HSD203

1. An appeal of an Adjudication Officer's Decision No. ADJ-00015030

BACKGROUND:

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 10 May 2019. A Labour Court hearing took place in a virtual Courtroom on 29 September 2020.



DETERMINATION :

This matter comes before the Court as an appeal by Ciara Halpin t/a Jo Jingles Cork (the Respondent) against the decision of an Adjudication Officer given under the Safety, Health and Welfare at Work Act, 2005 (the Act) in a complaint made by Heather O’Sullivan (the Complainant) that she had been penalised within the meaning of the Act at Section 27. The Adjudication Officer made a decision which appears to be related to what he concluded to be a failure of the Respondent to carry out a risk assessment. The Adjudication Officer awarded the Complainant a sum of €1,000 in compensation for this failure.

Background

The Complainant commenced employment with the company on 13^th April 2015 as a class teacher working across a number of locations. She worked 11 hours each week on average and received a rate of pay of €20.00 per hour. Her employment terminated on 8^th January 2018.

It is common case that the Claimant was afforded two weeks’ pay in lieu of notice upon termination of her employment.

Summary of the position of the Complainant

The Complainant submitted that the Appellant penalised her for having sought a safety risk assessment of her workplace in light of her pregnancy on 2^nd January 2018. She submitted that the Respondent reacted to her request for a risk assessment of her workplace by closing the business and terminating her employment. This, she submitted, amounted to penalisation within the meaning of the Act.

She submitted that she had informed her employer of her pregnancy in October 2017. She came to believe that one of her work venues posed a health and safety risk and she informed her employer of that view on 2^nd January 2018. On 4^th January 2018 the employer advised her that all of her work would be cancelled for five weeks.

On 4^th January also the Complainant highlighted to the employer that the employer had particular responsibilities to pregnant employees if there is a health and safety hazard in the workplace. On 5th January 2018 the Respondent advised the Complainant that she was to be made redundant.

The Complainant submitted that the Respondent sent a notice of business closure to the her when she sought to have a perceived risk in the workplace addressed. She submitted that it was only when the she asserted her right to a safety risk assessment under the Act did the Respondent terminate her employment. Prior to that moment the Respondent had prepared plans for the business future, had set out the working arrangements for the new term and had discussed maternity leave cover with the Complainant.

The Complainant submitted that a range of options were available to the Respondent to accommodate the safety issues arising in the work venue. These included arranging a replacement teacher while the risk assessment was carried out or temporarily moving the work venue to another location. She submitted that the Respondent did not give consideration to any alternative course of action but proceeded immediately to close the business and terminate the Complainant’s employment upon being advised of a Health and Safety concern.

The Complainant submitted that she was dismissed in a manner which amounted to penalisation of her within the meaning of the Act.

Summary position of the Respondent (Appellant)

The Respondent denied that the Complainant had been penalised within the meaning of the Act and submitted that she was dismissed on foot of a failure of the business.

The Respondent submitted that the Complainant informed her in October 2017 that she was pregnant. The Respondent did not think that any risk attached to the Complainant’s pregnancy at work. The Respondent had run classes herself while she was pregnant as had two other teachers and no issue had arisen.

The Respondent contacted the Complainant four days before the term was due to start in January 2018. At that point fees had been taken from customers for the Douglas location which was the most profitable element of the business and was the location which supported the operation in all other locations.

The Complainant requested the Respondent to carry out a risk assessment of the Douglas venue. The Respondent, in recognition of the fact that the Complainant worked across a range of venues, decided that a risk assessment across all work venues would be appropriate. The Respondent decided that, in order to conduct such risk assessments, she would have to cancel all classes for the first half-term of five weeks. That cancellation of classes was commercially unsustainable and the business closed as result of that set of circumstances. The business failure related to the practical reality of the unsustainability of a five-week closure and the return of fees to customers which flowed from that. The termination of the Complainant’s employment arose from the redundancy of her position and not as a penalisation of her for having raised a health or safety concern.

The Complainant received all statutory redundancy entitlements on the termination of her employment.

The 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,

• (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,

• (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) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions

    (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 issue arising for decision in this case is whether the Complainant’s dismissal occurred as a penalisation of her for having made a complaint or representation to the Respondent as regards a matter relating to safety, health or welfare at work.

As was pointed out by this Court in O’Neill v Toni & Guy Blackrock 21 ELR 1, in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3 of Section 27 of the Act. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. Thus, 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 Complainant having committed the protected act 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.

The Complainant contends that she sought a risk assessment of her workplace arising from her health and safety concerns in the context of her pregnancy and that the Act at Section 27 protects her from penalisation for so doing.

The Act at Section 26 in relevant part provides as follows:

• 26(2) Employees shall have the right to make representations to and consult their employer on matters relating to their safety, health and welfare at work, including the matters specified in subsection (1).

The Respondent has submitted that the conduct of risk assessments in the number of workplaces where the Complainant worked would have affected the business to such a degree that it would become unsustainable and as a result of that conclusion having been reached, the business was closed.

As a consequence of the foregoing, the Court is satisfied that the operative reason for the termination of the employment of the Complainant was the fact that she had sought a risk assessment of her workplace. The Court therefore concludes that the Complainant was penalised within the meaning of the Act and the act of penalisation was the termination of her employment.

This Court has, in another decision in relation to a separate complaint made by the Complainant on the same set of facts, decided that the termination of the Complainant’s employment amounted to a discriminatory act within the meaning of the Employment Equality Act, 1998. The Court made an award of compensation under that Act for the effects on the Complainant of the act of discrimination which was the termination of her employment.

The Act requires the Court, in considering redress, to have regard to all of the circumstances of the within complaint in determining the amount of compensation which is just and equitable arising from a determination that the within complaint is well founded.

Determination

For the reason set out herein the Court has concluded that the within complaint is well founded. Having regard to all of the circumstances however, the Court determines that the amount of compensation which is just and equitable is nil.

The decision of the Adjudication Officer is varied.

The Court so Determines.

	Signed on behalf of the Labour Court
	Kevin Foley
13 November 2020	______________________
CC	Chairman