HSD1313

FULL RECOMMENDATION

HSC/13/6

DETERMINATIONNO.HSD1313

(r-122789-hs-12)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005

PARTIES :

MICROSEMI IRELAND TRADING LTD T/A MICROSEMI IRELAND
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

DOMINIK ANDREZEKCZAK
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Mr Shanahan

SUBJECT:
1. An appeal against a Rights Commissioner's Decision r-122789-hs-12.

BACKGROUND:

2. This case concerns an appeal by a Worker of a Rights Commissioner Decision No: r-122789-hs-12 submitted to the Labour Court on 12th March 2013 in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act 2005. A Labour Court hearings took place on 4th September 2013.

The following is the Court's Determination:-

DETERMINATION:

This is an appeal by Dominik Adrjejczk (the Claimant) against the Decision of a Rights Commissioner in his claim of penalisation against Microsemi Ireland Trading Limited the Respondent). The Rights Commissioner held that the complaint was out of time in consequence of which he lacked jurisdiction to entertain the claim.

Time limit

The Claimant contends that he was penalised for having made a complaint of bullying. That complaint was made to the Respondent on or about 14^thDecember 2010. The within complain was presented to a Rights Commissioner on the 16^thMay 2012. In advancing its argument that the within claim is out of time the Respondent contends that since the complaint of bullying was made to the Respondent more than 6 months before the date on which the complaint was presented to the Rights Commissioner it cannot be entertained.

Section 28(4) of the Act provides: -

"(4) A Rights Commissioner shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of the contravention to which the complaint relates or such further period not exceeding 6 months as the rights commissioner considers reasonable."

On a plain reading of this subsection the time limit runs from the date of the contravention to which the complaint relates. The contravention to which this complaint relates is an act of penalisation and not to the complaint of bullying which, he contends, resulted in the alleged penalisation. Accordingly the Court cannot accept the Respondent submissions on this point.

The substantive claim

The Claimant’s case, as clarified to the Court, is that he was refused a facility to be represented by his union in a proposed investigation of his bullying complaint and that this refusal constituted an act of penalisation.

The relevant statutory provision is as follows: -

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.
- (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 insubsection (2)(a.

It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant 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 determent giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that“but for”the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.

In this case it is clear that the Respondent does not afford its employees trade union representation in relation to employment related matters. There is no evidence to suggest that the refusal to afford the Claimant trade union representation in this case was because of having made a complaint of bullying. Nor is there anything to suggest that if the Claimant had not made a complaint of bullying the Respondent would have afforded him trade union representation.

In these circumstances the Court must hold that the within complaint is not well founded.

Determination

While the Court does not uphold the Rights Commissioner Decision as to the application of the time limit it finds that the substantive complaint is not well founded.

Signed on behalf of the Labour Court

Kevin Duffy
CR______________________
17th September, 2013.Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.