HSD1314

This is an appeal by a Worker against the Decision of a Rights Commissioner in her claim of penalisation against a State Authority. The claim is taken under the Safety Health and Welfare at Work Act 2005 (the Act). At all times material to the within claim the Claimant was a teacher employed by the Respondent.

The claim is grounded on a contention by the Worker that she was penalised by the Respondent, contrary to s.27 of the Act, by being referred to a psychiatrist for assessment, being prevented from undertaking her teaching duties and in being removed from the Respondent’s payroll. The Respondent denies that it penalised the Claimant in the manner alleged or at all.

In this Determination the parties are referred to as they were at first instance. Hence, the Worker is referred to as the Claimant and the State Authority is referred to as the Respondent.

The Facts

Both parties made comprehensive written submissions and provided the Court with extensive documentary evidence on the material background to the case. Evidence was also tendered by the Claimant and by the human resources manager with the Respondent. From these submissions and documents together with the evidence adduced the following primary facts, as admitted or as found by the Court, emerged: -

• • The Claimant was a teacher employed by the Respondent at all times material to her claim. She was absent from work on sick leave over an extensive period in school years 2005/2006, 2006/2007 and 2007/2008. The Claimant was certified as unfit for work by a consultant psychiatrist in respect of all of these absences. The certificates issued did not specify the nature of the Claimant’s illness.

    On or about January 2008 the then Chief Executive of the Respondent consulted an occupational physician in relation to the Claimant’s continued absence and forwarded copies of the medical certificates furnished by the Claimant to that physician. As a result of advice received from the occupational physician the Chief Executive directed the Claimant to attend another specialist occupational physician for assessment. That direction was given on or about 18^thFebruary 2008.

    On or about 6^thJune 2008 the Claimant submitted a medical certificate to the Respondent stating that she was fit to return to work. On 24^thJune the Chief Executive wrote to the Claimant reminding her of his earlier direction that she attend an occupational physician for assessment.

    The Claimant attended an occupational physician for assessment, as directed, on or about 12^thAugust 2008. The occupational physician submitted her report to the Respondent on or about 15^thAugust 2008. This report recommended further assessment by a psychiatrist. The report also disclosed that the Claimant had attributed her symptoms to on-going difficulties at work including bullying and harassment.

    The Chief Executive of the Respondent sought further clarification from the occupational physician on the content of her report. The Respondent then arranged for an independent psychiatrist to assess the Claimant’s ability to resume her duties. On or about 22^ndSeptember 2008 the Claimant was told to attend this psychiatrist on 3^rdOctober. The Claimant, who had exhausted her entitlement to paid sick leave, was advised that she would be paid an ex gratia sum equal to her net pay until the assessment was completed. The Claimant failed to attend this appointment and a further appointment was made. The Claimant again failed to attend this further appointment. She was advised that the ex gratia payments would be discontinued if she failed to attend this appointment. The Claimant did not attend the appointment. The Claimant remained out of work and without salary.

The Claimant contends that she was prevented from working from June 2008, and denied her salary because she had made complaints of bullying and harassment at work. In advancing her claim the Claimant told the Court that the occupational physician by whom she was assessed did not identify any medical reason as to why she should not be permitted to resume her duties. Nevertheless, the Respondent’s Chief Executive continued to exclude her from the college at which she was employed. She contends that her own consultant psychiatrist had certified her as fit to resume her employment and she had never been furnished with any cogent explanation as to why that opinion had not been accepted and acted upon by the Respondent. The Claimant invited the Court to infer from these facts that the Respondent was motivated by a retaliatory disposition against her for having raised concerns concerning the safety of the environment in which she was required to work.

The Respondent denied that it was in any sense influenced by the health and safety concerns raised by the Claimant. It contends that the matters relating to health and safety were raised by the Claimant in her interview by the occupational physician in August 2008 whereas the process of having her independently assessed was taken in or about February of that year. It contends that the then Chief Executive was at all times actuated by a concern to ensure that the Claimant was fully fit to undertake her teaching duties. It contends that he was motivated by a concern to fulfil the Respondent’s duty of care to the Claimant and to discharge its duty to ensure the proper management of the school in which the Claimant was employed. Moreover, the Court was told that certain complaints had been made to the Respondent by students and parents in relations to the manner in which the Claimant discharged her teaching duties. According to the Respondent these matters would have to be investigated through a disciplinary process. In these circumstances the Respondent wished to ascertain if the Claimant was capable of dealing with these complaints.

The law applicable

This matter is before the Court by way of a complaint of penalisation within the meaning ascribed to that term by s. 27 of the Act. Hence, the Court is not concerned with the fairness of the treatment afforded the Claimantper se. Its sole function is to establish whether or not that treatment was caused by the Claimant having committed an act protected by s.27(3) of the Act.

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) [not relevant]

  (5)[not relevant]

  (6) [not relevant]

  (7) [not relevant]

Conclusions of the Court

Having considered the evidence before it the Court has come to the conclusion that the Respondent acted as it did because it believed that it was necessary to obtain an independent assessment of the Claimant’s capacity to return to her teaching duties. The Court is further satisfied that in light of the Claimant’s sickness record it was not unreasonable for the Respondent to require such an assessment. Furthermore, the fact that her absences had been certified by a psychiatrist rendered it appropriate that an assessment of her psychiatric health be undertaken. The reason for the Respondent’s continued refusal to allow the Claimant to return to work was her failure to attend for an assessment.

There is no evidence from which it could properly be inferred that the Respondent was influenced to any material degree by the complaints concerning health and safety that the Complainant made to the occupational physician by whom she has previously been assessed.

In these circumstances her claim of penalisation cannot succeed.

Determination

The Decision of the Rights Commissioner is affirmed and the within appeal is disallowed.

Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
22nd October, 2013Chairman



NOTE

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