HSD162

The Rights Commissioner, in a recommendation dated 15^thApril 2014, found that the Appellant was not in a position to outline breaches of the Act within the ‘operative period’ of complaint and found that the complaint was out of time.

Background

In the interest of dealing with this matter effectively and efficiently the Court decided to deal with the question of time limits as set out in Section 28(4) of the Act as a preliminary issue before dealing with the substance of the Appellant’s complaint. The Court, in making this decision, took account of the fact that the question of whether an act of penalisation had occurred within the cognisable period for this complaint could be determinative of the Court’s jurisdiction to deal with the Appellant’s complaint.

Section 28 of the Act provides as follows:

28.— (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.

The Appellant made his initial complaint to the Rights Commissioner Service on 19^thNovember 2013. The cognisable period for this complaint under the Act is therefore 20^thMay 2013 to 19^thNovember 2013. The Appellant at the hearing made no submission to the Court to extend the cognisable period.

Position of the Appellant

The Appellant set out to the Court that two issues arose in the cognisable period which in his view represented breaches of Section 27(3) of the Act. Firstly, the Appellant claims that the Respondent required the Appellant to take annual leave in order to attend a hearing of a Rights Commissioner on 29^thAugust 2013. That hearing related to complaints made by the Appellant under legislation other than the Act. The Appellant submits that other attendees were facilitated at such hearings as part of normal working time. The Appellant does not contend that he suffered financial loss as result of this event but rather that he suffered the detriment of loss of annual leave.

The Appellant also claims that he became aware in 2015 of events related to an injury he suffered and he contends that the employer disadvantaged him in that connection in the cognisable period. The Appellant stated to the Court that any detriment suffered by him in relation to matters unknown to him until 2015 were not, by reason of his lack of knowledge, part of his complaint to the Rights Commissioner made on 19^thNovember 2013.

Position of the Respondent

The Respondent contends that no issues relating to a Rights Commissioner Hearing on 29^thAugust 2013 were raised by the Appellant with the Respondent prior to a hearing of the Court on 30^thSeptember 2014. The Respondent contends that the complaint made by the Appellant on 19^thNovember 2013 was extensive and detailed and made no reference to a complaint arising from arrangements made to facilitate attendance by the Appellant at a Rights Commissioner Hearing on 29^thAugust 2013 which had been convened to consider complaints made under legislation other than the Act. The Respondent contended that it had no prior knowledge of a matter connected with an injury of the Appellant which was raised by the him at the Court’s hearing and submitted by him to be related to the cognisable period but stated by the Appellant to have been unknown to him until 2015.

The Respondent contended that the matter raised by the Appellant regarding attendance at a Rights Commissioner hearing on 29^thAugust 2013 did not form part of the complaint made on 19^thNovember 2013 and was therefore outside of the time limits set out in the Act when it was raised at a Court hearing on 30^thSeptember 2014. The second matter was not, by the Appellant’s own admission, known to the Appellant in November 2013 and could not therefore have been part of his complaint made in November 2013. This second matter was therefore, the Respondent submitted, raised by the Appellant outside of the time limits set out in the Act.

The Respondent contended that no act of penalisation had been established by the Appellant as having occurred between 20^thMay 2013 and 19^thNovember 2013 and therefore no complaint within the time limits specified at Section 28(4) of the Act had been put before the Court.

Discussion

The Court has considered this matter very carefully. The Court notes that the Appellant’s notice of Appeal and attached cover correspondence made no mention of either event now described by the Appellant as contraventions of the Act within the cognisable period. Similarly, the Appellant’s extensive submission received by the Court on 22^ndSeptember 2014, made no mention of either alleged contravention of the Act.

Section 27 of the Act provides 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,

• (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

(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 under section 11 or appointed under section 18 to 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.

The Appellant contends that the Respondent’s treatment of his attendance at a Rights Commissioner hearing on 29^thAugust 2014 was different to that experienced by other attendees on the occasion of their attendance at hearings of the Rights Commissioner Service of the then Labour Relations Commission. The Appellant contends that the Respondent’s requirement that the Appellant should take annual leave in order to attend that hearing is an act of penalisation under the Act.

The Court finds no evidence to support the contention that events related to a Rights Commissioner hearing held on 29^thAugust 2013 were matters complained of by the Appellant on 19^thNovember 2013. The Court finds that the Appellant first identified those events as an act of penalisation under the Act on 30^thSeptember 2014. The Court accepts that the Appellant may have raised matters related to his attendance at the Rights Commissioner hearing of 29^thAugust 2013 with the Respondent before that date but finds that any such engagement did not identify the matters under discussion as an act of penalisation within the meaning of the Act. Furthermore, the Court finds that the Appellant has not demonstrated any link between the events related to or arising from the Rights Commissioner hearing of 29^thAugust 2013 and any of the acts described at Section 27(3) of the Act.

The Appellant has confirmed to the Court that his complaint on 19^thNovember 2013 did not, by reason of his lack of knowledge, comprehend events related to an injury and which came to his knowledge in 2015. A complaint that the Respondent had penalised the Appellant within the meaning of the Act within the cognisable period of the complaint made on 19^thNovember 2013 and which arose from knowledge gained by the Appellant in 2015 could not have been made within the time limits set out at Section 28(4) of the Act. It is not the date of occurrence of an act of penalisation which is determinative of the Court’s jurisdiction under Section 28(4) of the Act. It is the date upon which a complaint as regards such an act is made which determines the Court’s jurisdiction. In the within case the Appellant seeks to have the Court consider a matter which he had no knowledge of until 2015 but which , he states, occurred during the cognisable period for the complaint made on 19^thNovember 2013. A complaint in relation to this event which the Appellant contends was an act of penalisation under the Act could not have been made until the Appellant possessed knowledge of the event. The Court finds that it has no jurisdiction in this appeal to consider this complaint of penalisation alleged to have occurred in the cognisable period for the complaint made on 19^thNovember 2013.

Determination

For the reasons set out above the Court determines that the Decision of the Rights Commissioner is affirmed and the appeal is dismissed.

Signed on behalf of the Labour Court



Kevin Foley
15th March 2016______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.