Case Number: HSD1311. Labour Court

• Judgment Date: 01 September 2013
• Year: 2013
• Docket Number: HSD1311
• Court: Labour Court (Ireland)

FULL RECOMMENDATION ; HSC/13/10 DETERMINATIONNO.HSD1311 (r-123784-hs-12/EH); INDUSTRIAL RELATIONS ACTS, 1946 TO 1990; SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 ; PARTIES : AN GARDA SIOCHANA; (REPRESENTED BY CATHY SMITH B.L.; INSTRUCTED BY CHIEF STATE SOLICITOR); - AND -; HAZEL DELAHUNT; (REPRESENTED BY SMYTH O'BRIEN HEGARTY SOLICITORS); DIVISION : Chairman: Mr Duffy; Employer Member: Ms Doyle; Worker Member: Ms Tanham

SUBJECT:
1. Appeal of Rights Commissioner's Decision No: r-123784-hs-12/EH


BACKGROUND:

2. This is an appeal by the worker of Rights Commissioner's Decision No: r-123784-hs-12/EH. The matter was referred to a Rights Commissioner for investigation. His Decision issued on 9th May 2013 and did not find in favour of the worker's claim. On the 28th May 2013, the worker appealed the Rights Commissioner's Decision in accordance with Section 29(1) of the Safety, Health and Welfare At Work Act, 2005. A Labour Court hearing took place on 9th August 2013. The following is the Court's Determination:

DETERMINATION:

This is the Determination of the Court on a preliminary question of law arising in this appeal.

Background
The case came before the Court by way of an appeal by Ms Hazel Delahunt against the decision of a Rights Commissioner in her claim of penalisation, contrary to s.27 of the Safety Health and Welfare at Work Act 2005 (the Act). The claim is against the Commissioner of An Garda S�ochána. In this Determination Ms Delahunt is referred to as the Claimant and the Commissioner of An Garda S�ochána is referred to as the Respondent.

The Claimant is a member of An Garda S�ochána of Sergeant Rank. At all times material to her claim she was (and remains) Sergeant-in-Charge attached to a Garda Station in Co Tipperary. The Claimant made a complaint to a Superior Officer concerning a matter of health and safety in her place of work on or about 8^thFebruary 2012. It is accepted that this complaint constituted an act protected by s.27(3) of the Act. Subsequently the Claimant became the subject of a number of investigations pursuant to the Garda S�ochána (Discipline) Regulations 2007 (S.I. No.214 of 2007). The Claimant contends that the initiation of these investigations constitute acts of penalisation within the statutory meaning of that term.

The Claimant also contends that the refusal of a Chief Superintendent to allow her to be represented by the Association of Garda Sergeants and Inspectors at a meeting held on or about 1^stMarch 2012 constituted a further act of penalisation. Finally the Claimant contends that the terms of a letter sent by the Chief Superintendent to her Solicitors in relation to complaints made against her constitute a further act of penalisation.

The Claimant presented her complaint to a Rights Commissioner on 15^thJune 2012. At that time no disciplinary sanction had been imposed on the Claimant arising from the investigations under the Disciplinary Regulations.

It is clear that for the purpose of this case the cognisable period is that beginning on the date on which the Claimant made her complaint (8^thFebruary 2012) and the date on which the within complaint was presented to a Rights Commissioner (15^thJune 2012). Incidents of adverse treatment which may have occurred prior to 8^thFebruary 2012 could not have been causally connected to her complaint of that date. Nor could incidents that may have occurred after the 15^thJune have been comprehended by the complaint presented to the Rights Commissioner on that date.

The complaint was investigated by a Rights Commissioner under s.28 of the Act over two days. In a fully reasoned and comprehensive decision issues on 19^thMay 2013 the Rights Commissioner found that the complaints were not well founded. The Claimant appealed to his Court pursuant to s.29 of the Act.

Penalisation

Statutory Provisions
Section 27 of the Act provides: -

• • (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.

    (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 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.

    (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 in subsection (2)(a).

    (5) If penalisation of an employee, in contravention of subsection (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 of subsection (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 in subsection (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.

  
  
  
  

Preliminary Question of Law
Having regard to the wording of s.27 of the Act, and in particular to the reference therein to “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 withrespect to any term or condition of his or her employment”[emphasis added] the Respondent contends that a mere investigation cannot, as a matter of law, amount to a detriment for the purposes of the Act. The Court was invited to address this point as a preliminary question arising in the case.

Circumstances in which the Court will decide a Preliminary Question
There are limited circumstances in which a preliminary point should be determined separately from other issues arising in a case. Normally this should only be done where it could lead to considerable savings in both time and expense. Furthermore, the Superior Courts have taken the view that an application for a preliminary determination can only apply to a question of pure law where no evidence is needed and where no further information is required (See judgement of O’Higgans CJ inTara Exploration & Development Company Limited v Minister for Industry & Commerce[1975] IR 242)

In the instant case it is clear that extensive oral evidence will be required to establish the factual background against which the impugned investigations were initiated. That would involve considerable time and expense. If, however, the Respondent is correct in its submission that the initiation of an investigation, without more, cannot amount to a detriment within the statutory meaning the within complaint would at best be premature and at worst misconceived. In either case the taking of evidence would be in vain and involve a waste of resources.

In these circumstances the Court decided to give a preliminary decision on the question of whether, as a matter of law, what is alleged by the Claimant is capable of grounding a claim of penalisation within the meaning of s.27 of the Act. In undertaking that exercise the Court, with the agreement of the parties, proceeded on the basis that it would take the material facts alleged by the Claimant in her written submission to the Court at their height....