HSD183

FULL RECOMMENDATION

HSC/18/9

DETERMINATIONNO.HSD183

ADJ-00009081 CA-00011929-001

SECTION 29 (1), SAFETY HEALTH AND WELFARE AT WORK ACTS , 2005 TO 2014

PARTIES :

NATIONAL UNIVERSITY OF IRELAND GALWAY

- AND -

DR. MARK HARVEY

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Ms Tanham

SUBJECT:
1. Appeal of Adjudication Officer's Decision No: ADJ-00009081.

BACKGROUND:

2. The Worker appealed the Adjudication Officer's Decision to the Labour Court on 1 June 2018. Labour Court hearings took place on 4 September 2018 and 7 December 2018. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Dr Mark Harvey from a Decision of an Adjudication Officer ADJ-00009081. The Adjudication Officer found that the Complainant had not been penalised by his employer, National University of Galway, within the meaning of section 27 of the Safety, Health and Welfare Act 2005 (“the Act”).

For ease of reference the parties are given the same designations as they had at first instance. Hence Dr Mark Harvey will be referred to as “the Complainant” and National University of Galway will be referred to as “the Respondent”.

The Complainant referred his complaint to the Workplace Relations Commission on 16^thJune 2017. The hearing before the Adjudication Officer was held on 18^thOctober 2017 and her decision was issued on 22^ndMay 2018. The Notice of Appeal was received by the Court on 1^stJune 2018. The Court heard the appeal in Galway on 4^thSeptember 2018 and in Dublin on 7^thDecember 2018.

At the outset of the hearing the Complainant clarified that only one matter was on appeal to the Court, this concerns his allegation that he was penalised when he was redeployed on 12^thApril 2017. He accepted that an additional claim relating to loss of opportunity for promotion in 2016, was out of time and consequently he was not appealing the Adjudication Officer’s Decision on that point.

Background

The Complainant is employed by the Respondent as a Senior Technical Officer (STO) in the Biochemistry Department, School of Natural Sciences, College of Science in the University.

Summary of the Complainant’s Case

The Complainant appeared before the Court as an unrepresented party. He submitted that he was penalised by the Respondent within the meaning of the Act when he was redeployed on 12^thApril 2017 into a cognate support role for the Biomedical Sciences Building. This redeployment he submitted was inappropriate and constituted penalisation by the Respondent in retaliation for a complaint of safety/chemical competence and the proper segregation of hazardous chemicals he made to the Respondent’s Safety Representative on 27^thFebruary 2017.

Additionally, he relied upon a second act which he alleged was a protected act under Section 27(3) of the Act. On 27^thFebruary 2017, he informed his manager by email, that he would seek protection from reprisals for bringing a case before the Workplace Relations Commission.

He contended that as a result of these actions, he was penalised when he was given instructions to redeploy on 12^thApril 2017. He contended that this was inappropriate as the Respondent required him to report to a Chief Technical Officer (CTO) - a so called “BSB/NCBES CTO” which never existed. He said that he had been instructed to report to two CTO’s (School CTO and “BSB/NCBES CTO”), no one else has this irregular reporting situation. The Complainant alleged that this had proved to be a dysfunctional reporting line, which has led to a near-total absence of contact between the Complainant and the CTO.

On that basis, the Complainant contended that the burden of proof had shifted to the Respondent to justify his unsanctioned redeployment.

Summary of the Respondent’s Position

The Respondent denied that the Complainant had been penalised or treated unfairly. Ms Josephine Hynes on behalf of the Respondent, said that the Complainant’s complaint about proper segregation of hazardous chemicals concerned a HSA recommendation about laboratory cabinets which HSA held were required to meet new safety standards. Following on from the HSA recommendation the laboratories were refitted with the appropriate laboratory cabinets.

Ms Hynes strongly disputed the Complainant’s assertion that he was redeployed. She said that he was employed as an STO in the Biochemistry Laboratory/Department prior to April 2017 and continues to be employed as an STO in the Biochemistry Laboratory/ Department. Ms Hynes said that what had changed was the Chief Technical Officer he reports to. The Complainant has always reported to a Chief Technical Officer and continues to report to the same grade.

Ms Hynes said that changes in the reporting structure came about in 2017. This occurred as a result of the growth of services in the University and the division of the Biochemistry Department which is now spread over two parts of the university campus. She said that it was decided in late 2016 to review the structure in order to better support the changes and growth of the services. This resulted in discussion between the College of Science, and the College of Medicine. The revised reporting structure was introduced in April 2017.

Ms Hynes said that a total of eight staff were involved in this restructuring and those employees have all had a change to the CTO they report to. The change in reporting relationship has had no fundamental change to the role or terms and conditions of any of the staff. No staff member, including the Complainant, would have experienced any detriment as a result of these changes. The changes had nothing to do with the Complainant’s complaint which he raised in the email of the 27th February 2017 and such changes in the reporting structure would have taken place regardless of the email.

The Law Applicable

Penalisation is defined by section 27 of the Act as follows: -

S.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.

Discussion and Findings

It is clear from a plain reading of subsection (3) of this section that penalisation is rendered unlawful under the Act when it is perpetrated on an employeeforhaving performed or committed one or more of the acts referred to in the succeeding paragraphs of that subsection. Thus it is perfectly plain that in order to succeed in a cause of action grounded on the section a complainant must establish not only that he/she suffered a detriment of a type referred to at subsection (1) but that the detriment was imposed because of, or was in retaliation for, the employee having acted in a manner referred to at subsection (3).

It is thus clear that a cause of action can only accrue to an employee if the conduct or omissions, which come within the statutory meaning of the term penalisation, arisebecause ofan act protected by subsection (3) orbut forthe protected act the employee would not have suffered the detriment complained of.

InToni & Guy Blackrock v O’NeillDetermination No HSD095, 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.”

In the instant case the Court is satisfied that the protected act relied upon by the Complainant to meet the criteria referred to at subsection 3 has been established, however, it is not satisfied that he has established that he suffered a detriment of a type referred to at subsection (1). The Complainant asserted that he was “redeployed” as a result of the protected act he invoked. The Respondent told the Court that the only change which took place was to his reporting structure. He remains in the role he had prior to making the protected act in April 2017. Therefore, it submitted that there has been no change to his conditions of employment.

The Court notes that an instruction was forwarded to all STOs on 12^thApril 2017 entitled “Reporting Structure for Support Staff in BSB/NCBES” which outlined that“All STO’s will report to the BSB/NCBES CTO as their immediate Line Manager for the following duties effective from 19^thApril 2017”

This instruction gave details of the areas which the STO’s were required to report to the CTO i.e. HR, Training and Health & Safety issues, whereas they were required to report to the appropriate Senior PI(s) in their Wing for technical/teaching duties. In his submission to the Court the Complainant said that “the restructuring of NCBES support staff (to report to the NCBES CTO) was actually sanctioned in January 2015 and seven staff started reporting to the NCBES CTO from 1st January 2016”.

Having considered the submissions from both parties, the Court cannot accept that a change in management reporting structure amounts to a redeployment. Therefore, the Court cannot accept that the detriment complained of falls within section 27(2) of the Act.

Furthermore, the Court is satisfied that the change to the reporting structure was in contemplation regardless of the Complainant’s safety complaint made on 27^thFebruary 2017.

Therefore, the Court finds that the Complainant has 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 subsection 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
12 December 2018______________________
MNDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.