HSD2610

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00046217 (CA-00057109-001)

BACKGROUND:

The Employer 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.  A Labour Court hearing took place on 28 May 2026.

The following is the Decision of the Court.

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DECISION:

This is an appeal by Wexford County Council (the Respondent) against decision ADJ-00046217-CA-00057109-001 of an Adjudication Officer in a complaint by Patrick O’Connor (the Complainant). The complaint was made pursuant to the Safety, Health and Welfare at Work Act 2005 (the Act). The Adjudication Officer held that the complaint of penalisation was well founded and awarded compensation of €10,000.

1 Background

The Complainant commenced employment with the Respondent as a General Operative on 31 March 2009. The Complainant made a Protected Disclosure to his employer on 1 November 2022 arising from an alleged assault on him by another employee. It is the Complainant’s submission that he was penalised for making that Protected Disclosure when the employer failed to investigate his complaint, when he was assigned to a position away from the main area during the festival week contrary to what had happened previously, and when his line manager stopped collecting him in the Respondents van at weekends.

The Complainant lodged his complaint with the WRC on 13 June 2023. The relevant time limits for the purpose of the Act are 14 December 2022 to 13 June 2023.

At the commencement of the hearing, the representative for the Respondent informed the Court that the Respondent accepted that the Complainant had made a protected disclosure in line with section 27 of the Act and that it had not investigated his complaint, but that it did not accept that the Complainant was penalised or suffered any detriment for doing so.

2 Summary of the Complainant’s submission

The Complainant made a complaint of assault to the Respondent on 1 November 2022. This was followed up by his Union on 2 November 2022, when a separate complaint was lodged under the Dignity at Work Policy. The Respondent failed to complete an investigation into the complaint of assault. A first investigatory meeting was not scheduled until 11 January 2023, as the person appointed to carry out the investigation was not available before then. At that meeting, the investigator indicated that he had received a statement from the other party involved in the incident but would not provide a copy of same to the Complainant. There was no further contact from the investigator, so the union wrote to HR to ascertain what was happening with the investigation. On 17 February 2023, they received a response advising that the Respondent was “still looking into dealing with it and awaiting clarification from the other party before resuming the investigating”. Nothing further happened with the investigation, and it was never completed. It is the Complainant’s position that he was penalised for lodging that complaint. Before the incident, the Complainant was collected by a colleague at weekends, but this was discontinued without any discussion or engagement with him or any contact from anyone in management.

Annually, the Council is requested to marshal a dance festival in Wexford, and the Complainant had always, with his colleagues, been allocated to act as a steward in the Market Square, the main area where the festival occurs. On 3 June 2023, he agreed to assist as always but was placed away from the main festival on his own at a barrier closing the road. All his other colleagues were assigned together in the Market Square. The Union submitted that the failure to investigate his complaint of assault, the change to his pick-up arrangements at weekends without any discussion with him, and his changed assignment at the festival were all forms of penalisation arising from his protected disclosure on 2 November 2022.

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The union opened the cases of O’Neill v Toni & Guy Blackrock Ltd [2010] ELR 1 and Óglaigh Náisiúnta na hÉireann v McCormack HSD/115 in support of its position that there was a chain of causation between the protected disclosure and these acts of penalisation.

3 Summary of the Complainant’s evidence

The Complainant, in his evidence to the Court, stated that at festival week he and all the staff in his depot were assigned roles around Market Square, which is the main area where the festival takes place. If there are other areas where staff are needed, staff are drafted in from other sections. The gate he was assigned to would normally be covered by two staff members from the roads section. In 2023, he was told by the acting foreman that he was being placed at the barrier at the top of Castle Hill on his own. While he was there, he had no facilities and had to wait until someone was sent to relieve him before he could take his break. It was his evidence that he was there for five hours.

In respect of the van incident, he stated that his manager used to pick him up at 6.00 a.m. on Saturday and Sunday but, after the incident, did not show up on the first Saturday after the incident or thereafter. The Complainant stated that he was not told in advance that he was not being collected. He waited as normal for the lift and then had to make his own way to his assignment. It was the Complainant’s evidence that he believed this was all linked to the complaint of assault that he had made and that the fact that the Respondent did not investigate his complaint supported his belief.

Under cross-examination by Ms Kane, LGMA, he accepted that he was allocated a sweeper truck in 2017 and that he kept it at home and therefore had Council transport available to him. He also confirmed that he had access to a work vehicle at weekends. He confirmed that he did not message his manager to see why he did not pick him up.

4 Summary of the Respondent’s submission

The Respondent denies that the Complainant was penalised or suffered any detriment. It accepted that he had made a Protected Disclosure as defined by the Act and that it had received his complaint. It was its submission that due to a change of personnel in Enniscorthy, the investigation was never completed. It submitted that it had received complaints from both parties involved in the incident, but the investigation did not proceed past the initial interview stage. It was its submission that the Complainant was not penalised and did not suffer a detriment from making the complaint. The Respondent accepted that its procedures in relation to handling complaints were not followed in this instance. It confirmed that at the date of the Labour Court hearing, the investigation had still not occurred and it was its belief that, because of the time that had elapsed, it would not be feasible to conduct it at this stage.

It was its submission that, given that the allegation of assault was against his line manager, it was unreasonable for the Complainant to believe that the manager would still pick him up as he had previously done. This had been a local practice, as the Complainant had at all times a Council vehicle available to him.

The Respondent submitted that the fact that the Complainant was expected to work alone at the festival could not be considered a detriment, as it is something that can arise from time to time in the course of his employment.

It was the Respondent’s submission that there was no evidence before the Court which could be considered to constitute detriment for the purpose of the Act. The Respondent also sought to rely on the Toni & Guy case in support of its contention that there was no causal link between the alleged detriments and his protected disclosure. It also opened the case of St John’s NS v Akduman HSD102 in support of that position. It was its submission that the Complainant had failed to establish a causal link between his reporting of his grievance and any detriment such as to constitute a breach of section 27(3).

5 The relevant law

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The Act, at section 27, provides in relevant part as follows:

Protection against dismissal and penalisation.

27.(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

             (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

Subsection 3 of section 27 prescribes the circumstances in which penalisation is rendered unlawful under the Act. It provides:

(3) An employer shall not penalise or threaten penalisation against an employee for—

              (a) acting in compliance with the relevant statutory provisions,

              (b) performing any duty or exercising any right under the relevant statutory provisions,

              (c) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

              (d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

              (e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

              (f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

6 Discussion

The Court’s jurisdiction in the within matter is confined to determining whether, within the meaning of section 27 of the Act, the actions of the Respondent amounted to prohibited penalisation.

The Court has approached the within matter on the basis of first determining whether a protected act within the meaning of section 27(3) of the Act was committed. The Court notes that the Respondent accepts that the Complainant made a complaint that falls within the scope of the Act. The Court therefore determines that there was a protected act.

The Complainant alleges three acts of penalisation. Firstly, he alleges that the Respondent failed to investigate his complaint. The Respondent does not dispute that it did not investigate the complaint of assault by the Complainant against his line manager and confirmed that no changes were made to the reporting relationships. It pointed to oversight arising from staff redeployment and stated that the issue was overlooked. The Court finds that the failure to carry out an investigation of the complaint was penalisation and that leaving the Complainant working in the same environment without resolution of the issue was to his detriment.

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The second penalisation alleged was that he was no longer collected by his manager at weekends when they were working. It was not disputed that this was a local arrangement and that the Complainant had, at all times, access to a Council vehicle. On that basis, the Court does not find that this was penalisation.

The final part of his complaint was that he was ostracised in terms of his assignment during the dance festival in June 2023. His uncontested evidence was that his section was always assigned to the Market Square area and that staff from roads would be assigned to areas further away where there were road closures. In June 2023, after he had made his protected disclosure, he was the only member of his section who was not assigned to the Market Square area and was assigned on his own to man the barrier at an outer road closure. The Court finds that, based on the submissions and evidence before it, there is a causal link between the decision to assign him in this manner and his protected disclosure and accepts that this was penalisation which resulted in his being ostracised on that occasion.

7 Decision

The Court, having considered the submissions and the evidence before it, finds that the Complainant did make a complaint which constituted a protected act and has established that he was penalised by the Respondent and suffered a detriment for doing so. The Court, taking all of the above into account, awards compensation of €10,000.

The appeal fails.

The decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AM	______________________
06/08/2026	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Áine Maunsell, Court Secretary.

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