FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : ST. ANNE'S SERVICE ROSCREA (REPRESENTED BY HOLMES O'MALLEY SEXTON SOLICITORS) - AND - ROSE MAHER (REPRESENTED BY SMYTH STAPLETON & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision HS 44731/06/MR.
BACKGROUND:
2. The Complainant worked for St. Anne's Service Roscrea since 1991 as a Registered Mental Handicap Nurse and she had been on certified sick leave for work-related stress and depression since November 2004. In December 2005 a Rights Commissioner awarded the Complainant a goodwill gesture of €2,000 in compensation due to a delay in dealing with a bullying and malpractice complaint at work and requested the immediate commencement of a previously agreed investigation. A complaint of penalisation within the meaning of Section 27 of the Safety, Health and Welfare at Work Act, 2005, was lodged by the Worker in July, 2006, she has remained unpaid for a period of 28 months up to the Labour Court hearing date in September 2007 and is claiming compensation for this loss. The Rights Commissioner in a Decision dated 29th January, 2007 awarded the Worker €20,000 in compensation.
On the 1st March, 2007 the Employer appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act, 2005. Two Labour Court hearings took place on the 4th and 17th September, 2007.
UNION'S ARGUMENTS:
3. 1. The Worker's sick pay benefit was terminated in May 2005, earlier than her employment contract allowed.
2. The core issues at the centre of her complaints including bullying and harassment were never addressed in order to allow her to work in a safe working environment.
3.The Chief Executive Officer threatened her with legal proceedings, yet another form of penalisation within the meaning of Section 27 of the Safety, Health and Welfare at Work Act, 2005 (the Act).
COMPANY'S ARGUMENTS:
4. 1. The Worker did not lodge her complaint within the time prescribed by the Act, therefore she is precluded from pursuing same and no application to extend the time limit was sought by her under Section 28(4).
2. As of May 2005 the Complainant had exhausted all her entitlements under the sick pay scheme, accordingly her sick pay stopped.
3. The Chief Executive Officer personally submitted a defamation claim against the Worker and therefore it had nothing whatsoever to do with the Employer.
DETERMINATION:
Ms. Rose Maher (the Complainant) is a Registered Nurse in Mental Handicap employed by St. Anne’s Service, Roscrea (the Respondent/Appellant) since February 1991. In November 2004, the Complainant went on certified sick leave certified as suffering from “work-related stress”. The Respondent made a number of requests to meet her to discuss the cause of the stress. In February 2005, the Complainant submitted a lengthy written report detailing the cause of her alleged work-related stress. At the request of the Respondent, Ms. Maher produced a further document detailing her specific concerns, which was sent to her Union representative dated 7th June 2005 and this formed the basis of her complaint to the Respondent/Appellant.
Counsel for the Complainant informed the Court that a Rights Commissioner’s Recommendation made under the Industrial Relations Act, 1969 and 1990, dealt with Ms. Maher’s complaints that there was inordinate delay in carrying out an investigation into her complaints of bullying and harassment. The Rights Commissioner’s Recommendation, which was signed on 19th December, 2005, awarded Ms. Maher €2,000 and recommended that management should take measures to ensure that the investigation should begin as early as possible in the New Year. This Recommendation was not appealed by either side.
Counsel for the Complainant contended that following the making of the complaint under the Industrial Relations Acts, which was referred to the Rights Commissioner on 16th August 2005, further inordinate delays and obstruction occurred which gave rise to a complaint of penalisation within the meaning of Section 27 of the Safety, Health and Welfare at Work Act, 2005, (the Act). This complaint was referred to the Rights Commissioner on 27th July 2006 and is now on appeal before this Court.
The Complainant states that she has been penalised on three grounds:
-Her sick pay entitlement was terminated in May 2005;
-The Respondent has consistently failed in its duty to deal with her complaints, its refusal to reinstate her on the payroll and its refusal to allow her to recommence work in a safe working environment;
- and
The Rights Commissioner in a Decision dated 29th January 2007 decided that the complaint was well-founded and ordered St. Anne’s Service to pay the Complainant
€20,000 in compensation and required both parties to agree that all matters in dispute not resolved by 1st April 2007 should be referred for final adjudication to an appropriate third party within one month of that date. The Respondent has appealed that Decision to the Court. For ease of reference Ms. Maher is referred to in this Determination as “the Complainant” and St. Anne’s Service Roscrea is referred to as “the Respondent”.
Position of the Parties
Mr. Pat Barriscale, the Respondent’s legal representative, submitted that the Complainant did not lodge her application within the time prescribed by the Act and is, therefore, precluded from pursuing same.
He stated that the Complainant had been on certified sick leave since November 2004 and in February 2005 submitted a 19-page document with numerous and multiple complaints against many of the people employed by the Respondent's Service. However, it was not until 27th July 2006 that she lodged a complaint of penalisation under Section 27 of the Act to the Rights Commissioner.
He submitted that pursuant to Section 28(4) of the Act, the Rights Commissioner should not entertain a complaint unless it is presented within a period of 6 months beginning on the date of contravention to which the complaint relates or such further period not exceeding 6 months as the Rights Commissioner considers reasonable. The complaints were made on the 16th February 2005, the Act came into force on the 1st September 2005, the application was not lodged before the Rights Commissioner Service until 27th July 2006 - well outside the six-month period. No application to extend the time was sought under Section 28(4).
He submitted, therefore, that the protection of the Act could only avail the Complainant if she suffered unfavourable treatment of the type referred to at Section 27 of the Act after 28th January 2006, in consequence of having made complaints in relation to health and safety before that date. Since, on the Respondent’s submission, the complaints in relation to health and safety relied upon by her were made in February and June 2005, and the alleged unfavourable treatment occurred from November 2004, the Labour Court should not entertain the complaint.
Without prejudice to its submissions in regard to the time limit, Mr. Barriscale submitted that the Respondent was not responsible for any act or omission detrimental to the Complainant with respect to any term and condition of the employment and consequently the provisions of Section 27 of the Act do not apply.
Mr. John Curran, B.L. Counsel for the Complainant, stated that the Court should take account of penalisation, which took place before the coming into force of the Act. He cited a recent Labour Court DeterminationDepartment of Justice Equality and Law Reform v Mr. Philip V. Kirwan HSD/07/1where the Court held :
- “The Court is of the view that Section 27 should be construed as providing that penalisation can arise where, after the commencement of the Act, a worker is subjected to unfavourable treatment of the type referred to at subsection (2) of that Section in consequence of having made a complaint to his or her employer as regards any matter relating to safety, health or welfare at work notwithstanding that such complaint was made before the commencement of the Act.”
Mr. Curran held that a further frightening and intimidating act of victimisation occurred when the Chief Executive threatened her with legal proceedings in June 2006.
He maintained that the Respondent had failed in its duty to deal with her complaints effectively and had accordingly prevented her from recommencing work in a safe working environment. He stated that despite the Rights Commissioner’s Recommendation under the Industrial Relations Acts, further inordinate delays and obstruction occurred.
The Respondent made the following response to the specific claims of penalisation:
(i) The termination of Ms. Maher’s sick pay entitlement in May 2005
Mr. Barriscale stated that as of May 2005 the Complainant had exhausted all her entitlement under the Respondent’s sick pay scheme. Accordingly her pay stopped. This had nothing to do with the complaints made by the Complainant. In any event, this took place before the coming into force of the Act and could not be relied upon by the Complainant in bringing a claim of penalisation.
(ii) The Respondent’s continued failure in its duty to deal with her complaints, its refusal to reinstate her on the payroll and its refusal to allow her to recommence work in a safe working environment.
Mr. Barriscale stated that without prejudice to his contention that the Complainant’s complaint was out of time, any delay if such took place was fully dealt with by the Rights Commissioner under the Industrial Relations Acts, 1969 and 1990, when he issued his Recommendation dated 19th December 2005. This Recommendation had been fully complied with and a thorough, detailed and expensive investigation had been carried out in relation to all the complaints put forward by the Complainant. The investigation found that there was no basis for same and no substance for any such complaints.
Conal Devine & Associates, Management Consultants, were agreed upon after considerable time was spent attempting to decide on the appropriate person to carry out the investigation into the complaints made. The terms of reference were agreed and the first hearings commenced in April 2006 and were adjourned on 28th April 2006 when Mr. Devine, having heard her case, decided to allow the parties to pursue an agreed solution. He put forward a draft facilitation agreement designed to bring about a return to work, to develop a better working relationship between the parties and to resolve matters in settlement of all the Complainant’s claims. During the period when the draft was under consideration by the Board of Management of the Service, Ms. Maher rejected the terms and requested a resumption of the investigation. The investigation recommenced and it was concluded in November 2006. Mr. Devine’s concluded his lengthy and detailed report in May 2007.
(iii) The Respondent’s Chief Executive’s threats of legal proceedings issued to Ms. Maher and to her Representatives in June 2006.
The Complainant received a letter on 8th June 2006 from a firm of Solicitors representing the Chief Executive Officer. This letter suggested that the Chief Executive Officer had been defamed in statements contained in the document she furnished to the Respondent on 2nd February 2005.
Mr. Barriscale submitted that the bringing of a defamation claim was entirely a personal matter for the CEO and any action by him or any letters for and on his behalf had nothing whatsoever to do with the Respondent employer and that such employer had no authority or control over these actions.
The law applicable
Statutory provisions
The Act came into operation on 1st September 2005. Section 27 provides in relevant part as follows: -
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.
- (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.
- (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,
- “existing enactments and this Act and any instrument made under this Act for the time being in force”
- “(a) the enactments specified in Part 1 of Schedule 2 and any instruments made under those enactments for the time being in force, and
(b) the regulations made under the European Communities Act 1972 for the time being in force specified in Part 2 of Schedule 2”
Retrospectivity
The first question the Court must consider is whether the Act can have any retrospective effect. This subject was already considered by this Court in a preliminary ruling in the case ofDepartment of Justice Equality and Law Reform v Mr. Philip V. Kirwan HSD/07/1
- “It is clear beyond argument that the Act cannot be applied retrospectively….. Legislation is deemed to be retrospective in effect when it takes away or impairs any vested right acquired under existing law or creates a new obligation, or imposes a new duty or attaches a new disability in respect of transactions or considerations already past (Hamilton v Hamilton[1982] IR 466).
However past events can be taken into account in applying a statute without infringing the rule against retrospectivity. This was noted by Barron J. inO’H v O’H[1990] 2 I.R. 558, as follows: -- “In considering whether a statute should be construed retrospectively, a distinction is to be drawn between applying the new law to past events and taking past events into account. To do the latter is not to apply the Act retrospectively”.
It appears from the wording of Section 27 that where an employee does something of the type referred to at subsection (3), before the Act was passed, and after the passing of the Act is subjected to unfavourable treatment by his or her employer on that account, that unfavourable treatment is penalisation. This seems clear from the meaning ascribed to the terms “relevant statutory provisions” and “existing enactments” by Section 2 of the Act and recited above in this Determination.
The combined effect of these definitions is that the relevant statutory provisions referred to at paragraphs (a), (b) and (d) of subsection (3) of Section 27 includes statutes which were repealed by virtue of Section 4(2) of the Act on its coming into effect. It is thus clear that Section 27 provides protection, inter alia, against penalisation for conduct, which was compliant with or pursuant to a repealed enactment. By definition such conduct could have occurred before the passing of the Act.
Under the scheme of the Act if the complaints made by the Complainant in April, 2005, came within the ambit of either paragraph (a) or (b) of Section 27(3) (if it involved acting in compliance with a provision of the Safety, Health and Welfare at Work Act 1989 or performing a duty under that Act) it could not be seriously argued that subsequent penalisation on account of those complaints would not be unlawful. There is no reason in principle or in logic as to why a complaint coming within the scope of paragraph (d) of the subsections should not be similarly protected.”
The substance of the Determination inKirwanis that where complaints were made under the relevant provisions prior to the coming into force of the Act and the Complainant was penalised after the coming into force of the Act, then the Cmplainant is entitled to rely on the provisions of Section 27 when bringing a claim of penalisation. However it must be established that the acts or omissions alleged to constitute penalisation occurred after the enactment of the Act on 1st September 2005. In order to succeed, the Complainant must establish that the acts or omissions on the part of the Respondent affected her terms or conditions detrimentally. She must then establish that there is a causal connection between these acts of omissions and her complaint regarding health and safety matters.
It is therefore the finding of the Court that the Complainant is entitled to pursue her claims of penalisation against the Respondent with respect to any allegation of penalisation which occurred in the period 28th January to 27th July 2006, the latter date being the date upon which the Complainant made her formal complaints to the Rights Commissioner under the Act. Applying this logic to the three separate strands of the Complainant’s allegations of penalisation the Court finds:
(i)(a) The termination of the Complainant’s sick pay entitlements in May, 2005, and
(b) The Respondent’s refusal to reinstate her on the payroll and allow her to recommence work in a safe working environment:
The Court has examined these complaints together as it is of the view that they are interlinked. The Court is satisfied from all the detail submitted at the hearings and from the additional information requested by the Court from both parties that there is no evidence to show that there was any correspondence prior to the date of claim to substantiate the Complainant’s contention that the Respondent refused to allow her to return to work and thereby reinstate her on the payroll. Evidence was produced to show calendar entries in March and April 2006 of telephone calls which the Complainant made to the Respondent concerning enquires about her wages/sick pay entitlements but not about her return to work.
The sick pay scheme states: -
- Eligibility for payment is as follows:
-[not relevant]
-Full salary will be paid for a maximum of twenty-six weeks in any twelve-month period up to a total of twelve months over a forty-eight month period.
The Court’s understanding of the sick pay scheme allows for a maximum period of six months' paid sick absence, which may be enhanced by a further period of sick pay in the event that the Claimant has a second period of illness, but that it does not allow for a continuation of benefit unless there is a return to work and a further claim is made at least twelve months after the initial claim. In those circumstances, it is clear that the Complainant is not entitled to a further period of benefit, unless she returns to work before the expiry of the 48 months.
The Court is satisfied that no grounds have been submitted to substantiate her claim that the reason she was not paid her due entitlements under the sick pay scheme, was a retaliation attempt by the Respondent, thereby penalising her for invoking the Act. The Court is satisfied that in the circumstances of her absence, the Respondent operated the scheme in the appropriate manner.
In any event, the Complainant’s complaint in this regard falls outside the ambit of the Act. This complaint of penalisation arose from the Respondent having ceased payment under the sick pay scheme in May 2005. This was prior to the coming into force of the Act and more than six months before the complaint was lodged with the Rights Commissioner.
Accordingly, this aspect of the Complainant's claim of penalisation fails.
(ii)The Complainant’s complaints of delay: -
Against the background of the previous delays found by the Rights Commissioner under the Industrial Relations Acts, the Complainant alleged ongoing delays in related matters to her detriment.
The Court notes that after the Rights Commissioner’s Recommendation under the Industrial Relations Acts was issued in December 2005 some weeks were spent attempting to decide on the appropriate persons to carry out the investigation until eventually Conal Devine & Associates, Management Consultants, were agreed upon and the matter was referred to them on 8th March 2006.
Section 3 of Mr. Devine’s report details the chronology of events, stating that interviews took place on 27th and 28th April 2006 - these were concluded prematurely as Mr. Devine recommended a facilitation process to bring closure to the matter. His report records that a Draft Facilitation Agreement was acceptable to both the INO and St. Anne’s. However, on 9th May 2006, Ms. Maher rejected the Draft Facilitation Agreement. At that point he made attempts to recommence the investigation. Efforts made to resume interviews during early summer were unsuccessful due to holiday plans and it was not possible to recommence before the end of August/beginning of September 2006. However, despite all his efforts “to progress the investigation but all parties were not in a position to proceed until the end of November”.
Interviews recommenced in November and December 2006. Drafts of all interview notes were circulated to each of the parties for comment. Final interviews were held on 12th February 2007and the draft report was issued on 15th March 2007. By the end of April 2007 all responses to draft report were received.
Having examined all the detail, the Court is of the view that there was no material delay nor other related difficulties, which could give rise to a complaint under the Act. During this period the external Investigator engaged by the Respondent conducted his investigation in as timely a fashion as was possible in all the circumstances and any delays in the completion of that investigation during that period were attributable to reasonable factors outside the control either of the external Investigator or the Respondent employer.
Therefore, the Complainant’s allegation of penalisation on this ground must fail.
(iii)The Respondent’s Chief Executive Officer’s threats of legal proceedings for defamation against the Complainant and her Trade Union in June, 2006: -
The Court finds that the threat of defamation proceedings taken by an individual employee of the Respondent in his/her private capacity against another employee of the Respondent cannot be construed as penalisation by the Respondent of the Complainant under the Act, regardless of the status within the Respondent employer of the employee who initiated the threat of defamation proceedings through his/her private Solicitors. The threat to issue legal proceedings for defamation was a private matter. In issuing such a letter the CEO could not be said to be acting by or on behalf of his employer and such an action is therefore outside of the employment relationship covered by the Act.
The Complainant’s allegation of penalisation on this ground must also fail.
- In Conclusion
DETERMINATION
The Court cannot uphold the Complainant’s three complaints of penalisation as detailed above. The Court overturns the Decision of the Rights Commissioner and upholds the Respondent's appeal under the Act.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th March, 2008.______________________
JF.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.