HSD257

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00037765 (CA-00049130-001).

BACKGROUND:

The Complainant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts, 2005 to 2014. 

Labour Court hearings took place on 26 April 2024, 2 August 2024 and 28 February 2025. The following is the Decision of the Court: -

DECISION:

Background to the Appeal

This is an appeal by Mr Adrian Gates (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00037765, dated 23 March 2023) under the Safety, Health and Welfare at Work Act 2005 (‘the Act’). Notice of Appeal was received in the Court on 11 April 2023. The Court heard the appeal on 26 April 2024 and 28 February 2025. A resumed hearing had been scheduled to take place on 2 August 2024 but was postponed at the Complainant’s request.

The Complaint

The Complainant is employed as a Water Caretaker by Carlow County Council (‘the Respondent’). In or around October 2021, he submitted a formal complainant of bullying against a Senior Executive Engineer in the Respondent’s Water Services Department. Although, the Respondent – by letter dated 4 November 2021 - replied comprehensively to the issues raised by the Complainant, the Complainant alleges that the Respondent’s decision not to engage an independent investigator constitutes penalisation within the meaning of the Act.

In 2021, an issue arose following an audit of the Respondent’s processing of travel and subsistence (‘T&S’) claims. The Respondent, in response, requested employees to include a greater level of detail in each individual claim. The Respondent continued to have concerns about the lack of detail in the Complainant’s T&S claims and engaged with him, along with his trade union representative, about the matter. The Respondent arranged in November 2021 to have the Complainant’s line manager shadow the Complainant on his usual routes to the various water facilities he was responsible for, in order to assist the Complainant in preparing a suitably detailed mileage claim. The Complainant submits that this process also constitutes penalisation within the meaning of the Act.

In December 2021, an element of the Complainant’s T&S claim that related to a journey undertaken in January 2021 was declined for payment as Management had decided that the Complainant had received a prior instruction that he was not to attend the facility in question at that time. The Complainant submits that the decision not to pay an element of his claim on that occasion also constitutes penalisation within the meaning of the Act.

In January 2022, the Complainant submitted a T&S claim that included two return trips from Boris water treatment plant to his home in Carlow to avail himself of toilet facilities. The Respondent declined to approve the payment. The Complainant submits that the Respondent’s decision in this regard constitutes a further act of penalisation within the meaning of the Act.

The Complainant had submitted an application for a promotional competition advertised in November 2020. He discovered through conversation with a colleague in February 2022 that he had he had not made the panel established following the competition. He raised a formal complainant about not having received any formal notification of the outcome of the process. The Complainant submits that the Respondent’s decision in this regard constitutes a further act of penalisation within the meaning of the Act.

The Complainant’s Evidence

The Complainant told the Court that the travel he did for work purposes and the related mileage claims had been constant for a number of years. He said he had used the same template to submit his T&S claims since 2015.

Under cross-examination, the Complainant accepted that he had been accompanied by his SIPTU representative to a meeting at which Mr Eamon Brophy had advised that the Respondent required employees to include a greater level of detail in their T&S claims following the outcome of a Local Government audit.

The Respondent opened a letter dated 2 December 2021 from Ms Orla Barrett, Senior Engineer, to the Complainant outlining his duties and authorised travel for the purpose of fulfilling those duties as follows by reference to written instructions he had previously received on 8 March 2019 and 17 March 2017. Ms Barrett wrote:

“I now clarify and instruct that you attend as follows:

Borris WTP and Reservoir every day for routine operation and maintenance, including Saturday and Sunday.

The Borris Network, twice a week, during normal weeks days Monday to Friday, for routine operational checks and maintenance.

Ballinkillen WTP and Reservoir on Monday, Wednesday and Friday. Network checks to be carried out on one of these days, of your own selection while visiting Ballinkillen WTP and Reservoir on Monday, Wednesday or Friday.

Tinnahinch Network on Tuesdays and Thursdays,

Any additional attendance/visits to these plants outside of this instruction must have the prior approval of your Line Manager.

Please note that this is effective immediately. If there is any aspect that you do not understand or need further clarity on, please talk to your Line Manager.”

It was put to the Complainant that the reason he had had to be accompanied in November 2021 while travelling to fulfil his duties at the various facilities is that he had refused to record his journey on a point-to-point basis, as requested, submitting instead a total mileage for each day.

The Complainant’s evidence next turned to his formal bullying complaint received by the Respondent on 20 October 2021 in which he raised eight separate issues and in which he had proposed that “an external investigator is agreed between my trade union official and management and that a formal investigation commences without delay”. The Complainant said that his request for an investigation was ignored and that the Respondent’s follow up consisted only of a written reply from Mr Michael Rainey, Director of Services, dated 4 November 2021. The issues complained of by the Complainant were as follows:

• Changing of alarm settings;
• Payment of travel expenses;
• Cover for Grade V at Raheenleigh plant;
• Attendance at work following covid test;
• Key holders for plants;
• Cessation of regular and rostered overtime;
• Winter gritting application;
• Health issues.

Under cross-examination, it was put to the Complainant that several of the issues raised in his letter of complaint had been previously explored with the Respondent and a number of them had been the subject of third-party referrals. Mr Rainey’s letter was opened to the Court. In that letter, Mr Rainey considered each of the Complainant’s eight grounds of complaint systematically. He advised, for example, that the Complainant had previously raised the issue of changing alarm settings:

“You made a complaint in relation to this matter, which was investigated, the result of which was communicated to you, appealed by you and the result of the appeal communicated to you. Both the initial review and appeal were conducted by senior staff in accordance with policies and procedures. It is noted that you had representation throughout the process. This matter has been through the process and is completed”.

Mr Rainey clarified the situation in relation to the Complainant’s T&S claims as follows:

“I should firstly like to point out that I am informed that neither you nor any of your colleagues have had their travel expense claims stopped. There is a requirement for audit purposes to have all journeys precisely detailed in accordance with the Council’s Travel & Subsistence Policy. This has been explained on several occasions to you and your colleagues. When the travel expense claims have been correctly submitted, they will be paid. I note that you have been advised to seek assistance from staff in Water Services Department if you require same.”

Mr Rainey advised the Complainant that the issues he had raised in relation to Cover for Grade V at Raheenleigh plant and Cessation of regular and rostered overtime were subject to an appeal before the Labour Court at that time.

In his original letter of complaint, the Complainant had stated that:

“I have previously suffered with stress and anxiety due to this treatment and have been certified unfit to work.

This is having a detrimental effect on my health and mental wellbeing; I feel in a constant state of anxiety at work and at home. I have had to take time off, I am not sleeping properly and am waking every few hours, these issues are on my mind morning noon and night, this is adversely affecting me and my family life. It is common knowledge across most sections of the local authority about what is going on with me and my situation is the topic of conversation both inside the council and now outside I am completely distressed, tormented and anxious and it is now at a stage whereby I am at breaking point, I cannot cope and need these matters dealt with.”

Mr Rainey addressed this aspect of the complaint as follows:

“The Council is concerned for the health and welfare of all of its staff and having regard to the issues raised in your second last paragraph, has arranged an appointment with Medmark Limited for you which has been separately communicated to you.”

Again, under-cross examination, the Complainant confirmed that he had not attended the appointment scheduled for him with Medmark.

The Complainant in his formal letter of complainant also raised an issue arising from an instruction he had received to attend work on 19 January 2021. He wrote as follows, without specifying the source of the instruction in question:

“When I was going for a covid test (19/1/2021), I was instructed notwithstanding the risk that I was covid positive to go to work which put other staff at risk (19/1/2021).”

It was put to him that Mr Rainey had address this aspect of his complaint in his letter of 4 November 2021 as follows:

“During the pandemic, it was agreed by Council Management, and advised to all staff that they could attend for work at plants, as lone workers not permitting any other staff and not engaging or in contact with any contractors or deliveries on site. In this regard, you were treated no differently than any other caretaker.”

Having addressed the alleged bullying issues and Mr Rainey’s treatment of them, the Complainant’s evidence turned to his concerns about a promotional competition for which he had applied in November 2020. He told the Court that he had completed the application form in handwriting as he had done previously on a number of occasions and attached his CV to it. He told the Court that he had never previously not made the shortlist when he applied for a promotion and he was most surprised to subsequently learn that he had been place on the panel on this occasion. He said he then contacted the Human Resources Department and enquired as to why he had not been called for interview. His evidence was that the person in HR he spoke to had apologised for the fact that he had not been contacted about the outcome of the competition as the department was very short-staffed at the time.

Under cross-examination, it was put to the Complainant that he had not complied with the instruction on the application form directing candidates to type their answers and to submit a copy of their driving licence, neither of which steps he had taken. The Court was also informed that the Respondent’s witnesses would give evidence that the short-listing board had been instructed to automatically disqualify candidates who did not following the aforementioned instructions.

Next, the Complainant gave evidence in relation to what he believed were payments due to him but which had not been paid to him by the Respondent. The first of those payments he said related to a period of cover he had provided on behalf of a colleague (PH) when the latter was availing himself of annual leave. The Complainant said he had provided this cover for many years. He said he had learned that two additional floating water caretakers had been appointed but said that nobody in management had discussed with him the termination of his long-standing arrangement to provide cover for PH. The Complainant said he was also owed payment for two callouts to Ballinkillen which management didn’t authorise for payment. There were also, he said, two payments he claimed for in respect of two return trips he made from Borris to home in order to avail himself of bathroom facilities in circumstances where there was no suitable functioning facility at the plant and a local garage had closed its facility due to Covid. It was put to him in cross-examination that there had been suitable welfare facilities available to him in Borris and that his return journey home was 70 km (for which he claimed expenses) and would have taken him approximately one hour of working time to complete.

Evidence of Mr Donncha Lynch

The witness said that he had been employed by the Respondent as a Senior Executive Engineer at the material time. He gave evidence in relation to two claims made by the Complainant in respect of callouts to Ballinkillen. In respect of each callout the Complainant put in for four hours at double time, plus travel time. The Complainant had submitted, he said, that the calls in question were made on a Friday evening and on the following Monday evening whereas, in reality, the Complainant went in the following morning to deal with the issues having started work one hour early on the mornings in question. According to the witness, the Complainant should have given high priority to the issues that had arisen at the Ballinkillen plant on the dates in question if they had genuinely been emergency call outs and that fact that he hadn’t done so suggested that they had not, in fact, been so.

The witness then addressed the issue of the Complainant providing cover for PH. The witness said that during the period in respect of which the Complainant’s claims for providing cover for PH there had been two very capable members of staff available to deal with issues in Raheenleigh in PH’s absence and the Complainant had been expressly instructed to travel to that location.

Evidence of Ms Orla Barrett

The witness told the Court that she is a Senior Engineer in the Respondent’s Water Service Department and also has responsibility for Environment. She said that the Complainant does not report directly to her but that his line manager does.

The witness firstly gave evidence in response to the Complainant’s allegation that he had been followed while performing his duties. The witness said that an audit of mileage claims had taken place in 2020 which had identified that many such claims lacked a sufficient level of detail. She told the Court that she issued a memo to notify staff of the issues that the audit had highlighted and to request improvements in compliance with the Council’s policy in terms of the level of detail to be provided by staff when making T & S claims. As the Complainant’s travel claims continued to fall short of what was required, the Witness – she said – asked a GSS to travel with the Complainant in order to document the Complainant’s usual routes in full.

The witness then addressed the issue of toilet facilities. She said that a chemical toilet had been installed at the water treatment plant in 2016. The plant was subsequently upgraded and a toilet added meaning that the existing toilet in the portacabin was available and cleaned for the Complainant. She also said that the Complainant had not brought any concerns about using this facility to GSS and had he done so he could have been given access to facilities at the Road Depot on Boris nearby. There were also other facilities available in the area that could have been made available had the Respondent been informed of there being a problem. The first time that the Respondent became aware of the Complainant’s issue with accessing toilet facilities was when he made a T&S claim for return travel to home to use the facilities there.

The evidence then turned to the issue in relation to providing cover from Mr Hynes. The latter is Grade 5 and the Complainant is Grade 3. The Complainant, she said, had been requested in the past to provide cover, when asked to do so, for Mr Hynes when he was on leave. However, the Respondent and SIPTU – she said – concluded an agreement in 2019/20 whereby two additional full-time staff would be employed to provide cover for caretakers on leave (one in the water division and the other in the wastewater division). Following the implementation of that agreement, the Complainant was no longer required provide cover for Mr Hynes but nevertheless continued to take it upon himself to do so.

Finally, the witness gave her evidence in relation to the Complainant’s application for inclusion on the GSS panel in 2021. The witness said that she participated in the short-listing process and had been given two bundles of completed application forms, one bundle of which contained applications that had been handwritten. The witness said that she had been told not to include that bundle in her consideration for shortlisting as they were deemed non-compliant with the instructions that had been given to candidates in the booklet they received. The witness confirmed that no handwritten application was shortlisted.

Under cross-examination, the witness confirmed that the Respondent operates on online system for processing T&S claims and that claims are normally signed off by the Executive Engineer in conjunction with GSS. She said that she dealt personally with the Complainant’s T&S claims following the audit process as she taken over dealing with claims at that point in order to them right following a series of meetings that had taken place with SIPTU. She said that the Complainant had received clear and firm instructions previously in 2017 and 2019 about what sites to visit and when but continued to do his own thing.

Discussion and Decision

The Complainant has identified five matters which he seeks to characterise as acts of penalisation by the of him Respondent under the Act: (i) the Respondent’s decision not to engage an external investigator when investigating his complaint of bullying in 2021; (ii) the Respondent’s decision to have the Complainant accompanied on his rounds in order to assist him to correctly and fully document his T&S claims; (iii) the refusal of the Respondent to pay a an element of a T&S claim that related to trips he was instructed not to take; (iv) declining his T&S claims for return trips from Boris to his home in Carlow to use the toilet facilities there; and (v) the Respondent’s failure to communicate the outcome of a promotional competition to him in 2022.

It is well established in the jurisprudence of this Court in relation to claims of penalisation under the Act of 2005, that a complainant bears the burden of demonstrating that they experienced detriment as a consequence of making a protected act and that the detriment that they allege would not have occurred ‘but for’ the protected act in question.

In relation to (i) above: the Court does not accept that the Respondent’s decision not to avail itself of an external investigator when dealing with the Complainant’s allegations of bullying does not constitute a detriment when those allegations were meticulously considered by an internal, independent person who found that the allegations had previously been investigated and/or referred to a Third Party.

In relation to (ii) above: The witnesses for the Respondent gave clear, cogent and convincing evidence that the need to have the Complainant accompanied in order to assist him to properly complete his T&S claims was due to his persistent failure and neglect to follow the instructions that he had been given more than once in relation to the level of detail that was required in such claims.

In relation to (iii) above: The Complainant, according to the uncontradicted evidence of the Respondent’s witnesses had been expressly instructed not to make certain journeys; notwithstanding those instructions he made the journeys in question and claimed T&S for them; the Respondent’s refusal to T&S in those circumstances is entirely in keeping with good management practice and does not amount to penalisation.

In relation to (iv) above: The Respondent’s decision to refuse the Complainant’s T&S claims for his extended return trips to his home in order to use the toilet facilities there when he had not informed them in advance that he perceived there to be a problem with on-site facilities the Respondent had in place and had not availed himself of alternative facilities that the Respondent had in place in other sites, cannot be construed as penalisation; it is nothing more that sound fiscal management of public monies.

In relation to (v) above: The Complainant submitted a complaint to Mr Eamon Brophy on 2 February 2022 that he had not been advised of the outcome of a promotional competition. Mr Brophy replied on even date to advise the Complainant that due to an administrative error across three competitions persons who had not been shortlisted had not been advised of this fact. As this was an issue that effected several people simultaneously, it follows that it was not an issue confined to the Complainant and cannot therefore be construed as an act of penalisation against him.

In summary, the Court finds that the Complainant has not established that he was penalised in any respect by the Respondent. The Court finds, therefore, that his appeal is without merit and fails. The decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
1 July 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Therese Hickey, Court Secretary.