ADJ-00030560

Complainant

Respondent

Anonymised Parties

Teacher

School

Representatives

Conor Mcdonald ASTI

Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00040876-001

09/11/2020

The complainant suffers from a chronic neurological medical condition that significantly impairs movement. She works as a teacher. Having regard to her condition; the school conducted a risk assessment. That review concluded that while the complainant did fall into a category that was viewed as a high risk group arising from the pandemic; she could attend work with appropriate social distancing measures.

It is contended by the complainant that the measures put in place by the school were wholly inadequate relating to her disability and the means of exit from her workspace was self-evidently deficient. The school had failed to conduct a proper risk assessment of her particular needs.

This complaint does not stem from a breach of social distancing guidelines or public health regulations; rather a perceived threat that the complainant’s welfare was at risk, when she feared that her psychological welfare was under threat.

Her medical condition is aggravated by conflict and stress.

It is alleged that the school principal, against the complainant’s written wishes; insisted that she have face to face to discussions with her arising from an email that the complainant sent to her. The complainant alleges that the school had been dismissive of her genuine concern about safety at work; a lack of support and an insensitivity to her particular needs as evidenced by a wish to move her to a different work area.

A series of interactions between the school principal and the complainant occurred over a short timeframe in the office of the complainant; where the complainant felt trapped and threatened. This was a hostile situation, with no way of leaving the work area other than the entrance that she perceived was being blocked by the school principal.  Her movement is severely compromised and the principal was at the door, holding onto to the door handle, coldly staring at her. She had no choice but to ring the Gardaí to move out a situation that posed a serious and imminent danger to her health.

The Gardaí arrived, and she asked them to order a cab.

After this incident; the school initiated disciplinary action against her. However, no sanction at the time of the hearing had been given to her.

The complainant states that section 20 of the Safety, Health and Welfare Act 2005 (the Act) provides that the Employer will detail the protective and preventive measures taken and the resources provided for protecting safety, health and welfare at the place of work to which the safety statement relates. It is contended by the complainant that there is no evidence that any adequate protection and preventive measures were taken by the school, based on the unique circumstances and needs of the complainant.

Section 27(3) of the Act clearly provides that an employer shall not penalise or threaten to penalise for:

( 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.

This is what exactly occurred in this case. The facts show that the complainant based on her disability and medical condition had no alternative but to leave her place of work as a real danger to her welfare persisted or was imminent and was serious; having regard to the unique circumstances of this case. The phone call made to the Gardaí in this case having regard to all the circumstances was reasonable.

There had been ongoing interactions/representations between the complainant’s union and the school about the appropriateness of her working conditions and the ongoing inadequate response by the school to reasonably accommodate her needs. The complainant had been moved to a room that was wholly unsuitable. Management was informed about these deficiencies and others.

The circumstances of this complaint relate to a vulnerable and anxious employee; in school during the pandemic, being trapped and fearful for her welfare.

The school contend that the call to the Gardaí was inappropriate; however, it was appropriate having regard to the history and background to this complaint. The school was on full notice of her medical condition and specifically relating to how stress adversely impacts the progression of the disease.

On the 4th of November 2020 the respondent wrote to the complainant to state that the issue of her calling the Gardaí, on the 8th of September 2020 would be subject to a disciplinary investigation. This is contrary to the protection provided under section 27 of the Act, particularly with regard to 27(3)(f).

The respondent states that the complainant has suffered no detriment. At 27(2)(d) the Act states that penalisation is defined as the imposition of any discipline. No imposition has occurred. The letter at issue, dated the 4th of November 2020, refers to the matter being dealt with in accordance with the disciplinary procedures and fair procedures.

The right to proceed with a disciplinary investigation arose based on the circumstances of calling the Gardaí to the school. The fact that the Gardaí were called means that the principal is named on the Pulse system; even though, there was no imminent or real threat or danger to the complainant’s welfare.

The school in fact has been very accommodating of the complainant’s needs and caring.

Section 28 of the Safety, Health &Welfare at Work Act, 2005 states:

28. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 27 shall do one or more of the following, namely —

(a) declare that the complaint was or, as the case may be, was not well founded

(b) require the employer to take a specified course of action, or

(c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances.

Section 27 states:

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.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

Section 27(6) is an important section in determining whether the steps that the employee took were appropriate.

I have every sympathy for the complainant and her medical condition which is limiting and challenging for her. However, a balance also must be struck concerning the employer’s right to manage and to have reasonable interactions with their staff; albeit, they have a chronic medical condition and disability.

The facts of this case do not amount to penalisation. It is true that the medical reports are clear that stress aggravates the complainant’s condition. However, it was not the intention of the school principal to intimidate or threaten the complainant. This assumption is based on what the complainant perceived; however, the facts show that the meeting was about a very relevant staff matter, that the principal had every right to speak to the complainant about that matter face to face. The complainant believes that her email to the principal stating that she would only deal with her in writing on the matter, limits the principal’s interaction to such a form of communication. It is also a fact that the school principal was not aware of this request when she went to speak to the complainant. That email  does not impose any obligation on the principal to manage the employee based on her preference. The interactions between both must be based on what constitutes normal day to day interactions and what is reasonable based on the complainant’s disability.

It is important to note that the phone call  was not a referral to the Gardaí about a breach of Health Regulations; it was an escalation of a conflict, that had existed between the complainant and management for a long time. There were other reasonable alternatives open to the complainant. This was about escalating the conflict; it was not about escaping from a dangerous and  imminently threatening situation.

It is true that stress escalates the complainant’s condition; however, the actions of the complainant herself created this conflict, not the actions of the school principal.

The complainant relies on St David’s v Siobhan McVeigh [determination no. HSD 118]. The Court referenced the leading case of Toni and Guy:

As was pointed out by this Court in O’Neill v Toni & Guy Blackrock 21 ELR 1, there are two tests inherent in the statutory definition of penalisation. Firstly the Complainant 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.

It determined that the complainant did suffer penalisation based on the following facts:

In reaching its conclusion the Court has had regard to a number of facts, as follows: - 1.The Complainant had put her name down on the rota at a time, which would not have been in dispute when it was first put up on the notice board. However, that rota was taken down and a second one was put up. This second rota did not provide her an opportunity to volunteer for the times she had originally indicated she was available for. The letter of 25th May 2009 was silent on the fact that she had put her name down for supervision but instead referred to her refusal to undertake supervisory duties. 

 2.In his letter dated 25th May 2009, the Principal wrote to the Complainant about her refusal to undertake supervision duties at 1pm on Wednesday 27th May 2009 on the basis that she said she was not available at lunchtimes, as was reported to him by the Deputy Principal. He pointed out to her that her refusal put the entire system at risk and he reminded her that she had previously undertaken not to undermine his authority. However, he did not invoke Stage Two of the disciplinary process at that stage or even threaten to do so.  

3.No new incident occurred between the date the letter was sent by the Complainant on 4th June 2009 and the writing of the letter by the Respondent on 8th June 2009. The Court considers it significant that the Principal in his letter of 25th May 2009 had not invoked the second stage of the disciplinary process; it was therefore reasonable for the Complainant to believe that at that stage all previous matters had been disposed of. There was no other incident after that date other than her letter of 4th June 2009. In such circumstances the Court can only conclude that the latter was the impetus for invoking Stage Two.

 In other words ‘but for’ the request for a copy of the policy in the letter of 4th June 2009 there was no indication to show that the Respondent intended to invoke a more serious stage of the disciplinary process, one which had the capacity to impose sanctions against the Complainant. By application of the test outlined in Toni & Guy, the Court is satisfied on the facts of the case, that the Respondent’s response to the Complainant’s letter of 4th June 2009 is capable in and of itself of being an act of penalisation within the meaning of Section 27(3) of the Act. Determination For the reasons set out above the Court is satisfied that the Complainant has established that her complaint of penalisation comes within the ambit of Section 27 of the Act. Accordingly, the Decision of the Rights Commissioner is affirmed, the Court upholds the compensation award of €2,500. The appeal is disallowed

The facts of this case are very different. No disciplinary action has been taken against the complainant.  The facts are also crucially different having regard to the failures and bias that the Court identified in the disciplinary allegations made against the complainant Ms McVeigh, that appear to have been misrepresentations.

That has not occurred in this case. The complainant’s behaviour on the facts are not reasonable and having regard to section 27 (6) were not appropriate, particularly during a pandemic when emergency and critical services are stretched.

The complainant also relies on Walker v Northumberland County Council [1995] 1 All ER 727 regarding the Employer’s duty to provide a safe system of work and whether that duty extends to risk of psychiatric illness. In this case the complainant feared for her mental well-being and the employer was on notice of her medical condition and that stress would exacerbate her condition.

The employer could not have reasonably anticipated that the principal when entering into the complainant’s room; that normal communication both verbal and non-verbal, would create a response and psychological reaction in the complainant that required the Gardaí to be called  because the principal’s behaviours and cold stare were intimidating and threatening. The facts do not lend support to that proposition. There is a band of reasonable behaviour to be applied in assessing if the principal’s behaviour was such that the employee reasonably believed that they constituted circumstances of danger that were serious and imminent:

( 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.

I do not find that the employee could have believed that she was in serious and imminent danger from the school principal’s behaviour or that she could not have reasonably have been expected to avert other than by leaving the school with the assistance of the Gardaí. That proposition is not credible.

The complainant also refers to the HSA Health & Safety Guidelines for Post Primary Schools which include ‘human factor hazards’ as part of the Risk Identification & Assessment process (please see Q30 & 31 on pages 42 & 43).  This has not been carried out in line with section 20 of the Safety Health & Welfare at Work Act 2005. The fact that such an assessment allegedly was not completed; does not mitigate the actions taken by the complainant, that in all the circumstances were not reasonable. The action based on the facts escalated the conflict between her and management and allowing for her unique circumstances and disability, were not proportionate and were entirely unnecessary. Her call to the Gardaí is not a protected act as defined at section 27(3).

The complainant’s Union representative at the hearing emphasised that their member provided all her contractual obligations and delivery of teaching on the day in question.

The facts do not lend themselves to conclude that the complainant was penalised for committing a protected act as provided for at section 27(3) for that reason I must find that the complaint is not well founded.

Section 28 of the Safety, Health &Welfare at Work Act, 2005 states:

28. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 27 shall do one or more of the following, namely —

(a) declare that the complaint was or, as the case may be, was not well founded

(b) require the employer to take a specified course of action, or

(c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances

I determine that the complaint is not well founded as the  facts do not support a conclusion that the complainant was penalised for committing a protected act as provided for at section 27(3); for that reason I must find that the complaint is not well founded.

Penalisation-