HSD193

In this Determination the Claimant is referred to as the Appellant and the Employer is referred to as the Respondent.

Background

The Appellant was employed by the Respondent as a School Secretary prior to the appointment of Ms ST as school principal in 2008.

The Appellant contends that she suffered a range of detriments within the meaning of the Act during the cognisable period for the within complaint and that those detriments occurred because she had, in 2010, raised complaints with her employeras regards matters relating to safety, health or welfare at work.

The Respondent denies that the Appellant made any complaints concerning matters coming within the scope of the Act at Section 27.

The within complaint was made to the Rights Commissioner Service of the Labour Relations Commission on 25^thSeptember 2014. Consequently, the cognisable period for the complaint is 26^thMarch 2014 to 25^thSeptember 2014.

The Legal Context

What is in issue in this case is whether the Appellant was penalised within the meaning of s.27 of the Act. This section, in relevant part, 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—

  • (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 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.

• “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 suggests 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 Court examined this matter as a matter preliminary to considering whether detriments within the meaning of the Act had occurred during the cognisable period for the within complaint and whether any such detriment occurred because the Appellant had committed the protected act. The Court took this approach on the basis that the Court’s determination of this preliminary matter had the potential to dispose of the matter in its entirety.

The evidence

Evidence on this aspect of the within matter was given by the Appellant and by Ms ST, who was the school principal at the material time and is the person to whom the protected act was alleged to have been made.

The Appellant’s evidence

The evidence tendered by the Appellant on this preliminary matter can be summarised as follows:-

Having outlined the background to the events grounding her claim, the Appellant told the Court that in November 2010 she went to the office of the School Principal and told her that she was not satisfied that she was being asked to do additional work relating to duties normally associated with ‘posts of responsibility’ in the school, that the principal was ‘dumping’ work on her and that the principal was ‘micro-managing’ her.

Evidence of Ms ST

The evidence of Ms ST on this matter can be summarised as follows:

She stated that she could not remember the exact detail of the words used at the meeting of November 2010 but she stated clearly in evidence that the Appellant raised an issue with being asked to do work which she was not supposed to be doing. She said that she gained no understanding that the Appellant was raising any issue of safety, health or welfare in the workplace. She said that at the end of the meeting she was not clear as to what the Appellant was complaining about. She also stated that no notes were taken of the meeting of 2010.

Conclusions of the Court

The evidence of both witnesses was broadly consistent in that both accepted that a meeting had taken place in November 2010 and that issues associated with assignment of work to the Appellant were discussed. The Appellant, in addition, stated that she had, at the meeting, raised concerns as regards micro-management of her by the Principal.

No evidence was tendered to the Court that any complaint of bullying was made by the Appellant in November 2010 at the meeting between her and the principal. It appears clear to the Court, on the basis of the evidence and the submissions of the parties, that the exchange between the two individuals was related to matters of work assignment and, in the view of the Appellant, management style.

On the basis of the evidence submitted the Court finds, as a matter of probability, that issues relating to health, safety or welfare at work within the meaning of the Act were not raised by the Appellant at that meeting. The Court finds therefore that the Appellant did not, in November 2010, engage in a protected act as described by the Act at Section 27 and she has therefore not satisfied the essential criteria to maintain a complaint under the Act.

Determination

For the reasons set out herein the Court can see no reason to interfere with the decision of the Rights Commissioner which was that she could not uphold the complaint. Accordingly, the within appeal is disallowed and the decision of the Rights Commissioner is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
CC______________________
1 April 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.