ADJUDICATION OFFICER
Adjudication Reference: ADJ-00034900
Parties:
| Complainant | Respondent |
Parties | Keith Cassidy | Board Of Management, Clonkeen College |
Representatives | Conor McDonald of the ASTI | Ms C Kelly, Mason Hayes & Curran Solicitors |
Complain
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-00045967-001 | 03/09/2021 |
Dates of Adjudication Hearing: 03/09/2021, 28/02/2022 & 16/05/2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 28 of the Safety, Health & Welfare at Work Act, 2005 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This matter was heard by way of remote hearing and in person hearings pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties.
Full cross examination of Witnesses was allowed and availed of.
The issue of confidentiality was discussed and as no major reasons for same were raised the Finding will be published as a public document.
Unfortunately, due to Covid 19 difficulties, the preparation of the Adjudication finding was delayed.
Note: This Adjudication Adj-00034900 replaces an earlier Adj-00032032 which was withdrawn having been mistakenly submitted under the Employees (Provision of Information & Consultation), Act 2006
Background:
The complaint concerns an allegation of Penalisation contrary to the Safety, Health & Welfare at Work Act of 2005 (for convenience below - referred to as the SH&W Act of 2005) of a Union member by an Employing school. The Complainant alleged that he was “de-recognized” as a H&S Representative by the Respondent and subjected to unwarranted disciplinary procedures by the School. These actions were all directly linked to his raising of H &S matters in the School and in particular his promotion of the HSA promoted Work Positive Programme – the WPP (for convenience) The employment commenced on the 1st September 2011 and continues. The rate of pay, at the date of complaint reference, was stated to be € 2,178 gross per fortnight. |
1: Summary of Complainant’s Case:
The Complainant was elected as a Safety Representative in November 2018. This selection was properly in keeping with all H & S and ASTI (the Complainant’s Union) rules and procedures. In the Spring of 2019, the Complainant became aware of the HSA (Health and Safety Authority) guidance of Human Factor Risks in a Post Primary School environment. On making inquiries he discovered that the Respondent Safety Statement was lacking in Risk Assessment of Human Factor issues. To addresses this shortcoming he proposed that the HSA Work Positive Programme (for convenience the WPP) be utilised in the School. As an initial stage a WPP Steering Committee was established drawing on a cross section of all School staff. Following an initial meeting a WPP Survey was undertaken among staff during the month of May. In September the results were communicated to the Principal, Mr M. The Survey had identified eight members in a distressed state. The School authorities began a campaign to undermine the WPP process. Four members of the Steering Committee resigned after the Principal had suggested that the WPP Committee was not covered by School insurance as it did not have proper approval by the Board of Management (for convenience the BOM). The Complainant felt frustrated and lodged an internal Grievance, against the Principal, in pursuit of his case. A meeting of the BOM took place on the 30th September 2020. It was a hostile situation and the Principal suggested that the Complainant was not a proper Safety Representative as he had not been properly selected. His status and recognition as a proper Safety Representative was effectively cancelled by the BOM. The meeting lasted over three hours and was described as “very stressful” for all involved. In January 2021 the Complainant raised the issue of “Connectivity” of Staff with school emails etc outside of normal hours/term times. The School BOM replied directing him to cease acting as a Safety Representative In February 2021 the Complainant was called to a Disciplinary Meeting with the Principal, Mr M. The subject matters were the Use of School E mail for non-School purposes and the non-completing, in the required time frames, of student reports on the School Central IT System. This meeting was a direct form of Intimidation and Harassment in retaliation for his Safety Representative activities over the Disconnection issues and the earlier WPP activities. In summary the BOM and the School Principal, instead of acting proactively in response to clear Safety/Human factors issues, choose instead to Penalise the Complainant by removing his Safety Representative status and taking a spurious Disciplinary action against him. The Complainant has suffered from severe stress as a result of the entire process. The Complainant gave a lengthy Oral Testimony assisted by Mr McDonald of the ASTI. A full cross examination of the Complainant by Ms. Kelly for the BOM took place. A colleague, the ASTI Lay school representative during the period in question, Mr B, also gave supporting oral testimony. Significant written materials, e mails, Board minutes etc were exhibited in support of the Complainant’s case.
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2: Summary of Respondent’s Case:
2:1 Main Submission and Oral Testimony The Respondent, represented by Ms Kelly, provided a lengthy written submission, supported by extensive documentation. Witness Oral Testimony was provided by the Chairman of the BOM, Mr F, The School Principal, Mr. M and the Deputy Principal, Mr Br. The first issue raised by Ms Kelly of behalf of the BOM was the status of the Complainant as a “Safety Representative”. The Complainant maintained that had been selected from among his peers at an ASTI meeting in November 2018. The School maintained that despite repeated requests to the Complainant no proper details of the meeting had been provided, minutes, agenda, proposers, seconders etc, invitations etc. The Principal had met with the Complainant in January 2019 to query this matter. The BOM pointed out that this alleged selection process was completely at variance with Section 25 of the S, H & W Act, 2005. It was accepted that a WPP committee was established in May 2019.The Complainant assured Mr. M, the Principal, that all HSA Guidelines would be followed. It appeared later that the Complainant appeared to fill virtually all the Multiple Offices on the Committee as well as the alleged Safety Representative role. Despite reservations from other WPP Committee members and a non-consultation with the BOM and or the Principal, the WPP Survey was issued by the Complainant in May 2019. The Principal sought further information from the Complainant regarding the WPP but to no avail. At this stage five member of the WPP committee had resigned citing a lack of Information being provided by the Complainant regarding the work of the WPP exercise. The alleged non-co-operation by the Principal and the Safety Representative selection issue formed the main part of a formal grievance against the Principal by the Complainant. This Grievance (Stage 3 of the Procedure) was fully investigated by a Special BOM meeting on the 30th September 2020. The BOM did not support the Complainant’s Grievance. The Complainant did not exercise the next stage of the Grievance Procedure to lodge a further Appeal. It is important to note that the Chairman of the BOM, Mr. F, gave extensive Oral testimony regarding this special Grievance meeting. Mr. F was a former School Principl of another major South Dublin School. He was of considerable experience of Board Meetings having served, post retirement, on a number of School Boards. He was clear in his evidence that the Grievance meeting had been conducted with the utmost professionalism and natural justice. Correspondence continued regarding the WPP Survey and the Complainant during late 2020 and early 2021. Mr M, the Principal had discussions regarding the issue with Mr McD of the ASTI in February 2021. It was established during these communications that Mr. M, the Principal, was the School executive responsible for overall H & S matters. Accordingly, the difficulties with the Complainant not providing information regarding the WPP was all the more concerning. In further unrelated developments the School Administration in December 2020 communicated to all teaching staff the need to properly and efficiently upload all Christmas Test results to the School IT System on or before the 8th January 2021. The Complainant was lacking in this regard and the Principal communicated with him (January 11th) in this connection in early January. The Complainant replied on the 14th January pointing out his “right to disconnect”. A related issue the use of the School e mail system by the Complainant for non-school matters was also raised by Mr.M. An informal Disciplinary meeting with the Complainant regarding these issues was held by Mr M on the 26th February 2021. The view of the School Management was that the Complainant was effectively ignoring reasonable management/administration requests particularly regarding uploading his student reports. The Respondent view, from the meeting of the 26th February, was that an informal resolution had been arrived at and the matters could now rest. However, the situation was repeated by the Complainant for the Summer reports of 2021. As regards the issue of Timetabling for Senior Classes, a penalisation alleged by the Complainant, the Respondent pointed out that the required School Teacher consultation forms, normally completed in January for the succeeding year were left largely blank by the Complainant as well as being submitted very late. Timetabling requests from Teachers cannot be guaranteed in any school but the Complainant had a Senior Cycle class in the 2021/2022, effectively negating any suggestions of a negative Penalisation. The Board and the Principal had a legitimate expectation under the Education Act ,1998 to require a staff member to follow reasonable instructions from the School Principal, Mr.M. The Respondent pointed out that the Complainant has a long history of lodging grievances (4 in number) against the Principal and (2 in number) the Deputy Principal. These were all related to differences between the Principal/Deputy Principal in relation to School administration / efficiency matters and had no direct H & S content. In final summary the Respondent stated that the Principal/BOM requests for full information, documentation etc regarding the Complainant’s purported election as a Safety representative and the manner that the PPW programme was being conducted were absolutely legitimate requests for any School Management.
A lengthy Oral testimony was given by the Principal Mr. M and supported by the Deputy Principal, Mr.Br. These testimonies were extensively cross examined by Mr McDonald for the ASTI/Complainant. Mr M & Mr Br gave coherent professional evidence and supported all the matters reported above. A situation of considerable frustration with the Complainant and his apparent policy of almost wilful non-co-operation with reasonable School policy was portrayed.
Overall H &S was the final responsibility of the Principal, Mr M, and he had never been found wanting. It was perfectly legitimate for him, Mr, M, to query the process by which it was alleged ASTI members had selected the Complainant. Both Mr M and Mr Br were ASTI members and had been completely unaware of any ASTI selection exercise. Likewise, the WPP exercise had been largely the creation of the Complainant. As School Management with legal responsibilities as well as ordinary ASTI members they were entitled to quey the process. This could not be seen as any negative agenda against the Complainant. The meeting of the BOM on the 30th of September 2020 which had lasted for over three hours had been very traumatic for all sides especially Mr M, the School Principal. However, he was adamant that he had always acted with the utmost professionalism in the execution of his legal School management responsibilities. In closing comments by Ms Kelly for the Respondent, she contested that any Complainant suggestions of Penalisation as defined by Section 27 of the S, H & W Act,2005 simply do not have any good legal standing. In supporting Leagl precedents submitted, the Respondent referred to the Paul O’Neill v Toni and Guy Blackrock Limited Det No HSD095 and Microsemi Irl Trading Ltd v Andrezekcak Det N0 HSD131in support of their arguments relating to the need for the Complainant to establish a clear causal chain between employee actions and alleged employer retaliations under Section 27. The oft quoted “But For” test was referenced. In final summary the Respondent maintained that the Complainant had not established any necessary causal link between perfectly legitimate school actions and an alleged Penalisation suggestion.
The Complaint under Section 27 of the S, H & W Act,2005 has neither proper legal or factual standing and must be rejected.
2:2 Procedural Issue /Time Frame of Complaint.
The Complainant alleged as one of his main grounds a Penalisation arising from a meeting with the Principal Mr. M on the 26th of February 2021.
The Complaint was not formally lodged with the WRC until the 3rd September 2021 thus rendering the Complaint based on the February meeting of 2021 “out of time”.
The Adjudication Officer was asked to reflect on this point in his Decision.
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3: Findings and Conclusions:
3:1 The Legal Context – Sections 27 & 28 of the Safety Health and Welfare Act, 2005. For ease of reference Section 27 it is set out below. Protection against dismissal and penalisation. 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.
The key reference is Sub Section (1) - 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.
Extensive Legal precedents as referenced in the submissions especially Paul O’Neill v Toni and Guy Blackrock Limited Det No HSD095 give useful guidance. The highlight requirements for a Complainant are to establish 1. That he/she was acting in accordance with the relevant Sections of the 2005 Act 2. That a Detriment imposed by the Employer was suffered as a result of 1 above 3. That there is a clear and unambiguous causal linkage, a Burden of Proof requirement, between the actions in 1 above with 2 above.
However, it is important to note that all cases, Legal issues notwithstanding, rest on their own evidence and testimony. It is necessary to consider these at this stage. It is important to record that extensive Oral testimony was provided by the Chairman, Mr. K, in relation to the Special Board of Management (BOM) meeting of the 30th of September 2020. He was fully cross examined by Mr. McDonald for the ASTI/Complainant. Full minutes were presented as supporting written material. The special BOM extensively considered all the relevant issues at that time. However, the Informal Disciplinary Meeting with Mr M took place in February 2021 which meeting was referred to by the Complainant in support of his case of victimisation. 3:2 Review of the written material and Oral Testimony. 3:2:1 Question One - Acting in Accordance with the 2005 Act – Safety Representative Status and WPP Programme? The selection /appointment of the Complainant as a Safety Representative under the 2005 Act was strongly contested by the Respondents on a range of procedural grounds. In essence the case was that there had not been proper notification to concerned and eligible staff members across the entire Workforce in various Unions. The selection took place at an ASTI Trade Union meeting to which all ASTI members (including the Principal/Deputy Principal) were not invited/communicated with in advance. Request to the Complainant to clarify his selection and accordingly the validity of his position failed to achieve any positive result. The entire issue was extensively discussed at the special BOM meeting to consider the Grievance lodged by the Complainant in this regard. The oral testimony from the Chairman was that he acted completely independently and, in concert with some 8 fellow Board members, came to the conclusion that the purported selection of the Complainant was not in keeping with normal custom and practice, in all Schools of his experience, and HSA guidance for the selection of Safety Representatives. Accordingly, the BOM did not recognise the Complainant as a Safety Representative for the purposes of the 2005 Act. In recognition of the ASTI, Mr. Mc Donald, Mr B, the School Steward, and the Complainant position it has to be acknowledged that Safety Representative positions are generally, in all employments ,not much sought after by Union members. If a member volunteers, as was the case here, the selection is almost automatic even if some procedural niceties are overlooked. From an Adjudication point of view much reliance has to be given to the Oral testimony from Mr. K, the Chairman. In evidence he outlined his extensive School Management experience. He had never been on the staff of the Respondent School. In his Oral testimony and replies to Mr. McDonald for the ASTI he was clear cut and professional. However, from the point of view of the 2005 S, H & W Act 2005 a Safety issue can be raised with an employer by any employee . It is not a “Reserved Function” to Safety Representatives alone. In this connection the issues raised by the Complainant can be deemed valid but on the basis of an ordinary employee only. The WPP Process was initiated by the Complainant in good faith. His Oral Testimony was clear on this. However, the approach appeared somewhat cavalier and the concerns of the Principal as the School’s Ultimate Executive Managerial authority for H & S were genuine. To be blunt the WPP was undiplomatically handled, and the good will of the Principal was lost early. In Adjudication summary the Complainant did act very broadly within the confines of the 2005 Act even if his procedural/diplomatic approach especially to the Principal’s very legitimate queries left a lot to be desired. The selection of the Complainant as a Safety Representative was technically procedurally invalid but under the 2005 Act this did not preclude him from raising Safety concerns as an ordinary worker. 3:2:2 Question Two - Was a “Detriment” imposed on the Complainant as a result of his actions above.? The Complainant largely based his case on the Informal Disciplinary meeting of the 26th of February 2021. Reading the correspondence and listening to the Oral testimony it appeared that the Complainant felt some penalty had been imposed upon him by the Principal initiating Disciplinary action. The Complainant felt that the School had breached the “Right to Disconnect” principles. While to an outside Observer the use of the School email system for ASTI purposes was probably a quite “venial sin”. Non-compliance with the Student records IT Uploading system was much more problematic. The personal relationship between the parties was quite troubled and the invoking of the Disciplinary procedure was, to an outside observer, a warranted step. The Principal thought it was handled in a low-key fashion and matters were resolved, in his view, satisfactorily. In oral evidence the question of whether this Disciplinary action was a “retaliation” in some fashion for the S, H & W activity of the Complainant was considered. On balance from an Adjudication point of view and having reviewed all the written material and especially the Oral testimonies it was hard to see a direct causal link – the “But for” test as per the O’Neill v Toni and Guy case. The Complainant had a long history of lodging grievances against the Principal and was without doubt a challenging staff member. The Burden of Proof is high here and a direct link, as required by all Leagl precedents, to the S,H &W actions of the Complainant as a “But For” causal link to the Disciplinary actions was not supported by realistic “hard” evidence. In addition there was no evidence of any “Detriment” being imposed. None of the examples cited in Section 27 could be said to apply. There was no Dismissal, demotion, loss of pay or privileges etc for the Complainant. 3:2:3 Question Three - Was there a Casual Linkage established between a “Detriment” and a S, H & W Action under the 2005 Act? In view of the discussions at Paragraph 3:2:2 and 3:2:2 above the Adjudication conclusion has to be that as no Detriment was imposed. There was no “But For” element and the case does not stand on this ground. 3:3 Final Adjudication Summary Section 27 of the Safety, Health and Welfare Act 2005 requires that a case of Penalisation can be properly and Legally traced back to an act undertaken by the Employee in pursuit of the objectives of the Act. This is the Legal “Burden of Proof” that has to be addressed. Much hinged in this case on the Safety Representative selection and Status issue. There was no doubt from an Adjudication viewpoint that the selection process was far from ideal even allowing for “normal” Union short cuttings in this process. On a strict Legal basis the Respondent was correct not to accept the Complainant as a Safety Representative. However, the activities of the Complainant in purposing the WPP process were legitimate even if very badly handed from a School Political & Managerial Relationships aspect. As regards the complaint that a Penalty was imposed there was no supporting evidence put forward to sustain this claim. From an Adjudication point of view no Penalty, as envisaged by the S, H & W Act, 2005 or generally was evident. On overall balance and having carefully studied all the written materials and the extensive Oral testimony given the Complainant of Penalisation has to be deemed Not Well Founded. It does not succeed.
3:4 Time Limits / Procedural issue raised by Respondents. Having reviewed all the materials and the fact that an earlier complaint under Adj-00032032 which was withdrawn, (having been mistakenly submitted under the Employees (Provision of Information & Consultation), Act 2006,) the Adjudication view was to allow the complaint to proceed, effectively by granting a further six month extension. |
4: Decision:
CA: 00045967-001
Section 41 of the Workplace Relations Act 2015 and Section 28 of the Safety, Health & Welfare at Work Act, 2005 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the cited Acts.
Having carefully considered all the written materials and especially the Oral Testimony of the Parties the Adjudication decision is that the Complaint of Penalisation is Not Well Founded.
The Complaint does not succeed.
Dated: 10th November 2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Penalisation, Section 27 Safety, Health and Welfare Act,2005 |