Complainant

Respondent

Parties

Máire  Aherne

National Council for Special Education

Representatives

  Self-Represented

Katherine McVeigh BL instructed by Eversheds Sutherland

Act

Complaint/Dispute 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-00040196-001

01/10/2020

The Complainant filed her complaint with the Workplace Relations Commission on 1 October 2020 as against her employer, the Respondent.

The hearing was conducted remotely in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

The Complainant and one witnesses, Mr Tadgh O’Leary, from the Respondent swore an affirmation and gave evidence at the hearing.

It is the Complainant’s complaint that she was penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act 2005.

Both parties submitted extensive submissions which have been carefully considered.

The Complainant has been employed as a Special Education Needs Organiser since 1 September 2004. She works 37.50 hours per week and is paid €2,502.95.

The Complainant submitted since raising a safety concern as a Lead Worker Representative about NCSE’s non-compliance with the Return to Work Safety Protocol5 for the suppression of Covid-19 in the workplace, in relation to school visits that the Respondent instructed SENOs to undertake, I have been repeatedly penalised by my employer. Due to the nature of her job she was required to visit schools.

It was her evidence that the Respondent requested her to read school-based documents in each school and discuss the management of care of children with special needs face-to-face with school staff in the school premises. These tasks are to be carried out during school hours with staff and students present. The Complainant stated that the Respondent refused to allow her carry out these tasks remotely or using technology in compliance with the Return to Work Safely Protocol. She states she was disciplined by the Respondent for requesting a Covid-19 Response Plan and Risk Assessment for school work in compliance with the Return to Work Safely Protocol before she undertook school visits as instructed by the Respondent.

On 24 August 2020, the Respondent issued a clear instruction to the Complainant and other SENOs with regards to planning, preparing and attending for essential school visits. The Complainant refused to carry out this instruction at the time despite ongoing engagement. On 14 September 2020, the Complainant was subject to a Disciplinary Hearing due to her failure to follow a reasonable instruction. A final written warning was issued to the Complainant on 17 September 2020. The Complainant has had the benefit of a robust appeals process following the issuing of a final written warning, in which most recently an external independent investigator, MP Guinness BL, concluded that the Complainant failed to follow reasonable instruction by the Respondent.

It was submitted that a year later in August 2021, the Complainant is still refusing to carry out this reasonable instruction from the Respondent, despite remaining an employee of the Respondent and being paid full salary.

A list of documents were submitted in evidence by the Respondent which were provided to the Complainant as information and guidance to assure her that it was safe to attend school visits, particularly in the circumstances where school visits were essential, and yet she continuously refused to follow this reasonable instruction. The Complainant was provided with:

i. Covid-19 Guidance for NCSE staff completing school visits to deliver NCSE services (v1.6) issued on 24 August 2020 (with three further updated versions of this Guidance document issued on 2 November 2020 (v.1.8); 12 March 2021 (v.1.9); 26 April 2021 (v.2.1);

ii. NCSE Covid-19 Response Plan: Compliance with Return to Work Safely Protocols on 4 August 2020;

iii. SENO Operational Guidelines 2020/21;

iv. Email from Management to the Complainant (and the SENO team) on 2 September 2020 at 17.18 detailing steps required to be taken to ensure that the school visits are in line with Covid-19 policies and guidelines;

v. Further multiple emails where the Respondent set out the importance of the school visits and engaging with the Complainant.

vi. Guidance on return from leave issued on 15 June 2021;

vii. Standard Operating Procedures (SOP) issued on 19 May 2021;

viii. Appendix 2 Covid 19 School and Home Visit Protocols (a checklist for staff going on visits);

ix. Blank Appendix from the School Visit Protocol (risk assessment);

The Respondent denied in full that the Complainant was penalised under the 2005 Act or at all.

The Respondent highlighted that if there was a contravention it was limited in this case to the period of:-

·       24 August 2020 when the Respondent issued instructions to the Complainant - Guidance Note for Team Managers on the delivery of Programme of Work which deemed school visits as essential.

·       17 September 2020 when the Complainant was issued with a final written warning for  failure to comply with an instruction to attend onsite school visits. This sanction fell under Level 3 Final Written Warning under the Civil Service Disciplinary Code.

·       1 October 2020 the date of submission of the Workplace Relations Commission Complaint Form.

The Respondent relied on Section 27 (1) and (3) of the Act in its submission. In terms of burden of proof the Respondent opened the Labour Court Determination in O’Nell v Toni & Guy Blackrock  HSD095 wherein it was held the burden rests with the Complainant to prove a claim for penalisation:-

“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 determent 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.”

The Court continued:

“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”.

It was further submitted by the Respondent that the Complainant’s refusal to follow a reasonable instruction to return to school visits and therefore Section 27(6) of the Act is particularly important in this case. Section 27(6) provides:

“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”.

It was submitted that the Respondent provided a clear and reasonable instruction to the Complainant to return to school visits. The Complainant continuously refused to do so. It is clear from s.27(3)(f) of the Act that the test to be applied to this case is:

“i. Did the Complainant believe that there was serious and imminent danger in returning to school visits?; and

ii. Did the Complainant believe in all of the circumstances that she could not reasonably have been expected to avert the said danger in the school visits?”

The first consideration is whether there was in fact a complaint made under the Act and having made that finding must then consider whether the Complainant was penalised within the meaning of Section 27 (3) of the Act.

1.       Whether a complaint was made under the 2005 Act?

On 31 August 2020, the Complainant complied a document entitled, “NCSE Lead Worker Representative Report 31 August 2020 Roscommon” which contains 15 points under the heading of “Summary of Observations on NCSE’s Compliance with National Covid-19 Advice”. This report was issued to management by email on 31 August 2020.

While there is no requirement to make specific reference to Health, Safety and Welfare at Work Act 2005 in a complaint, it is noted that the entire focus of the Complainant’s 31 August 2020 report is based on the Complainant’s “observations” on the Respondent’s compliance with public health guidance on Covid19 and the Respondent’s guidance documents on this topic.

It is further noted there is an email from the Complainant to management dated 1 September 2020 wherein the Complainant refers to “raising my concerns” on the “NCSE controls for safe working with schools”.

Section 27(3) of the Act prohibits penalisation or the threat of penalisation against employees, including for:

(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,

 ( 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 … 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 …

Consequently, I find a complaint made by the Complainant to the Respondent for the purposes of the 2005 Act.  

2.       Penalisation

The second consideration is whether the Complainant was penalised for making such a complaint.

Section 27(1) of the Act provides that “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.”

Section 27(3)(c) and (f) of the Act prohibits penalisation or the threat of penalisation against employees provides:

“(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,

 ( 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 … 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 …”

It is also necessary to look at whether the Complainant suffered “detriment” as a result of raising the complaint. Section 27 of the Act provides 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.”

In St. John’s National School v Akduman (HSD102), the Labour Court held:

“In order to succeed, the Complainant must establish that the acts or omissions on the part of the Respondent affected her terms or conditions detrimentally. She must then establish that there is a causal connection between these acts of omissions and her complaint regarding health and safety matters.”

The Court continues:-

“This Section [Section 27]  is intended to protect employees who exercise any of the rights referred to at Subsection (3) from retaliatory conduct by their employer. In applying the provision the Court must be careful to recognise the distinction between a detriment which may be suffered by an employee as a result of an employer’s failure to fulfil a duty under the Act and a detriment amounting to “penalisation”.”

The Labour Court identified the appropriate test:-

“It is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by Subsection (3) and but for the protected act the employee would not have suffered the detriment complained of”.

The Labour Court in Patrick Kelly t/a Western Insulation v Algirdas Girdsius (HSD081) was clear in its requirement for there to be a causal connection between the detriment suffered and that detriment was imposed in reprisal for the employee’s complaint:

“Thus it is perfectly plain that in order to succeed in a cause of action grounded on the Section a Claimant must establish not only that he/she suffered a detriment of a type referred to at subsection (1) but that the detriment was imposed because of, or was in retaliation for, the employee having acted in a manner referred to at subsection (2).”

The Complainant was subjected to a disciplinary sanction on 17 September 2020 and she was  unsuccessful in her appeal on 24 September 2020. The subject of that disciplinary meeting was outlined correspondence between Mr O’Leary and the Complainant beginning on 8 September 2020:-

“The purpose of this meeting is to allow management to put forward concerns regarding your recent actions, specifically your refusal to follow reasonable management instruction regarding arranging and making school visits as part of the SNA exceptional review process, and to allow you respond to these concerns. “

It is the Complainant’s case that the reason she could not attend school visits because of the concerns she raised around the attending school during the Covid19 pandemic and in particular the guidance documents provided to SENO by the Respondent for such visits.

While I do find there was as a matter of fact a disciplinary sanction imposed having regard for the Labour Court’s decision in Patrick Kelly t/a Western Insulation and St. John’s National School but I do not find that the Complainant has discharged the burden of proof that the disciplinary action was in “retaliation for” raising her concerns. It was for failure to carry out reasonably instructions of the Respondent.  I find this does not amount to penalisation for the purposes of Section 27 of the Act.

I come to this finding in light of Section 27 (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”.

It is as a fact that the schools were open at this time from 1 September 2020 – 10 October 2020 with public health guidance in place. Most pertinent to this complaint, is there was a considerable amount of guidance provided by the Respondent around visiting schools which was deemed an “essential” activity of the Complainant’s position. The Respondent furnished the Complainant with  the Covid-19 Guidance for NCSE staff completing school visits to deliver NCSE services on 24 August 2020 and the  NCSE Covid-19 Response Plan: Compliance with Return to Work Safely Protocols on 4 August 2020. Therefore, she was in possession with advice and guidance from both the Respondent at the relevant time.

It was on 10 October 2020 that she submitted her complaint to the Workplace Relation Commission. Therefore, any steps taken by either party after this date are outside of the scope of this decision.

I do not find the complaint to be well founded.

Health and Safety Act – Penalisation – Covid19 -Not Well Founded