HSD163

This is an Appeal by Ms Teresa Renia Czapiewska (the Claimant) against a Rights Commissioner Decision made under the Safety, Health and Welfare at Work Act, 2005-2015 (the Act). The Claimant had contended that her employer, Turnkey Ventures Ltd, T/A Russell’s Bar (the Respondent) had penalised her within the meaning of Section 27(3) of the Act.

The Rights Commissioner in a Decision dated 18^thAugust 2015 found the claim to be well founded and awarded the Claimant the sum of €5,000 in compensation.

Position of the parties

The Claimant

The claimant suffered an injury at work on 14^thFebruary 2014. The claimant was certified unfit for work subsequent to that date and continued so until her dismissal by the Respondent by letter dated 5^thJune 2014. The Claimant’s solicitor wrote to the Respondent on 4^thJune 2014 setting out a range of matters related to health and safety in the workplace. That letter also confirmed an intention to file a claim with the ‘Injuries Board’. The Claimant contends that the letter of 4^thJune 2014 constituted an act conforming with the acts described at Section 27 of the Act and which is protected by the Act at Section 27. The Claimant contended that her dismissal on 5^thJune 2014 was a direct retaliation for the letter of 4^thJune 2015. Her dismissal was thus, she contends, a penalisation in contravention of Section 27(3) of the Act.

The Respondent.

The Respondent confirmed the termination of the Claimant’s employment by letter dated 5^thJune but contended that the termination of her employment arose from the implications of a downturn in the Respondent’s business. The Respondent asserted that the Claimant’s letter of 4^thJune 2014 had not been received by the Respondent prior to the termination of the Claimant’s employment on 5^thJune 2014. The Respondent therefore contended that penalisation had not occurred. The Respondent also contended that the content of the letter of 4^thJune 2014 was such as to mean that the letter did not constitute an Act protected by the Act at Section 27.

The Law

The Act provides that an employer may not penalise or threaten penalisation of an employee for carrying out certain acts. Section 27 (1) to (4) 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,
    (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 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).

Discussion

It is clear from the language of section 27 of the Act 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 detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act.

The Court, being satisfied that the act in response to which the Claimant contends she was dismissed was a protected act, must decide whether that act was in fact the operative reason for her dismissal.

This Court has held (Toni and Guy Blackrock Ltd and Paul O’Neill – Determination Number HSD095)

• In the instant case what is at issue is the motive or reason for the Claimant’s dismissal. That is to be found in the thought process of the decision makers at the time the decision to dismiss the Complainant was taken. That is something which is peculiarly within the knowledge of the Respondent. It would be palpably unfair to expect the Claimant to adduce direct evidence to show that the Respondent was influenced by his earlier complaints in deciding to dismiss him. Conversely, it is perfectly reasonable to require the Respondent to establish that the reasons for the dismissal were unrelated to his complaints under the Act.
  • Having regard to these considerations, it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.

It is common case that the letter from the Claimant to the Respondent is dated 4^thMay 2014. The Claimant confirmed to the Court that this letter was issued through standard or normal post on 4^thJune. As such there is no means for the Court to determine as a matter of certainty the point at which the letter was received by the Respondent. The Respondent asserts that the letter of 4^thJune had not been received by the time of the issue of a letter of termination of employment to the Claimant on 5^thJune and in any event states that the decision to dismiss her had been taken in May 2014.

The Court takes account of the fact that the Claimant had been absent from the Respondent's workplace since February 2014 and had, as of 5^thJune 2014, given no date of return to the Respondent. The Respondent states that the decision to terminate her employment and that of other employees was taken in May 2014. The Respondent asserts that the employment of those other employees had been terminated before 5^thJune 2015. The Respondent also confirmed that the Claimant was the only employee whose employment was terminated on 5^thJune 2015. The Respondent has not put before the Court any reason arising from the decision to terminate (stated to have been taken in May 2015) which would have particularised to 5^thJune 2015 the issue of a letter confirming termination of her employment to the Claimant.

The Court, on the balance of probability, finds that the Respondent’s decision to terminate the employment of the Claimant was taken on 5^thJune and that this decision followed receipt by the Respondent of the Claimant’s letter of 4^thJune.

The Court therefore must hold that the letter of 4^thJune 2014 was the operative reason for the dismissal of the Claimant and that her complaint of penalisation has been made out.

Determination.

The Court finds that the Claimant was penalised within the meaning of Section 27 of the Act. The Court further determines that the appropriate redress is an award of compensation. The Court measures the amount of compensation which is just and equitable having regard to the circumstances of the case at €5,000. The Decision of the Rights Commissioner is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
CR______________________
16th March, 2015Deputy Chairman



NOTE

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