HSD174

This is Ms Murphy’s (“the Complainant”) appeal from the decision of an Adjudication Officer (ADJ-00000010, dated 16 August 2016). The Adjudication Officer found that the Complainant had not been penalised by her employer, Wexford County Council (“the Respondent”), within the meaning of section 27 of the Safety, Health and Welfare Act 2005 (“the Act”). The Notice of Appeal was received by the Court on 21 September 2016. The Court heard the appeal in Wexford on 16 March 2017.

Parties’ Submissions

The Complainant is employed as an Executive Scientist in the Respondent’s Environmental Waste Enforcement Section. She submitted a 35-page document to the Court in advance of the hearing of her appeal. This document outlines a litany of adverse consequences the Complainant believes she has experienced in the workplace as a result of having relayed to management in December 2011 concerns raised to her by two members of the public about the work practices of her then colleague (Ms TB). The Complainant submits that her action in raising those concerns about her colleague come within the meaning of section 27(3) of the Act. She further submits that her action in December 2011 was causative of all the ensuing difficulties and negativity she has experienced at work at the hands of both management and colleagues.

The Respondent’s formal submission to the Court is that the principal events which Complainant complains of as constituting penalisation within the meaning of section 27 of the Act occurred in 2012 but were not the subject of any complaint to the Workplace Relations Commission until 1 October 2015 and were not therefore presented within time. The Respondent does not concede that the acts complained of constitute penalisation.

The Law

Section 27 of the Act provides:

• “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—
  • 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,
    demotion or loss of opportunity for promotion,
    transfer of duties, change of location of place of work, reduction in wages or change in working hours,
    imposition of any discipline, reprimand or other penalty (including a financial penalty), and
    coercion or intimidation.
  (3) An employer shall not penalise or threaten penalisation against an employee
  for—
  • acting in compliance with the relevant statutory provisions,
    performing any duty or exercising any right under the relevant statutory provisions,
    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,
    giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,
    being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or
    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.”

Discussion and Decision

In order to succeed in a claim under section 27 of the Act, a complainant must (i) demonstrate something that brings him or her within section 27(3); (ii) give evidence of having suffered a detriment within the meaning of section 27(1) and (2); and (iii) show a causal connection between (i) and (ii).

InToni & Guy Blackrock v O’Neill, this Court expressed the foregoing in the following terms:

• “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 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. 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 detriment.”

The exhaustive list of actions comprise the following:

• “acting in compliance with the relevant statutory provisions,
  performing any duty or exercising any right under the relevant statutory provisions,
  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,
  giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,
  […] or
  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.”

It appears to the Court that the only one of the actions listed in section 27(3) that is potentially applicable to the within claim is the third one on the list i.e. “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”. As stated previously, the Complainant relayed two complaints to management about a named colleague’s alleged interaction with members of the public. One of the complaints was initiated verbally by the operator of an illegal site which the Complainant’s colleague – at that time an environmental inspector with the Respondent – had inspected. The substance of this ‘complaint’ appears to concern a potential risk to the colleague’s safety were she to return to the site in question. The second complaint was communicated to the Complainant verbally only by a Ms SOS who declined to put her complaint about Ms TB in writing. Nevertheless, the Complainant also relayed this to management. The colleague who was the subject of the complaints relayed to management by the Complainant subsequently applied for and (in June 2012) was granted a transfer to a different section within the Respondent’s operation. In September 2012, the Respondent advised the Complainant that it had appointed a mediator to deal with what appeared to be interpersonal issues that arisen between the Complainant and Ms TB. Ultimately, the mediation didn’t proceed as Ms TB opted out of it. In November 2012, Ms TB initiated a grievance which alleged that the Complainant had never advised her of the potential risk to her safety were she to return to the scrap metal site referred to above; had not shared either of the two verbal complaints with her before relaying them to management; and accusing the Complainant of having undermined and intimidated her in the workplace.

In her written submission, the Complainant’s representative outlines what the detriment the Complainant alleges she suffered as a consequence of having relayed to management the complaints in relation to Ms TB:

• “… following that she was actually ostracised, there were meetings with her colleague who was referred to in the H&S report [‘Ms TB’], who evidently made counterretaliation allegationsabout the appellant to Management and others. Management accepted those allegations from [Ms TB] as being true without any recourse to the appellant. [Ms TB] aided by Management participated in fuelling rumour, gossip and innuendo, about the appellant resulting in her being labelled a bully. It became evident almost immediately to the appellant that [Ms B] had made retaliatory allegations about her, because [Ms TB], (sic) started to ignore her, she would not speak to her and when the appellant would approach her with a work file and attempt to speak to her, [Ms TB] would respond through her Manager or get up and walk away, she avoided discussion and treated the appellant with contempt. There were meetings between Management and [Ms TB] and with at least one of the H&S complainants and there was no feedback to the appellant despite her enquiring. Management’s interactions with the appellant changed, she describes it (sic) as becoming strained. Each of them were (sic) evasive and hostile when asked any question relating to H&S investigation. The whole atmosphere in the Office changed, other staff avoided the appellant and many occasions when the appellant came in, the discussions that were taking place ceased. The appellant considers that this constituted ‘Mobbing’ of her.”

It appears to the Court – based on the Complainant’s own submission – that it had become known throughout the section in which both she and Ms TB worked, that the Complainant was aware of (a) a threat to Ms TB’s safety arising from her professional activity as an environmental inspector and (b) at least two complaints relating to Ms TB’s work from members of the public; that the Complainant relayed (a) and (b) to management without first telling her colleague about them; (a) and (b) were investigated by management; protocols were put in place in response to (a) ; the complaints at (b) were not substantiated. Furthermore, it would seem that the Complainant’s co-workers were less than happy with the manner in which the Complainant had handled the situation vis-�-vis her colleague, Ms TB, and as a consequence may have been less forthcoming with her than they may otherwise have been.

It does not appear to the Court, in all the circumstances, that the Complainant has established that she suffered any detriment that constitutes penalisation within the meaning of section 27 of the Act following her relaying of two complaints about her co-worker to management.

The appeal fails and the decision of the Adjudication Officer stands.

The Court so determines.