A recent decision of Workplace Relations Commission has provided welcome clarification for schools and other institutions around penalisation under the Safety, Health & Welfare at Work Act of 2005. Catherine Kelly, Education Law Partner, discusses the implications for certain organisations in the public sector.
A recent case before the Workplace Relations Commission (WRC) concerned an allegation of penalisation under the Safety, Health & Welfare at Work Act of 2005. The Act prohibits the penalisation of any employee who is acting as a safety representative and this includes, for example, demotion, loss of pay or the imposition of any discipline, reprimand or other penalty.
The WRC found in favour of the school, stating that, on balance, the complaint was not well founded.
The Complainant, who is a teacher in the school, claimed that he had been elected as a safety representative in November 2018 in line with Health & Safety and trade union rules and procedures. He alleged that he became aware of certain issues and proposed that the HSA Work Positive Programme be utilised in the school to address these.
In early 2021, the Complainant was called to a disciplinary meeting with the principal in relation to a number of issues including the late posting of Christmas reports. The Complainant stated that this amounted to disciplinary action and that he was being penalised because of his role as a safety representative. This allegation was denied by the school who stated that no disciplinary action was in fact taken after the disciplinary meeting. The Complainant later lodged a grievance claim against the principal, which was fully investigated. A special meeting of the Board of Management was held and his grievance was not upheld.
Findings and conclusions
The WRC noted that the key requirements to prove Penalisation under the 2005 Act are:
- That he/she was acting in accordance with the relevant Sections of the 2005 Act
- That a detriment imposed by the Employer was suffered as a result of 1 above
- That there is a clear and unambiguous causal linkage, a burden of proof requirement, between the actions 1 and 2 above
The WRC noted that the invoking of the disciplinary procedure was, to an outside observer, a warranted step. The WRC stated that it was hard to see a direct causal link between invoking the disciplinary procedures and the Health and Safety matters. In addition, no “detriment” was imposed, with none of the examples cited in Section 27 applying. There was no dismissal, demotion, loss of pay or privileges for the Complainant.
This case highlights the importance of correct procedures and reasoning being utilised when an employer initiates disciplinary procedures, as well as documentation being retained, to enable the employer to successfully defend any potential future claim.
For more information and expert advice, please contact a member of our Education team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.