FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : IARNR�D �IREANN - AND - NICK P. NEARY DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-125770-hs-12/GC.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court. A Labour Court hearing took place on the 24th April and 14th May, 2013. The following is the Labour Court's Determination:-
DETERMINATION:
This is an appeal by Mr Nick P. Neary against the Decision of a Rights Commissioner in a complaint of penalisation made against Iarnr�d Eireann. The complaint was made pursuant to Section 27 of the Safety Health and Welfare at Work Act 2005 (hereafter referred to as the Act). The Rights Commissioner found that he was not penalised and did not find the worker’s complaint well founded.
For ease of reference in this Determination the parties are referred to as they were at first instance. Hence, Mr Nick P. Neary will be referred to as “the Complainant” and Iarnr�d Eireann will be referred to as “the Respondent”.
The Complainant referred his complaint to the Rights Commissioner on 30thAugust 2012.
Background
The Complainant is employed as a Senior Signalling Specialist in the Signal Maintenance Department, with responsibility for the technical aspects of the Respondent’s Maintenance Programme for DART Signalling.
The Complainant maintained that as a consequence of raisingsafety matterswith his employer he was penalised. Having previously informally raised the issues, on 1stMarch 2010 the Complainant formally raised complaints into safety critical aspects of equipment commissioning at a Level Crossing. The Complainant held that as a result of raising these concerns he was penalised by the Respondent
Summary of the Complainant’s case
The Complainant submitted that having raised the safety concerns with the Manager DART Signalling & National Telecomms, he was instructed by management on 10th February 2010 to continue with the commissioning as planned and when he questioned management regarding the safety validation issues raised he was removed from his commissioning activities and instructed to cancel the planned Commissioning.
He further raised the issue with the Chief Safety & Security Officer on 21stApril 2010, subsequent to this the commissioning of the Level Crossing was cancelled. And on 9th March 2011 he raised it with the manager of the Senior Signalling Technical Support with responsibility for Asset Safety and otherEngineers. Asset Safety was established under a re-structuring as a result of the introduction of Safety Management System (SMS).
He stated that he received an email from the Assistant Chief Executive Engineer, dated 9thJune 2011,warning him about his email practices and advising him as follows:-
- At this point I want you to consider the following please. The inappropriate use of emails and channels other than the SMS pose a risk in itself; the risk ofdistraction and delay. Again, and hopefully for the last time, can you please stop this practiceimmediately. Because of this concern, I have formally asked all of your line managers to not respond toany future extended email/letter/correspondence such as the one below - as this practice of yours isdetrimental to our SMS processes.
The Complainant told the Court that he felt that this was unacceptable behaviour by a Senior Manager, he arranged three meetings with him to ask him to retract this email and the instruction, butthe Assistant Chief Executive Engineerrefused. He said hewas left no option but to instigate a grievance procedure against him.
Following this, on 27th October 2011 the Assistant Chief Executive Engineer instigated a Mediation process with Corporate Industrial Relations Manager as the Mediator.
The Complainant stated that commissioning of Level Crossings and other safety equipment were being prepared for further commissioning works using S7 PLC without having safetyvalidation. He submitted that by this action he drew the conclusion that his concernswere not going to be addressed.
On the 29th March 2012 he informed the CEO that he intended to take his concerns to the Railway Safety Commission (RSC) with respect to Safety Validation and specific breeches of the Railway Safety Act 2005. On 6th April 2012 he was informed by the new Assistant Chief Executive Engineer (Mr. C) that the mediation process was to be put on hold due to the failure of SET to achieve safety validation of S7 PLC. At that time the CEO commissioned an investigation by the Chief Safety Officer into the complaints. The Chief Safety Officer completed a report into the proposed commissioning of the level crossing. The Complainant told the Court that he expressed his concerns in relation to the independence of the report and accordingly informed the RSC of his concerns on the 20thApril 2012.
The Complainant stated it was agreed that nine issues were to be the subject of mediation, many of which related to railway safety issue. Items (vi), (vii) and (ix) related to interpersonal workplace difficulties. These were identified,inter alia, in an email to the Assistant Chief Executive Engineering, Mr. Von 21stOctober 2011:-
.
- vi.A letter of apology from [Mr F] with respect to his actions towards me with respect to the commissioning at ….Level crossing. To also include an unequivocal acknowledgement that he was wrong to disregard my safety / technical concerns and should not have instructed me to undertake the commissioning without fully resolving the safety concerns raised and wrong to remove me from the commissioning process. An apology for trying to undermine my professional working relationships and for excluding me from technical forums and meetings as a consequence of having raised concerns with respect to the …. Commissioning.
vii.A letter of apology from [Mr J] for his actions in ignoring my Safety/ Technical concerns raised with respect to the use of the Siemen's PLC and the lack of a proper Safety Validation.
ix.Email Sent by [Mr V] on the 9th Jun 2011 to be unequivocally rescinded in writing and to be qualified by an apology. All recipients of previous Email to receive copy.
The Complainant submitted that the above issues were in the control of the Respondent to resolve and were not the responsibility of the Railway Safety Commission. He told the Court that the only mechanism he had left to resolve them at that stage was through the mediation process. He disputed management’s right to withdraw mediation as a result of him contacting the RSC. The Complainant contended that to remove his right to the mediation process removed his right as an employee to have his concerns addressed and to this day the above items remain open and unresolved.
The Complainant stated that all his claims of penalisation under the Act were encompassed by his singular complaint regarding the withdrawal of mediation and accepted that a number of the issues which were solely concerned with railway safety issues were not matters which the Court has jurisdiction for. The RSC issued an improvement notice to the Respondent in 2012, therefore the Complainant confirmed that only items number (vi), (vii) and (ix) in list for mediation were the matters which he sought to be resolved in terms of his complaint before the Court under the Act. It is on that basis that he sought redress under the Act.
At the hearing before the Court the Complainant stated that he was satisfied that the issues before the Court could best be resolved by a resumption of the mediation process to deal with the three non-safety related issues raised and he would welcome the appointment of an independent mediator, nominated by the Court.
Summary of the Respondent’s position
The Respondent rejects the Complainant’s claim that he was penalised for raising safety concerns. It contended that the complaints made by the Complainant’s alleging penalisation under Section 27 of the Act do notstand up to any reasonable scrutiny. It was submitted by the Respondent that it had alwaysdealt with the Complainant in aproactivemanner, givinghimanopportunityto be heard at all levels within the organisation, making job offers to him and taking on board the issues raised by him in an attempt to resolve the situation. However, the Complainant had effectively rejected all efforts.
The Respondent accepted that the Complainant raised safety matters issues in February/March 2010 and contended that it had gone to great lengths to deal with these issues along with the complaints which are the subject matter of this case. The Respondent accepted that the Complainant was correct to raise his concerns, and as a result of him raising these concernsthey were taken on board, the commissioning was stopped and Safety Validation was sought.
The Respondent stated that having raised his complaints which resulted in a halt to the commissioning the Complainant returned to his duties in relation to Signal Maintenance on the DART line,the duties which he continues to carry out today.
The Respondent stated that it is anxious to offer the Complainant a role which would utilise his considerable interests and abilities, that is in the development of Company Signaling Standards, such a role has been offered and is still available to him, but he has consistently stated that he will not take up any new position until this third party process is completed.
The Respondent refutes the Complainant’s contention that he has been overlooked for promotion, or that it hindered in anyway his career progression. It held that in fact it is clear that the Respondent has been reasonable in the extreme in the manner in which it has dealt with this particular aspect of the Complainant’s complaint.The Respondent explained that as part of a re-organisation, following the introduction of a new Safety Management System, applications were invited from suitably qualified people to take on the role of Senior Signaling TechnicalSupport.The Complainant applied for these positions and was interviewed along with the other applicants.Following the interview process the Complainant voluntarily withdrew his application for the position. It stated that following a number of engagements and attempts to resolve the Complainant’s perceived difficulties, theAssistant Chief Executive Engineering, Mr V.offered him a position working for the Signaling Technical Manager, Mr. K.This position was offered to the Complainant due to his strong technical abilities, and in an attempt to resolve the issues he raised as regards his employment relationship. The Complainant turned down the position offered.
The Complainant met with the Chief Executive, to discuss the safety and job related issues. During the course of this meeting the Complainant was asked if he would like to move to a different work area. He was subsequently offered a position in the development of Company Signaling Standards. The Complainant indicated he would neither, accept or reject the position until the issues he has raised in this referral are resolved.
With reference to the Complainant’s contention that his duties were transferred under a company reorganisation, the Respondent started that his allegation represented a serious misrepresentation of the facts. It stated that the Complainant formerly reported through three divisional maintenance structures, located at Pearse Station, Dublin. A re-organisation did take place which saw the signal maintenance function reporting through one management structure headed by the Chief Engineering Signaling, Mr. J. For the Complainant this necessitated a move in location from Pearse to Inchicore. The Complainant’s role and responsibilities remained the same, post this change, and no responsibilities were transferred from him, as contended by the Complainant.
With reference to the Complainant’s allegations of intimidation and specifically to the emailsinstructing other managers not to communicate with him, the Respondent stated that the Complainant only referenced one email, issued by the Assistant Chief Executive Engineeringin response to a lengthy e-mail from the Complainant,which was copied by the Complainant himself to a number of other Managers. The Respondent contended that thee-mail referred to did notissue any such instruction. It merely outlined that rather than writing lengthy e-mails of complaint,the Complainant should properly route such complaints through the Hazard Reporting System contained within the Safety ManagementStructure. This system is the most effective way of ensuring safety concerns are dealtwith, ishighly effective and in line with bestpractice Safety Management Systems.
The Respondent disputes the Complainant’s claims that he suffered isolation in the workplace or that he was excluded from meetings relevant to his role. It held that hesuffered no such isolation. Indeed it submitted that theComplainantat a point attended weekly maintenance meetings held each Thursday by his Senior Line Manager and other Managers involved in Signal Maintenance. For a period of time, for a variety of reasons these meetings did not take place. However in March of this year when the meetings were resumed and theComplainantwas invited to attend, he attended the first such meeting, but following that declined to attend in the future. When challenged on his refusal to attend theComplainantstated that we would not be attending because previous issues he raised had not been dealt with to his satisfaction.He also indicated that he felt such meetings were a waste of his time.
The Respondent contended that these meetings were a clear opportunity forComplainantto raise any issues he had and to outline his dissatisfaction if his issues had not been addressed, and if necessary escalate such issues to a higher level. His refusal to attend was unacceptable and in similar situations could have led to the instigation of disciplinary procedures. However the Respondent stated that in deference to the fact that at that this stage he was going through a process, it was decided to respect the sensitivity of these processes and not further complicate the situation with disciplinary action.
With reference to the Complainant’s position on the termination of the mediation process in which he was engaging in, he contended that the mediation process was withdrawn on foot of him escalating his safety related concerns to the Railway Safety Commission. The Respondent contested this assertion and stated that the Complainant hadagreed to enter a mediation process with the Corporate Industrial Relations Manager, with the aim of mediatinga resolution to the Complainant’s issues. Despite the extensive lengths,over a period of time to try and mediate such a resolution, the Complainant informed the mediator that he was taking his issues to the Railway Safety Commission. In his correspondence to the RSC the Complainant raised interpersonal workplace relations issues along with safety matters. Consequently, the Respondent submitted that as the Complainant had committed to a mediation process to deal with all nine issues, the Mediator took the view that a resolution was not going to be possible through mediation,and concluded that continuation of mediation wasinappropriate in the circumstances.
The Respondent contended that although it is not clear what boundaries were set at the beginning of the mediation process, it normally involves some rules and a degree of confidentiality and questioned how the mediation process could be effective when the Complainant dictated from the outset what he wanted to get out of the process.
In any event the Respondent notes the Complainant’s position now where he submitted to the Court that he wished to resume the mediation process in order to bring a resolution to the complaints made. The Respondent made it very clear to the Court that the Complainant was a highly valued employee and it was fully committed to reopening the mediation process and was most anxious to bring closure to the Complainant’s complaints.It too would welcome a resumption of the mediation process to deal with the three non-safety related issues raised and would similarly welcome the appointment of an independent mediator, nominated by the Court
Conclusions of the Court
The Court’s jurisdiction under this Act is limited and narrow in its application. It has jurisdiction to hear claims of penalisation referred under Section 27 only. The Court has no jurisdiction to hear allegations of breaches of safety, health and welfare at work under the Act and such allegations cannot in themselves form part of claims of penalisation or unfavourable treatment within the meaning of Section 27 of the Act.
Section 27 of the Act makes it clear that in order to make out a complaint of penalisation it is necessary for a Complainant to establish that the detriment of which he or she complains was imposed“for”having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act.
It is not disputed that the Complainant invoked the protection of the Act when he made complaints regarding safety matters in 2010. These matters were taken seriously by the Respondent; it fully engaged with him on the matters; halted the commissioning of the level crossing in question; suspended all commissioning until a Safety Validation Process was complete; commissioned an investigation by the Chief Safety Officer into the complaints and initiated a mediation process to deal with the nine issues outlined in his email to Assistant Chief Executive Engineering, Mr. Von 21stOctober 201.
The Court is satisfied that genuine attempts were made to resolve matters through the mediation process and it is of the view that by referring his concerns to the Railway Safety Commission that process was somewhat compromised, however it does not accept that the complete withdrawal of the mediation process was appropriate in the circumstances and accordingly is of the view that such withdrawal can be considered as a detriment within the meaning of the Act in circumstances where this arose directly as a result of the Complainant’s referral to the Railway Safety Commission.
The Court is of the view that the mediation process could have been suspended in the meantime, as was envisaged by the new Assistant Chief Executive Engineering, Mr. C in his email dated 6thApril 2012, when he stated that he wished to gain clarity from the Railway Safety Commission before management could move forward to address the other workplace relations issues raised which Mr. C stated were extremely important issues to the Respondent, however Mr. C felt they could not be properly addressed until the validation decision had been received.
Determination
The Court finds that the Complainant suffered a detriment within the meaning of Section 27 of the Act when the mediation process was withdrawn in August 2012 after the Complainant referred safety matters issue to the Railway Safety Commission in April 2012.
The appeal herein is allowed. The decision of the Rights Commissioner is set aside and substituted with a finding that the within complaint is well founded. Having regard to the circumstances of the case, the Court determines that the appropriate form of redress is that which is agreeable to both parties. The Court determines that the mediation process should be resumed and brought to finality with an agreed resolution to items (vi), (vii) and (ix) on the nine point list submitted by the Complainant to the Assistant Chief Executive Engineering, Mr. Von 21stOctober 2011. Furthermore the Court determines that an independent person should carry out this mediation and the Court will assist the parties in nominating such a person if requested. The Court determines that the process should be completed by not later than 5thJuly 2013.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
31st May, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.