HSD164

The Appellant was employed by the Respondent from March 1985 and continues in employment. At all material times he occupied the post of Station Officer in the Retained Fire Service.

The Case

The Appellant clarified to the Court that the alleged contravention of the Act which is before the Court is a complaint that the Respondent did not respond appropriately to a complaint made by the Appellant in June 2013 to the management of the Retained Fire Service. That complaint was to the effect that two members of the service stationed at the location where the Appellant was Station Officer were unfit to carry out their duties due to issues of physical capacity. The Appellant contended that the failure of the Respondent to react appropriately to the complaint made in June 2013 constituted an omission by the Respondent which constituted penalisation within the meaning of the Act at Section 27(1).

The Respondent contended that the Appellant’s claim was submitted out of time and, in the alternative, no penalisation of the Appellant had taken place.

Discussion

It is common case that the Appellant made a complaint to the Respondent by e-mail on 27^thJune 2013. The Appellant believes that the Respondent should have responded to a complaint that two firefighters were unable to carry out their duties by reason of a lack of physical capacity by arranging an adequate assessment of the firefighters concerned. The Appellant contends that the respondent’s failure to carry out such an assessment constituted an omission.

The Respondent stated to the Court that the two firefighters concerned were, as part of normal procedure in the Retained Fire Service, certified fit for duty following medical examination. The Respondent contended to the Court that there was no basis for it as an employer to put in place a fresh medical examination of two firefighters who fulfilled normal criteria as regards medical certification of their fitness to carry out their role. The Respondent contended that such an action by the Fire Service would have been unfair and prejudicial to the staff members concerned.

The Court must first consider the decision of the Adjudication Officer / Rights Commissioner that she did not have jurisdiction to deal with the complaint made under the Act. The complaint was made on 17^thNovember 2014. The cognisable period for any complaint made on that date is, in accordance with the provisions of the Act at Section 28(4), 18^thMay 2014 to 17^thNovember 2014 “or such further period not exceeding 6 months as the rights commissioner considers reasonable” [the Act at Section 28(4)]. The Adjudication Officer / Rights Commissioner in her decision recorded that no reasonable cause had been advanced for an extension of time. No submission has been made to the Court seeking an extension of time in the within case.

The Appellant in addressing this matter at the hearing of the Court contended that the Respondent’s failure to respond appropriately to the complaint made on 27^thJune 2013 was a continuing failure or omission for as long as the Respondent did not take steps to medically assess the two firefighters who were alleged to be unfit to carry out their duties by reason of physical incapacity.

The Court cannot accept this reasoning. The Appellant made a complaint on 27^thJune 2013. No medical assessment of the two firefighters concerned took place on foot of that complaint at that time or since. Any contention that the Respondent failed to act appropriately in relation to the complaint of the Appellant must relate to a failure to act in reasonable proximity of time to the date the complaint was made.

The Court finds that the complaint to the Rights Commissioner / Adjudication Officer was out of time.

Determination

The Court determines that the complaint made to the Rights Commissioner / Adjudication Officer was out of time and the Appeal fails. The decision of the Rights Commissioner / Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
LS______________________
7 June 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.