Determination No. HSD127. The dispute to which that Determination related was between the same parties and was grounded on the same set of facts as the within claim. The Determination of the Court was not appealed and it therefore constitutes a final determination by a tribunal of competent jurisdiction of the issues being litigated in this case. On the legal doctrine of cause of action estoppel, orres judicata, the within claim could not, in any event, be pursued.
Determination
For the reason set out above the Court affirms the decision of the Rights Commissioner and the Claimant’s appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
27th May, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.