Our latest review of Labour Court decisions looks at the interface of bullying and health and safety at work.

Introduction

There is no specific piece of legislation on the prevention of workplace bullying in the Irish legal system. However, Section 8 (2) b of the Safety, Health and Welfare at Work Act 2005 imposes an obligation on employers to ‘manage and conduct work activities in such a way as to prevent, insofar as is reasonable practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk’.

S.2 (6) of the Act states that ‘reasonably practicable in relation to the duties of an employer means that an employer has exercised all due care by putting in place the necessary protective and preventive measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned’.

The collective wording of these provisions clearly includes bullying as a risk to health and safety and on May 1st, 2007, a Code of Practice for Employers and Employees on the Prevention and Resolution of Workplace Bullying was introduced by the Health and Safety Authority under S.60 of the 2005 Act, updating a previous code it had issued in 2002. The effect of this Code in tandem with the legislation is to ensure that employers put anti-bullying policies in place and provide an accessible complaint mechanism for an employee who believes s/he has been the victim of bullying at work.

Section 27 of the 2005 also introduced for the first time a right for an employee to make a complaint to a Rights Commissioner (RC) that s/he has been penalised by his/her employer for raising a health and safety issue at work. Since bullying at work is clearly a health and safety issue, it follows that any penalisation of an employee by an employer in response to a complaint of bullying by that employee is a breach of the legislation.

The first case reviewed in today’s mail concerns just such an instance, where the Labour Court on appeal overturned a Rights Commissioner’s decision that no penalisation had taken place. This decision emphasises the necessity for employers not only to have clear procedures in place and to apply them effectively, but also to ensure that there is no taint of bias or favouritism in the investigation.

Another code issued in 2007, the Code of Practice for Protecting Persons Employed in Other People’s Homes, stresses the necessity for employers in such instances to adhere to basic employment rights standards. These include the issuing of a statement of the essential terms of employment under the Terms of Employment (Information) Act 1994 and the obligation to pay the national minimum wage rate. Deductions for meals, board and lodging may be made by the employer but they must not exceed the maximum set out under the national minimum wage legislation.

The second case reviewed in today’s mail concerns a complaint made by a ‘live-in’ employee that she was not paid the national minimum wage rate over a period of years. Her employer’s contention that the employment relationship had come to an end some years previously when the complainant’s employment permit came to end but that the complainant had continued to reside in the dwelling nonetheless did not convince the Labour Court on appeal. The size of the award made by the Rights Commissioner (RC) and affirmed by the Court should act as a deterrent to any employer attempting to short change a vulnerable employee in such circumstances. These cases are:

* Oglaigh Naisiunta Na hEireann Teoranta and McCormack

* Nyazika and Dzumbira


Oglaigh Naisiunta Na hEireann Teoranta and McCormack (HSC/09/20, Determination No.HSD115, 18th March, 2011)

The Facts

The complainant in this case worked as a house manager in an accommodation centre for ex-service personnel of the Irish Army from March 2004 to December 2008. In 2006, he was also appointed as administrator of a project called the ‘Forgotten Soldiers of Peace’ which was launched in April 2008. Following the launch, the complainant issued a press release without seeking the approval of his CEO which led to a disciplinary meeting on 16th May and the issuing of a written warning on 30th May.

The complainant’s solicitor wrote to the respondent on 7th August alleging that he had been bullied by the CEO at the disciplinary meeting on 16th May and the stress involved had compelled him to go on sick leave on 23rd July (during which he was not paid). Following a subsequent meeting of the CEO, the Chairman and the Secretary of the respondent company and its solicitor, a letter was sent by the solicitor on August 29th which appeared to reject the complainant’s version of events and accept the CEO’s. It also transpired that the CEO had taken it upon himself to write to a person who had witnessed the alleged incident of bullying on May 16th, though no date is provided in the written decision for this piece of correspondence. Further and more detailed allegations of bullying against both the CEO and a director of the respondent company were made by the complainant’s solicitor in a further letter of October 13th.

On 6th November an article written by the complainant (who was still on sick leave) was published in a regional newspaper in which he again purported to act as a spokesperson for the respondent and which appeared to campaign against the closure of army barracks. The following day, 7th November, the complainant called to the accommodation centre to collect some personal belongings from his office to find that the lock had been changed. It transpired that a director of the respondent company had taken this action unilaterally and this was compounded by the unrequested return of these items to his home.

On December 2nd, the respondent’s solicitors wrote to the complainant’s solicitors proposing the names of three independent investigators to investigate the bullying complaint. However, this letter also simultaneously accused the complainant of having breached his terms and conditions of employment by the publication of a newspaper article in which he purported to be the respondent’s spokesperson. The complainant refused the offer of an independent investigator at this juncture. On 4th December, the CEO wrote to the complainant asking him to ‘give cause as to why he should not be dismissed’ and finally, on 19th December, he was dismissed for his refusal to adhere to his terms of employment and to cooperate in the investigation of his allegations of bullying.


The Court’s conclusions

The Court began by finding that the letter written by the complainant’s solicitor on 7th August alleging bullying amounted to a health and safety complaint for the purposes of the Act, although it stressed that it was making no finding as to whether bullying had in fact taken place. On a procedural note, it then decided that it could only consider alleged incidents of penalisation resulting from that complaint from that date - 7th August - to the date that a complaint was made to a RC under the 2005 Act -19th December. It added that as the complaint of penalisation did not include the complainant’s dismissal, the Court could not include it (it is of course quite conceivable that a separate complaint of dismissal has been made by the complainant under another Act to another forum). Thus, it reasoned that it could consider the following matters:

* Failure to conduct an objective enquiry into the allegation of bullying
* Loss of pay whilst out sick
* Changing the lock on the door and the unrequested return of personal belongings
* Failure to seek a medical report on the complainant’s condition
* The threat of dismissal in the letter of 4th December 2008

Having identified that a complaint had been made by the complainant on a health and safety issue, the Court had to then decide whether a detriment had been imposed on him as a result of his complaint. It concluded that the continuing involvement of the CEO against whom an allegation of bullying had been made was totally inappropriate and compromised the respondent’s ability to deal with the complaint in an objective matter. Had an immediate and objective investigation taken place and the medical evidence been sought, the complainant’s loss of income could have been minimised. Although the changing of the lock on the complainant’s office door and the return of his belongings was carried out without the CEO’s knowledge, the respondent did not address or explain it, even when it was twice raised by the complainant’s solicitor. As such, it had to be regarded as a retaliatory act by the respondent as a reaction to the bullying complaint.

The Court took the view that the complainant’s refusal of the respondent’s proposal in the letter of 2nd December to appoint an independent investigator was misjudged as it considered it to be the most appropriate way to progress the matter. However, it noted that the same letter asked for his views regarding the newspaper article suggesting that it was a breach of his contract and was followed very quickly by a further letter from the CEO asking ‘to give cause as to why you should not be dismissed’. The Court concluded that the respondent did not give the complainant an opportunity to have his views heard and acted with undue haste. The tone of this letter with its threat of dismissal suggested that the matter had already been decided and on the balance of probabilities was further evidence of further penalisation connected to the allegation of bullying.

The decision of the Rights Commissioner was set aside and the complainant was awarded €7,500 in compensation.


Nyazika and Dzumbira (MWA/10/9, Determination No.MWD1015, 25th November, 2010)

The Facts

The claimant in this case was employed by the respondent as a child minder and she also undertook general housework. Fundamental conflicts of evidence were central to this case. The claimant gave evidence that she was employed from 2nd February 2004 to 6th May 2009 and that her employer persistently failed to pay her the national minimum wage taking allowable deductions for board and lodging into account. Specifically, she claimed that she was initially paid €200 per month and that this sum was increased by €50 at six monthly intervals so that by the time her employment ended, she was being paid €500 per month. She claimed that a €60 deduction per month was made in respect of board and lodging.

The respondent on the other hand told the court that she initially paid the claimant €150 per week from which €60 was deducted for board and lodging. This was later increased to €190 per week with the same deduction in respect of board and lodging. However, the respondent also claimed that the employment relationship came to an end as far back as May 2005 when the claimant’s work permit came to an end. She accepted however that the claimant continued to reside with her as a guest and undertook some housework during this time in return for the provision of accommodation.


The Court’s conclusions

The Court noted that neither party seemed to be in a position to provide corroboration of their evidence but it considered the evidence provided by the claimant to be more credible on the question of the duration of the employment. No doubt the fact that the respondent accepted that the claimant continued to reside with the respondent at all material times influenced this finding. As regards the conflict of evidence on the amount of payment, the Court first noted that there was an acknowledged substantial underpayment even during the period during which the respondent conceded that there was a contract of employment in existence.

It also noted that the respondent kept no records of hours worked or amounts paid despite being obliged under Section 22 (1) of the National Minimum Wage Act to do so. It stated that it was in turn obliged to apply Section 22 (3) of the Act which in effect provides that where an employer does not keep records showing compliance with the Act, the onus of proof will be on that employer in any claim brought under the Act by an employee to otherwise show compliance. The Court concluded that it had not found the evidence tendered by the respondent more convincing than that provided by the claimant on the question of payments. Consequently, it must accept the evidence of the claimant.

Finally, the Court noted that the Rights Commissioner, against whose decision the respondent was appealing, had undertaken a careful calculation of the amount due and owing and no issue had been taken with its mathematical accuracy. It therefore affirmed the finding that the claimant was due the sum of €51,523 in arrears of minimum wages and ordered that it be paid within six weeks.


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There's a very interesting article in the New York Times this week about unintended effects and how care home workers are excluded from minimum wage and overtime regulations in the US. In 1974, when Congress added domestic employees to the Fair Labor Standards Act, it exempted those providing “companionship services”, in order to exempt teenagers and others who might look in on elderly neighbours etc. But it turns out that care home workers are also excluded under this definition and care home owners want to keep it that way:
http://nyti.ms/oRDnpP

Note also that Minister for Jobs, Enterprise and Innovation Richard Bruton has this week announced the first steps in his plan to streamline the State’s five employment rights bodies (including the Labour Court):
http://bit.ly/q7OaI6