FULL RECOMMENDATION
SECTION 29 (8), SAFETY HEALTH AND WELFARE AT WORK ACTS, 2005 TO 2014 PARTIES : STOBART (IRELAND) DRIVER SERVICES LTD (REPRESENTED BY PURDY FITZGERALD) - AND - SCOTT HAZEL (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer Decision No. R-155957-HS-15/DI.
BACKGROUND:
2. The employee appealed the Decision of the Adjudication Officer to the Labour Court on the 21st December, 2016 in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts 2005-2014. A Labour Court hearing took place on the 6th March, 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Scott Hazel against the Decision of an Adjudication Officer r-155957-hs-15/DI under the Safety, Health and Welfare at Work, Act 2005 (the ‘Act’). In this Determination the parties are referred to as they were at first instance, hence Mr Hazel is referred to as ‘the Complainant’ and Stobart (Ireland) Driver Services Ltd is referred to as ‘the Respondent’.
The Adjudication Officer found that the Respondent had not penalised the Complainant as alleged under Section 27 of the Act. The complaint failed accordingly.
Background
The Complainant is employed as driver. Pursuant to the European Community (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131), he transferred to the Respondent’s employment in 2010. Following the transfer, the Complainant disputed the Respondent’s adherence to both his contractual terms and conditions of employment, in particular the application of a maximum 9-hour day, and his legal entitlement to be given 24 hours’ notice of his hours of work.
On 19thOctober 2014 the Complainant objected to the run he was allocated on that day as he was of the view that the anticipated working hours for the run would be in breach of both his contractual and legal entitlements as referenced above. The Complainant was suspended from work pending investigation into his alleged refusal to undertake his allotted run. A disciplinary process followed resulting in the Complainant receiving a final written warning dated 25thNovember 2014. An internal appeal was unsuccessful and a complaint was received by the Workplace Relations Commission on 6thMay 2015.
The Complainant also submitted related complaints under the Organisation of Working Time Act, 1997, the Terms of Employment (Information) Act, 1994 and the Industrial Relations Acts, 1969-1990.
At the Adjudication Officer hearing the Complainant argued that the Respondent’s failure to provide him with 24 hours’ notice of his working hours and actual details of his starting and finishing times was in breach of the Organisation of Working Time Act, 1997 and the Terms of Employment (Information) Act, 1994 respectively. The Complainant further argued that he had been penalised through a final written warning for acting in compliance with“relevant statutory provisions”,as per Section 27(3)(a) of the 2005 Act. He argued that the 1997 Act and the 1994 Act were“relevant statutory provisions”. By reference to Schedule 2 of the 2005 Act, which lists the relevant statutory provisions, the Adjudication Officer found that the 1997 Act and the 1994 Act were not relevant statutory provisions and that, accordingly, the Respondent had not penalised the Complainant as alleged. The complaint failed accordingly.
The Complainant appealed the Adjudication Officer’s Decision to this Court on 21stDecember 2016. The appeal came before the Court on 6thMarch 2017.
Preliminary Issue
The Respondent raised a preliminary issue as to whether a complaint had been validly made to the Adjudication Officer. In support of its position, the Respondent stated that in circumstances where the Complainant had simply listed the Act without any further details of the complaint then the particulars of the complaint had not been set out as required in the complaint form submitted by the Complainant to the Workplace Relations Commission on 6thMay 2015. The Respondent relied on Section 28(5)(a) of the Act, which states:-
- (5) (a) A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.
It was the Respondent’s position that the compliant must fail accordingly. However, the Court does not accept that the compliant before it is not a valid one. The Act requires only that a complaint to an Adjudication Officer be in writing. Unlike other pieces of employment law, the Court’s jurisdiction under the Act is limited and narrow in its application, Section 28(1) provides that an employee may present a complaint that his or her employer has contravened Section 27. The Adjudication Officer and the Labour Court on appeal has jurisdiction to hear claims of penalisation referred under Section 27 only. At the time of the Adjudication Officer hearing, the Minister had not specified the particulars to be contained in a complaint to the Adjudication Officer and had not specified the form for such a complaint, therefore the form utilised by the Complainant was not a statutory form. The Court accepts that the complaint was validly made in writing to the Adjudication Officer on 6thMay 2015.
Summary of the Complainant’s Case
Ms. Karan O’Loughlin, SIPTU, on behalf of the Complainant put forward the following points:-
- i.It was reasonable for the Complainant to insist that his contractual hours of work and his legal entitlement to 24 hours’ notice of his start time be adhered to.
ii.The breaches by the Respondent of the Complainant’s contractual and legal entitlements in relation to his hours of work had very significant health and safety implications for the Complainant.
iii.The final written warning issued to the Complainant amounted to penalisation of him for taking steps to protect his own health and safety.
iv.The Complainant’s efforts to protect his health and safety in the particular circumstances applying are protected under Section 27(3)(f) of the Act, which states:- i.(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.
- v. The potential for driver fatigue amounted to circumstances of danger which were serious and imminent.
Summary of the Respondent’s Case
On behalf of the Respondent, Mr. Einde O’Donnell of Purdy Fitzgerald Solicitors outlined the Respondent’s case as follows:-
- i. The Complainant unreasonably refused to do his run on 19thOctober 2014 and was appropriately disciplined accordingly.
ii. At no time during the disciplinary process did the Complainant raise health and safety concerns.
iii. The Complainant refused to take the run allocated to him based on a belief that he was a“9 hour driver”as per his contract.
iv. Prior to the hearing before the Labour Court, the Complainant had never before argued that he had engaged in actions protected under Section 27(3)(f) of the Act. Those arguments were never made before the Adjudication Officer. The Complainant had always argued that he engaged in actions protected by Section 27(3)(a) of the Act.
v. The Complainant was not penalised at all.
The Law
Penalisation is defined by s. 27 of the Act 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
Subsection 3 of Section 27 prescribes the circumstances in which penalisation is rendered unlawful under the Act. It provides: -
- (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) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions
(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions
(e) being a safety representative or an employee designated undersection 11or appointed undersection 18to 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.
- (a) acting in compliance with the relevant statutory provisions,
- (3) An employer shall not penalise or threaten penalisation against an employee for—
Discussion and Findings
In order for the Complainant to sustain a complaint of penalisation it is essential that the detriment complained of, in this case a final written warning, be causally connected to one or more of the protected acts referred to in subsection (3) of Section 27.
In the Court’s view, the Adjudication Officer correctly found that the Organisation of Working Time Act, 1997 and the Terms of Employment (Information) Act, 1994 were not “relevant statutory provisions” for the purposes of Section 27(3)(a) of the Act. The Complainant cannot avail himself of the protections contained in Section 27(3) of the Act by reference to breaches of the 1997 Act and the 1994 Act.
In the instant case the protected act relied upon is the refusal to engage in an alleged dangerous work situation as set out in Section 27(3)(f) of the Act. It was put to the Court on behalf of the Complainant that the potential for driver fatigue amounted to circumstances of danger which were serious and imminent.
In its Determination inAranbel Construction v Braney & LaceyHSD086 and HSD087, the Court found that the circumstances of two Crane Drivers, who operated tower cranes, refusing, due to wind conditions, to operate the crane and lift large panels the height of five floors, fitted the circumstances envisaged by Section 27(3)(f) of the Act. There was a clear and present danger and in the circumstances the drivers were entitled to refuse to operate the cranes.
In the instant case, the Court is satisfied that the risk of driver fatigue in the circumstances was not such that could amount to the circumstances of serious and imminent danger envisaged by the relevant section of the Act which could not reasonably have been averted. The Court further notes that there was no legal impediment to the Complainant undertaking the number of working hours which was going to be required of him to undertake the run in question.
The Court finds therefore that the Complainant did not engage in a protected act as per the legislation and he has therefore not satisfied the essential criteria to maintain a complaint under the Act.
Determination
The Court finds that the Respondent was not in breach of Section 27 of the Act and the Complainant was not penalised in the manner referred to in Section 27(2) for having committed a protected act as provided for under Section 27(3) of the Act.
The Decision of the Adjudication Officer is affirmed accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
29th March, 2017______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.