ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009419
Parties:
| Complainant | Respondent |
Anonymised Parties | Executive Engineer | Local Authority |
Representatives | Self | L.G.M.A. |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006 | CA-00012261-001 | 29/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00012261-002 | 29/06/2017 |
Date of Adjudication Hearing: 19/12/2017
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The complainant had applied on two occasions for a senior position within the Local Authority of which he is an employee but was unsuccessful on both occasions. The complainant was advised that he did not meet the requirements of the post but disputes this contention. The complainant believes that the reason that he was not successful was due to actions he had taken in relation to Health and Safety matters some time previously. The complainant has been employed by the Authority since 2000. |
Summary of Complainant’s Case:
The complainant applied for a position within the Local Authority on two occasions but was unsuccessful. The complainant was informed by senior management that he was not qualified for the position. The complainant believes that he meets and surpasses the minimum requirements for the post in question as laid out in the job advertisement. In the period 2005 – 2007 the complainant acted as a Safety Representative and was extremely active and vocal in that position. The Authority was involved in a major court case around that time in relation to Health and Safety and the complainant supplied documentation to the Gardai in respect of their investigation into the matter. Senior Management would not appreciate a person being appointed to the position that he applied for who had a propensity to draw attention to issues of this kind. The complainant has been penalised for carrying out the functions of an employee representative.
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Summary of Respondent’s Case:
The complainant does not have locus standi to make a complaint under Schedule 3 of the Employees (Provision of Information and Consultation) Act, 2006, as he is not an employee representative within the meaning of that Act. The complainant has already brought a complaint under the Safety, Health and Welfare at Work Act 2005 and this complaint was dismissed by the Labour Court (Determination No. HSD 134) in March 2013. This was a claim of penalisation based on his actions in 2006 and was dismissed by the Court. The complainant therefore has had a complaint adjudicated upon grounded on a set of facts and cannot now seek to litigate again based on the same facts. The respondent does not accept that the complainant was penalised within the meaning of Section 27 of the Act for making a complaint or representations. The decision that the complainant was not eligible for the particular position was made on purely objective grounds and by persons unconnected with the events of 2006. The respondent does not accept that the decision to determine an individual not eligible for another role can fall within the meaning of detriment as provided in the Act. |
Findings and Conclusions:
There are a couple of preliminary issues that arise. The complainant has filed a complaint under Schedule 3 of the Employees (Provision of Information and Consultation) Act, 2006, Complaint No. CA-00012261-001. At the hearing the complainant accepted that there was a misunderstanding on his part in this regard and withdrew that complaint. The respondent’s representative objected to the complaint under the Safety, Health and Welfare at Work Act, 2005, being heard because of the fact that the Labour Court had already considered a complaint from the complainant in relation to Section 27 of that Act based on an assertion of penalisation arising from his actions in 2006 (Determination No. HSD134, issued 11 March 2013). That dispute was in relation to the loss of an acting-up allowance in 2011. The representative referred to the precedents established by case law in Henderson v Henderson and Cunningham v Intel Ireland in this regard. The principle in the former case is that a party may not raise any claim in subsequent litigation which they ought properly to have raised in a previous action. The respondent quoted from the judgement of Chief Justice Murray in Re Vanitive Holdings, 2 I.R. 118 as follows: The rule in Henderson v Henderson is to the effect that a party to litigation must make its whole case when the matter is before the Court for adjudication and will not afterwards be permitted to re-open the matter to advance new grounds or new arguments which could have been advanced at the time. The complaint in HSD134 related to issues that occurred in 2011 and the Court hearing took place in March 2013. The events which are the subject of the complaint before me occurred in 2015/16 and 2016/17. It appears to me that these are not issues “which could have been advanced at the time” and that they are new issues not prohibited by the above precedents. As regards the substantive issue the complainant, who has been employed by the respondent since 2000, applied on two occasions for a particular position which was actually at the same grade as the complainant’s current post. On both occasions he was advised that he was not qualified for the post and did not progress to the interview stage. The complainant believed that he satisfied the requirements of the post as advertised. Both decisions were appealed but the appeals did not succeed. The complainant believes that the refusal to even grant him an interview is based on actions that he undertook while acting as a Safety Representative in 2006 which included passing on documentation to the Gardai during an investigation by them into breaches of Health and Safety legislation by the respondent. Section 27 of the Safety, Health and Welfare at Work Act, 2005, states: (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 resect 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 Dismissal 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 of 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) Not relevant The Labour Court has determined that the language of Section 27 makes it clear that in order to make out a complaint of penalisation it is necessary for the complainant to establish that the complainant suffered a detriment and that the detriment which he or she complains of was imposed for having committed one of the acts protected by subsection (3). Therefore, the complainant must show that the detriment giving rise to the complaint has been incurred because of, or in retaliation for, the complainant having committed a protected act. (Determination HSD081) I note that, as it transpired, the documentation that the complainant handed over to the Gardai in 2006 was already in their possession. I also note that the post that the complainant applied for and which gave rise to this complaint was on the same grade as the complainant’s present position within the authority. The decision not to short-list the complainant for interview was made by a person who was not an employee of the Authority in 2006 and the evidence was that that decision was based on the qualifications of the applicants for the post. Taking all of the above into account I find that the complainant has failed to establish the causal connection between the events of 2006 and the events of 2016/2017 to the effect that he suffered a detriment or that this was directly linked to his actions as a Safety Representative during the Garda investigation in 2006.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint No. CA-00012261-001: This complaint under the Employees (Provision of Information and Consultation) Act 2006 was withdrawn by the complainant at the hearing. Complaint No. CA-00012261-002: This is a complaint under Section 28 of the Safety, Health and Welfare at Work Act 2005. I find this complaint not to be well founded and it fails accordingly. |
Dated: 6 June 2018
Workplace Relations Commission Adjudication Officer: Joe Donnelly