HSD246

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043635 (CA-00054002-004)

BACKGROUND:

The Complainant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts, 2005 to 2014.  A Labour Court hearing took place on 25 July 2024. 

 The following is the Decision of the Court.

DECISION:

Background

 This is an appeal by the Complainant of an Adjudication Officer’s decision under the Safety, Health and Welfare at Work Act 2005, (the Act). The Adjudication Officer held that due to the non-attendance of the Complainant the complaints were not well founded.

The Complaint was lodged with the WRC on 1st December 2022. The cognisable period for the purpose of the Act is 31st May 2022 to 1st December 2022. As the Complainant was a lay litigant the Court explained the process it would follow, and the requirement for her to identify a breach of the Act within the cognisable period.

 It was not in dispute between the parties that the Complainant had commenced work with the Respondent in 2008 and that she is absent on sick leave since 20th December 2021.

 During the hearing, the Court facilitated the Complainant with breaks to afford her an opportunity to formulate her responses to specifics issues relating to her complaint, and to identify the relevant elements of her submissions linked to each of the specific questions. As the hearing was outside Dublin and took place in a hotel room, it was not feasible for the Division hearing the case to leave the room during the breaks, so both parties were asked to leave.  In order to avoid a situation where one party left the room while the other party was still preparing to leave the room, and any suggestion of impropriety that might arise from that situation, the Court requested that the solicitor for the Respondent remain in the room until the Complainant was ready to leave. The solicitor and his colleague, then left the room with the Complainant and her husband. At no stage was either party requested to remain in the room when the other party left. Apart from prior to the commencement of the hearing when the Chairman walked into the hearing room where the Complainant and her husband were already seated, and the Chairman advised them that the normal procedure was that they would wait outside until requested to come in by the Court Secretary, no member of the division spoke to either party when the other party was not present.

 Summary of the Complainants submission.

The Complainant sent in detailed submissions, setting out issues that she had over the years and her efforts to resolve these issues or have them resolved by the Respondent. In respect of her complaint and the specifics of  the Act, the Complainant confirmed  that the protected acts that she  was relying on fell under Section 27 (3) subsections 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,  and (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 person from the danger.

 When asked to elaborate on the protected act under each of the subsections that she was seeking to rely on the Complainant stated that in respect of subsection (a) the Respondent had breached its duties under the regulations, in respect of subsections (b) (c ) and (f) the Respondent had not complied with the Act. The Complainant confirmed that these were the protected acts that she was relying on. She referenced her submission and various issues she had raised in particular about the suitability of the accommodation they wished her to work in.

Moving on to section 27 (2) penalisation, the Complainant submitted that she was relying on s27 (3) (d) imposition of any discipline, reprimand or other penalty (including a financial penalty) and (e ) coercion or intimidation. The Complainant informed the Court that in July 2022, which was during the relevant time period, she was notified that her application under the UCC income continuance policy was not successful, she believes that was because of her complaints/ protected act. The second issue was that by letter of June and July 2022 Occupational Health tried to coerce her to attend a work-related meeting whilst she was out sick by deeming her well enough to attend the meeting. The Complainant confirmed to the Court that these were the penalisations within the cognisable period that she was relying on, but there were others outside of that period.  The Complainant submitted that these action by the Respondent were contrary to the Act.

Summary of the Respondents submission.

Mr Mc Carroll solicitor on behalf of the Respondent submitted that section 27 (3) (a) and (b) relate to a role or duty under the Act. The Complainant was not a safety rep and did not have any statutory role pursuant to the Act, and therefore cannot establish that she carried out a protected act in line with same.  In respect of section 27(3) (c) the Respondent accepts that representations were made to her employer on the 17th May 2022, which could meet the requirements of section 27 (3) (c). In respect of subsection (f) the Complainant has not been in the workplace since March 2020, and has not identified any situation where she was in imminent danger which caused her to leave the workplace or refuse to return to same.

  In terms of what the Complainant is alleging as penalisation under section 27 (2) (d) and (e). The Respondent has sought to engage with the Complainant about her grievances in line with their policies but to no avail. The Complainant cannot allege penalisation in circumstances where any delay in processing her grievances arises from her failure to engage with the process in line with the requirements of that process.

In order to proceed with the Complainants grievance, and as is normal practice when someone is out sick, the Respondent sought the advice of Occupational Health as to the Complainant’s fitness to engage in the process. Occupational Health declared the Complainant was fit to engage, and to attend a meeting relating to her grievance complaint.   The decision that her application under the income continuance policy was unsuccessful was a decision of the third-party provider and not the Respondent and cannot be considered a detriment attributable to the Respondent.

The Respondent made an application that the Court should consider as a preliminary issue whether or not the Complainant had identified any penalisation /detriment in the cognisable period.

The relevant Law

The Act at Section 27 in relevant part provides as follows:

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,

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 re 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.

Discussion

The Court’s jurisdiction in the within matter is confined to determining whether, within the meaning of Section 27 of the Act, actions of the Respondent amounted to prohibited penalisation.

The Court has approached the within matter on the basis of first determining whether a protected act within the meaning of the Act at Section 27(3) was committed.  In respect of the Complainants submission under section 27 (3) (a) and (b) the Court finds that she has failed to identify what statutory provision she is alleging she was complying with, and or performing any duty or exercising any right under. Therefore, this element of her complaint must fail.

  The Court notes that the Respondent accepts that the Complainant made a complaint by letter of 17th May 2022, that falls within the scope of the Act. The Court therefore determines that there was a protected act within the meaning of section 27 (3) (c ), of  the Act.

The element of the Complainant’s complaint relating to section 27 (3) (f) also fails, as the Complainant has failed to identify a relevant protected act.  The Complainant in her submission to the Court stated that the Complainant did not comply with the Act. Despite being afforded an opportunity to expand on that, she maintained her position as being that they had not complied with the Act. 

 Having determined that the Complainant did make a complaint which could constitute a protected act the Court went on to look at the alleged penalisation.

 The Complainant alleges two acts of penalisation during the relevant period, firstly, that she was notified in July 2022, that her application under the UCC income continuance policy was not successful. The Complainant did not dispute that the income continuance scheme was provided by a third party. The Complainant has failed to establish that the Respondent was the party responsible for refusing her application under the UCC income continuance, and or establish a causal link between this alleged penalisation and her complaint of 17th May 2022. On that basis this element of her complaint must fail.

The second detriment alleged was that Occupational Health by letters of June and July 2022 coerced the Complainant to attend a work-related meeting, when she was out sick.   While the correspondence in the submissions suggest that the Complainants doctor at that stage did not think she was in a position to attend a work meeting, the Occupational Health report stated that she was. As it transpires, the proposed meeting did not take place. This is confirmed in an email from the Respondent of 2nd August 2022, requesting that when the Complainant felt well enough, that she would meet with Ms O’Leary so that she could hear her grievance.

 The Court cannot accept that the mere fact of Occupational Health disagreeing within the Complainant’s GP, can in and of itself be regarded as coercion, and on that basis the Court finds that Complainant has not established that she was penalised or suffered a detriment at the hands of the Respondent during the cognisable period.

The Complainant has failed to establish, that being certified by Occupational Health as fit to attend a work meeting, relating to a grievance that she had lodged, could be construed as a penalisation, and has failed to establish a causal link between that incident and her complaint, or any detriment arising from that letter of  17th May 2022. 

Decision

The Court having heard the parties and considered the submissions finds that the Complainant did make a complaint which would constitute a protected act but has failed to establish that she was penalised by the Respondent, or suffered any detriment for doing do. On that basis his complaint must fail.

The appeal fails. The decision of the Adjudication Officer is upheld.

 The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
14 August 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.