SECTION 29 (1), SAFETY HEALTH AND WELFARE AT WORK ACTS , 2005 TO 2014
ST MARY'S COLLEGE
(REPRESENTED BY BARRA FAUGHNAN B.L., INSTRUCTED BY MILLETT & MATTHEWS SOLICITORS)
- AND -
(REPRESENTED BY GILVARRY & ASSOCIATES)
Chairman: Ms Jenkinson
Employer Member: Mr Marie
Worker Member: Ms Treacy
1. Appeal of Adjudication Officer Decision No(s). ADJ-00006586
2. An Adjudication Officer's hearing took place on 10 January 2018 and a Decision was issued on 19 July 2018. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 28 August 2018. A Labour Court hearing took place on8 October 2019. The following is the Determination of the Court:-
This is an appeal by Ms Kathy Clarke against a Decision of an Adjudication Officer ADJ-00006586. The Adjudication Officer found that the Complainant had not been penalised by her employer, Board of Management St Mary’s College, within the meaning of Section 27 of the Safety, Health and Welfare Act 2005 (“the Act”).
For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Kathy Clarke will be referred to as “the Complainant” and Board of Management St Mary’s College will be referred to as “the Respondent”.
The Complainant referred her complaint to the Workplace Relations Commission on 23rd December 2016. The hearing before the Adjudication Officer was held on 10th January 2018 and her decision was issued on 19th July 2018. The Notice of Appeal was received by the Court on 28th August 2018. The Court heard the appeal on 8th October 2018 in Sligo.
The Adjudication Officer in her conclusions found that the Complainant did not meet the test required for availing of the protections under Section 27(3) of the Act as most of the alleged detriments complained of did not meet the definition of penalisation defined in Section 27(1) or (2), with one possible exception relating to “coercion or intimidation” which she deemed to be a continuation of the unacceptable behaviour complained of by the Complainant rather than a detriment triggered by the protected act. Accordingly, the Adjudication Officer decided that the Complainant had not presented evidence to support a causal connection between having made a complaint and consequential detriment complained of and therefore held that the Complainant’s complaint could not be upheld.
The Complainant has been employed by the Respondent as a School Secretary for over 22 years. A new School Principal was appointed in 2008.
The Complainant contends that she suffered a range of detriments within the meaning of the Act during the cognisable period for the within complaint. She made a complaint of bullying and harassment to the School Principal in November 2010. In July 2014, she made a verbal complaint to the Chairman BOM and sent a written complaint to the BOM on 4th September 2014, these complaints were the subject of separate legal proceedings. On 25th September 2014, the Complainant referred a complaint under the Act to the Rights Commissioner Service of the Labour Relations Commission (“LRC”). The Complainant alleged that as a result of that referral she was subjected to penalisation by the Respondent.
The Respondent denies that the Complainant made any complaints concerning matters coming within the scope of the Act at Section 27.
The within complaint was made to the Workplace Relations Commission on 23rd December 2016. Consequently, the cognisable period for the complaint is 24th June 2016 to 23rd December 2016.
Summary of the Complainant’s Case
Mr Myles Gilvarry, Gilvarry & Associates, Solicitors on behalf of the Complainant submitted that the Complainant was subjected to penalisation as a result of complaints raised relating to safety, health or welfare at work. He alleged that as a consequence of the complaint made to the LRC, the Complainant was asked to perform an unlawful act, when she was coerced to complete the October Returns to the Department of Education and Skills giving false numbers of pupils enrolled and receiving education in the School. Therefore, he submitted that as the Complainant's complaints were an operative consideration leading to the detriment complained of, the burden of proof shifts to the Respondent to satisfy the Court that she was not penalising for the making of the complaints, in breach of Section 27 of the Act. Mr. Gilvarry submitted that the most recent example of coercion and intimidation occurred during a conversation with the Principal at the end of June 2016, thereby falling within the cognisable period.
Mr Gilvarry said that after the hearing before a Rights Commissioner on 8thJanuary 2015 when the Complainant returned to work Ms. Thorn, the Principal, penalised her by attempting to force her to complete and lodge incorrect pupil returns to the Department of Education and Skills. He said that in the previous years she had been allowed to file the correct returns. Mr Gilvarry said that the Complainant was extremely concerned that she would find herself in the same situation as a School Secretary in a nearby school who was brought up on criminal charges for a similar type of offence. He said that the Complainant was put in an impossible position, either to make the returns as instructed by her Principal and face possible criminal charges or attempt to resist the bullying and intimidation by her Principal to do so. He said that as a result of the coercion and intimidation rather than face potential criminal prosecution the Complainant went on sick leave and remained out of work until the retirement of the School Principal the following year.
Mr Gilvarry stated that the effects of the penalisation on the Complainant were severe, she was absent on sick leave for 13 months, her health was badly affected, she was no longer able to attend at the job she loved and was left on social welfare at a time when she needed her income to support herself and her children and has suffered with and had to be treated for depression and anxiety. He submitted that the Complainant should be awarded compensation for the effects of the penalisation and argued that it should be sufficiently high to dissuade as well as to compensate her for her losses. In that regard he referred to the CJEU decisions inVon Colson v Land Nordrhein-Westfalen(1984) Case 14/83, where the Court held:-
- “28. ... if a Member State chooses to penalize breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred in connection with the application. It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law.”
Summary of the Respondent’s Position
Mr Barra Faughnan B.L., instructed by Millet & Mathews Solicitors, on behalf of the Respondent denied the allegations of penalisation and denied that the Complainant was bullied as alleged by her. With regard to the alleged acts of penalisation, Mr Faughnan contended that there was a lack of clarity as to precisely what events were being put forward as instances of penalisation and when such alleged events took place. Mr Faughnan said that the Court must considered this case in line with a previous case taken on 24th September 2014 by the Complainant in a complaint of penalisation under the Act where the Adjudication Officer held that up to 24th September 2014, there was no protected act relied upon by the Complainant upon which she could ground a claim for victimisation under the 2005 Act. This finding was upheld by the Labour Court on appeal by the Complainant and there has been no appeal of the Court’s Determination in respect of the above decision. Accordingly, he submitted that the issue as to whether or not the Complainant’s “original complaints” could constitute a protected act within the meaning of Section 27 of the Act. Therefore, he argued that whether any later conduct alleged against the Respondent could constitute penalisation, wasres judicata.
In the instant case, submitted on 23rd December 2016, the Complainant expressed her claimsinter aliain the following terms:-
- “ There have been several Acts of penalisation by my school principal and Board of Management, since my initial complaints of bullying by my school principal and my subsequent complaint to the LRC within the last 6 months, and more within the last 12 months, including an attempt to get me to agree to facilitate an incorrect return of pupils to the Department of Education, which would involve me in the commission of a criminal offence.”
Mr Faughnan stated that the Complainant alleges that she has continually been bullied and penalised arising from her “original complaints” made to the Principal and the Board of Management. The Complainant has not referred to any additional ‘protected act” which might give rise to a claim of penalisation. On the contrary, her claim is that the bullying which was allegedly caused by her original complaints has not abated and hence the second set of complaints are said to stem from the same protected act. Therefore, he contended that as the Court has already determined that those “original complaints” did not amount to “protected acts” then the second claim of penalisation must also fail, for the same reason.
Summary of Ms Cathy Clark’s Evidence
Ms Clark told the Court that she had total responsibility for doing the October Returns using the Post-Primary Online Database (P-POD) system. She said that it was her sole responsibility and it formed part of her duties as specified in her contract of employment. She said that she gathered the details on the number of pupils each year in preparation of the October Returns. She said that she was careful to ensure that the data was accurate and regularly checked with the Department if in any doubt whether or not to include particular pupils. She said that in September/October 2015 she completed the returns in the normal manner without any difficulty. The following year there were a number of pupils that there was a query about as the school has started to take visiting pupils, some of whom were long term, and some were short term. She said there were some pupils she had queries about, and she checked the situation with P-POD, one was to be included the other not. The witness said that the Principal was not in when she made the returns, however, she said that when the Principal saw the returns, she was not happy as it indicated that there were less than 200 pupils, and this had implications for the school’s finances/ teacher numbers. The witness said that she was angry with her and said so in front of the Vice Principal.
Ms Clark referred to a meeting of all staff which had taken place on 18thMay 2016, attended by the Patron, Catholic Education Ireland Schools Trust, who expressed concern about the decreasing numbers and was most anxious ensure that pupils numbers were in excess of 200. This was the first time the Patron had attended such a meeting.
Ms Clark said that around the last week in June 2016, she received a phone call from a parent to say that her child would not be returning to the school as he was about to undertake an apprenticeship. When the witness informed the Principal of this, she said that the Principal told her not to remove him from the October Returns as the school had not yet been notified by the parent. Ms Clark said that she protested to this saying that she could not do that as it would be illegal to submit false returns, however, she said that the Principal instructed her to include him in the returns.
Ms Clark told the Court that she was devastated by this instruction as she had never before been asked to do anything illegal, she was a very diligent person and could not do such a thing and face possible prosecution. She said that very shortly afterwards she went on annual leave for three weeks, following which she went on sick leave due to stress as she could not face doing the October Returns. Ms Clark said that she did not return to the School until September 2017, after that Principal retired. She said that this had a devastating effect on her, and she suffered major financial loss.
In cross examination the witness was asked about her contention that it was her sole responsibility and that it was one of her duties as specified in her contract of employment. Mr Faughnan asked her to show where this appeared in her contract of employment. The witness said that it had always been her duty and that she alone had undertaken that duty. The Principal had simply signed off on the returns. She said that she was not aware that it was the Principal who had legal responsibility for the information contained in the returns. She said that she had no way of knowing that the responsibility would not fall on her.
Mr Faughnan referred the witness to the P-POD documentation which stated that all the pupil enrolment data is accurate as at the 30thSeptember and schools are required to enter all pupils enrolled in their school for the school year. The witness replied that accuracy of data was also specifically required. When questioned about the difference between the October Returns and the School role, the witness replied that it was possible to have a pupil on the latter without being included in the former. When questioned about who makes the decision on the pupils to be included in the returns, the witness stated that in 2015, while the Principal was not present when she made the decisions and submitted the returns, the Principal had signed the returns form.
Ms Clark said that she did not know the detail of the returns made in October 2016 as she was on sick leave at the time, however, she was aware that the returns stated there were 204 pupils. She said that she accepted that it was important for the school to maintain pupil numbers at 200 or over in order to secure sufficient finances and that that was the aim of the Principal and the School’s Patron. It was put to the witness that therefore the motivation behind the instructions given to her by the Principal during that conversation at the end of June 2016 was directly related to maintaining pupil numbers and nothing to do with her complaint to the LRC. The witness answered that the Principal was“beyond reproach and felt that she could ask me to do an illegal act”. Mr Faughnan put it to her that this was exactly the same as all other years except that this time there was a disagreement. The witness agreed.
The witness accepted that she had been represented by a Solicitor throughout this period as she was already involved in separate proceedings before the LRC. She said that she lodged the within claim following the hearing before the Rights Commissioner on 13th December 2016 as the Rights Commissioner informed her that events post the date of her first claim (which was made on 25th September 2014) could not form part of the proceedings at that time. Therefore, she lodged the within claim on 23rd December 2016. Mr Faughnan put it to the witness that she had lodged that claim without making a complaint to the BOM. She said that she refrained from doing so as she did not want to be responsible for the school closing.
Ms Clark was questioned as to her assertion that during that conversation with the Principal at the end of June 2016, she says that she was coerced by the Principal. The question was put to her whether the Principal had in any way threatened her that if she did not do as instructed there would be consequences. She replied that there was no threat put to her but that she was instructed to do as the Principal wanted her to do. The witness said that she felt that she could be criminally culpable for making errors in the returns. When asked if the Principal believed it was a criminal act, she responded that she did not know what the Principal thought.
When questioned about the detriment caused to her for referring a complaint to the LRC in September 2014, she said that the Principal’s actions prevented her from doing her job.
Summary of the Principal’s Evidence
Ms Suzanne Thorn told the Court that the Complainant normally completed the work on the October returns, and she signed off on them. She said that the Complainant had been delegated with that responsibility and had done so for many years. She said that she regularly had conversations with the Complainant throughout the year regarding the returns. She said that in 2016 she was particularly concerned about pupil numbers as it was important that the school had 200 plus pupils in order to secure school grants. She said that she had no recollection of the meeting at the end of June 2016, no recollection of saying that the pupil referred to by the Complainant must be included in the returns. She said that she had no recollection of the Complainant making reference to it being illegal to do so. She said in June she would not be thinking of pupil numbers as it was too early for the October Returns.
In cross examination she was asked if she had signed off on the correct details for the October Returns in 2016, she said that yes, she believed so. She was satisfied that the returns were accurate. She said that in June 2016 there were 192 pupils, the Complainant had doubts about another 7 or 8 pupils which she was satisfied should be included and a family of four had enrolled prior to the making of the returns.
Ms Thorn said that she retired in October 2017, she could not recollect what the pupil numbers were at the time. She said that she completely trusted the Complainant to complete the October Returns and she signed off on it. The witness said that she was not aware that the reasons for the Complainant’s prolonged sick absence was related to the events of June 2016 when she had a conversation with her concerning the telephone call from a parent.
Ms Thorn said that while the grants were clearly an important factor, if they did not reach the desired pupil numbers, they would have raised funds elsewhere.
The Law Applicable
Penalisation is defined by s.27 of the Act as follows: -
- (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) 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,
Subsection 3 of s.27 prescribes the circumstances in which penalisation is rendered unlawful under the Act. It provides: -
- (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 undersection 11or appointed undersection 18to 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) acting in compliance with the relevant statutory provisions,
As was pointed out by this Court inO’Neill v Toni & GuyBlackrock21 ELR 1, there are two tests inherent in the statutory definition of penalisation. In order to make out a complaint of penalisation it is necessary for a claimant to (i) establish that the detriment of which he or she complains was imposed“for”(ii) having committed one of the acts protected by subsection (3). Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, a complainant having committed a protected act. This suggested that 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”a complainant having committed the protected act he or 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 detriment.
Applying these legal principles to the facts of the instant case the Court has reached the following conclusions.
Coercion and Intimidation
In the instant case the Complainant alleged that she was subjected to coercion and intimidation by the Principal during a conversation held at the end of June 2016 when she was instructed to include a pupil in the October Returns in circumstance where his parent had informed the school that he was leaving to take up an apprenticeship. The Complainant alleged that as this required her to make a false declaration against her will and possibly face criminal charges, it caused her sever stress leading to her taking sick leave. The Complainant’s claim before the Court is that this occurred in consequence of a complaint, she made under the Act to the LRC against the Respondent, in September 2014.
Therefore, in order to come within the scope of the Act it is essential that the detriment be causally connected to one or more of the matters referred to at subsection (3) of Section 27. Hence, the Court must consider whether or not the alleged detriment complaint of was imposed“for”having committed a protected act within the meaning of Section 27(3) of the Act.
The Complainant made complaints of bullying against the Principal since 2010, which have already been the subject of other proceedings. On her own evidence to the Court the Complainant stated that there were concerns about the pupil numbers in the School in 2016 which could have had major financial implications for the School. These matters were discussed at staff meetings in May, June and August 2016. The detriment complained of was the instruction given to her by the Principal, which she described as forceful, to keep a particular pupil in the school numbers for the October Returns. The Principal in her evidence said that she could not remember the events of that day and in any event, she did not appreciate the significance on the Complainant of the instructions given to her during that conversation. The Complainant alleged that this was said to her in forceful manner and that she told the Principal that she could face the possibility of a charge of criminal offence for doing so. However, she accepted that no threat was made to her by the Principal if she did not comply.
It is clear to the Court that the working relationship between the Complainant and the Principal was strained and communication between them was limited. It is equally clear to the Court that the Complainant is a very conscious person who prides herself on accuracy of data and compliance with regulations. No evidence was produced to suggest that the October Returns in 2016 were not accurate and the Court makes no such finding.
However, at no point in the Complainant’s evidence did she submit facts to substantiate her allegation that the alleged detriment was connected to her having made a complaint to the LRC in September 2014. Rather, the Complainant attributed the conduct of the Principal to personal animosity towards her. In such circumstances, the Court is not satisfied that a causal connection can be made between the alleged detriment complained of and the protected act referred to within the meaning of Section 27(3) of the Act.
There is no evidence from which it could properly be inferred that the Respondent was influenced to any material degree by the complaints made under the Act made by the Complainant to the LRC on 25th September 2014.
In these circumstances her claim of penalisation cannot succeed.
The Decision of the Rights Commissioner is affirmed and the within appeal is disallowed.
The Court so Determines.
Signed on behalf of the Labour Court
29 October 2019Deputy Chairman
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.