HSD244

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No: ADJ-00016062 (CA-00020861-001)

BACKGROUND:

The employee appealed the Decision of the Adjudication Officer to the Labour Court on 11 January 2019 in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts 2005-2014.

A Labour Court hearing took place on 3 April 2024.

The following is the Determination of the Court.

DECISION:

This is an appeal by Deirdre Morgan (the Complainant) of a Decision of an Adjudication Officer (ADJ-00016062, CA-00020861-001, dated 9 January 2019) under the Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”) against her former employer Sandra Cooney’s Home Care Ltd (the Respondent). The Adjudication Officer did not uphold her complaint of penalisation under the Act.

This appeal is linked to two other complaints lodged by Ms Morgan against Sandra Cooney’s Home Care Ltd under the Unfair Dismissals Act, 1977 (“the 1977 Act”), and the Organisation of Working Time Act, 1997. The Adjudication Officer issued decisions relating to all three complaints on 9 January 2019. All three decisions of the Adjudication Officer were appealed to the Labour Court.

A Labour Court hearing took place on 20 June 2019. At that hearing, the appeal under the Safety, Health and Welfare at Work Act 2005 was adjourned on the basis that the Complainant would clarify if she was proceeding with her appeal under that Act once the decision under the 1977 Act issued, and, if so, she would make a submission addressing s 27(4) and (5) of the Act. The employer would be given the opportunity to make a replying submission.

The decision under the 1977 Act issued 2 December 2020.

A case management meeting in relation to the 2005 Act appeal was conducted on 9 March 2021 and following this the appeal was listed for hearing.

The appeal was listed for hearing a number of times and on occasions adjourned at the request of the Complainant for health reasons and on other occasions at the request of the Complainant because of ongoing High Court proceedings or to allow the parties make further submissions.

The hearing of the within appeal was held on 3 April 2024.

Background

The Complainant was employed as a home care assistant with the Respondent from 1 December 2016 until 10 July 2018 when her employment was terminated on the grounds of gross misconduct.

The Complainant alleges that her employment was terminated and she suffered a further detriment because she made a protected disclosure about a client’s health and welfare.  The Respondent rejects both claims.

Preliminary Matter

A preliminary matter was raised by the Respondent regarding the Court’s jurisdiction to hear that element of the appeal that relates to the termination of the Complainant’s employment.

Position of Respondent – Preliminary Matter

The Respondent submits that the Complainant is prohibited from receiving relief in respect of a penalisation claim under the 2005 Act, in circumstances where she is already in receipt of an award of compensation for the same act of penalisation pursuant to the Unfair Dismissals Act 1977. Were the Complainant to receive additional relief under the 2005 Act, such relief would be in direct contravention of Section 27 (5) of the 2005 Act and contrary to the principle of “res judicata”. 

The Adjudication Officer held that the Complainant was unfairly dismissed due to procedural deficiencies when effecting her dismissal. He found that the Complainant significantly contributed to her own dismissal by virtue of her conduct and awarded €1,500 in compensation. The Adjudication Officer expressly noted that there was no prima facie evidence that the Complainant was dismissed for having raised a health and safety complaint in accordance with Section 27(3) of the 2005 Act. He noted that she was “wholly or mainly” dismissed for “seriously breaching the Company rules” and that was the operative reason for her dismissal in accordance with Section 6(6) of the 1977 Act.

The Complainant appealed that decision to the Labour Court which determined in Determination UDD2037 that the appeal was lodged outside the statutory timeframe, and it had no jurisdiction to hear the matter. As a result, the decision of the Adjudication Officer in respect of her dismissal stands and remains binding on the parties.

The doctrine of “res judicata” prohibits the reopening of an issue which has already been decided by a competent court or tribunal. This doctrine exists in conjunction with broader rules which operate to prevent a party opening a collateral attack on a Court’s findings, or trying to litigate a matter which it tactically chose not to run in a previous case.

In Henderson v Henderson(1843) 3 Hare EWCA Civ 199the Court held that a litigant may not make a case in litigation which might have been, but was not, made in previous litigation, as doing so amounts to an abuse of process. In Corbett Anor v LSREF III Achill Investments Ltd, the Court held that continuing the new proceedings would constitute a collateral attack on the judgment and findings in the summary proceedings and was impermissible as an abuse of process. Regard should also be had to the equitable maxim “interest reipublicae ut sit finis litium”, in other words “it is in the public interest that there be an end to litigation”.

The Complainant is clearly trying to attempt a second bite at the cherry following the award issued by the Adjudication Officer pursuant under the 1977 Acts. In circumstances where the subject matter is “res judicata” and where there is no possibility of relief, the claim should be struck out. This aspect of the appeal should be dismissed on the grounds of being frivolous and vexatious.

Position of the Complainant – Preliminary matter

The Complainant submits that the Court has discretionary power under Section 27(5) of the 2005 Act for the decision maker to grant dual relief. The meaning of Section 27 is in the title of the Section – “Protection against dismissal and penalisation”.  Section 27(5) makes it necessary to decide if the dismissal is “in contravention of subsection (3)”. The Act makes no definition or restrictions on what constitutes “relief”. The relief sought by the Complainant for the penalisation complaint is not money, but a series of orders to reverse the untruths.

The Adjudication Officer’s decision separated his granting of relief for unfair dismissal from the decision on alleged penalisation. The precise cause of the dismissal was not ascertained. The Respondent seeks to displace the specific reason given by the Adjudication Officer under the Unfair Dismissal Act. The Respondent’s assertion of res judicata is an attempt to reopen the Adjudication Officer’s decision, which breaches the principle of res judicata.

The Complainant referred the Court to Student Transport Scheme Limited and the Minister for Education and Skills Appeal No 116/2016 where Clarke CJ stated at para 7.17: - “The principle of finality applies even where there may be a basis for suggesting that a judgment of this Court was wrong.” The within appeal under the 2005 Act requires a “wrong” under the 1977 Act to be corrected, in order to allow the Complainant’s right to have the email of 3 July 2018 protected.

Conclusions of the Court on the Preliminary Issue

The within appeal is taken under the Safety, Health and Welfare at Work Act 2005. Notwithstanding the Complainant’s assertions that the precise cause of her dismissal was never ascertained by the Adjudication Officer in ADJ-00016062 CA-00029861-002, having examined the claims referred and the submissions made, it is clear that a case grounded on the same facts was referred to the Adjudication Officer under the Unfair Dismissals Act, 1977 and under the Safety, Health and Welfare at Work Act 2005.

In her complaint form to the WRC, the Complainant clearly stated that “My unfair dismissal complaint is the same as the complaint under the Safety, Health and Welfare at Work Act 2005”. At the hearing of the within appeal, the Complainant confirmed that her complaint related to the making of a protected act, which she asserts led to her dismissal.

As a result, the Court is clear that the issues in contention relating to the termination of the Complainant’s employment have already been ventilated in a case before the Adjudication Officer and a Decision made by the Adjudication Officer. It follows that the redress ordered in her complaint under the 1977 Act was intended to cover the totality of her complaint and she cannot use the present proceedings to obtain an additional or better remedy for what is undoubtedly the same wrong for which she already has been compensated.

For the reasons set out above, the Court is satisfied that any cause of action that the Complainant may have in the present proceedings in relation to her dismissal were extinguished by the Decision in her favour under the Unfair Dismissals Act 1977 and she is stopped by that Decision from seeking to re-litigate that cause of action again. 

Having regard to the above, the Court determines that the aspect of the within appeal relating to the termination of the Complainant’s employment is res judicata and is fully comprehended by the decision of the Adjudication Officer in ADJ-00016062, CA-00029861-002 dated 9 January 2019.

Substantive Appeal

Summary Position of the Complainant

The Complainant sent an e-mail to her manager on 3 July 2018 seeking information and relaying to her concerns about a client’s healthcare plans for the forthcoming weekend.

“Hi Gillian,

Amy rang me this morning to say that she was asked by the company to work all my calls with (Family A) and (Family B) on Saturday on Sunday.

(Client A) was wondering if you can confirm if this is the case because he needs to make arrangements for his care?

The (“X”) Welfare Association attend (Client A). I think he's going to ask the man from the (“X”) Welfare Association to look after him this weekend and then he is going to ask the company to reassign the 8 weekend hours to weekday evenings to cover the work that (“X”) do.

I have made a lot of arrangements weeks in advance. I would be very grateful if you could confirm that someone from the company is going to work at the (Family B) on Wednesday and Thursday lunchtime and evening for the next few weeks? And that any hours taken off me at weekends will be reimbursed in holiday pay?

Best wishes

Deirdre” [Certain names in this email were anonymised by the Court].

The Complainant submits that the above e-mail is proof that she relayed information to her manager, and that she was seeking information concerning a client’s healthcare plans for the forthcoming weekend.

The Complainant submits that her manager reacted to the email by generating untruths about the Complainant for the purpose of denigrating and maligning her concern for the client, and for the purposes of terminating her contract of employment. On the 4 of July 2018 her manager sent her an e-mail in response, as follows:

“Hi Deirdre,

I have tried to contact you by phone to no avail.

Your e-mail last night dictating our clients time schedule is unacceptable you cannot move clients hours without the HSE approving it

I have spoken to you previously regarding every second weekend off and so has Andy this will be starting from this weekend

I've spoken to (Client A’s) daughter collection hope to set up a meeting with them if (Client A) chooses to have no care every 2nd weekend that is his choice but we won't be moving the hours to weekly hours

Amy has already started covering the Wednesday or Thursday and will continue to do so also please see attached our company handbooks please read over again and familiarise yourself company policies and procedures after that we would like you to come into the office to discuss your contract with us and anything else you are unhappy with

Regards

Gillian Duggan”

In the replying email, the Complainant’s manager did not confirm if Amy was scheduled to work. Instead, she chastised the Complainant and accused her of wrongdoing by dictating the client’s schedule. She also sent an attachment of ninety-nine pages of disciplinary rules and company policies and asked the Complainant to familiarise herself with them before attending a meeting about her contract employment.

Her contract of employment was subsequently terminated on 10 July 2018. The Complainant submits that her employer dismissed her in circumstances where it claimed that she was engaging in objectionable behaviour of dictating a client’s schedule, self-rostering, and forcing a client to request her presence despite the employer having rostered other care workers to be present with him instead of her every second weekend.

The Complainant submits that e-mail of 4 July 2018 penalised her by accusing her of dictating a client’s schedule and by issuing her with instructions to read disciplinary policies and procedures. The untruthful accusations affected her emotional welfare and her confidence. She felt that the emails were reprimanding in tone and put her on notice of what looked like a disciplinary meeting. The e-mail had a chilling effect and made her too afraid to seek information from them or give them information concerning client welfare.

There was a causal link between the e-mail of 3 July 2018 and the creation of untruths. The Respondent created untruths about the Complainant because of that email. The email was the operative factor in her penalisation.

The Complainant submits that she had an excellent disciplinary record and demonstrated complete confidence in her role.  Had the complainant being engaged in any wrongdoing this would have been reflected in assessments signed by both her supervisor and the managing director.

The Complainant seeks that the Court requires the Respondent to submit an incident management form and follow incident management procedures to reverse damage done by their creation of deliberate untruths and to prevent similar from happening to other clients and care workers. The Complainant also seeks reinstatement.

Position of the Respondent

The Respondent submits that the content of the email dated 3 July 2018 does not constitute a health and safety complaint for the purposes of the 2005 Act and does not fall within any of the grounds as stated under Section 27 (3) of the Act.

The content of the email dated 3 July 2018 solely relates to the rota schedule of a client. No concern or issue is identified in respect of the provision of care for the client’s health and safety. The email squarely relates to the timing and scheduling of his care. The Complainant has not provided any evidence to the contrary, and her complaint of penalisation (dismissal or other) should fail in the first instance.

The Respondent requests that the Court determines as a preliminary point whether the email dated 3 July 2018, constitutes a protected act under Section 27 (3) of the 2005 Act.

The Complainant’s allegations that she suffered a detriment by being dismissed and by “untruths” made by the Respondent in respect of self-rostering and her disciplinary record are rejected.

It is further submitted that the making of “untruths” does not constitute a form of penalisation. The Complainant seems to suggest that it is a form of reprimand as provided for under subsection (3) – however this is not accepted by the Respondent. The Respondent contends that a reprimand presupposes that a positive action has been taken by them which has had a negative effect on the Complainant’s employment (other than dismissal). In circumstances where untruths do not constitute a form of penalisation, the Complainant’s complaint should fail. If the Court should find that untruths could be deemed a form of penalisation, it is submitted that there is no merit to the untruths as claimed by the Complainant. 

The Labour Court provided clear guidance as to the nature of the test for establishing a causal nexus for penalisation claims under the 2005 Act in O’Neill v Toni & Guy Blackrock Ltd [2010] ELR 1. The Complainant does not meet the stringent requirements of the “but for" test laid down in Toni & Guy.

In Oglaigh Naisiunta na hEireann v McCormack (HSD/115), the Labour Court stated that there is a requirement “to show a chain of causation between the impugned detriment and the protected act or omission." In St Johns NS v Akduman (HSD102) the Labour Court also determined that:

“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 and the respondent’s treatment of the claimant.”

The Complainant’s employment was terminated because of her conduct. Issues concerning her behaviour existed prior to the email dated 3 July 2018. The detriment suffered by the Complainant related to her conduct prior to the email of that date, which continued after the email was sent.

At no stage did the Complainant raise any matters relating to untruths or penalisation in response to her email dated 3 July.

Penalisation

Section 27 of the Safety, Health and Welfare at Work Act, 2005, 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,

(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.

Deliberations

At the hearing, both parties confirmed to the Court that they were satisfied they had been given a full opportunity to present their respective cases and to provide the Court with all relevant evidence to support their respective positions. Both sides declined to proffer any witness testimony.

The Court must assess whether the actions of the Respondent amounted to prohibited penalisation, within the meaning of Section 27 of the Act.

The Court in considering a complaint under the Act must address three questions. In the first instance, the Court must be satisfied that a protected act or acts has or have taken place as described in the Act at Section 27. Secondly, the Court must be satisfied that the Complainant suffered a detriment during the relevant period as described in the Act at Section 27. Finally, the Court must decide whether the detriment was suffered because of her committing a protected act.

Was there a protected Actas described at Section 27 of the Act?

To ground her complaint under the 2005 Act, the Complainant asserts that an email dated 3 July 2018 that she sent to the Respondent constitutes a protected act.

The Complainant asserts that the e-mail of 3 July 2018 relays concerns about a client’s healthcare plans for the forthcoming weekend, and that the email constitutes proof that she was seeking information from the Respondent about that client’s healthcare plans for the forthcoming weekend.

Having reviewed the email of 3 July 2018, the Court finds the content of the email clearly refers to rostering arrangements. In the second paragraph of the mail, the Complainant seeks confirmation regarding who is assigned to care for a client on Saturday and Sunday. In the third paragraph, the Complainant requests confirmation about who will be rostered to work in the following weeks. The Complainant also queries whether hours taken from her will be reimbursed in holiday pay.

The Court finds that the queries raised in the mail relate to scheduling matters, and no concerns or issues are raised in respect of the provision of care for the client’s health and safety. The email contains no issues, complaints or representations regarding any matter relating to safety, health or welfare in the workplace.

Considering the above, and having regard to the submissions made, the Court is satisfied that the communications from the Complainant to the Respondent on 3 July 2018 did not amount to a representation in relation to a matter relating to safety, health, or welfare at work and do not constitute a protected act within the meaning of the Act at Section 27(3)(c).

Accordingly, the Court finds that the Complainant has not satisfied the first leg of the test in that the Complainant did not make a protected act as required at Section 27(3).

It follows that the Complainant was not penalised because of making a protected act.

Determination

The Court finds that the complaint is not well founded. The appeal is not allowed.

The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
CN	______________________
20th June 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Cathal Nerney, Court Secretary.