HSD192

The Complainant has been employed by the Respondent as a retained Fire Fighter since 16^thJuly 2012. He has been absent through illness since 26^thSeptember 2017. The within complaint was made to the Workplace Relations Commission on 25^thMay 2018.

Summary of the Appellant’s position

The Appellant submitted that on various occasions from mid-2015 onwards he had raised Health and Safety concerns with the Respondent and with the Health and Safety Officer of the Respondent. Those concerns in many instances related to dissatisfaction with the behaviour of the Station Officer of the fire station to which the Appellant was attached. The Appellant submitted that the issues raised had been identified as leading to Health and Safety concerns.

The Appellant submitted that he had been penalised by way of omission as a result of his making his employer and Health and Safety Officer aware of his concerns. The Appellant submitted that in the six months prior to his making of the within complaint to the Workplace Relations Commission he had been absent from work through illness. He submitted that the Respondent had legal obligations to engage with him while absent through illness. In that respect he referred to the decision of this Court in Humphries v Westwood Fitness Club [ED02/59] wherein the Court addressed the nature of enquiries an employer is required to make in order to discharge the employer’s obligations deriving from Section 16(3) of the Employment Equality Act, 1998 to 2015. In addition, the Appellant submitted that the Safety, Health and Welfare at Work Act, 2005 at Section 26(2) and 26(4) confers a right upon an employee to make representation to their employer and places an obligation upon the employer to consider those representations. He submitted that the Respondent had failed to discharge its obligations in this respect.

The Appellant submitted that he had engaged in e-mail correspondence with officers of the Respondent from 30^thSeptember 2017 to the date of the within complaint wherein, amongst other concerns, he complained that the Respondent had breached a ‘mediation agreement’ and that the management style of the Station Officer posed a significant Health and Safety Risk. That chain of e-mail correspondence also involved the Appellant stating that he did not have ‘clarity on how this is being dealt with’.

He submitted that no satisfactory engagement in respect of his concerns as regards the behaviour of his Station Officer took place up to the date of his making the within complaint.

He submitted that the Respondent had failed to engage satisfactorily with him to address his concerns while he was absent through illness and that such failure constituted a penalisation by way of omission within the meaning of the Act.

Summary of the Respondent’s Position

The Respondent submitted that the Appellant had not made a complaint within the meaning of the Act or otherwise committed a protected act within the meaning of the Act. In any event the Appellant had not suffered a detriment within the meaning of the Act. For these reasons the Respondent submitted that the Appellant cannot succeed in his complaint.

The Respondent submitted that it is its policy not to address issues raised by employees while that employee is absent from the workplace on sick leave.

The Respondent submitted that the Appellant had, in his complaint, provided no detail in relation to any direct penalisation but rather had stated that the Respondent had ignored his concerns.
The Council referred the Court to this Court's decision in An Garda Siochana v Hazel Delahunt [HSC13/10] wherein the following was stated

• Hence, it seems clear from the language of s.27(1) of the Act that the act or omission on which a claim of penalisation is grounded must amount to a detriment in the Claimant’s terms or conditions of employment and something that merely has the potential to lead to such a result is not enough. Furthermore, in so far as the Claimant relies on s.27(2)(e) of the Act, by application of the normal cannons of interpretation the coercion or intimidation referred to must also be directed at impacting detrimentally on some term or condition of the Claimant’s employment.

The Respondent also referred to the decision of this Court in Patrick Kelly t/a Western Insulation and Algirdas Girdzius [HSD081] wherein this Court held as follows:

• In the instant case the Court makes no finding in relation to the alleged contraventions of the Act referred to by the representative of the Claimant. If there were any such contraventions the remedy is provided elsewhere in the Act and does not come within the jurisdiction of this Court. There is, however, no evidence of any kind to establish any causal connection between the alleged omissions relied upon and any act on the part of the Claimant of a type referred to at subsection (3). Indeed the import of the submissions made on behalf of the Claimant was that it was unnecessary to establish such a connection. That submission ignores the plain meaning of S27 when read as a whole.

Penalisation is defined by Section 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 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.

In order for the Complainant to avail of the protections available in Section 27(3) it is essential that a detriment within the meaning of the Act was suffered and that such detriment complained was causally connected to an act of the Appellant which conforms with the requirements of the Act at Section 27(3).

Discussion and conclusions

The Appellant has submitted that the Employer has failed to meet its obligations arising from the decision of this Court in Humphries v Westwood Fitness Club [ED02/59]. That matter came before this Court as an appeal of a decision of an Adjudication Officer made in a complaint under the Employment Equality Acts 1998 to 2015. The passage submitted by the Appellant related to the Court’s consideration of the nature of the legal obligation placed upon an employer to consider making reasonable accommodation within the meaning of the Act before concluding that a person with a disability is not fully capable of performing the duties for which they are employed. No complaint alleging a failure by the Respondent to meet its obligations under the Employment Equality Acts, 1998 to 2015 can be brought before the Court as an appeal under the Safety, Health and Welfare at Work Act, 2005.

The Court’s jurisdiction in the within matter is confined to determining whether, within the meaning of Section 27 of the Act, actions of the Respondent amounted to prohibited penalisation. The Appellant has submitted that the Respondent has been in breach of the Act at Section 26. This Court has no statutory function in determining matters associated with obligations placed upon the Respondent deriving from the Act at Section 26. Any such contention falls to be otherwise determined in the manner set out in the Act.

The Court has approached the within matter on the basis of first determining whether a protected act within the meaning of the Act at Section 27(3) was committed. The Court concludes that, in the course of the events submitted to have occurred between mid-2015 and the date of making the within complaint, the Appellant did, in accordance with the Act at Section 27(3) make a complaint to his employer or safety representative as regards a matter relating to safety, health or welfare at work. The Appellant was protected by the Act from penalisation in retaliation for so doing.

The Appellant made his complaint to the Workplace Relations commission on 25^thMay 2018. Therefore, the cognisable period for the within complaint is 26^thNovember 2017 to 25^thMay 2018. The contention of the Appellant is that the Respondent failed to engage with him effectively throughout that period and that this failure to engage amounts to unlawful penalisation within the meaning of the Act. The Appellant has submitted details of e-mail correspondence between him and the Respondent which took place throughout the cognisable period. The Respondent has submitted that its general policy is that the Respondent would not make contact with an employee while that employee is certified as being medically unfit for work.

It is clear that the Appellant is of the view that the response of the Respondent to matters raised by him in his e-mails during the cognisable period was not satisfactory. Those e-mails related to alleged failures by the Respondent to deal with complaints and concerns raised by the Appellant and some of which, in the view of the Appellant, related to safety, health and welfare at work. It is not for this Court to police the Respondent’s discharge of its health and safety obligations under the Act and, in any event, no evidence has been put before this Court of a causal connection between any alleged failure of the Respondent to discharge its legal obligations under the Act and the protected act previously committed by the Appellant.

The Court has considered the submissions of the parties and is unable to conclude that the Appellant has suffered any detriment during the cognisable period for the within complaint and is unable to find a causal connection between the alleged detriment and the fact that he had earlier committed a protected act within the meaning of the Act.

In all of the circumstances therefore the Court finds that the Appellant’s complaint of penalisation within the meaning of the Act has not been made out.

Determination

The Court determines that the Appellant has not been penalised within the meaning of the Act at Section 27(3). The appeal fails and the decision of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
TH______________________
25 March 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.