HSD206

FULL RECOMMENDATION

HSC/20/3
ADJ-00018981 CA-00025350-001

DETERMINATIONNO.HSD206

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

PARTIES :

GALWAY CITY COUNCIL
(REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY)

- AND -

MR GERRY DALY
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman:	Ms Jenkinson
Employer Member:	Ms Doyle
Worker Member:	Mr Hall

SUBJECT:

1.Appeal of Adjudication Officer Decision No. ADJ-00018981 CA-00025350-001

BACKGROUND:

2.The employee appealed the Decision of the Adjudication Officer to the Labour Court 7 February 2020 in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts 2005-2014.
A Labour Court hearing took place on 10 December 2020.

The following is the Determination of the Court:

DETERMINATION:

2
This is an appeal by Mr Gerry Daly against the Decision of an Adjudication Officer ADJ-00018981, CA-00025350-001 in a complaint of penalisation within the meaning of Section 27 of the Safety, Health and Welfare Act 2005 (“the Act”) against his employer, Galway City Council. The Adjudication Officer found that the Complainant had not established that he suffered any detriment that constituted penalisation within the meaning of Section 27 of the Act.

For ease of reference the parties are given the same designations as they had at first instance. Hence Mr Gerry Daly will be referred to as “the Complainant” and Galway City Council will be referred to as “the Respondent”.

The Complainant is employed as a General Operative by the Respondent.

The Complainant referred his complaint to the Workplace Relations Commission on 28th January 2019. The hearing before the Adjudication Officer was held on 10th September 2019 and his decision was issued on 30th January 2020. The Notice of Appeal was received by the Court on 7 February 2020. The Court heard the appeal by a virtual hearing on 10th December 2020.

The Complainant alleged that in response to a complaint of health and safety matters he made on 21st December 2017, the Respondent penalised him by denying him the opportunity to work overtime on 12th, 13th, 19th, 20th, 26th and 27th January 2019.

Summary of the Complainant’s Case

Mr Paul Hardy, SIPTU, on behalf of the Complainant, submitted that the Complainant suffered a detriment, the denial of the opportunity to work overtime on specific dates in January 2019, as a result of making a complaint on 21st December 2017 to four members of management regarding health and safety matters. Mr Hardy disputed the Respondent’s contention as set out in its letter dated 20th November 2018 that overtime was allocated on a rota basis. He suggested that this was an ‘invention’ by the Respondent in a concerted attempt to conceal penalisation.

The Complainant gave evidence to the Court and said that he carried out bin servicing on an overtime basis at weekends consistently for five years prior to December 2017. He said that after he made his health and safety complaint, he had a call from Mr C, his Foreman, informing him that Sunday bin collection was to be put on a roster and asked him if he required his name to be put forward. He said that this was a change from the norm, overtime was givenad hoc, there was no pattern, it was up to the Foreman to allocate, he would check to see who was on the list for overtime and inform them on a Wednesday or Thursday of weekend overtime. He accepted that he had worked substantial overtime in 2018 but argued it was not the amount of overtime that was in issue. He accepted that he had no rights to weekend overtime but had done so consistently up to that point.

Summary of the Respondent’s Position

Ms Amanda Kane, Local Government Management Agency, on behalf of the Respondent disputed the allegation and submitted that no penalisation occurred. She made the point that there is no guarantee of overtime, it isad hocand allocated in accordance with the established practice. It is dependant on service demand, throughout the year and for approximately 20 weeks of the year, bin servicing is not required.

Ms Kane said that the established practice since 2006 in relation to weekend bin servicing is that those employees who complete this duty as part of their weekday role are given first refusal on the Saturday shift. There are nine employees who volunteer, including the Complainant, that are contracted on a rota basis as and when required. At a weekly meeting, supervisors in the Environment Department assign staff to the relevant duties for the coming weekend.

Ms Kane accepted that the Complainant was not offered weekend overtime on the dates claimed but he worked overtime on the weekend prior to and after the dates in question. She outlined the overtime completed by the Complainant during 2018 and said that he had worked on 34 occasions out of a possible 60 dates, thereby working over 50%, which was more than any of the other volunteers and more that he had worked in 2017.

Mr Damien Reddington, Manager in the Environment Department since February 2017, gave evidence on behalf of the Respondent. He outlined details of the method of allocation of weekend overtime for employees working on the bin service. He said that on Mondays he has a discussion with the Waste Operations Supervisor, who will then meet staff who do the duty during the week and are competent in each specific duty and seek volunteers. He said that there are a number of Sundays when overtime is not required. He was asked if there were any specific measures taken regarding the Complainant’s allocation of overtime, he relied that there were none. He said that the records demonstrate that the Complainant was not consistently working weekends in the five-year period from 2013 to 2018.

The witness said that there no predetermined lists of staff overtime arrangements and told the Court that the Union were aware of and has raised no issue with, the established practice of overtime allocation.

The Law Applicable

Section 27 provides that where an employee does something of the type referred to at subsection (3) and then is subjected to unfavourable treatment by his or her employer on that account, that unfavourable treatment is penalisation.

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) 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.

Conclusions of the Court

InO’Neill v Toni & GuyBlackrock21 ELR 1 this Court held that in order to make out a complaint of penalisation it is necessary for a Complainant to establish that the detriment of which he or she complains was imposed“for”having committed one of the acts protected by subsection (3).

The Court held that:-

“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 determent.”

As was pointed inToni & Guy, there are two tests inherent in the statutory definition of penalisation. Firstly, the Claimant must have suffered a detriment of a type referred to at subsections (1) and (2) of Section 27. Secondly, the detriment complained of must have been imposed for having committed a protected act or omission of a type referred to at subsection (3) of the Section, in the sense that ‘but for' the protected act or omission having been committed the detriment would not have been imposed. This imports a requirement to show a chain of causation between the impugned detriment and the protected act or omission.

Applying these legal principles to the facts of the instant case the Court has reached the following conclusions.

The Court notes that the substance of the letter dated 21st December 2017 from the Complainant to four members of management concerned a complaint regarding a potential safety risk to him and his colleagues while at work on the bin service in the city at weekends. The Court is satisfied that this complaint can be considered as a ‘protected act’ within the terms of Section 27(3)(c) of the Act.The Court must now consider whether the alleged non allocation of overtime to the Complainant at weekends in January and February 2018 was influenced by the making of this complaint.

Almost a year passed between the making of the protected act and the alleged detriment. It is not in disputed that the Complainant worked overtime at weekends during that period and that his overall allocation of overtime in that year exceeded the overtime worked in 2017. Furthermore, the Court notes that the Complainant accepted that he had no absolute right to work overtime every weekend and he did work overtime both before and after the specific dates in question. The Court notes that the Complainant’s contention that he worked every weekend in the previous five years was in dispute and no evidence was proffered to support his contention. Taking those point into consideration, the Court cannot see how it has been established that a detriment occurred for having made a protected act under the Act, nor can it see how a causal connection can be drawn between the allocation/non-allocation of overtime and the protected act.

It does not appear to the Court, in all the circumstances, that the Complainant has established that he suffered a detriment constituting penalisation within the meaning of Section 27 of the Act following his relaying of a complaint concerning safety matters to management.

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 the Act and the Complainant was not penalised in the manner referred to in Section 27(1) or (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
OC	______________________
22 December 2020	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary.