FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : AN GARDA SIOCHANA - AND - MS MAIRE O' REILLY DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner Decision No: r-111924-hs-11/EH
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioner Decision No: r-111924-hs-11/EH submitted to the Labour Court in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act, 2005. Labour Court hearings took place on 26th June, 2012 and 21st August, 2012. The following is the Court's Determination:
DETERMINATION:
- This matter came before the Court by way of an appeal by Maire O’Reilly (hereafter the Claimant) against the decision of a Rights Commissioner in her complaint of penalisation by the Commissioner of An Garda S�ochána (hereafter the Respondent). The complaint was made pursuant to s.28 of the Safety Health and Welfare at Work Act 2005.
It appears from the decision of the Rights Commissioner that the complaint, as presented to him, was that the Claimant was removed from the payroll on or about 31stDecember 2009, some ten days after she made a complaint of bullying and harassment against a number of members of An Garda S�ochána. This, the Claimant contends, amounted to penalisation within the meaning of s.27 of the Act. The complaint was presented to the Rights Commissioner on 30thAugust 2011. The Respondent denies the Claimant’s claims.
The Rights Commissioner found that the complaint was presented outside the time limit prescribed by s.28(4) of the Act and beyond the period by which an extension could be granted pursuant to that subsection.The appeal
The appeal came on for hearing before the Court on 21stJune 2012. The Claimant raised a number of objections to the hearing proceeding on that date. These objections related to the representation of the Respondent by the Chief State Solicitor, the representation of the Respondent by a barrister, the presence in Court of members of An Garda S�ochána who were involved in the investigation of her bullying complaints, the content of the submission filed on behalf of the Respondent and the fact that the hearing was in private. The Court overruled all of the objections save that the Court agreed that the case could be conducted at a public sitting of the Court. Accordingly the hearing was adjourned for that purpose.
The adjourned hearing opened before a differently constituted Division of the Court on 21stAugust 2012. The Claimant again raised objections to the representation of the Respondent by the Chief State Solicitor and to the presence of members of An Garda S�ochána who, she claimed, were involved in the investigation of her bullying complaints. She also raised objections in relation to the content of the written submission filed on behalf of the Respondent and to the fact that she had not been furnished with witness statements or with the names of witnesses to be called by the Respondent. The Claimant made her submissions on these points by reading from a letter which she had sent to various persons including the Taoiseach and other members of the Government concerning,inter alia, the conduct of the hearing of her appeal and of other proceedings in which she is engaged before Rights Commissioners
Having considered the objections the Court ruled that the representation of the Respondent was a matter for the Respondent alone; that it could not direct the Respondent as to the content of its submissions; that the Claimant would have a full opportunity to respond to all matters raised in the course of the appeal; that neither side had been asked for witness statements and that since it was the Claimant’s appeal the number of witnesses and the content of their evidence would be dictated by the case which she made in advancing her appeal. Having so ruled the Court indicated its intention to proceed with the hearing.
Counsel for the Respondent indicated that she wished to raise, by way of a preliminary objection to the jurisdiction of the Court, the Respondent’s contention that the Claimant’s case was statute barred having regard to s,28(4) of the Act. The Court indicated its intention to hear the Respondent on that point. The Claimant objected to this mode of procedure and insisted that she should be heard first. Counsel indicated that, in the interest of progress, the Respondent would waive its right to go first on this procedural point. The Court then indicated that it would hear the Claimant on any submissions that she wish to make on the jurisdictional point and having heard the Respondent it would reserve its decision on that point. The Claimant made no submissions on this point or the other points in issue in the case.
In the course of the hearing the Court told the Claimant on several occasions that unless she made her case and refrained from engaging in disruptive behaviour it would have no alternative but to terminate the proceedings and conclude that she did not intend to prosecute her appeal.
Counsel for the Respondent told the Court that her instructions were to object in the strongest terms to any further adjournment of the case. For reasons that were explained to the Court Counsel submitted that its position would be seriously prejudiced by this case being further protracted.
The Court rose so as to allow the Claimant to consider her position.
On resuming, the Court repeatedly invited the Claimant to open her case. The Claimant declined to do so and continued to address the Court in a hostile and aggressive manner.Conclusion
In this case the Court found itself in the unfortunate and (in the experience of this Division) unprecedented position where it became practically impossible to conduct a hearing with any degree of decorum or orderliness. Throughout the hearing the Claimant persisted in raising minor procedural points and in directing personalised invective at the Court and at the Respondent. The Court was conscious of the fact that the Claimant appeared as an unrepresented party and that she was clearly affected by the events giving rise to her complaints. It tried to exercise as much restraint as possible in dealing with her disruptive behaviour. However, it became abundantly clear that the Claimant was not prepared to present any coherent arguments directed at advancing her appeal and that her behaviour rendered the conduct of a fair and orderly hearing impossible.
The Court considered adjourning the appealsine diebut decided against doing so for two principal reasons. Firstly, the Court could have no confidence that the demeanour of the Claimant would change so as to allow for a resumption of the hearing at some future date with any degree of expectation that it could proceed in a normal fashion. Secondly, the Court took account of the objections of Counsel for the Respondent to such a course. The Respondent is entitled to have this matter brought to finality. It is the Claimant's appeal and it is her responsibility to prosecute her appeal. The Court is obligated by s.29(1) of the Act to give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal. The Court provided the Claimant with such an opportunity. She persistently failed to avail of the opportunity afforded to her to advance her appeal. The nature and intensity of her disruptive behaviour left the Court with no option but to conclude that she had no intention of conducting her appeal with any degree of coherence, or at all. Accordingly the Court was left with no option but to terminate the hearing and determine the case on the basis of the material before it.Determination
The papers filed with the Court disclose that the Claimant presented her complaint to the Rights Commissioner Service of the Labour Relations Commission on 30thAugust 2011. They further disclose that the substance of the complaint was, and remains, that she was penalised by the Respondent, within the meaning of s.27 of the Act, by being removed from the payroll in consequence of having made complaints of bullying to the Respondent. It is appears from the material before the Court that the act alleged to constitute penalisation, namely, the Claimant’s removal from the payroll, occurred on 31stDecember 2009.
Section 28(4) of the Act provides: -- (4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of the contravention to which the complaint relates or such further period not exceeding 6 months as the rights commissioner considers reasonable.
On these facts and by application of s.28(4) of the Act the Rights Commissioner concluded that the Claimant’s complaint was statute barred and could not be entertained.
Having regard to the matters referred to above, the Court has concluded that since the Claimant failed to advance any submissions or arguments upon which the Court could conclude that the Rights Commissioner had erred in reaching his conclusion her appeal cannot be allowed. In these circumstances her appeal must be dismissed and the decision of the Rights Commissioner affirmed.
The Court determines accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
27th August 2012______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.