PDD2514

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046193 (CA-00057077-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 13 September 2024.

A Labour Court hearing took place on 6 November 2025.  The following is the Court's Decision:

DECISION:

1. Background to the Appeal: -

This is an appeal by Anthony Jacob against an Adjudication Officer’s Decision in a claim that he was penalised by his employer, Bus Eireann, having made protected disclosures under the Protected Disclosures Act 2014, as amended (“the Act”). The Adjudication Officer held that his complaint was not well founded.

For ease, the parties are referred to in this Determination as they were at first instance. Hence, Anthony Jacob is referred to as “the Complainant” and Bus Eireann as “the Respondent”.

2. Summary of Complainant’s Position: -

The Complainant commenced employment as a Bus Driver in 2013 and progressed to the role of Acting Inspector in 2017. He currently works on night block duties and carries out the airport run.

In 2018 the Complainant made a protected disclosure about a flawed competition for a full-time inspector role. He subsequently referred a complaint to the WRC that he was penalised for making the protected disclosure. His complaint was upheld in April 2020. Despite reassurances that he would not be blacklisted, the Complainant has been subjected to ongoing penalisation for making the protected disclosure in 2018.

The Complainant has been provided with little or no acting up opportunities since 2022, despite being an Acting Inspector since 2017. In the past, he acted up approximately 50-80 days per year for which he was paid an additional €50 nett per day. Since 2021, five other colleagues have obtained acting up positions and the Complainant has not been called upon to act up. He acted up for 18 days in 2021, one day in 2022 and none in 2023. There is no justifiable reason why the Complainant has not been provided with acting up opportunities. His shift pattern remains the same and there is nothing prohibiting him from acting up. His shifts are 6am, 6pm and 8pm. The acting up shifts are 5.30am, 6.45am and 2pm.

An Acting Inspector performs three roles (i) desk duties, (ii) Active Vehicle Location (AVL) Controller and (iii) Inspection. Despite assurances that he would be fully trained on the AVL system, to allow him to undertake AVL controller duties, this has not happened. There is no justifiable reason why the Complainant has not been trained on AVL.

The Complainant has applied for promotional positions three times but has not secured an interview.

The Complainant made a protected disclosure in good faith. He has suffered a detriment for making that disclosure. He has suffered financially and his standing in the organisation and promotional prospects have completely diminished. 

Evidence of the Complainant

The Complainant disagreed with the Respondent’s assertion that his decision to go on night block duties impacted his opportunities for acting up. He was the longest serving acting inspector, yet another person who worked night block duties was released for acting up duties. There was no reason why he could not be released to act up. He could cover most shifts within reason. He accepted that the rosters changed in 2021. He said that a ‘spare’ could cover his duties, as ‘spares’ were built into the roster.  He disagreed that assigning him to day shifts would negatively impact resourcing requirements on the shifts before or after his shift, or that an 11-hour rest break was required before recommencing shifts. He suffered financially as he is paid less for working on the night shift, in comparison to acting up duties.

Under cross-examination, the Complainant accepted that in 2019 there was a smaller pool of three acting-up supervisors and that the addition of eight acting up supervisors in 2021 impacted acting up opportunities and meant less opportunities for everyone. He accepted that he remained on the acting up panel and there was no entitlement to get acting up days. He accepted that he was provided with 14 occasions of acting up in 2018, which increased to 72 occasions in 2019. He accepted that going on night block duty was his choice. He accepted that if the Respondent could not get cover, they had to source cover from a third party at significant additional costs. He accepted that employees recruited into full-time AVL roles since 2020 were prioritised for AVL training over him.

Evidence of Andrew Quigley  

Mr Quigley was a bus driver and a shop steward up until 2021. He is now a full-time union official. In his view, the Company penalised the Complainant for having made a protected disclosure. Working night block duty should not prevent the Complainant from taking up an acting supervisor role. If there was a will, the Respondent would find a way. Other individuals were considered for AVL training, but the complainant was not.  Six individuals received AVL training during the cognisable period.

3. Summary of the Respondent’s Position: -

It is accepted that the Complainant made a protected disclosure in 2018. The Complainant took a complaint to the WRC in which he claimed that he suffered three acts of penalisation.  He was successful only in relation to one of the three alleged acts. (ADJ-00023015 issued 2nd April 2020).

The Respondent entirely rejects the claims of ongoing penalisation.

It is accepted that the Complainant suffered a significant reduction in his acting supervisor duties since 2021. Acting supervisors provide ad hoc cover for permanent supervisors when they are absent an annual leave, sick leave, etc. The Complainant performed regular acting-up duties after he made his protected disclosure as follows - 2018 (42 days), 2019 (72 days), 2020 (54 days) and 2021 (18 days). The fact that he performed regular acting supervisor duties in the period from 2018 to 2021, after he made his protected disclosure, fundamentally undermines his claim of penalisation.

Two material operational changes occurred in 2021 that impacted on the Complainant’s opportunity to perform acting supervisor duties. Firstly, an additional eight acting supervisors were appointed in 2021. The creation of a larger pool of acting supervisors reduced the amount of acting up opportunities available for each employee within the pool. Secondly, a new ‘night block’ duty was introduced in 2021 to improve the work life balance of drivers.  As part of roster changes, certain duties were contained within a separate ‘night block’.  The Complainant successfully applied to perform the new ‘night block’ duty. By moving to the ‘night block’, the Complainant was less available for acting up supervisor duties. The reason why the Complainant was not rostered was his decision to move to a night duty in September 2021. The Complainant was fully aware that the option to act up on day duties would be restricted.  If he chooses to move off the night roster, he will be eligible for day duties as an acting inspector.

The Respondent disputes that the Complainant has suffered a financial loss. An acting supervisor receives an additional payment of €61.85 per day. If withdrawn from night duty to provide supervisor cover during the day, the Complaint would not be available for night duty the following night and he would be at a loss of two nights pay for one day supervisory pay.

AVL Training

It is accepted that the Complainant did not receive training on AVL. During the COVID-19 pandemic, virtually no training was conducted except where necessary for operational compliance. In late 2022 and early 2023 training resumed on an operational need basis. There has been a training backlog ever since. The Respondent confirms that the Complainant can be included in planned training in 2025.

Supervisor Competitions

The Complainant has not identified any specific instances of penalisation within the cognisable period in relation to supervisor competitions.

The Respondent rejects all allegations of penalisation for making a protected disclosure in 2018. There are justified grounds for the reduction in available acting supervisor duties and in training opportunities, which are wholly unconnected to the Complainant’s protected disclosure.

Evidence Sinead Hearne – former HR Manager

Ms Hearne gave evidence that there were major resourcing and recruitment challenge in the company post covid.

The company introduced roster changes in November 2020, to counter volunteers refusing to provide cover. If the company could not get cover, it had to source cover from a third party at significant costs.

There were difficulties releasing the Complainant from night block duty, as this created backfill challenges for the night shift as well as compensatory rest issues the following day. While the introduction of ‘spares’ as part of the roster assisted with resourcing, their availability for backfill depended on individual shift patterns and rest break requirements. There was no union agreement that spares provided cover for night block duty, as the trade union insist on using volunteers. The ‘spare’ allocated to the night block roster was the only cover available.

In early 2021, the introduction of eight additional acting supervisors reduced the number of acting up opportunities across the board. A colleague on night block duty was released for acting up on two occasions during the cognisable period to cover training related activities. As the colleague was a qualified trainer, he was prioritised for release to deliver training. The same resourcing issues applied in terms of releasing the Complainant from night block duties for AVL training There was no hope of covering two backfill positions on the night block.

The Complainant was aware of the restrictions when he moved to night block duties. There are many opportunities for the Complainant to come off night, if he wished.

Under cross examination, Ms Hearne accepted that it was not ‘impossible’ to release the Complainant for acting up duties, but in her view it was very rarely possible. There was a disagreement between the employer and trade unions about the granting of 9-hour rest breaks. Furthermore, drivers refused to provide cover for night block duties.

4. Relevant Law: -

Section 3 of the Act addresses matter of interpretation. Penalisation for the purposes of the Act is defined as follows: -

"penalisation" means any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes—

(a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training,

(j) a negative performance assessment or employment reference,

(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;]

Section 12 of the Act addresses addressing protection of employees from penalisation for having made protected disclosure provides in relevant part as follows: -

12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

…

(7C) In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds.

5. Deliberations: -

The complaint under the Act was lodged to the WRC on 12 June 2023, therefore, the relevant period for consideration by the Court of the complaint, having regard to the time limits set down at section 41 of the Workplace Relations Act 2015, is the period from 13 December 2022 to 12 June 2023.

The Complainant contends that because he made a protected disclosure in 2018, he was subject to penalisation when the Respondent excluded him from Acting Supervisory duties and denied him access to AVL training during the cognisable period. The Complainant acknowledge that no alleged acts of penalisation in relation to promotional opportunities fell within the cognisable period.

It is accepted that the Complainant made a protected disclosure in 2018.

The revised Act provides at section 7 (C) that an alleged act of penalisation is deemed to be as a result of the employee making a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds.

The Respondent accepts that the Complainant suffered a significant reduction in acting supervisor duties since 2021, however, it contends that there are duly justified grounds for that reduction.

The Respondent further accepts that the Complainant was not provided with access to AVL training during the cognisable period for the complaint, however, it contends that there are also duly justified grounds for that fact.

It is clear from the Complainant’s evidence that he holds a genuinely held belief that he has been penalised for making a protected disclosure in 2018.  The purpose of the whistleblower legislation is to protect workers like the Complainant from retaliation where they raise workplace concerns. However, based on the evidence presented, the Court cannot uphold his complaint.

While the Complainant contends that there is no real reason he cannot be released from night block duty to undertake acting supervisory duties on the day shifts, the evidence suggests otherwise.

The Complainant accepted that an expanded panel of acting up supervisors introduced in 2021 has resulted in fewer acting up opportunities for all.

The Respondent introduced a new roster with a dedicated night shift in 2020. The Complainant moved by choice to night block duties. Ms Hearne gave compelling evidence of the specific roster challenges in backfilling night block duties with regard to seeking volunteers and minimising the potential negative impacts of any backfill arrangements on other shifts. The net effect of the Complainant moving to night block duties was that there was less opportunity for him to avail of acting up duties on the day shifts.

The Court notes the additional cost arising for the Respondent if they cannot source a volunteer to backfill roles and are required to source cover from an outside third party.

The Court notes that prior to moving to night block duties, the Complainant was provided with 72 acting up opportunities in 2019, which is not consistent with the Complainant’s contention that he was denied acting up duties in retaliation for making a protected disclosure in 2018.

The Respondent provided a valid explanation to explain the falloff in training during the Covid pandemic and the focus on delivering AVL training to those recruited into full-time AVL roles since 2020 were prioritised for AVL training over him.

The Respondent provided a valid explanation to explain why the Complainant’s colleague on night block duty was released for supervisory duties, in his role as a qualified trainer.

For the reasons outlined above, the Court is of the view that the Respondent provided justifiable ground to explain the reduction in acting supervisory and training opportunities.

The Court concludes from the evidence tendered that the Respondent did not penalise the Complainant for making a protected disclosure by failing to provide him with acting supervisory duties or access to AVL training.

Accordingly, the Court finds that Complainant has not made out that he was subject to penalisation under the Act. Therefore, the Court finds that the complaint is not well-founded.

6. Finding: -

For the reasons outlined above, the Court finds that the complaint is not well-founded.

The Adjudication Officer’s decision is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
19 December 2025	Deputy Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Ms Therese Hickey, Court Secretary.