FULL RECOMMENDATION
SECTION 29 (1), SAFETY HEALTH AND WELFARE AT WORK ACTS , 2005 TO 2014 PARTIES: THE BOARD OF MANAGEMENT, CLONKEEN COLLEGE (REPRESENTED BY ROSEMARY MALLON BL, INSTRUCTED BY MASON HAYES & CURRAN LLP) - AND - MR KEITH CASSIDY (REPRESENTED BY ASSOCIATION OF SECONDARY TEACHERS IN IRELAND) DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00034900 CA-00045967-001 DETERMINATION: Background to the Appeal This is an appeal by Mr Keith Cassidy (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00034900/CA-00045967-001, dated 10 November 2022) under the Safety, Health and Welfare at Work Act 2005 (‘the Act’). The Complainant’s Notice of Appeal was received in the Court on 19 December 2022. The Court heard the appeal in Dublin on 20 September 2023 during which it received the sworn evidence of the Complainant and that of Mr Frank Burgess, School Steward. Factual Background The Complainant is a geography teacher in Clonkeen College in Deansgrange, Co. Dublin. He is a member of the Association of Secondary Teachers in Ireland (‘ASTI’). His employer at all material times was (and remains) the Board of Management of the College (‘the Respondent’). The Complainant submits that he had been duly selected as a ‘safety representative’ - within the meaning of section 25(1) of the Act - at a meeting of his trade union colleagues in the school, convened by Mr Burgess on an unknown date in late November 2018. Thereafter, it is common case that the Complainant was the prime mover in seeking to introduce into the school a programme developed by the Health and Safety Authority and known as Work Positive. As part of that process, the Complainant conducted an online survey of staff. He alleges that the results generated by that survey were not welcomed by management and that this then prompted the Principal to take steps to remove him from his role as safety representative. He submits that the Principal’s actions in this regard amount to penalisation within the meaning of section 27 of the Act. In particular, the Complainant relies on section 27(3)(e) of the Act which provides:
The Complainant told the Court that he had taken an interest in health and safety matters generally and in mental health issues in particular, over a long period of time. He said that when he became aware of the Work Positive programme he collaborated with the School Steward, Mr Burgess, in November 2018 to organise a union meeting in the school at which he put himself forward for selection as safety representative within the meaning of the Act. The Complainant could not recall much by way of detail in relation to that meeting although he was certain that a notice convening the meeting had been displayed on the ASTI noticeboard in the staff room for about a week and that there was only one item listed on the agenda i.e. the selection of school safety representative. He also recalls that about twenty, of a total of thirty-five, ASTI members attended the meeting; that no other candidate was put forward and he was selected unopposed. He cannot recall the names of colleagues who nominated or seconded him for the position. The Complainant’s evidence then moved to a series of emails and letters he sent in December 2018 and January 2019 to the Principal which he signed as ‘safety representative’ and which appear to have gone unanswered by the Principal. On 18 January 2019, the Complainant wrote again to the Principal requesting a meeting with him. A meeting took place on 22 January 2019. The Complainant told the Court that it is his understanding that the Principal both acknowledged him as the safety representative at that meeting and commended him for his work in relation to health and safety matters in the school, including his initiative in seeking to introduce the Work Positive programme there. The Complainant then told the Court that on 8 February he sent an email to all staff in the college – including administrative staff, cleaning staff and maintenance staff – seeking their support for, and participation in the work of, a proposed Work Positive committee. (The Complainant was forced to correct his evidence in this regard under cross-examination when he confirmed that this email had been sent only to teaching staff.) The Complainant said that he also placed a notice about the proposed committee on the general noticeboard in the staff room. A committee was then formed which, according to the Complainant, was the most diverse committee ever constituted in the school’s history as it comprised teachers, SNAs, members of the maintenance and cleaning staff, and members of the administrative staff. It appears that the first meeting of this committee took place, online, on 8 May 2019 and was attended by seven staff members only, all but one of whom is a teacher. Under cross-examination, the Complainant again confirmed that he had no detailed recollection of how the union meeting that took place in late November 2018 proceeded. He could only name two colleagues, including Mr Burgess, he recalled being present at the meeting. The Complainant said that he had expressed an interest to Mr Burgess in being selected as school safety representative prior to the November 2018 meeting. In response to Counsel’s questions, the Complainant said that he believed that the total staff cohort (including non-teaching staff) in the school at the time was forty-five and that twenty teachers had attended the November meeting. Counsel then pressed the Complainant on his claim that the Principal had recognised him as school safety representative at the meeting that took place on 18 January 2019. She put it to him that the Principal’s evidence would be that he expressed no such view at that meeting and gave no verbal affirmation that he had accepted the Complainant’s status as school safety representative and that in fact the Complainant had made an assumption in this regard. Counsel referred the Complainant to correspondence to him from the Principal dated 22 November 2019 which used the term ‘Safety Representative’ (i.e. in inverted commas) at all times in reference to his assumed role. Counsel put it to the Complainant that the use of the inverted commas was a clear indication that the Principal did not accept that he was a duly constituted safety representative. In response to questions from the Court, the Complainant accepted that there were several irregularities with the manner in which the November 2018 union meeting had been conducted and also with the formation of the Work Positive committee and those irregularities, at the very least, cast doubt on the integrity of the statutory process. Evidence of Mr Frank Burgess The witness told the Court that he has been School (ASTI) Steward for about five years and that he had completed an ASTI training programme for shop stewards. He told the Court that the November 2018 meeting resulted from a conversation between him and the Complainant following their mutual awareness of a booklet that contained details of the HSA Working Positive programme. The witness’s recollection was that the Complainant expressed an interest in leading the introduction of the programme in the Respondent’s school but told the witness that he would first have to become the school safety representative. The witness said he then put up a notice convening a union meeting for that purpose and the meeting took place on a Tuesday in late November. He explained to the Court that he has no record of the notice as he used a template document to create it which he later re-used for another purpose. He also said that he did not keep any record of the meeting as it had been a single-item meeting at which no debate had taken place as the Complainant was the only person nominated for selection. His recollection was that the meeting lasted less than ten minutes. He was able to name the colleague who proposed the Complainant for selection but not his seconder. Under cross-examination, the witness said that it was his clear understanding that the November 2018 meeting was an ASTI meeting and that the Complainant had been selected at that meeting as the ASTI safety representative. The witness also stated that it was his opinion that this was the understanding shared by his ASTI colleagues in the school. Finally, in reply to Counsel’s questions, the witness said that he did not contact the union nor the Board of Management to advise them of the Complainant’s selection. Discussion and Decision As the Complainant’s claim of penalisation is predicated on section 27(3)(e) of the Act, it is necessary at the outset to consider the meaning of section 25(1) of the Act and to determine whether or not the Complainant was duly constituted as the safety representative in accordance with that provision. It is self-evident that an allegation that one was penalised for “being a safety representative” cannot be sustained unless one has actually been duly constituted as such. Section 25(1) provides:
It is common case that the Respondent is the relevant employer for the purposes of the within appeal. No evidence was put before the Court to establish that the Respondent agreed to the selection or appointment of multiple safety representatives. It follows, therefore, that it was open to the Respondent’s “employees” to select and appoint a single safety representative in accordance with section 25(1). The subsection refers to “employees” selecting a safety representative “from amongst their number”. It does not refer to a sub-group of employees selecting one of themselves to act in that role. The clear evidence of Mr Burgess - the School Steward who convened the meeting in November 2018, and a witness called by the Complainant – was that the Complainant was commonly regarded by ASTI members in the school as the ASTI safety representative. The Court found Mr Burgess to be a very honest and reliable witness. It is beyond doubt that the Complainant – on his own evidence – was not selected to be the school’s safety representative at a meeting which all employees in the school at the time were eligible to attend and nor was he commonly regarded by his peers as the whole-school safety representative; he was regarded by them as the ASTI safety representative. It follows that the Complainant was not duly selected by the Respondent’s employees to be their safety representative in a manner consistent with section 25(1). That being the case, the Court must, therefore, conclude that there can be no basis to the Complainant’s allegation that he suffered penalisation for being the safety representative. For the reasons set out above, the Court finds that the claim of penalisation under section 27(3)(e) is not well-founded. The Complainant’s appeal, therefore, fails and the decision of the Adjudication Officer is upheld. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |
