SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005
AN EDUCATION AND TRAINING PROVIDER
- AND -
Chairman: Mr Foley
Employer Member: Mr Marie
Worker Member: Ms Tanham
1. An Appeal of an Adjudication Officer's Decision
2. The Complainant appealed the Decision of a Rights Commissioner to the Labour Court on 28 November 2011, in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act, 2005..
A Labour Court hearing took place on 3rd January 2012 and again on 2 March 2020.
The following is the Determination of the Court:-
This matter came before the Court by way of an appeal by a Teacher (the Complainant) against a decision of a Rights Commissioner dated 22ndSeptember 2011 made under the Safety, Health and Welfare at Work Act, 2005 (the Act) in her complaint against her then Employer an Education and Training Provider (the Respondent). The Rights Commissioner held that the Complainant’s claim that she had been penalised within the meaning of section 27 of the Act was not well-founded. The Complainant’s Notice of Appeal was received by the Court on 28thSeptember 2011.
The Court initially heard the appeal in 2012. The Court, following that hearing, recorded the matter as having been settled at the hearing. The Complainant subsequently clarified that she had not withdrawn her appeal. The Court therefore heard the within appeal on 2ndMarch 2020.
The Complainant made certain very serious allegations against a person not in attendance at the hearing of the Court and submitted documents containing those allegations to the Court as part of her submission to the Court. The Court clarified that it would take no account of the allegations made against a third party or of documents naming a third party and that any such documents would be destroyed by the Court.
The Complainant was employed by the Respondent since 2000.
On 20thAugust 2010 the Complainant made a complaint to the Respondent that she had been the subject of sexual Harassment by a male student. The Respondent sought details of the alleged act or acts of sexual harassment from the Complainant in a letter dated 31stAugust 2010. The Respondent advised the Complainant that the matter would be investigated when details of the allegations were received.
The Complainant did not respond to this request for detail. The Respondent again wrote to the Complainant on 30thSeptember 2010 and again on 5thOctober 2010. In the absence of a response from the Complainant to earlier correspondence the Respondent excused her from teaching duties on 4thOctober 2010.
The Complainant responded on 8thOctober 2010 setting out details of her allegation of sexual harassment.
The Respondent appointed an external investigator on 2ndNovember 2010. That investigator submitted a report on 10thDecember 2010 wherein he determined that the allegations of sexual harassment against the male student were without foundation and that they were frivolous and vexatious.
Summary Position of the Complainant
The Complainant made an extensive written submission to the Court. The Court, at its hearing, made every effort to understand the nature of the penalisation being alleged by the Complainant. It is the Court’s understanding from the written submission and its interaction with the Complainant at the hearing that the Complainant alleges that she has been penalised contrary to the Act in that:
Because she made two requests of the CEO to deal with her complaint of sexual harassment she “received the detriment of the CEO denying the existence of my complaint at the school”
Because she made two requests of the CEO to deal with her complaint of sexual harassment she received“the detriment of being ordered to remain off the school premises”
Because she obeyed an order to complete answers for a risk assessment questionnaire she received “the detriment of my answers to the CEO’s questions being treated as if they were my complaint of sexual harassment”.
The Complainant also contends that a retired CEO of the Respondent wrote to the male student against whom a complaint of sexual harassment had been made advising him that the complaint had been withdrawn. She submitted that this letter was a direct detriment.
She submitted that certain findings of the external investigator amount to penalisation.
She also submitted that because she obeyed an order to remain off the premises she had not seen or known of a promotional opportunity.
Summary Position of the Respondent
The Respondent submitted that it had not penalised the Complainant is response to her complaint of sexual harassment made on 20thAugust 2010. The Respondent received a complaint against a student from the Complainant and sought to secure the detail of her allegation from her prior to having the matter investigated. Having failed to secure that detail from the Complainant, the Respondent decided, in the interest of safeguarding her Health and Safety in the absence of the detail of her allegations, to place the Complainant on approved leave with effect from 4thOctober 2010.
When the detail of the allegations were received the Respondent appointed an investigator who completed a report into the matter.
Discussion and Conclusions
The Court has made every effort to establish the position of the Complainant. The Complainant’s position as it is understood by the Court is summarised above.
It is common case that the complainant did make a complaint of sexual harassment against a male student. It is also clear that the Respondent sought to establish the nature of the Complainant’s very serious allegations. It is clear that the Complainant did not co-operate with the Respondent in that regard until 8thOctober 2010.
The Respondent decided to place the Complainant on approved leave on 4thOctober 2010. The Court accepts that this decision was grounded in a concern for her safety in an environment where she had made unspecified complaints against a student which related to an alleged risk to her health and safety in her workplace.
It is not for this Court in the within appeal to attach weight to the procedures followed by the Respondent in dealing with the Complainant’s allegations of sexual harassment. The Court notes however that the allegations were investigated by an external party appointed by the Respondent and that those allegations were found to be without foundation and to be frivolous and vexatious.
The Court is satisfied that the Complainant has failed to establish a set of facts from which it could be concluded that she has been penalised within the meaning of the Act.
Having regard to the written and oral submissions of the parties the Court concludes that the complaint of penalisation has not been made out.
The appeal fails and the decision of the Rights Commissioner is affirmed.
The Court so determines.
Signed on behalf of the Labour Court
1 April 2020Chairman
Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.