In the case of A Teacher v A School ADJ00030560 dated 6th December 20201, the complainant suffered from a chronic neurological medical condition that significantly impaired her movement. The School conducted a risk assessment which found that while the complainant did fall into a category that was viewed as a high risk group arising from the pandemic; she could attend work with appropriate social distancing measures.
The complainant felt that the measures put in place by the school were wholly inadequate relating to her disability and that her medical condition was aggravated by conflict and stress.
The Complainant alleged that the school principal, against her written wishes; insisted that she have face to face to discussions with her arising from an email that the complainant sent to her. The complainant alleges that the school had been dismissive of her genuine concern about safety at work; a lack of support and an insensitivity to her particular needs as evidenced by a wish to move her to a different work area.
A series of interactions between the school principal and the complainant occurred over a short timeframe in the office of the complainant; where the complainant felt trapped and threatened. The Complainant felt that she had no choice but to ring the Gardaí as she felt there was a serious and imminent danger to her health.
After this incident; the school initiated disciplinary action against her. However, no sanction at the time of the hearing had been given to her.
The Complainant lodged a claim contending that she had been penalised as a result of raising concerns under Section 27(2)(d) of the Safety Health and Welfare at Work Act 2005 (as amended).
The school stated that the complainant had suffered no penalisation as it was defined under the Act as the imposition of any discipline. The school stated that no disciplinary sanction had been imposed on the Complainant and that the letter sent to her dated 4th November 2020 simply referred to the matter being dealt with in accordance with disciplinary and fair procedures. The school argued that there was no imminent ot real threat or danger to the Complainant’s welfare and the fact that the Gardaí were called meant that the principal was named on the Pulse system.
The school in fact has been very accommodating of the complainant’s needs and caring.
Findings and Conclusions:
The Workplace Relations Commission looked at various provisions of the Safety Health and Welfare at Work Act 2005 (as amended) and in particular Section 27:
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 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 under section 11 or appointed under section 18 to 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.
The Adjudicator noted that he had every sympathy for the complainant and her medical condition which was limiting and challenging for her however a balance also had to be struck concerning the employer’s right to manage and to have reasonable interactions with their staff; albeit, they have a chronic medical condition and disability. He noted however that the facts of this case do not amount to penalisation.
The Adjudicator observed:
“It is true that the medical reports are clear that stress aggravates the complainant’s condition. However, it was not the intention of the school principal to intimidate or threaten the complainant. This assumption is based on what the complainant perceived; however, the facts show that the meeting was about a very relevant staff matter, that the principal had every right to speak to the complainant about that matter face to face….”
In respect of telephoning the Gardai, the Adjudicator noted “….there were other reasonable alternatives open to the complainant. This was about escalating the conflict; it was not about escaping from a dangerous and imminently threatening situation”.
Whilst it was noted that stress escalated the complainant’s condition, it was observed that the actions of the complainant herself created the conflict, not the actions of the school principal.
Employment Law Learning
In order to succeed under a claim for penalisation under the Safety Health and Welfare at Work Act 2005 (as amended), the Complainant must be able to show that they suffered a detriment such as the imposition of a disciplinary sanction, demotion etc. In this case the Complainant had simply received a letter outlining that disciplinary action was being considered in respect of the school’s disciplinary policy however at the time of the hearing, the Complainant had not been subject to any sanction e.g. written warning. Therefore the Complainant could not argue that she had been penalised.
