HSD1311

Background
The case came before the Court by way of an appeal by Ms Hazel Delahunt against the decision of a Rights Commissioner in her claim of penalisation, contrary to s.27 of the Safety Health and Welfare at Work Act 2005 (the Act). The claim is against the Commissioner of An Garda S�ochána. In this Determination Ms Delahunt is referred to as the Claimant and the Commissioner of An Garda S�ochána is referred to as the Respondent.

The Claimant is a member of An Garda S�ochána of Sergeant Rank. At all times material to her claim she was (and remains) Sergeant-in-Charge attached to a Garda Station in Co Tipperary. The Claimant made a complaint to a Superior Officer concerning a matter of health and safety in her place of work on or about 8^thFebruary 2012. It is accepted that this complaint constituted an act protected by s.27(3) of the Act. Subsequently the Claimant became the subject of a number of investigations pursuant to the Garda S�ochána (Discipline) Regulations 2007 (S.I. No.214 of 2007). The Claimant contends that the initiation of these investigations constitute acts of penalisation within the statutory meaning of that term.

The Claimant also contends that the refusal of a Chief Superintendent to allow her to be represented by the Association of Garda Sergeants and Inspectors at a meeting held on or about 1^stMarch 2012 constituted a further act of penalisation. Finally the Claimant contends that the terms of a letter sent by the Chief Superintendent to her Solicitors in relation to complaints made against her constitute a further act of penalisation.

The Claimant presented her complaint to a Rights Commissioner on 15^thJune 2012. At that time no disciplinary sanction had been imposed on the Claimant arising from the investigations under the Disciplinary Regulations.

It is clear that for the purpose of this case the cognisable period is that beginning on the date on which the Claimant made her complaint (8^thFebruary 2012) and the date on which the within complaint was presented to a Rights Commissioner (15^thJune 2012). Incidents of adverse treatment which may have occurred prior to 8^thFebruary 2012 could not have been causally connected to her complaint of that date. Nor could incidents that may have occurred after the 15^thJune have been comprehended by the complaint presented to the Rights Commissioner on that date.

The complaint was investigated by a Rights Commissioner under s.28 of the Act over two days. In a fully reasoned and comprehensive decision issues on 19^thMay 2013 the Rights Commissioner found that the complaints were not well founded. The Claimant appealed to his Court pursuant to s.29 of the Act.

Penalisation

Statutory Provisions
Section 27 of the Act provides: -

• • (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.

    (4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

    (5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

    (6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

    (7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

  
  
  
  

Circumstances in which the Court will decide a Preliminary Question
There are limited circumstances in which a preliminary point should be determined separately from other issues arising in a case. Normally this should only be done where it could lead to considerable savings in both time and expense. Furthermore, the Superior Courts have taken the view that an application for a preliminary determination can only apply to a question of pure law where no evidence is needed and where no further information is required (See judgement of O’Higgans CJ inTara Exploration & Development Company Limited v Minister for Industry & Commerce[1975] IR 242)

In the instant case it is clear that extensive oral evidence will be required to establish the factual background against which the impugned investigations were initiated. That would involve considerable time and expense. If, however, the Respondent is correct in its submission that the initiation of an investigation, without more, cannot amount to a detriment within the statutory meaning the within complaint would at best be premature and at worst misconceived. In either case the taking of evidence would be in vain and involve a waste of resources.

In these circumstances the Court decided to give a preliminary decision on the question of whether, as a matter of law, what is alleged by the Claimant is capable of grounding a claim of penalisation within the meaning of s.27 of the Act. In undertaking that exercise the Court, with the agreement of the parties, proceeded on the basis that it would take the material facts alleged by the Claimant in her written submission to the Court at their height. Accordingly, the question which the Court must ask itself is whether, if all the facts alleged by the Claimant were proved in evidence, would her claim of penalisation be sustainable in law.

Discussion
The language of s.27(1) and (2) requires careful consideration in order to ascertain its true import. Subsection (1) of this section refers to a‘detriment’. While this term is not defined by the statute its meaning has been judicially considered in a number of UK authorities. InKhan v Chief Constable of West Yorkshire Police[2001] UKHL 48,[2001] 4 All ER 834, [2001] 1 WLR 1947, the House of Lords, per Lord Hofmann, in drawing on earlier authorities held: -

• 'A person may be treated less favourably and yet suffer no detriment. But, bearing in mind that the employment tribunal has jurisdiction to award compensation to injury to feelings, the courts have given the term “detriment” a wide meaning. InMinistry of Defence v Jeremiah[1979] 3 All ER 833 at 841,[1980] QB 87 at 104Brightman LJ said that “a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment”.

• “The statutory cause of action which the appellant has invoked in this case is discrimination in the field of employment. So the first requirement, if the disadvantage is to qualify as a 'detriment' within the meaning of art 8(2)(b), is that it has arisen in that field. The various acts and omissions mentioned in art 8(2)(a) are all of that character and so are the words 'by dismissing her' in s 8(2)(b). The word 'detriment' draws this limitation on its broad and ordinary meaning from its context and from the other words with which it is associated.Res noscitur a sociis.As May LJ put it inDe Souza's case[1986] ICR 514 at 522, the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work.”

Paragraphs (a) to (e) of subsection (2) of s.27 particularise the type of impositions that can give rise to penalisation although it is clear from subsection (1) that the list is not exhaustive. Before the Rights Commissioner the Claimant appeared to rely on paragraph (d) of subsection (2);imposition of any discipline, reprimand or other penalty (including a financial penalty),although it is clear that at the time that the complaint was presented no such sanction had been imposed. In the course of the appeal the Claimant also relied on paragraph (e) of the subsection;coercion or intimidation.

The word ‘coercion’ connotes some form of action, without lawful authority, which is directed at compelling a person to do or to abstain from doing, any act that the person has a right to do or abstain from doing (see, for example, s.9 Non-Fatal Offences Against the Person Act 1997). Intimidation, as a tort, is generally understood as comprising the infliction of harm by the use of unlawful threats whereby the liberty of others to do as they please is interfered with (see Murdoch’s Dictionary of Irish Law, 4^thedition, 2004).

On a plain reading of s.27(1) of the Act penalisation arises where an employee is brought to a detriment in“respect to any term or condition of his or her conditions of employment”for having committed a protected act within the meaning of subsection (3) of that section. In construing this provision the Court must apply the established presumption that all words bear a meaning. InCork County Council v Whillock[1993] 1 IR 231, O’Flaherty J, stated, at par 237,: -

• “…a construction which would leave without effect any part of the language of a statute will normally be rejected”

• “There is abundant authority for the proposition that words are not used in a statute without a meaning and are not tautologous or superfluous, and so effect must be given, if possible, to all the words used, for the legislature must be deemed not to waste its words or say anything in vain”

It would, however, in the Court’s view, be going too far to hold that the initiation of a disciplinary investigation could never amount to a detriment within the statutory meaning. It is generally accepted that every contract of employment contains a term implied by law placing the parties under an obligation of mutual trust and confidence. This implied term was described by Arnold J. in the UK case ofCourtaulds Northern Textiles Limited v Andrews[1979] IRLR 84 as follows: -

• “The employer will not, without proper reason and cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties”

The Circumstances leading to the investigations
The impugned investigations were initiated under Regulation 14 of the Garda S�ochána (Discipline) Regulations 2007 (S.I. No.214 of 2007). This Regulation deals with what are described as ‘less serious breaches of discipline’. Regulation 14 provides: -

• 14. (1) Where -
  • • • (a) it appears that a member may be in breach of discipline and subject to one of the disciplinary actions specified in paragraph (3), and

        (b) the breach is not being dealt with under Regulation 10,

        • a member not below the rank of superintendent (in these regulations referred to as a “deciding officer”) shall be appointed to investigate the alleged breach and interview the member concerned.
      (2) The appointment shall be made by a member (in these regulations referred to as an “appointing officer”) who is not below the rank of chief superintendent.

      (3) The following disciplinary actions are specified for the purposes of paragraph (1):

      • (a) reduction in pay not exceeding 2 weeks' pay,

        (b) reprimand;

        (c) warning;

        (d) caution, or

        (e) advice.

      (4) A reduction in pay under paragraph 3(a) shall not, in respect of any breaches of discipline arising out of the same set of circumstances, exceed 2 weeks' pay, and the amount deducted in any one week shall not exceed 10 per cent of weekly pay.

      (5) The appointing officer shall ensure that the deciding officer has not been involved in any capacity in relation to an earlier aspect of the case.

      (6) Subject to paragraph (7), the deciding officer may, before or during an interview with the member concerned or during any adjournment of such an interview, undertake any enquiries, and adopt any procedures, that he or she considers necessary, with a view to, in particular -

      • (a) establishing the facts of the matter under investigation, and

        (b) identifying or resolving any conflicts or differences that may come to light during the investigation.

      (7) The deciding officer may direct a member not below the rank of inspector to undertake any of the enquiries mentioned in paragraph (6).
    
    

The salient facts giving rise to the investigations complained of, as asserted by the Claimant, can be summarised as follows: -

The Claimant was appointed as Sergeant- in-Charge in the Garda Station to which she was attached in or about May 2011. Both she and a male Sergeant were candidates for the position. According to the Claimant her appointment resulted in the relationship between her and her colleagues becoming somewhat virulent. She contends that her colleagues and particularly the unsuccessful candidate for the post of Sergeant-in- Charge refused to accept her authority. She sought the intervention of Superior Officers in order to address the situation. The Claimant raised her concerns with the Superintendent responsible for her district. She asserts that rather than providing assistance in addressing this situation, the Superintendent adopted an attitude of hostility towards her.

On or about 8^thFebruary 2012 the Claimant made a complaint to the Garda authorities alleging a contravention of the Act in relation to her treatment by the Superintendent.

The Claimant also raised these matters with the Chief Superintendent in charge of the Division. It appears that the Chief Superintendent had received complaints from members of the force concerning the Claimant’s conduct in relation to the discharge of her duties. On or about 14^thMarch 2012 the Chief Superintendent appointed an officer as deciding officer to investigate complaints against the Claimant pursuant to Regulation 14(1) of the 2007 Regulations. These complaints related to incidents that allegedly occurred in 2009 and 2011. Two further investigations into the Claimant’s conduct were initiated under that provision of the Regulations on or about 21^stMay 2012 and 31^stMay 2012.

The Claimant contends that the temporal proximity of the initiation of these inquires and the making of her complaint under the Act point toward a causal connection between them. At the time she presented her complaint to the Rights Commissioner none of these inquires has been brought to a conclusion.

Question for Determination

The question for determination at this stage in the appeal is whether the initiation of these inquiries is capable of constituting a detriment within the meaning ascribed to that term by s.27(1) and (2) of the Act. The investigations were initiated by the Chief Superintendent pursuant to a statutory power. Under paragraph 22 of the Schedule to the Regulations a member of the Force is obliged to cooperate with any enquiry under the Regulations. Hence, it seems clear that exposure to such an enquiry, where an officer of sufficient rank considers it necessary for the proper management of the force, is integral to the conditions under which a member of An Garda S�ochána is employed.

The Claimant has not made any allegations ofmala fidesagainst the Chief Superintendent nor is there anything in her submissions to the Court to suggest that the initiation of these enquiries amounted to a misfeasance of her office. Except in circumstances in which it is alleged that the initiation of enquiries of this nature was actuated by malice or calculated to undermine the relationship of mutual trust and confidence between the parties (which is not alleged) the Court cannot see how they can be regarded, as a matter of law, as amounting to a detriment in respect to a term or condition of employment within the meaning of s.27 of the Act. Accordingly, the Court must hold that the Claimant was not brought to a detriment in respect to a term or condition of her employment by the initiation of the impugned investigations.

Refusal of Representation

The Court has also considered if the refusal of the Chief Superintendent to allow the Claimant to be represented by the AGSI at a meeting held on 1^stMarch 2012 could amount to a detriment within the statutory meaning. It appears that the Claimant attended this meeting believing that it was for the purpose of discussing her complaint in relation to health and safety. However, at the meeting the Chief Superintendent informed her that she (the Chief Superintendent) wished to discuss her concerns concerning poor levels of morale at the station to which the Claimant was attached. It is accepted that the Claimant’s complaint was not in fact discussed at this meeting.

It is noted that where a member is being interviewed as part of an investigation under the Regulations he or she is entitled to be accompanied by a representative of a Garda Representative Association (see Regulation 15(3)(c) of the 2007 Regulations). The meeting in question was not for the purpose of such an investigation and there is nothing before the Court to suggest that the Claimant was entitled under her terms and conditions of employment to representation at a meeting outside the terms of the Regulations. In these circumstances the Court must hold that the refusal to allow the Claimant representation at this meeting could not amount to a detriment in respect to a term or condition of her employment.

Correspondence with the Claimant’s Solicitor
Finally, the Court has considered if the terms of a letter sent by the Chief Superintendent in reply to a letter from the Claimant’s solicitors amounted to a detriment for the purposes of the Act. The Court has considered the terms of this correspondence and it is unable to identify anything contained therein which could be construed as imposing a detriment on the Claimant in respect to a term or condition of her employment.

Conclusion
For all of the reasons set out herein the Court has come to the conclusion that, as a matter of law, the acts and omissions relied upon by the Claimant in grounding her complaints of penalisation are incapable of amounting to a detriment within the meaning of s,27 of the Act. In these circumstances her claims are unsustainable and her appeal cannot succeed.

The Court must disallow the within appeal and affirm the decision of the Rights Commissioner

Signed on behalf of the Labour Court



Kevin Duffy
3rd September 2013______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.