NATIONAL COUNCIL FOR SPECIAL EDUCATION
1.Appeal Of Adjudication Officer Decision No. ADJ-00029820, CA-00040196-001
A Labour Court hearing took place on 2 June 2022.
The following is the Determination of the Court:
This is an appeal by Ms. Aherne, ‘the Complainant’, against a Decision by an Adjudication Officer, ‘AO’, that she was not penalised by the National Council for Special Education, ‘the Respondent’, contrary to the terms of the Safety, Health and Welfare at Work Act, 2005 , ‘the Act’ for having made a protected act within the meaning of the Act.
The Complainant is a Special Education Needs Officer, ‘SENO’, employed by the Respondent. She submits that she was penalised by the Respondent for having raised safety concerns, in her capacity as a Lead Worker Representative, ‘LWR’, regarding instructions given by the Respondent for the re-opening of schools during the pandemic in 2020.
This is denied by the Respondent.
The AO decided that there had been a protected act but that the Complainant had been disciplined for refusing a reasonable management instruction.
The Complainant appealed to this Court.
Note; Both parties provided the Court with considerable documentation. The following summaries are an attempt by the Court to distil the arguments made.
Summary of Complainant arguments
In the Summer of 2020, following earlier school closures due to the pandemic, a national Return to Work Safety Protocol was developed and on 4 August 2020, the Respondent notified staff of a Covid 19 Response Plan. This was rescinded two days’ later due to concern at rising case numbers. Volunteers were sought to act as Lead Worker Representatives. The Complainant volunteered.
On 25 August 2020 an instruction was issued to SENOs to visit schools. The Complainant raised safety concerns immediately with her line manager. The Respondent’s employees had not been provided with LWR training to enable them to support colleagues or to work with a response group, as required by the Protocol; there had been no workplace training for staff being instructed to attend school premises and no risk assessment had been carried out.
The Complainant received LWR training but was not provided with a pathway by which to relay Covid related safety concerns. The Complainant documented her concerns and emailed these on 30 August 2020, in her capacity as a LWR, to her line management, her co-worker in the Roscommon office and his manager, and to Head Office. The relevant union representatives were copied and the concern was referred to the Health and Safety Authority.
An immediate response from Head Office dismissed her concerns.
Since then, the Complainant has been repeatedly penalised for having raised safety concerns. Disciplinary processes were initiated within the cognisable period covered by this complaint, which was lodged on 1 October 2020, for an alleged failure to carry out a reasonable management instruction.
The first penalisation was on 31 August 2020 when the Complainant was stripped of her role as a LWR by email from the Personnel Officer.
The Complainant acted in accordance with her rights under ss. 8,13,19,and 25 of the Act and was penalised in contravention of s.27 for carrying out a protected act , as per s.27(3) of the Act.
An investigation by an external body commissioned by the Respondent found that the instruction to SENOs to visit schools was an ‘unfair’ and ‘unreasonable’ instruction. The disciplinary actions against the Complainant, up to a final written warning, were penalisation for having raised a safety concern. The Complainant never refused to attend school visits and would have done so if the necessary assurances as to safety were provided.
The Complainant was first threatened with disciplinary action on 4 September 2020 for allegedly refusing to carry out a reasonable management instruction to visit schools. The first disciplinary outcome of a final written warning was found to be unsafe by an external Appeal Officer.
By repeated systemic penalisation, contrary to s.27 of the Act, the Respondent has attempted to coerce the employee to breach s. 13 of the Act.
Summary of Respondent arguments
The Respondent denies the allegation of penalisation.
On 24 August 2020, the Respondent issued a clear instruction to staff regarding the planning, preparation and attendance for essential school visits. The Complainant refused to carry out that instruction. Following a disciplinary hearing, a Final Written Warning was issued to the Complainant on 17 September 2020. The Complainant has had the benefit of robust appeals processes, which culminated in an external investigator concluding that the Complainant had failed to follow a reasonable instruction from her employer.
On 31 August 2020, the Respondent requested SENOs to forward risk assessments and school information, in order to complete a report by 4 September 2020. The Complainant emailed to say that she had concerns about school visits as they were not in compliance with Covid 19 guidelines.
On 1 September 2020, the Respondent advised that risk assessments were not required for school visits as they had been deemed to be essential. In further exchanges, this was re-stated to the Complainant in an email on 16 September 2020, when the Complainant continued to refuse to take the first step of contacting schools. That correspondence concluded with the Complainant committing to write to six schools, introduce herself and to explain the review.
In the meantime, on 2 September 2020, the Respondent advised SENOs of four steps relating to school visits and, on the same date, the Complainant was asked to arrange a review date with one school to alleviate the Principal’s concerns. The Complainant did not respond.
On 3 September 2020, a reminder issued to SENOs to arrange provisional dates for school visits. The
Complainant was requested to provide details of planned dates for reviews, to which she replied that she would make no contact with schools until she was in compliance with the Covid 19 Guidance for staff visiting schools.
The Respondent was reminded by Mr. Tadgh O’ Leary, Principal Officer of the Respondent, that a refusal to follow a reasonable management instruction constitutes serious misconduct under the Civil Service Code of Standards and Behaviour. The Complainant maintained that she had not received an adequate response to her emailed concerns and continued to refuse to carry out the essential task.
Following a disciplinary meeting on 14 September 2020, Mr. O’ Leary issued a Final Written Warning to the Complainant on 17 September 2020.
The complaint before the Court was initiated on 1 October 2020.
The Complainant availed of a two stage appeal process. An internal appeal upheld the outcome. An external appeal recommended that the case be reconsidered due to the lack of an investigation at the outset of disciplinary proceedings.
An investigation was carried out by an external appeals officer. The purpose was to establish facts. The appeals officer concluded that the Complainant had failed to comply with one or more reasonable management instructions in respect of arranging dates for school visits in line with her role as a SENO.
A disciplinary meeting was convened and a Final Written Warning was issued.
The burden of proof to establish penalisation under the Act is with the Complainant. As perO’ Neill v Toni and Guy Blackrock, (Det. No HSD095),the test is to establish that a detriment occurred ‘for’ having committed one of the acts protected by s. 27(3) of the Act. As the Labour Court noted, where there is more than one causal factor in the chain of events leading to the detriment, the commission of ‘a protected act must be an operative cause in the sense that ‘but for’ the Claimant having committed the protected act he or she would not have suffered the detriment’. The Court referred toDept. of Justice, Equality and Law Reform v Kirwan, (Det. No. HSD082),in which the Court noted that the legal burden of proof lies on the person who asserts that a particular fact in issue is true.
In this case, the Complainant failed to follow a reasonable instruction and s.27(6) of the Act is particularly important.
The Complainant was not a Safety Representative. She was appointed a LWR under the Work Safety Protocol and her duties as a LWR were confined to the protocol.
The tests to be applied, as per s.27(3)(f) of the Act are;
Did the Complainant believe that there was serious and imminent danger in returning to school visits?
Did the Complainant believe in all the circumstances that she could not reasonably have been expected to avert the said danger in the school visits?
S. 27(6) requires the Court to take account of the circumstances, means and advice available to the Complainant at the relevant time. In this regard, she was provided with ample guidance and information to assure her that it was safe to attend school visits, yet she continuously refused to do so. Details of the relevant information provided to the Complainant were provided to the Court.
A similar Covid related case in the UK in consideration of a comparable provision in law isAccattatis v Fortuna Group (London) Ltd (Case No. 3307587/2020),in which the claimant’s position was deemed to be unreasonable.
The Complainant was not penalised for raising a safety concern, she was disciplined for not reasonably following an essential instruction. The minutes of the disciplinary meeting of 14 September 2020 note Mr. O’ Leary addressing this differentiation and notes that while it is open to an employee to raise concerns, it is not open to employees to question the rationale or specific arrangements for school visits.
The Respondent acted reasonably in circumstances where the educational provision and support were paramount. As noted inLally v Board of Management Rosmini (2021) IEHC 633,there are particular long-term effects from the pandemic on the educational sector. Therefore, the Complainant’s actions were unreasonable.
The applicable law
Health, Welfare and Safety at Work Act, 2005
Protection against dismissal and penalisation.
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 ofsubsection (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.
(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 undersection 11or appointed undersection 18to perform functions under this Act, or
(f) subject tosubsection (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.
(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to insubsection (2)(a).
(5) If penalisation of an employee, in contravention ofsubsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.
(6) For the purposes ofsubsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.
(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified insubsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.
It is important to note that the Court’s function in respect of this Act is confined to the matters covered in s.27. A range of other matters raised by the Complainant regarding the Act and its application are outside of the jurisdiction of the Court.
The role of the Court in respect of the instant case is to determine if, in the 6 months’ period prior to 1 October 2020, the Respondent acted in a manner contrary to the terms of s.27. In this regard, matters of concern to the Complainant that arose subsequent to that date are outside of the scope of the Court’s jurisdiction.
The function of the Court is to establish the following;
If there was a protected act as per s.27(3)?
If so, did the Complainant suffer a detriment?
If the answer to both of these questions is affirmative then is there a causal link between the two?
It is not necessary for the Court to determine if a safety concern or complaint was warranted. S.27(3)(c) covers a complaint or representation on any matter regarding the health and safety in the workplace, whether such a complaint or representation is justified or not.
The Respondent’s representative argued to the Court that the Complainant’s concerns were so broad as to fall outside a reasonable interpretation of the acts protected by s.27(3). The Court does not agree. The terms of that section are very broad and it seems reasonable to conclude that they were made broad quite intentionally by the Oireachtas so as to afford the maximum protection to employees from any potential penalisation.
It is clear to the Court that, in raising concerns about being asked to visit schools, the Complainant was making a ‘complaint or representation’ regarding the health and safety of her workplace and, as such, she committed a protected act within the meaning of s. 27(3)(c).
The reaction of the Respondent was to remove the Complainant from her role as a Lead Worker Representative, ‘LWR’. There was some debate before the Court as to whether this matter had been raised before the Adjudication Officer as a claimed penalisation. The Respondent’s representative argued that it had not and, as a consequence, the matter could not be considered by the Court.
However, the Complainant provided the Court with the relevant extracts from her submission to the Adjudication Officer and while it might be argued, as argued for the Respondent, that one reference to this matter is unclear and may be a conflation with a complaint under different legislation not before the Court, it is equally clear in another reference that the Complainant set out that she had made a complaint and had been penalised by being removed as a LWR.
The Court gave consideration as to whether this constituted ‘penalisation’ within the meaning of the Act. Again the Court notes the very broad nature of the protections under s.27. In s.27(2)(d) an employee is protected from ‘reprimand’ for having made a protected act. It is quite clear that the Respondent’s actions in removing the Complainant from the role of LWR were retaliatory and amounted to a reprimand. Given that this reprimand was in response to a protected act, the Court is satisfied that it amounted to penalisation in a strict reading of the Act’s provisions.
The Respondent’s representative argued to the Court that, if the Court was to accept that there had been penalisation, the ‘de minimis’ rule should apply.
The Court notes that the role of LWR is not a paid role nor does it form any part of the Complainant’s terms and conditions of employment. It is, in fact, no more than a set of duties which the Complainant undertook voluntarily to perform. As such, removing those duties from the Complainant had minimal impact on her. The Complainant noted that the retaliatory action was set out in an email which was copied to other people, thus causing her embarrassment. The Respondent, in turn, noted that the small number of people so copied all had a direct interest in knowing who the LWR was for the area.
The Court is not particularly impressed by this argument for the Respondent. It was unwise of the Respondent to compound a breach of the Complainant’s rights under the Act by sharing the terms of that breach with others. However, the Court accepts that the detriment suffered by the Complainant is confined to disappointment at the Respondent’s actions and, no doubt, bruised pride and some frustration. There is no reason to believe that there is any impact on the role of the Complainant as a SENO. Accordingly, the Court accepts that ‘de minimis’ provisions are applicable and does not believe that compensation for this breach of the Act is warranted.
Of considerably more consequence, in the view of the Court, is the consideration necessary in respect of subsequent disciplinary action taken against the Complainant. In the case ofToni and Guyreferred to in the Respondent’s submission, this Court set out clearly the tests that the Court must apply. In particular, the Court noted that for penalisation to be established ‘the commission of a protected act must be an operative cause in the sense that ‘but for’ the Claimant having committed the protected act he or she would not have suffered the detriment’.
If the Complainant can establish that ‘but for’ having committed a protected act, she would not have been subject to disciplinary action within the cognisable period then she establishes that she was subject to what, by any standards, must be regarded as serious penalisation. If the Respondent can show other, objective, reasons for the initiation of a disciplinary process unrelated to the fact that the Complainant raised safety concerns then the ‘but for’ test has not been met.
The question for the Court is whether the disciplinary process was initiated because safety concerns were raised or whether the process arose due to the failure to follow a reasonable instruction? In this regard, the Complainant is not only entitled to have safety concerns, she is protected by law in raising them, whether or not the Respondent regards them as reasonable.
The Court does not regard the distinction drawn by the Complainant, in claiming that she had not refused an instruction but had been willing to accept it if certain matters were clarified to her satisfaction, as being of any great consequence to the matter under consideration. The fact is that the Complainant did not do as she was instructed. The Court’s role is confined to considering if this refusal/conditional agreement is protected by the Act.
It seems clear to the Court on the facts of the case that the Complainant was not penalised for having raised safety concerns but was disciplined because she would not attend school meetings, despite being instructed to do so. The Complainant argued that, in declining to visit schools, she was acting in accordance with the statutory provisions elsewhere in the Act designed to protect employees’ health and safety. This is covered by s.27(3)(a) of the Act. If this was her view, and the Court does not doubt that, it was open to her to seek the opinion of the public health authorities as to whether she was correct, particularly given the Respondent’s strong contention that they were operating in accordance with the relevant pandemic public health guidelines. It cannot be open to an employee to decide simply that they are acting in accordance with the protections of the Act and that their employer is, as a consequence, obliged automatically to accept that contention and, as a result, the employee is exempted automatically from any related instruction. Where such matters are in dispute, the view of the relevant authorities may always be sought.
The Respondent, albeit in a different context, referred to theKirwancase. In that case reference was made to what was described inJoseph Constantine Steamship Ltd. v. Imperial Sheltering Corporation (1942) A.C. 154as the ‘ancient rule founded on considerations of good sense’ that’ the legal burden of proof lies on the person who asserts that a particular fact in issue is true’. In application to the instant case, if the Complainant believes that her refusal/conditional agreement to visit schools was warranted by the provisions of the Act, then she had means to establish the legal validity of that position by seeking the views of the relevant authorities.
In the absence of any clear directive from the appropriate authorities to the effect that the Respondent was not entitled to do so, the Respondent is entitled to issue instructions to employees that they believe to be in compliance with public health guidelines and to expect that their employees will comply. Any employer is entitled to initiate disciplinary processes where an employee is not acting in accordance with a legitimate instruction. That is what occurred in this case. The Complainant cannot show any corroboration for her view that the instruction was in contravention of the protections afforded by the Act to the health and safety of employees and, accordingly, her non compliance with an instruction was a legitimate basis for the initiation of disciplinary action and such action does not constitute a breach of the Complainant’s rights under s.27 of the Act, so that aspect of the Complainant’s appeal must fail.
In short, the Court accepts that there was a breach of the Act in the removal of the Complainant from the duties of a LWR but accepts that ‘de minimis’ provisions apply and declines to award compensation. The appeal by the Complainant regarding disciplinary action taken against her fails as the Court is satisfied that this arose due to the Complainant’s non compliance with a legitimate instruction.
The Decision of the Adjudication Officer is overturned.