FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : KATHERINE GORDON & COMPANY LTD (REPRESENTED BY BARRY M O' MEARA, SOLICITORS) - AND - A WORKER DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-145712-hs-14/JOC.
BACKGROUND:
2. This is an appeal by a worker (the Complainant) under Section 29(1) of the Safety Health and Welfare at Work Act 2005 (the Act). The Rights Commissioner decided that the Complainant was not penalised, within the meaning of the Act, or dismissed for acting accordance with the provisions of the Act. The Complainant appealed against that decision to this Court. The case came on for hearing on 14 October 2015.
DETERMINATION:
The Facts
Katherine Gordon & Company Ltd (the respondent) operates a small accountancy practice that operates out of an office in Cork. The respondent employed the complainant as and Accounting Technician commencing on 5 February 2013. The complainant suffered an industrial accident in her place of work on 25 November 2013. She reported the accident on an MC1 form which was received by the respondent on 6 December 2013. On the same date the complainant contacted the Health and Safety Authority about the accident. The Authority wrote to the respondent regarding the accident on the 11thDecember 2013. On the 13 December 2013 the respondent dismissed the Complainant from employment.
Position of the Parties
Complainant’s Position
The complainant, by way of submission, states that she was employed as an accounting technician from 5 February 2013 until she was dismissed from her employment on 13 December 2013. She states that she suffered an accident at work on the 25thNovember 2013 which she notified to her employer, the Department of Social Welfare and the Health and Safety Authority. She states that in doing so she was acting in compliance with the provisions of the Safety Health and Welfare at Work Act 2005 and was entitled to do so and not be penalised for so doing. She argues that she was subsequently dismissed from her employment without cause. She argues that the respondent argues that she was deficient in the discharge of her duties. She argues however that she was at no time notified or any such deficiency and no evidence of such was ever produced to her or to the Court. She argues that the decision to dismiss her from employment was related to and a consequence of the protected actions she took under the Act. She argues that this amounts to penalisation within the meaning of the Act.
Respondent’s Position
The Respondent argues that the complainant had been employed as an accounting technician. She had performed her duties in an unsatisfactory manner over a period of time that caused her to review her employment. She said in evidence that she received a number of complaints regarding the complainant’s performance. She said that in one case a client complained that his affairs had been handled in an un-professional manner. She said that in another case a client had complained of the quality of work the complainant had undertaken on his behalf. She said that she spoke to the complainant on a number of occasions regarding her work and that she was on notice that her employment was at risk if she did not improve. However she said that while she made notes on the client files of such conversations and in a Word document she did not have those notes with her in Court. She said that she decided to She said that she made the decision to dismiss the complainant on Friday 22ndNovember 2013. She said that she went home for the weekend to consider the matter further. She said that she discussed the matter with her co-director, her father who was old and not active in the business. However she made her mind up to dismiss the complainant and intended so advising her on Monday 25thNovember. She said that she was concerned that the complainant’s work performance had been less than satisfactory and that she was disruptive in the office. She said that she was concerned that the complainant would gain protection under the Unfair Dismissals Act 1974 and decided that the best option was to terminate her employment.
On the day the respondent had chosen to dismiss her, the Complainant had an accident at work. She said that the sequence of events is as follows. She said that the Complainant went sick on the 25thNovember after she had taken the decision to dismiss her from her employment. She said that the complainant submitted an occupational injuries form for completion by the Company on 2ndDecember 2013. She said that she attended to the form when she returned from a business trip on the 6thDecember. She said that the form was collected by the complainant’s husband. She said that she “inadvertently erased the section “Names and address of anyone who sat the accident happen”. She said that she had not filled in such a form before and was unfamiliar with the procedure. She confirmed that position in writing to the complainant by letter dated 9 December 2013. On the same day she again wrote to the complainant asking her to attend a nominated company doctor. In that letter she also asked the complainant to meet with her at the company offices during that week and invited her to contact her to arrange at time and date. She further offered to make transport available to bring her to the meeting should that prove a difficulty. The complainant offered to meet with her on the 11thDecember.
She said that she met with the complainant in her office on the 13thDecember. She said that the meeting was short as the complainant asked her to get to the point. She said that she told the complainant that she was not satisfied with her performance and that she was dismissing her. She then terminated her employment.
Issues for Decision
The Respondent raised a number of technical issues in the course of the hearing. The Court has confined itself to dealing with the issues that it found necessary to address in order to decide the case.
The Law
Section 27 of the Act in relevant part states:
- (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 ofsubsection (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,
- (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,
The jurisdiction of the Court is limited to complaints of penalisation within the meaning of section 27 of the Act. In Tony and Guy Blackrock Limited v Paul O’Neill HSD095 the Court considered the circumstances in which an infringement of section 27 may occur. It stated:
- 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 determent 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 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 determent.
In accordance with section 27 (2) (a) of the Act the Court, at a hearing on the 14thOctober 2015 gave the parties an opportunity to be heard and to present to it any evidence relevant to the complaint.
Based on the submissions made at that hearing and on the evidence presented to it the Court makes the following findings and determination:
Findings and Determination
The facts of the case are relatively straight forward. The respondent employed the complainant. She suffered an accident at work. She made a complaint to the HSA and notified the employer and the Department of Social Welfare of the accident. She states that these were protected acts within the meaning of the Act. She states that she was subsequently instructed to attend the Company’s doctor, was called to a meeting and was dismissed.
On the face of it the Complainant has made out the primary facts on which she relies. She undertook protected actions and was subsequently dismissed. The burden lies with the respondent to show that the protected actions were not an operative factor in the decision to dismiss.
The respondent went about discharging that burden by giving evidence to the court. In that evidence she outlined a series of performance issues she had with the complainant. She stated that she so notified the complainant of those shortcomings and that she was aware that her employment was at risk. She said she decided to dismiss the complainant on the 22 November 2013 three days before the she suffered the injury. She states as a matter fact that she could not therefore have been influenced in that decision by an event or action that took place after that date.
She explains the delay in taking the actions against the complainant in the context of the accident she suffered. She said that she did not dismiss her on the 25thas planned as the accident occurred that day. She said she did not want to act peremptorily after that and allowed some time to elapse before she called her in to dismiss her. She said that it was not feasible to dismiss her any earlier than the time she did. She said that she was very busy with the year end tax returns for her clients in October and November. She said that she subsequently received a number of complaints, two were outlined to the court, regarding the complainant’s performance. She said that she dealt with those and at that point she took reflected on the position and planned to take action. She said she was also mindful that the complainant would have accrued rights under the Unfair Dismissals Act in February 2014 and she was anxious to avoid that. She said that she had advised the complainant that her performance was not satisfactory and that her employment was at risk. She said that she did not put those discussions on a formal footing and that she acknowledged deficiencies in that regard. She said that she made some notes but did not have them available to the Court.
The Complainant did not give evidence to the Court to rebut the assertions of the respondent. Accordingly the Court has accepted that evidence that was not rebutted by the complainant.
The question for the Court is whether the respondent’s explanation is credible and reasonable given the sequence of events that took place.
In deciding the matter the Court has taken into account the evidence of the respondent. It found her an honest person who gave her evidence in a clear and concise manner. She was credible and honest and the Court found her convincing.
Having listened to her and considered the totality of the evidence before it the Court finds that the Respondent did in all probability tell the complainant that her performance was not meeting her expectations and that her employment was in jeopardy. In that regard the Court notes that the Complainant did not deny nor offer any evidence to contradict that statement.
The Court also finds credible the respondent’s evidence that she decided to dismiss the Complainant on the 22ndNovember 2013 and intended acting on it on the 25thNovember 2013. The Court finds the respondent’s evidence that she did not proceed with her intended actions on the25thwhen the complainant suffered an accident at work. She did however proceed in December after a reasonable time had passed and the complainant was receiving treatment for her injuries. She sought to have her attend the company doctor, a reasonable requirement, from her point of view. She also invited her to the meeting she intended having with her on the 25thNovember.
That meeting itself was short. It is common case that the complainant asked the respondent to get to the point. She did so without delay and without equivocation.
Taking all things into account the Court finds that the respondent has done sufficient to show that the protected actions undertaken by the complainant were not an operative factor in the decision to dismiss the complainant on the 25thNovember 2013. The decision to dismiss was deferred when the complainant suffered an industrial accident that day but was implemented on the 13thDecember. Accordingly the Court finds that there was no connection between the protected acts undertaken and the detriment suffered by the complainant.
The Respondent raised a number of technical issues in the course of its submissions to the Court. The Court has not addressed those issues as they were not necessary to dispose of the matter before it. Accordingly the Court has made no determination on those matters.
Determination
The Court determines that the complaint is not well-founded. The appeal is dismissed and the decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Brendan Hayes
10th November, 2015______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.