Complainant

Respondent

Parties

Darrell  Donnelly

Acchl Limited T/A Homesavers

Representatives

Glenn Cooper,  Dundon Callanan Solicitors

Brendan Sheehy, In-House Solicitor

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00053540-001

04/11/2022

The Complainant commenced his employment with the Respondent on 4 August 2018. On 30 November 2022, the Complainant handed in his resignation and informed the Respondent that his last day of employment would be 14 December 2022.

On 4 November 2022, the Complainant referred his claim to the Director General of the WRC pursuant to Section 28 of the Safety, Health & Welfare at Work Act, 2005 alleging that he was penalised for complying with or making a complaint under the Act.

The Complainant submits as follows.

The Complainant started to work for the Respondent, initially as a supervisor, in the Homesavers Store at City East Retail Park, Limerick on 4 August 2018. Two and a half years later he was promoted to Store Manager. The store has approximately 35-40 employees and turnover of approximately average €90,000 per week (depending on the season). The Complainant’s gross pay, during the relevant period in 2022, was €3,166.69 per month.

Mouse infestation

The Complainant submits that from January 2022 there was a major problem with a severe mouse infestation in the store. As well as household items, the store sells food for human consumption (and also pet food), so it was a significant problem. The Complainant and other staff were spending considerable time cleaning up mouse droppings and mouse urine and removing and cleaning damaged stock.

The Complainant notified the Area Manager of the problem and requested that it be resolved but no action was taken by the Respondent beyond the normal bait boxes being attended to by the pest control company. In April 2022, the manager of the pest control company inspected the store and said that the solution was complete fumigation of the store. Subsequently, the Complainant contacted a more senior manager, who told the Complainant that the Area Manager had not even passed on to her the complaint about the mouse infestation.

In May 2022 the Area Manager advised the Complainant that the Respondent was not going to take any further steps against the mouse infestation. The Complainant and the other staff were forced to continue cleaning and working in intolerable conditions. This continued the whole time the Complainant was an employee of the Respondent. Several staff members could not cope and resigned, including the Assistant Manager.

In July 2022 the Complainant and the Area Manager were cleaning Aisle 2 where pet food and tissues were covered in mouse droppings and urine. The Complainant decided he could not work under these conditions when the company was doing nothing to fix the problem. The Complainant gave his resignation to the Area Manager and the Commercial Manager, but the Commercial Manager persuaded him to stay on, with promises that the mouse infestation would be resolved, that two new Assistant Managers would be appointed, and that they would look at a pay rise in October (none of these promises were fulfilled).

The pressure on staff was enormous. The HSE was investigating, and the Complainant was given strict instructions by the Respondent’s management to obstruct access of the HSE and the Gardai to the pest guard book and to the warehouse. This put added pressure on the Complainant who was forced into a position of being uncooperative with the authorities who were trying to investigate a serious public health problem. In early September 2022, the Complainant complained to both the Commercial Manager and the Area Manager about being put in a position of being instructed to lie to government officials.

The Assistant Manager and a Supervisor resigned and in September the Complainant handed in his notice, which he withdrew when he was promised that another assistant would be appointed.

A closure order was issued against the store on 9 September 2022 and lifted on 23 September 2022, but in fact, significant issues with mouse infestation continued around foodstuffs in the store until at least October 2022.

Nenagh Store

On Tuesday, 13 September 2022, the Commercial Manager visited the store and asked about the Complainant’s withdrawn resignation earlier in September. The Complainant explained that he was receiving no help from anyone regarding his management team and the mouse infestation of the store. The Commercial Manager responded that the Complainant was to go to the Nenagh store the next day beginning at 9.00am. He said that this would assist the Complainant’s mental health. The Complainant replied that he did not drive, and he would not be going to the Nenagh store. The Commercial Manager countered that he expected the Complainant to be at the Nenagh store at 9.00am or he would be very disappointed. He said that this had already been agreed with HR. The Complainant explained that it was not an option for him to go to Nenagh and that he was shocked that he had been asked to do so. The Commercial Manager said to the Complainant that he could go home and take the day off with pay and he took the keys to the Limerick store from him.

Grievance and resignation

The Complainant was now in an impossible situation and under enormous stress. He attended his GP who certified him unfit for work due to work related stress, from 14 September 2022. The Complainant was never able to go back to work at Homesavers and the company made no attempt to bring him back.

The Complainant submitted a grievance on 10 October 2022. By the end of November 2022 he realised he could not return to work at Homesavers and tendered his resignation so he could obtain alternative employment. He did, at the Respondent's request, attend a grievance meeting on 13 November, however, as the Complainant had anticipated, the grievance report which issued on 7 December 2022 from the Respondent was entirely disingenuous.

The report referred to "temporary" move to Nenagh (on 13 September there had been no mention by the Commercial Manager that the forced move to Nenagh was "temporary").

The report stated that the Respondent had taken significant measures to resolve "any issue" in the Limerick store and that health and safety was a priority for the Respondent, all of which was manifestly untrue.

The Complainant secured new employment commencing 28 December 2022.

Statute

Section 27 of the Safety Health and Welfare at Work Act, 2005 prohibits acts of penalisation (as defined in section 27(2)) in response to the employee's conduct as defined in section 27(3).

The Complainant was subjected to change of location of place of work and transfer of duties and he was suspended and ultimately forced to resign and seek other employment for making complaints about the ongoing public and employee health issue with mouse infestation and the failure of the company to resolve the problem or deal honestly with the public health authorities.

Penalisation is a very serious matter which should be marked with a substantial award of compensation. In that regard, the Complainant relies on An Agency Nurse -v- State Detention Body ADJ-00023593.

Application for award of costs to the Complainant due to vexatious behaviour of the Respondent.

At the adjudication hearing on 12 July 2023, in light of the Respondent’s failure to attend the hearing, the Complainant’s representative made an application for an award of costs due to the vexatious behaviour of the Respondent.

The following written submission was received by the WRC on 24 October 2023.

The Complainant seeks an award of costs due to the vexatious behaviour of the Respondent at the hearing on 12 July 2023.

The circumstances are as follows:

·       On 29 May 2023 the parties were advised of the 12 July 2023 hearing date.

·       On 6 July 2023 the WRC advised the Complainant that the Respondent had applied for a postponement on the grounds "Witness unavailable".

·       On 10 July 2023 the WRC advised that the postponement request had been refused.

·       On 12 July 2023 the Complainant attended for the hearing at Ennis with his solicitor, his wife, and four witnesses.

·       There was no appearance by the Respondent, except by Conor Bunbury, Solicitor, whose only instruction was to make an adjournment request.

·       The adjournment was granted by the Adjudicator upon the grounds that the Respondent was not present and the hearing could therefore not proceed.

Section 28 of the Safety Health and Welfare at Work Act, 2015 gives the Adjudication Officer a broad discretion to award such compensation as is just and equitable having regard to all the circumstances. (That wording is similar to section 7(1)(c)(i) of the Unfair Dismissals Act.)

Regulation 19 of the Redundancy (Redundancy Appeals Tribunal) Regulations, 1968 (SI 24/ 1968) provides that costs shall not be awarded by the Tribunal, except that if a party to the proceedings has acted frivolously or vexatiously, and then an order can be made in respect of travelling expenses and any other costs or expenses reasonably incurred.

A very similar circumstance arose before the Employment Appeals Tribunal in Joseph Rabbette -v- Bopa (Ireland ) Limited UD 123/ 85 and the Tribunal adjourned the hearing, but made an order for payment of expenses. (See also Redmond, Dismissal Law in Ireland (2nd ed), pp. 567-569.)

The expenses claimed are for travel by the Complainant and his witnesses to Ennis in four separate cars on 12 July 2023. Each car was over 1500cc and therefore applicable Revenue mileage rate is 51.82c/ km. Distances travelled are as follows:

The Complainant and his wife: 96km, Mr Mawdsley: 112km, Ms Purcell: 130km, Ms Earls: 86km. Therefore, total travelling expense claimed is €219.71.

Summary of direct evidence and cross-examination of the Complainant

The Complainant outlined his career with the Respondent.

The Complainant said that a mouse was found in the shop at the beginning of March 2022. Mr Mawdsley, Warehouse Supervisor reported it to the Area Manager. The matter was discussed with the Area Manager around 14 or 15 March 2022. From October on, urine and droppings were all over the shop. The situation lasted at least until the Complainant resigned his position. The Complainant said that cleaning was done by him and Warehouse Manager, and the Area Manager. It took three hours every morning. The Complainant said that the alarm went off (on one occasion 4 times during one night) as it was activated by mice. The Complainant said that pest control experts decided that the shop needed to be fumigated.

The Complainant said that he spoke with the Area Manager. He further said that there is a person dealing with maintenance within the company and she said she received nothing regarding mice infestation. The Complainant said that the Area Manager told him that it was out of his hands and the instructions from the head office was to keep cleaning.

Around 4 or 5 July 2022 the Environmental Health Officers visited the shop. The Complainant said that he rang the Area Manager and was told that the inspectors had to go through the head office. The inspectors said that they had emailed but got no response, they said that they would come back. The Complainant said that he rang the Commercial Manager and was told that the inspectors are not to walk around or take pictures. The Complainant said that the inspectors stayed in their car for 2.5-3 hours and came back with Gardaí. The Complainant rang the Commercial Manager who told him that, under no circumstances was the Complainant to let them in and take pictures. The Complainant explained the instructions to the inspectors. The Commercial Manager said that someone would ring them. Gardaí left their phone number, but no one rang them. Gardaí told the Complainant that they would prosecute him for not giving access to pest control books and warehouse. He was not prosecuted but it caused him enormous stress.

On Thursday/Friday (before the 13 September 2022), the Area Manager and another manager (Ms R) were designing documents regarding cleaning procedures. The Complainant told them that staff would not do any cleaning.

On 13 September 2022, the Complainant met with the Commercial Manager. He told him that they have been cleaning the shop on their hands and knees, that he had been dealing with this for six months and there was nobody to help him. The Complainant told the Commercial Manager that he was promised two Assistant Managers. The Complainant was told to move to the Nenagh shop. The Commercial Manager said that it was to help his mental health. The Complainant did not want to move. He explained that he did not drive for the reasons known to the Commercial Manager. The Commercial Manager said that it was very disappointing. He said that here would be no job for the Complainant if he did not move to Nenagh. He took the Complainant’s keys and told him that he could leave the building. The Complainant said that the Commercial Manager never told him that the move was temporary, but he agreed that the letter of 13 December mentions temporary arrangement.

The Complainant said that his GP certified him sick due to stress.

The Complainant said that he was receiving calls from his staff who were crying that they could not work in these conditions.

The Complainant said that he raised his grievance on 10 October 2022. He said that he was told that his resignation would not be accepted until the grievance process is finalised. He attended the investigation meeting. The Complainant said that the outcome letter of 7 December 2022 does not mention any other reason for the move to Nenagh other than a mobility clause in his contract.

The Complainant said that he commenced a new job on 28 December 2022. He said that he suffered losses related to the period of being off sick. He calculated his losses at €11,080.25 gross.

In cross-examination, the Complainant confirmed that the infestation started in March 2022.

It was put to the Complainant that in his first resignation letter of 7 July 2022, there is no reference to any issues. The Complainant said that he had been with the Respondent for years, he did not want staff to leave because of his resignation. He did not want 25 people to leave with him. He spoke with all of them and told them to stay and fight to the end. He said that he is a person with a lot of integrity. He wanted to leave staff on good terms.

The Complainant said that he spoke with the Commercial Manager and he was promised two assistant managers and a pay rise down the road. He withdrew his resignation.

Regarding his second resignation (7 September 2022), the Complainant said that he could not go on like that. It took six months to hire an assistant manager. The Complainant said that he withdrew his resignation. He said that he found it very hard. He said that he had been unemployed for 2.5 years before he got a job in retail. He said that he did not think that he would get another job at his age, he had a mortgage. The Respondent convinced him that things would change. In the Complainant’s mind, he said, the Respondent was telling him it could not do without him. He was afraid that he would have no money over Christmas.

The Complainant said that the Respondent was good to him when he started, not at the end. The Complainant said that it was the hardest time of his life. He could not work under these conditions. He said that he is not a malicious person, he would not say a bad word about the Respondent.

The Complainant said that on 13 September 2022, on his last day in the office, he spoke with the Regional Manager who told the Complainant that he would never get two assistant managers. The Complainant told him about the infestation.

The Complainant said that the Commercial Manager was “old school”, he was tough but fair. But, he said, there was nobody there to help him.

The Complainant told the Commercial Manager that he could not drive to the Nenagh shop. The Nenagh shop would also have different work hours, the Complainant’s whole life would turn upside down. It was put to the Complainant that the Commercial Manager was trying to give him a solution: no mice, no Environmental Health Officers, no staff issues, it was the closest shop to Limerick. The Commercial Manager thought it was a suitable solution on a temporary basis.

The Complainant said that the Commercial Manager never said that it was a temporary solution. He knew the reason why the Complainant did not drive. The Complainant explained the travel difficulties. The Complainant said that the Commercial Manager told him that he was expected there on the next day and he told him to give back the shop keys.

It was put to the Complainant that the Commercial Manager saw that he was stressed and gave him two days off. The Complainant said that he was suspended. He was told to give back the keys and leave the building, he was persecuted. It was put to the Complainant that this was not suspension and that the Complainant knew the suspension process. The Complainant replied that he was asked to return the keys and move to the Nenagh shop. The Commercial Manager told him that he spoke with Ms Macartney of HR and decision was made. It was put to the Complainant that the email of 13 September makes it clear that it was temporary.

The Complainant agreed that the Respondent offered him the assistance of the EAP.

The Complainant was asked if he inquired about coming back to the Limerick store. He said that he was “not going to put himself through it.”

The Complainant agreed that he was invited to raise his grievance and he did so. He said that he did not accept the outcome.

It was put to the Complainant that, in his evidence he said that the Assistant Manager resigned because of the stress. However, her letter of resignation, which was sent to the Complainant, she thanked for all the opportunities and stated that she felt it was the best time to move on in the best interest of her career. The Complainant said that he could not speak for her.

It was put to the Complainant that there was no penalisation. He went through months of resigning and withdrawing his resignation. It came to the point that he could not work under the conditions and as a solution a suggestion was put to move to another shop. The Complainant disagreed.

Summary of direct evidence and cross-examination of Mr Tom Mawdsley, former Warehouse Supervisor

Mr Mawdsley said that he was Warehouse Supervisor for four years. He left the Respondent on 1 December 2022. He said that in the week  he left, he disposed of about 20 mice. He said that he always started work at 6am-7am with the Manager and an Assistant Manager, he said that he complained about the infestation to the Manager, Assistant Manager and the Area Manager.

Mr Mawdsley said that the day after the Complainant left, his shift was changed. He was to start work at 10am. He was told that there was no need for him in the morning. However, he thought that it was because the management did not want him to see them cleaning mice in the mornings.

In cross-examination, Mr Mawdsley said that he did remember the HSE closure. It was put to him that HSE would not lift the closure order if it was not satisfied that the area was clear. He said that HSE did not see it, but mice were still there. He said that the Area Manager bought some 100 mice traps.

Summary of direct evidence and cross-examination of Ms Nolette Purcell, former Assistant Manager

Ms Purcell said that she worked as an Assistant Manager until she resigned in August 2022. She said that she resigned because she could not deal with the cleaning of mice. It was affecting her life and people around her.

Ms Purcell said that she did not put anything in her resignation email regarding the mice. She said that the Complainant dealt with a lot of issues at that time, he tried to make life and work better for all the staff and she could not do it to him.

Ms Purcell said that the Complainant called her in to the office at the time of the Garda visit to be a witness. She said that he was threatened with prosecution.

In cross-examination, it was put to Ms Purcell that the reason for her resignation had nothing to do with mice. She said that she put nothing in the resignation letter as she knew that the Complainant did not need more grief.

Summary of direct evidence and cross-examination of Ms Sharon O’Donoghue, former Supervisor

Ms O’Donoghue said that she told the Area Manager and another manager (Ms R) that she left in October 2022 for two reasons: the disrespectful way the Complainant was treated and the health and safety issues. She said that she was asked to elaborate and she explained that it was because of the mice, staff were complaining to her. She said that in September, she was told that only the Area Manager and Ms R were to deal with the inspectors.

In cross-examination. Ms O’Donoghue was asked if she ever raised a grievance. She said that she did, at her exit meeting she said that she could not work in these conditions.

Summary of direct evidence and cross-examination of Ms Lisa Earls-Rainbow, former Assistant Manager

Ms Earls-Rainbow said that she was promoted to an Assistant Manager position on the day the Complainant left.

Ms Earls-Rainbow said that on the day in question she was in the office at 9am. She witnessed senior managers on their hands and knees cleaning because no one else would. She said that she was upset after the Complainant had left that morning and she went to the bathroom. The Area Manager waited outside the bathroom for her and told her that her job as an Assistant Manager was approved. He told her to change Mr Mawdsley’s hours.

The witness said that the pest guard employee exchanged private email addresses with Ms R. Anything in the pest control book was for the HSE but all was discussed via their personal emails. She said that she had 2 hours to take food of the shelves for the HSE, hiding stuff was done every morning. The witness referred to an email of 5 October 2022 from Ms R to the Commercial Manager which described the level of infestation and stated that:

“all the above is being personally cleaned by me daily to ensure staff not only stay as unaware as possible but also to ensure a clean safe environment for staff & customers.”

Ms Earls-Rainbow said that she left four weeks later on 19 October 2022.

Complainant’s closing remarks

It was asserted, on behalf of the Complainant that the Respondent had a serious problem that could cause reputational damage. There is clear uncontested  evidence  that managers were trying to cover up and not provide the HSE with the proper records. Ms R’s email shows that the Respondent was trying to cover up the issues. The day the Complainant was off the scene, managers were cleaning before staff came in. The Complainant was a manager but he was not hiding issues. For that reason, the Respondent wanted him out. Protection of his mental health was used as a cover up. The Commercial Manager, in quite a threatening manner told the Complainant to move. The Complainant’s mental health is not mentioned in the grievance outcome. Mr Mawdsley, who worked the same shift for four years, made some complaint and his shift were changed the day the Complainant left.

The Complainant complained of the ongoing infestation, of being dishonest with authorities and in response he was moved to Nenagh. To say that it was for his mental health and being aware that he did not drive does not stack up.

The Respondent submits as follows.

The Complaint — specific matter of legislation before the Workplace Relations Commission for determination

The Complainant, in his initial complaint form, states that he is seeking to make a complaint under Section 28 of the Safety, Health and Welfare at Work Act, 2005. The Complainant also states in his submission to the Workplace Relations Commission ("The WRC") that he is seeking adjudication under Section 27(2) and Section 27(3) of the Safety, Health and Welfare at Work Act, 2005 (the "Act").

However, the Complainant has only made a complaint under Section 28 of the Act in his complaint. No other section of the Act is referred to in the Complainant's complaint other than Section 28. The Complainant has had ample time and opportunities throughout the complaint process to file further complaint forms in order to rely on alternative sections of the Act, other than Section 28. This option was never availed of by the Complainant. In this regard, the Respondent notes the following:            

·       The Complainant's complaint, which was submitted on 4 November 2022, is clearly only made under Section 28 of the Act.

·       The complaint form itself has its own individual section whereby the Complainant must specify the legislative provisions they are relying on in making a complaint to the WRC.

·       In his submission, the Complainant refers to alleged breaches of Section 27(2) and Section 27(3) of the Act. There is no reference whatsoever to Section 27 on in the Complainant's complaint form.

·       The Complainant was entitled to file further complaint forms notifying the WRC and the Respondent that he was relying on further statutory provisions. The Complainant never filed any further complaint forms, beyond his initial complaint form, notifying the WRC and the Respondent that he was relying on any other legislative provision apart from Section 28 of the Act.

Accordingly, the Respondent contends that the  Complainant's claim to determining whether a breach of Section 28 of the Act has occurred, as is alleged by the Complainant. It is the Respondent’s position that no other provision of the Act is relevant in this regard in circumstances where the Complainant has not made a complaint under any other provision of the Act or under any other statutory provision.

The burden of proof in relation to a claim of penalisation under the Safety, Health and Welfare at Work Act lies with the Complainant.

The Respondent submits that the decision by the Respondent to put a request to the Complainant to move to another store was motivated by a genuine effort to assist the Complainant.

The Respondent submits that it put a request to the Complainant to temporarily move to the Nenagh store to provide a temporary solution to concerns raised by the Complainant, namely that the resignation of the assistant manager and the supervisor at the Limerick together with the Complainant's dealings with the HSE was adversely affecting the Complainant's mental health and he required immediate action to be taken by the Respondent to alleviate a stressful situation, which was affecting his mental health and causing him stress.

The Respondent’s position is that the Complainant has not met the criteria necessary to meet the burden of proof required in relation to bring a successful claim for penalisation.

Furthermore, it is the Respondent's position that the complaint made by the Complainant is not well founded as it contains a significant number of misrepresentations of fact, as presented by the Complainant to the WRC in his submission.

It is the position of the Respondent that the Complainant, in his complaint form and in his submission to the WRC has made many significant material misrepresentations about the reality of how events unfolded.

Throughout this submission, the Respondent has identified and provided evidence of the 5 most significant major misrepresentations made by the Complainant in his submissions and in his complaint form.

The Respondent exhibited correspondence from the Complainant to corroborate the Respondent's position that several representations made by the Complainant lack veracity and cannot be relied upon.

In contrast to the position set out in the Complainant's submission, the Respondent submits:

·       The Complainant was very well regarded by the Respondent and the Respondent fully supported the Complainant during the period of his employment.

·       The Complainant was content and happy with his work with the Respondent prior to the period when there was a closure notice issued by the HSE.

·       That at all times, and, in particular, during the period of employment of the Complainant, the Respondent maintained the services of a third-party pest control provider for the purpose of ensuring the safety, health and welfare of its employees, customers and visitors at the store in relation to pest control.

The Respondent submits that any of the misrepresentations, as stand-alone occurrences, warrant the dismissal of the Complainant's complaint.

The Respondent submits that in all correspondence exchanged between the parties, the Complainant does not raise any complaint in relation to the mice infestation issue and the first mention of the complaint is in a written grievance, which was submitted to the Respondent on 10 October 2022.

The Respondent submits that the management structure has not changed and has been the consistent in the Limerick store during the Complainant’s tenure as an employee of the Respondent. The same structure is also in place in every other Homesavers store throughout the country, save for periods of time where employees may leave, and there is a time gap in the vacant position being filled.

The Respondent submits that the following are the key dates in relation to the Complainant’s employment:

4 August 2018 —employment commenced. The Complainant was appointed in the role as Supervisor of the Limerick store.

3 June 2019 — the Complainant received his first promotion to the position of Assistant Manager and a salary increase to €32K per annum.

1 October 2021 — the Complainant  received his second promotion to the position of Store Manager with a salary increase to €38K per annum.

7 July 2022 — the Complainant tendered his resignation from his position as Store Manager for the first time. (1st resignation). The notice period given by the Complainant in tendering his resignation was 1 month. The reason which was provided for his resignation was 'time for a change'

7 September 2022 — the Complainant tendered his resignation from his position as Store Manager for the second time (2nd resignation). The reason provided by the Complainant for tendering his second resignation was the impending departure of (a) his assistant manager and (b) his supervisor at the Limerick store, both of whom had completed their employment and their prior notice period with the Respondent by the 9 September 2022. In his written resignation, the Complainant stated that the last date of his employment would be 10 September 2022.

9 September 2022 — The HSE issued a partial closure order on the Limerick store for display and sale of food items.

12 September 2022 - At 8.57am, the Complainant e-mailed the HR department to communicate to them that he was withdrawing his resignation.

13 September 2022 —At 11am, the Complainant was present at work having opened the store in the morning. The Commercial Manager was in the store on a visit as a direct result of the HSE notice which was issued on the 9 September. During this visit, the Complainant communicated to the Commercial Manager that he was suffering from mental stress due to the environment in the store and in particular, the stress of responding to the actions imposed by the HSE to enable the removal of the closure notice. The Complainant specifically communicated to the Commercial Manager that dealing with the mice infestation and with the Government bodies was negatively affecting his mental health.The Complainant further expressed that, as result of the departure of his assistant manager and supervisor the previous week, he was finding the present circumstances of his employment stressful which was also affecting his mental health.

On receiving this communication from the Complainant, the Commercial Manager was concerned about his well-being. While in the store, the Commercial Manager contacted the HR Director, Ms. Carol Macartney by phone and communicated to her the concerns raised by the Complainant regarding his mental health and the negative impact of being in the Limerick store was having on him. Upon being made aware of the concerns raised by the Complainant, Ms. Macartney recommended that the Complainant should not spend any more time in the environment which was affecting his mental health, that he should leave work, go home, and take the following day off also. Ms. Macartney had checked the Complainant’s roster for the remainder of the week after his agreed 2-day absence from work and noted that he had annual leave days booked thereafter. The Complainant clocked out at 11:30am and went home. He was paid in full for the remainder of 13 September, and in full for 14 September and he received the holiday pay which was due to him for annual leave he had already booked for 15 and 16 September.

At 4:52pm, the HR Business Partner wrote to the Complainant offering him professional counselling services to be paid for by the Respondent. Management of the Respondent were concerned about the Complainant’s well-being and the offer by the Respondent of professional counselling sessions, paid for by the Respondent at no cost to the Complainant, was to provide assistance to him in light of his representation to the Commercial Manager earlier that morning.

In the correspondence, the HR Business Partner also offered the Complainant a temporary move to the closest Homesavers store, which is located in Nenagh (approximately a 30-minute drive from the Limerick store). The Complainant was also informed that this temporary move would commence on Monday 19 September 2022.

On 14 September 2022 the Complainant sent his first sick note from his doctor to the Respondent. The note stated that the Complainant was suffering from work related stress and his doctor recommended excusing him from work for a period of one month from 14 September to 14 October 2022.

On 10 October 2022 at 19:01pm, the Complainant submitted for the very first time a written grievance/ complaint to the Respondent. In his grievance form, the Complainant raised a grievance regarding 3 different items as follows:

a)      "Assault at the workplace by [named employee]"

b)      "Terms and Conditions when accepting Store Manager position"

c)       "Mice infestation"

During the 4 years of the Complainant’s employment with the Respondent, he had never previously submitted a written grievance to the Respondent, prior to the grievance being submitted on the 10 October 2022. This does not align with the position represented by the Complainant  in his complaint wherein he asserts he had grievances with the Respondent dating back to early 2022.

On 14 October 2022, the Complainant submitted a second sick note from his doctor to the Respondent. The note stated that he was suffering from work related stress and his doctor certified him unfit for work for the period from 15 October 2022 to 11 November 2022.

On 17 October 2022, the Respondent wrote to the Complainant for a second time, offering him free professional counselling sessions to be paid for by the company at no cost to him. The Complainant chose not to take up either of the offers made to him on 13 September and 17 October for free professional counselling services.

On 4 November 2022 another HR Business Partner wrote to the Complainant offering him several dates throughout the month of November to attend a grievance meeting.

On 7 November 2022, the Complainant communicated that he could not attend a grievance meeting on any of the suggested dates due to personal circumstances, but he was hopeful that he could attend the following week.

On 12 November 2022, the Complainant submitted a third sick note from his doctor to the Respondent. The note stated that the Complainant was suffering from work related stress and his doctor recommended excusing the Complainant from work for the period from 12 November 2022 to 9 December 2022.

On 29 November 2022, the Complainant tendered his resignation from his position as Store Manager for the third time (3rd resignation). His resignation stated that his last date of employment would be 13 December 2022. The Complainant did not refer to any particular or specific reason for tendering his resignation on the third occasion.

On 29 November 2022, the HR Business Partner communicated to the Complainant that the Respondent would like him to reconsider his resignation and stay on in the company and urged him to consider coming to the grievance meeting. The Complainant accepted the offer to attend a grievance meeting, which was to be held the next day.

On 30 November 2022, the Complainant attended a grievance meeting with HR which was held at 11:00am.

On 30 November 2022 at 6:53pm the Complainant sent an e-mail to HR confirming his resignation (on the 4th occasion) and communicated therein that his last day of employment would be 14 of December 2022.

On 7 December 2022, the HR department of the Respondent sent the Complainant the findings of the grievance meeting held on 30 November by e-mail and by post. It was communicated to the Complainant in the findings of the grievance meeting that he was entitled to appeal the findings if he did not agree with the position.

On 7 December 2022 at 4:32pm the Complainant sent an e-mail to the HR department of the Respondent, declining the offer to appeal the findings of the grievance hearing and instead choosing to confirm his resignation. At 6:06pm the Complainant responded to the findings of the grievance meeting which were sent to him to confirm that he would not appeal  the findings. The Respondent wrote to the Complainant, giving him additional time to reconsider his resignation. The Complainant did not take up this offer.

On 20 December 2022 the Complainant ceased his employment with the Respondent in accordance with his resignation.

In light of the above sequence of events it is the Respondent's position that:

·       the present complaint before the WRC is not well founded;

·       the complaint is lacking in credibility and is grounded on five significant material misrepresentations set out in the Complainant's submission made to the WRC.

Details of the material misrepresentations made by the Complaint in his  submission to the WRC.

It is the Respondent's position that the submission dated 5 July 2023 made on behalf of the Complainant contains five significant material misrepresentations of facts.

The Complainant's submission makes a general reference that the mice infestation first arose in January 2022. No exact date in January has been provided by the Complainant to support the bare assertion made.

The Complainant's submission makes a reference to the store being 'smelly and unhealthy' and further, that it was a danger to public health. No exact date has been provided by the Complainant to support the bare assertion made.

It is unclear whether the Complainant is referring to isolated incidents or otherwise.

The Complainant's submission makes a general reference to a date in April 2022 and to a conversation with the pest control company and another employee of the Respondent. No exact date in April has been provided by the Complainant to support the bare assertion being made.

The following is alleged to have taken place but no exact date in May has been provided by the Complainant to support his assertion.

"In May 2022 the Area Manager advised Mr Donnelly that the company was not going to take any further steps against the mouse infestation, Mr Donnelly and the other staff were forced to continue cleaning and working in intolerable conditions. This continued the whole time Mr Donnelly was an employee of the Respondent. Several staff members could not cope and resigned, including the Assistant Manager.”

The Respondent does not accept that this has occurred. It is the position of the Respondent that this is a misrepresentation. The Assistant Manager, to whom the Complainant is referring, tendered her resignation on 21 August 2022. In her resignation, the Assistant Manager expresses her enjoyment of her employment with the Respondent and simply cites her career progression as the reason for her resignation. There is no reference to mice whatsoever in the resignation of the Assistant Manager, as is misrepresented by the Complainant in his submission. It is the position of the Respondent that the Complainant is seeking to rely on the earlier resignations of his colleagues to insinuate that they resigned from their employment due to the issue of the mice in the store.

The Complainant's submission makes a general reference to the month of July 2022. No exact date in July has been provided by the Complainant to support the bare assertion.

The Respondent submits that it would be reasonable for a reasonable person to form the following views:

a)       That the store has had a mice infestation problem since January 2022;

b)      That the Complainant had brought it to the attention of the Respondent;

c)       That the Respondent has taken no action to resolve the issue;

d)      That in the months of April 2022, May 2022 and July 2022, the Complainant had brought the matter to the attention of different people;

e)      That in July of 2022 the Complainant, having done all of the above decided that he had no option but to resign; and

f)        That the Respondent made certain false promises to get the Complainant to change his mind.

It is the Respondent's position the above parts of the Complainant’s submission to the WRC represent the first significant misrepresentation of the Complainant.

The Respondent refers to an e-mail dated the 7 July 2022 sent at 10:05am by the Complainant to the Respondent.

The relevant passages from the Complainant’s resignation e-mail are as follows:

"Good morning guys, please accept my letter of resignation for week ending 07.08.22 "

"I have decided it's time for a change and to move on.”

“I have nothing but Gratitude to Homesavers for giving me the chance to prove myself as first a Supervisor, Assistant Manager and of course Store Manager which all in all I think have done a good job in sometimes extremely hard circumstances.”

"I would like to thank first all the Supervisors and Staff that are here and that have passed through Homesavers Limericks Doors past and present for all the hard work they have done for me and especially through Covid Pandemic they were nothing short of amazing. “

“There is an amazing team here in the Limerick store and for whoever takes over and I hope they continue the hard work that has been previously done and bring it on to whole new level.”

"I would like to thank my Area Managers that have passed through Homesavers Limerick as well [named] who I did try and Train For a few days lol [named], [named] and of course save the best to last [the Commercial Manager] who I have to say has challenged me on every front every time he has come here and I like to think I have answered most of the challenges he set me to make my Store Better." 

“Lastly I want to thank Leesa Earls, Tom Mawdsley who have stood by me throughout the 4 Years we have been here we have stuck with it through thick and thin and also to Noelette Purcell who has come on board and definitely made my life some bit easier inside here."

"Thanks All Regards, Darrell Donnelly”

The Respondents submits that the Complainant’s resignation e-mail reflects his thoughts at the time, views and feelings at the time he wrote the resignation e-mail and reflects the situation, as it existed on the day. The Respondent submits that the Complainant describes his employment history with the Respondent succinctly in the following quote:

"I have nothing but Gratitude for Homesavers “

The Respondent  submits that there is no mention of any issues in the store in this e-mail, as outlined by the Complainant in his submission. The Respondent submits that  the Complainant’s written resignation is completely at odds with, and in direct contrast with, the position set forth in his submission. The Respondent submits  that the resignation e-mail dated the 7 July 2022 expresses in real-time the true situation as it existed.

It is the Respondent's position that the contents of the above paragraphs of the Complainant's submission are the first significant misrepresentations being made in an attempt to support of an unfounded claim (material misrepresentation 1).

The Respondent also refers to an e-mail dated 12 July 2022 from the Complainant to the Commercial Manager entitled "PAY INCREASE":

"As requested after our conversation this morning .”

"I am looking for 44k and the reason for this is, I have been with the company since virtually day one and at that time I made no secret of the Fact I would be running the Limerick Store and since My first day I have not let up on my willingness to Adapt and Learn and pass on all my knowledge to my Management and Staff alike as well as also training New Managers that have come into the business. I feel this takes a lot of time and patience but was always both rewarding for me and those people involved in the training.”

"Since I got the Mangers Role and with it came a pay increase which taking into account what I pay through taxes now is not sustainable for me to stay on this amount. I will always be grateful far what Homesavers has given me but I feel like I've given back just as much and will continue to do until my last day.”

The Respondent submits that the Complainant was seeking a pay increase in return for withdrawing his resignation and staying with the Respondent.

The Respondent submits that there is no mention of any issues in relation to mice infestation in the Complainant’s resignation.

The Respondent further refers to an e-mail from the Complainant dated Monday, 18 July 2022 in which he states as follows:

"I am withdrawing my Resignation letter I previously sent on 05/07/22 as after having a discussion with [the Commercial Manager] on Friday 15/07/22 which was explained that I would not get a pay rise as I was not in my Position as Store Manager a Full Year yet. "

"I listened to what [the Commercial Manager] had to say and I have come to the conclusion that 3 more Months would not be the end of the world but I also explained to [the Commercial Manager] that in October this would be revisited and sorted either way."

"In my email to [the Commercial Manager] I asked for 44k and on his visit he said that too high and I explained the reasons why this was the Number I had given and I also told him that 42k I would and could not go below and we left it at that to revisit in October.”

“After our chat I both rang two different Retailers to say I would not be taking up a position with them because of my loyalty to Homesavers. "

In this e-mail, the Complainant sets out reasons for withdrawing his resignation. The Respondent submits that he does not mention of any issue related to the mice infestation as a reason for his resignation. (material misrepresentation 2).

The Respondent also refers to the following paragraph of the Complainant's submission:

"The Assistant Manager and a Supervisor resigned and in September Mr Donnelly handed in his notice, which he withdrew when the Regional Manager promised him that another Assistant would be appointed. “

The Complainant refers to handing in his notice. He then refers to withdrawing his notice based on representations, which were made to him by the Regional Manager. The Complainant fails to mention the date on which he handed in his September resignation (resignation 2). The Complainant also fails to mention the date on which he withdrew his resignation. The correct facts are set out in the following paragraph.

The Respondent refers to e-mail from the Complainant to the HR Business Partner dated the 7 September 2022 and the attachment within.

"This is official resignation from Homesavers from 10/09/22.

"But since I have lost my Assistant Manager and one Supervisor this week alone, nobody seems to care about the severity of what was promised to me. I seem to be the only one that is seeing what Limerick needs but it is falling on deaf ears.

"I wish Homesavers all the best going forward but for whom ever takes my position I really do hope they get the support that I was promised or this will happen on a continuous basis.”

The resignation was submitted on 7 September 2022, which was a Wednesday. The Complainant was seeking to leave his employment of his own accord, giving only three days' notice. His last date of employment being 10 September 2022 which was a Saturday. The Respondent submits that the Complainant does not mention any issues in relation to mice infestation as the reason for his resignation.

Two days later, on 9 September 2022, the HSE issued a part closure notice on the store in Limerick to be effective immediately. The HSE had visited the store in the few days prior to the Complainant’s resignation. The HSE were concerned that the store did not have any pest control measures in place and they had been unable to access any pest control records.

On 12 September 2022 at 8:57am, the Complainant sent an e-mail to the Respondent, informing them that he was withdrawing his resignation stating:

“This is an email to let you know that I am taking back my resignation that I sent last week. I have discussed a few things with [the Area Manager] and [the Regional Manager] and I hope that some problems can be sorted that I raised.”

While the Complainant avers to "some problems can be sorted' there is no specific mention of the mice infestation issue or of the HSE closure order. The Complainant was in work on Saturday 10 September. The HSE closure notice was issued after 4pm on Friday 9 September.

Further the Complainant's submission states as follows:

"He did, at the Respondent's request, attend a grievance meeting on 13 November, however as Mr Donnelly had anticipated, the grievance report which issued on 7 September from the respondent was entirely disingenuous."

"And he was suspended and ultimately forced to resign. and seek other employment.”

The Respondent submits that the submission of the Complainant contains significant material misrepresentations of fact.

The Respondent submits that the Complainant was never suspended from his employment with the Respondent (material misrepresentation 3). The Respondent submits that the Complainant was never forced to resign from his employment with the Respondent (material misrepresentation 4). 

The Complainant refers to a grievance report issued by the Respondent on 7 September as being entirely disingenuous (material misrepresentation 5). There was no such grievance report issued on 7 September. It the Respondent's position that the day of 7 September is most likely an attempt to create an illusion that the Respondent had issued a negative grievance report against the Complainant in order to bolster his claim.

It is the position of the Respondent that the complaint to the WRC is entirely unfounded and based on material misrepresentations.

In relation to material misrepresentations no. 3, 4 and 5, made by the Complainant, the true position is that the events as outlined by the Complainant never occurred as described.

Is it the Respondent's position that any one of the material misrepresentations show the claim to be unfounded and are sufficient to warrant the complaint being dismissed/ unfounded .

Summary of the circumstances which led to the Respondent issuing the letter dated 13 September 2022.

On Wednesday 7 September 2022, the Complainant tendered his resignation stating that his last day of employment would be 10 September, being a Saturday. On Friday 9 September 2022, the HSE issued a partial closure notice on the store. On Monday 12 September, the Complainant e-mailed HR before 9am and informed them that he was withdrawing his resignation dated 7 September. On Tuesday, 13 September, the Complainant attended work as normal. The Commercial Manager visited the store and the Complainant had a conversation with him. The Complainant communicated to the Commercial Manager that "the mice infestation and having to deal with Government bodies was affecting his mental health.” The Complainant refers to this specifically in the written grievance that he submitted to the Respondent on 10 October 2022 wherein he refers specifically to speaking to the Commercial Manager about his mental health:

"Once again, I handed in my notice because I lost my Assistant Manager and Supervisor in the space of 10 days.”

"[the Commercial Manager] visited the store on Tuesday 13 September and asked me why I sent in my resignation.”

"I explained to him that I was receiving no help from anyone above me regarding management team and mice problem in the store. I mentioned it was affecting my mental health and I needed the help that was promised to me to happen immediately."

Upon becoming aware of the concerns raised by the Complainant regarding his mental health, the Commercial Manager took swift action and consulted with Ms. Macartney HR Manager.

The Respondent made a decision to offer professional counselling services (fully paid for by the Respondent) to the Complainant. The Respondent then made a decision that it would be in the best interest of the Complainant’s mental health and wellbeing to offer to move him temporarily to the same position in the closest store, starting from Monday 19 September. At 4:52pm, the Respondent issued a letter to the Complainant offering him free counselling sessions and communicated to him regarding the temporary move.

On 14 September, the Complainant submitted a medical note to state that he was suffering from work related stress and would be absent from work for one month. The Complainant then sent a second and a third medical note to excuse him from work until 9 December. In each of the medical certificates, the reason for the absence was described as work-related stress.

Just before he was due to return to work, the Complainant submitted a third resignation, stating that his final date of employment would be 14 December. The Respondent wrote to him, asking him to reconsider his resignation. The Complainant communicated to the Respondent that he is not changing his mind and that he would be taking up a new position with another company starting on 22 December 2022. The Complainant's employment ceased with the Respondent on 20 December on amicable terms.

It is the Respondent’s submission that, not only is the Complainant’s claim unfounded, but the Respondent also acted reasonably and prudently and in full compliance with its obligations under the Safety, Health and Welfare at Work Act 2005 regarding the issues raised by the Complainant.  In that regard, the Respondent relies on section 50 of the Act General duties of Employer.

The Respondent was, and is, fully cognisant of its duties and responsibilities as an employer and its obligations under the Act regarding the health and safety of its employees and customers. At all times, the Respondent had pest control measures in place with a contract with a professional and highly-regarded third party service provider.

In or around 6 or 7 September 2022, HSE inspectors visited the store in Limerick on a routine visit and were unable to access the pest control records. There were interactions between the HSE inspectors and the Complainant. Subsequent to same, the HSE issued a partial closure notice on the store on 9 September. One of the reasons provided by the HSE for the partial closure notice was 'non-cooperation with HSE inspectors at store level'.

A letter from pest guard to Homesavers dated 21 September 2022 confirms that the store is free of all pest activity. The partial closure notice was lifted by the HSE on 22  September 2022 and no further notices have been issued by the HSE.

It is the Respondent's position that at all times the store and the Respondent had fully cooperated with the HSE inspectors. It is the Respondent's position that, at all times where visits were made by HSE inspectors, the store was found to be in compliance with all HSE protocols and COVID-19 safety protocols that had been implemented by the Respondent in its stores.

Despite being in the unfortunate position of having to contest the Complainant's claim in this matter, it has always been acknowledged by the Respondent that the Complainant was a valued member of staff and contributed positively to the success of the store.

It is the Respondent’s position that the claim submitted by the Complainant is completely unfounded and contains a significant number of material misrepresentations. In this regard, the Respondent strongly asserts that this claim should be dismissed by the WRC.

With regard to section 8 of the Act, it is submitted that on 13 September, the Complainant communicated to the Respondent that dealing with the HSE and having just lost his assistant manager and supervisor in the same week was causing him stress and further affecting his mental health. As soon as the Complainant made the Respondent aware of this, senior management and the HR Director took steps above and beyond what was reasonably required to safeguard his mental health by:

·       being mindful at all times of any stress or mental health issues the Complainant was suffering from in a non-judgmental manner with a view of assisting him;

·       providing the Complainant with paid time off in order for him to rest and recuperate;

·       offering the services of a professional counselling service (free of charge) to the Complainant;

·       providing the Complainant with the option of a temporary move from the Limerick store, which was the source of his stress, to the closest store available, the Nenagh store, whilst retaining his position. The Nenagh store had an assistant manager and a supervisor in place and was not subject to a partial closure order by the HSE thus eliminating the primary sources of stress cited by the Complainant at the Limerick store. The Nenagh store was only a 30-minute drive from the Limerick store and the move was suggested to the Complainant to alleviate any stress he was experiencing in Limerick. This option was never meant to penalise the Complainant, as asserted in his complaint; and

·       being patient with the Complainant during the period he was on leave and acknowledging his value to the Respondent company and encouraging him to remain with the Respondent company in the face of multiple offers of resignation by the Complainant.

It is astonishing that the Respondent's proactive measures in regard to the Complainant’s mental wellbeing have been twisted into representing some kind of penalty or punishment imposed upon him, which is simply not the case.

It also an established fact that the three medical notes issued by the Complainant’s medical consultant all refer to 'work related stress' (from working in the Limerick store).

The Respondent’s request made to the Complainant to temporarily move from the Limerick store, was made in fulfilment of its responsibilities as an employer under the Act, and particularly its obligations under section 8 of the Act.

Conclusion

The Respondent has acted in full compliance of all statutory duties and obligations bestowed upon it under the provisions of the Act.

The Complainant has made several misrepresentations throughout his submission which are completely at odds with the reality of the situation and which are wholly unfounded when analysed in light of the extensive documentary evidence.

The Respondent submits that the Complainant has failed to provide any evidence that Respondent was in breach of Section 28 of the Act, as asserted in his complaint.

The Respondent further submits that the Complainant has failed to provide any evidence that Respondent was in breach of Section 27 of the Act, as asserted in his complaint.

At all times, the Respondent considered the Complainant to be a valued member of the team and always encouraged the Complainant to remain in its employment.

The Respondent submits that the Complainant's assertion that the Respondent penalised him is not well founded.

Summary of direct evidence and cross-examination of Ms Carol Macartney, Director and Head of HR

Ms Macartney acknowledged that it is a matter of public record that the Respondent had a mice issue. It was first brought to her attention in September 2022. There is an external contractor that looks after pest control and health & safety.

Ms Macartney said that she was contacted and dealt with the HSE (Environmental Health Office). The last thing the Respondent wanted was any sort of closure and health & safety is very important to the Respondent. The Respondent sent plenty of staff and senior management to the store to help with the situation. The closure was lifted and there have been more inspections caried out up until this year.

Ms Macartney said that she deals directly with the Commercial Manager and the Regional Manager so she would have been aware of the Complainant’s resignations. The Respondent approach is to talk to people, see how the Respondent can help them.

Ms Macartney was aware that the Commercial Manager was in Limerick shop on 13 September 2022. He told her that the Complainant seemed to be in a very bad state. The Commercial Manager asked if the Complainant could be let go home on  that day and the next day with pay. He said that the Complainant did not want to be in the shop, he said that the nearest shop was in Nenagh.

Ms Macartney said that the Complainant was a longstanding valued employee. The Respondent had given him bonuses, he was four years there. The Complainant was well thought of. He had a great career and attempts were made to keep him.

Ms Macartney said that she spoke with the HR Business Partner and confirmed that he would be off with pay, then he had two days holidays and them would move to Nenagh on Monday. Counselling was also offered to the Complainant. The Respondent understood that the Complainant did not want to work in Limerick, the Respondent wanted to take the Complainant out of the situation because of how it affected him.

Ms Macartney said that the Complainant was not suspended. The Respondent has a process in place, suspension would be the very last resort in a disciplinary process. This was not the case.

Ms Macartney said that the Complainant was not forced to resign. He had an opportunity to appeal the findings of the grievance report.

In cross-examination, Ms Macartney said that the managers and the Health & Safety Officer dealt with the matter, and she heard about it in September 2022. She had no knowledge of any cover up. Ms Macartney denied that Ms R’s email of 5 October 2022 talks about cover up.

It was put to Ms Macartney that, if the Respondent was worried about the Complainant’s mental health, it would have discussed the proposal to move him rather than giving him an order.

Ms Macartney said that she was not involved in the grievance process. It was put to her that the letter outlining the outcome of the Complainant’s grievance does not mention his mental health as a reason to move him.

Respondent’s closing remarks

The Respondent submits that the matter is not about how it dealt with the infestation. The only issue to consider is penalisation. The Complainant submitted his resignation three or four times. The Respondent engaged to retain him in employment and offered him counselling. There is nothing to show any intention to penalise. The shop in Nanagh was the closest sop, there were no mice, it was a temporary measure to alleviate his stress. The Respondent accepted that the Complainant was stressed. The Respondent asserts that money was the Complainant’s motivation, he wanted to achieve a higher salary.

The jurisdiction of the Labour Court and by extension of the WRC in complaints of penalisation under the Safety, Health & Welfare at Work Act 2005 (‘the Act’) has been considered in a number of cases included among which is the case of Iarnrod Eireann v. Nick P Neary HSD139 where the Labour Court held as follows:

“The Court’s jurisdiction under this Act is limited and narrow in its application.  It has jurisdiction to hear claims of penalisation referred under Section 27 only.  The Court has no jurisdiction to hear allegations of breaches of safety, health and welfare at work under the Act and such allegations cannot in themselves form part of claims of penalisation or unfavourable treatment within the meaning of Section 27 of the Act.”

What is in issue in the within case is whether the Complainant was penalised within the meaning of section 27 of the Act.

Relevant Law

Section 27 of the Safety, Health and Welfare at Work Act, 2005, provides 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, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation.

(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) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work, (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.

The Complainant must demonstrate that the making of a complaint within the meaning of the Act was the operative cause leading to the detriment alleged. In Oglaigh Naisiunta na hEireann v McCormack HSD115, the Labour Court stated that there is a requirement “to show a chain of causation between the impugned detriment and the protected act or omission."  In St Johns NS v Akduman HSD102 the Labour Court also determined that:

“It is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by Subsection (3) and but for the protected act the employee would not have suffered the detriment complained of and the respondent’s treatment of the claimant.”

In Paul O'Neill v Toni & Guy Blackrock Limited [2010] ELR 21, the Labour Court held that the detriment complained of must have been imposed “for” having made a protected act within the meaning of Section 27(3) of the Act when it found:

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3.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. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

The Toni and Guy case firmly establishes the “but for” test as it is generally referred to in penalisation cases. 

Burden of Proof

The Act is silent on the question of who the burden of proof should be allocated to as between the parties. In the case of Toni & Guy Blackrock Limited v Paul O’Neill HSD095 the Labour Court held that: 

“The act is silent on the question of how the burden of proof should be allocated as between the parties. This question was considered by this Court in Department of Justice Equality and Law Reform and Philip Kirwan (Determination HSD082). Here the Court held as follows: -

It is clear, however, that in the absence of any contrary statutory provision, the legal burden of proof lies on the person who asserts that a particular fact in issue is true (see Joseph Constantine Steamship Line v Imperial Sheltering Corporation[1942] A.C.154 where this rule of evidence was described by Maugham V.-C. as “an ancient rule founded on considerations of good sense and it should not be departed from without strong reasons”)

Later, in Fergal Brodigan T/A FB Groundworks and Juris Dubina Determination (HSD0810) the Court qualified the statement made in the Kirwan case as follows: -

It is, however, settled law that in civil matters there is an exception to this rule known as the peculiar knowledge principle. This is a rule of evidence which provides that where it is shown that a particular fact in issue is peculiarly within a defendant’s knowledge the onus of proving that fact rests with the defendant (see Mahoney v Waterford, Limerick and Western Railway Co.[1900] 2.IR 273, per Palles C.B.)”

The Court went on stating:

“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 and 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 to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.”

Statutory time limits

The Workplace Relations Act, 2015 at Section 41(6) provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

My jurisdiction in this case is confined to assessing any complaints of penalisation that occurred within the cognisable period for the complaint. The Complainant referred his complaint to the Director General of the Workplace Relations Commission on 4 November 2022. Therefore, the cognisable period is the period from 5 May 2022 to 4 November 2022. The Complainant is not entitled to seek to obtain compensation or other relief arising out of events post-dating the referral of the complaint.

The Complainant’s uncontested evidence was that he raised numerous concerns with the Respondent regarding the mouse infestation and his difficulties with the Respondent’s instruction to obstruct authorities. The Complainant’s evidence was that he notified the Respondent and requested that the issue be resolved. He first contacted the Area Manager, then the Health and Safety Officer, and subsequently the Commercial Manager, and the Regional Manager. 

The Respondent appears to put weight on the fact that, in his resignation letters, the Complainant referred to reasons other than the infestation for his departure. Nevertheless, the Respondent did not deny that the Complainant raised the issue of the infestation with management.

Regrettably, despite the Respondent’s assertion prior to the adjudication hearing that the Commercial Manager’s presence at the hearing was essential, the Commercial Manager did not attend the hearing. In fact, none of the managers directly involved in the matter attended the hearing to give evidence.

Having considered the submissions made and the evidence before me, I am satisfied that the communications from the Complainant to the Respondent, the Complainant’s reporting his concerns to the Commercial Manager on 13 September 2022 in particular,  constituted a protected act within the meaning of the Act at Section 27(3)(c) in that those communications amounted to a representation in relation to a matter relating to the Complainant’s safety, health, or welfare at work.

As a result, I find that the Complainant has satisfied the first leg of the test in that the Complainant made a protected act as provided for at Section 27(3)(c) of the Act:

“making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work”.

Having found that the Complainant had made a protected act, I must establish whether he was suffered a detriment for so doing. The word “detriment” is given its ordinary and natural meaning of causing harm or damage as held by Hyland J in Conway v. Department of Agriculture [2020] IEHC 665.    

The essence of the Complainant’s case is that he was penalised under the Act when he was sent home and was forced to move to a different shop after his conversation with the Commercial Manager on 13 September 2022.

There was no dispute that the Commercial Manager informed the Complainant during this conversation that he was released from work for that and the next day (with pay), he was to avail of his pre-planned two days leave thereafter, and he was to move to another shop as of 9am on Monday 19 September 2022. The shop was located some 30 minutes’ drive farther from the Complainant’s ordinary location. The Respondent, and the Commercial Manager in particular were aware that the Complainant did not drive. As a result of the stress suffered, the Complainant was certified by his GP as unfit for work due to work related stress.

I am satisfied that the Complainant has established that he suffered a detriment of a type referred to at subsection (1)(c) of Section 27 in that the location of his place of work was changed. Furthermore, I find that releasing the Complainant from work, albeit with pay, without any explanation or/and due process, constitutes a detriment for the purposes of the Act.

The Complainant asserted that the decision to release him from work and to move him to another store was to penalise him for raising a health and safety issue. The Respondent denied this assertion and argued that the move was motivated only by the Respondent’s concern regarding the Complainant’s mental health.

I cannot accept the Respondent’s assertion for the following reasons. Firstly, the Complainant gave cogent and uncontested evidence that the Commercial Manager communicated the decision to move him in quite a threatening manner.  The Complainant was told to give his keys back, he was told that he was to report to work in Nenagh  or there “would be no job for you”.

Furthermore, I note that the Respondent’s letter of 13 September 2022 states that following on from the meeting with the Commercial Manager:

“The Company is giving you Wednesday the 14th September as a day off, fully paid by the business.”

There was no reason given for this decision. Furthermore, the letter stated:

“As communicated to you by the Commercial Manager, you are to report for work in our Homesavers Nenagh (Martyr’s Road) store on Monday 19th Sept 2022 at 9 am – this is on a temporary basis.”

There was no reason given for this decision either. Only after confirming the decisions made, the letter then moves to state that during the meeting the Complainant mentioned several times that he was suffering from mental health issues. “With this in mind, the business would like to offer you up to three professional counselling sessions, paid for by the Business.”

There is nothing in the letter that would suggest that the move or the release form work were related to the Complainant’s mental health difficulties. Had the Respondent been concerned about the Complainant’s wellbeing, the first step would be to discuss potential ways of alleviating his stress levels. The Complainant’s uncontested evidence was that the Respondent, and the Commercial Manager in particular, was fully aware that due to previous horrific car accident the Complainant did not drive. Asking the Complainant for his keys back and imposing a move to a location some 30 minutes’ drive farther, without any consultation cannot be reasonably perceived as an attempt to help the Complainant’s mental condition.

Furthermore, I note that the grievance outcome letter issued on 7 December 2022 states as follows:

“Point 3 – Temporary move to Nenagh Store

Outcome – Not Upheld

·       You acknowledged that you were fully aware of the mobility clause in the Company’s employee handbook, which is applicable to all employees and to which you agreed as part of your employment

·       Extract from Employee handbook relating to flexibility: “Having a fully flexible workforce is fundamental to the continuous progress of the Company in meeting the ever-evolving customer requirements…You maybe required, on occasions, to attend for work at any of the Company’s other premises or at any other location in the course of your duties dependant on business needs…”

·       Employees are regularly relocated in line with mobility clause outlined above, for a variety of reasons to support and meet the needs of the Business. “

The Respondent had some three months to communicate to the Complainant that the move proposal was due to his health difficulties, if indeed this was the case. However, even after being formally notified of the Complainant’s grievance in that regard, there was no mention of the Complainant’s wellbeing in the grievance outcome letter. I, therefore, have to agree with the Complainant’s assertion that the decision to move the Complainant was a direct result of his raising a health and safety complaint.

Having considered the respective positions of the parties I am satisfied, on the balance of probabilities, that, were it not for his complaints regarding health and safety, the Complainant would not have been sent home and moved to another location. Accordingly, I find that the aforementioned complaints were an operative reason for sending the Complainant home and moving him to Nenagh, and that his complaint of penalisation has been made out.

With regard to the Complainant’s application for the  award of costs to due to the alleged vexatious behaviour of the Respondent, I find that the Act does not provide for an award of costs.

Section 28 of the Workplace Relations Act, 2015 stipulates as follows:

Decision of adjudication officer under section 41 of Workplace Relations Act 2015

28.—A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 27 shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to take a specified course of action, or

(c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances.

I declare this complaint to be well founded.

Having considered the circumstance of the case, I determine that the appropriate redress is an award of compensation. I decide that the amount of compensation which is just and equitable having regard to the circumstances of the case is €30,000.

Health and safety – penalisation-