HSD194

The Adjudication Officer decided that the Appellant had not been penalised.

Background

The Appellant is employed by the Respondent as an Emergency Medical Technician. At the material time he was working a shift which commenced at 8.00am and concluded at 8.00pm. He submitted that he was penalised on the 19^thDecember 2017 when, having worked until 10.00pm on the evening of 18^th, he availed of the daily rest of 11 consecutive hours required by the Organisation of Working Time Act, 1997 (the Act of 1997) at Section 11. He submitted that he commenced work at 9.00am on the 19^thand was paid from that time. He contended that he should have been paid with effect from 8.00am which was his scheduled start time and that the reason he was not so paid was because he availed of a statutory provision of the Act of 1997 affording him daily rest.

The Appellant submitted that the Act, at Section 27(3)(a) prohibits penalisation by an employer of an employee for acting in compliance with the ‘relevant statutory provisions’. He submitted that the entitlement to daily rest arose from a statutory provision. He clarified to the Court that he was not making a complaint that he had been penalised for acting in accordance with a statutory provision of the Act. He submitted that he was penalised for having acted in accordance with the terms of the Act of 1997.

The Respondent submitted that the Appellant had availed himself of the statutory entitlement to daily rest which derives from the Act of 1997 and that the arrangement which operated on the occasion were in place to ensure compliance by the Respondent with the terms of that Act. The Respondent submitted that the Appellant had not made out any case of penalisation under the Act.

The Legal Context

What is in issue in this case is whether the Appellant was penalised within the meaning of Section27 of the Act. In order for that complaint to succeed the Appellant must show that he committed a protected act as describe in the Act at Section 27, that he suffered a detriment and that the detriment occurred because he committed the protected act.

Section 27 of the Act, 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 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.

• “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.”

Discussion and Conclusion

The Court’s jurisdiction under the Act relates to alleged breach of Section 27. In essence, Section 27 protects an employee from penalisation and at Section 27(3) the Act and specifies the acts in respect of which the protection from penalisation is afforded.

The Appellant has submitted that he was penalised within the meaning of the Act for ‘acting in compliance with the relevant statutory provisions’as set out in the Act at section 27(3). He further submitted that the basis for his complaint is that, on 18^thNovember 2017, he availed of his statutory entitlement to 11 hours daily rest as provided for in the Organisation of Working Time Act. He submitted that the Act of 1997 is a relevant statutory provision within the meaning of the Act at Section 27(3)(a). He submitted also that his complaint is not founded upon a contention that he was acting in compliance with any relevant statutory provision of the Act.

The Act defines ‘relevant statutory provisions’ as follows:

• “relevant statutory provisions” means existing enactments and this Act and any instrument made under this Act for the time being in force;

• “existing enactments” means—

  (a) the enactments specified in Part 1 of Schedule 2 and any instruments made under those enactments for the time being in force, and

  (b) the regulations made under the European Communities Act 1972 for the time being in force specified in Part 2 of Schedule 2;

The Court, for the reasons set out above, finds that the within complaint is misconceived and that the within appeal cannot succeed.

Determination

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

Signed on behalf of the Labour Court



Kevin Foley
17th July 2019______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.