BURDEN OF PROOF IN CASES UNDER THE SAFETY HEALTH & WELFARE AT WORK ACT 2005 – 2014*

BURDEN OF PROOF IN CASES UNDER THE SAFETY HEALTH & WELFARE AT WORK ACT 2005 – 2014*

This issue was addressed by the Labour Court in the case of Health Service Executive and Jennings HSD222.  The Labour Court in that case quoted the case of O’Neill -v- Toni & Guy Blackrock Ltd 2010 21ELR1, where the Labour Court stated:

“It is clear from the language of this section that in order to make out a case for penalisation it is necessary for the claimant to establish that the detriment to which he or she complains was imposed “for having committed one of the acts protected by sub-section” thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a protected act”.

The Court then went on to consider the issue of the shifting of the burden of proof and referred to the same case where it was stated by the Labour Court in that case:

“having regard to these considerations, it seems to the Court that a form of shifting burden of proof, similar to that in Employment Equality Law, should be applied in the instant case.  Thus the claimant must establish, on the balance of probabilities, that he made complaints concerning Health & Safety.  It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal.  If those two limbs of the test are satisfied it is for the respondent to satisfy the Court, on credible evidence and on the normal civil standard, that the complaints relied upon did not influence the claimant’s dismissal”.

It is helpful that the Court has restated the law.

In this case the complainant submitted that the respondent’s decision to relocate him elsewhere within the hospital, following receipt of his complaint amounted to penalisation within the provisions of Section 27(2)(c) of the Act, he contended that his mental wellbeing was affected because of his belief that the decision to move him and to allow the alleged perpetrator to remain in situ created the impression that he had been guilty of misconduct towards Nurse A.

The Labour Court found that the Occupational Health Report commissioned by the respondent and opened to the Court confirmed that in the period following the relocation the complainant’s mental health deteriorated significantly and he experienced considerable workplace stress.  An award of €20,000 was made.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

*In contentious cases a solicitor may not charge fees or expenses as a proportion or percentage of any award or settlement.

Richard Grogan

Author Richard Grogan

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