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Latest in Employment Law>Case Law>Wicklow County Council v Dunphy [2013]
Wicklow County Council v Dunphy [2013]
Published on: 03/05/2013
Issues Covered: Health and Safety Pay
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Background

The complainant in this case worked as an Executive Engineer for the respondent. It is also worth noting that he was a safety representative in the workplace. In November 2011, he made complaints of bullying against a colleague. At the time of his complaint he was in receipt of an ‘acting-up’ allowance for working at a higher grade than normal. 

An investigation was carried out into his allegations of bullying (curiously the decision does not appear to state what the outcome of that investigation was). In any case, following that investigation, the complainant was returned to his normal grade and lost the benefit of the ‘acting-up’ allowance. He claimed that this decision was directly related to his bullying complaint; the respondent denied that this was the case.

However, the dispute concerning the loss of the allowance was then referred to a Rights Commissioner by the complainant’s union under the Industrial Relations Act 1969, a piece of legislation that, amongst other things, allows individual employees to raise a grievance concerning their treatment at work. In the course of the hearing, the matter was settled and the terms of the settlement were put in writing and signed by the parties. The claimant accepted the sum of €4000 in full and final settlement of his claim under the Industrial Relations Act 1969 and without prejudice on the question of the respondent’s liability. 

Subsequently, the complainant made a second complaint, this time under the terms of S.27 of the Safety, Health and Welfare at Work Act 2005. He argued that the loss of the benefit of the ‘acting-up’ allowance amounted to penalisation as a response to him for having raised a health and safety issue at work. 

It is clear that making a complaint of bullying is a health and safety issue; for example, see the decision of the Labour Court in the case of Oglaigh Naisiunta Na hEireann Teoranta and McCormack (HSC/09/20, 18th March, 2011). However, having effectively accepted compensation to settle what was essentially the same complaint but under a different piece of legislation, could he try again under a separate heading?

The Rights Commissioner dismissed his complaint and he appealed that decision to the Labour Court. His argument was relatively straightforward. He suggested that the settlement was expressed to be only in respect of his claim under the Industrial Relations Act 1969 and did not bar him from claiming penalisation under another heading. The respondent in turn argued that he was legally prevented from bringing a second claim. 

In a short decision, the Labour Court reviewed the case law of the superior courts in relation to ‘mootness’, i.e. where there may have been but there is no longer a legal dispute between two parties. It noted that the complainant now sought a declaration that he had been penalised, having settled his industrial relations complaint on terms that gave him the benefit of a substantial payment which he had accepted. 

Thus, it concluded, even if he was not estopped (i.e. legally prevented) from maintaining the claim of penalisation, it could have no practical significance for him in circumstances in which his substantive grievance had already been fully and finally resolved. The Court held that his claim was ‘moot’ and disallowed the appeal.

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 03/05/2013
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