Complainant

Respondent

Parties

Omar Mohammed Osman

Cantarini Limited

Representatives

Joseph Bradley, BL

Victoria Scrase, Head of Human Resources

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00066222-001

24/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00066222-002

24/09/2024

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

CA-00066222-003

24/09/2024

The respondent trades as Staycity Aparthotels.  The complainant commenced employment on May 15th 2022 as a night manager in their aparthotel in City Quay in Dublin.  He was dismissed on May 21st 2024, following an investigation into a complaint of bullying and harassment.  He claims that his dismissal was unfair.  In breach of s.27 of the Safety, Health and Welfare at Work Act 2005, he claims that he was penalised for raising a concern about health and safety.  Finally, he complains that, in breach of s.11 of the Protected Disclosures Act 2014, he was penalised and ultimately, that he was dismissed for making a protected disclosure. 

Chronology Leading to the Complainant’s Dismissal

In September 2023, the complainant was working for the respondent for around 18 months when there was a change of management.  On Saturday, December 2nd 2023, he had just started his shift at 11.00pm.  He left around 11.30pm because he was upset when he claims that just one staff member was working in the bar and that there was a big group of residents in the lobby.  He claimed that his manager, FOM, and other staff were in the back office when they should have been working.  He complained about FOM shouting and cursing at him.  An email provided in evidence by the complainant shows that FOM attempted to have a conversation with him about a work-related issue and that he got upset and went home.  On Sunday, December 3rd, FOM sent the complainant an email in which he informed him that he was issued with a written warning for leaving work at 11.30pm / 11.45pm and “letting the team down as a result.”

On the same day, the complainant sent an email to a member of the HR team in which he said that due to “the operation and overall management change,” his concerns were not being listened to and he asked for a transfer to a different property.  The next day, December 4th 2023, the operations manager, OM, wrote to the complainant and FOM requesting them to meet him at 2.00pm on Tuesday, December 5th, “due to current issues raised.”  On December 11th, the head of HR, Ms Victoria Scrase, replied to the complainant’s email of December 4th and advised him to speak to his hotel manager about his request for a change.  If he was uncomfortable speaking to this manager, Ms Scrase advised the complainant that he could talk to the operations manager or the regional operations director.  She also said that she was available if he wanted to contact her. 

On February 28th 2024, a member of the night duty team, ND, submitted a complaint in which he alleged that the complainant was offensive to him because he is gay.  ND alleged that the complainant called him “Didi” instead of referring to him by his name and that he referred to him as “a big homosexual” and as “princess” and that he remarked to another employee that his partner was his girlfriend and not his boyfriend.  ND alleged that the complainant whistled at him when he was putting rubbish in the skip and that he mocked his accent. 

Two weeks later, on March 14th 2024, the complainant sent an email to the head of HR, Ms Scrase, complaining that he wasn’t told what was happening in his department and that he had to find out from colleagues.  He complained that the night team leader, TL, who reported to him, was sending him text messages which he considered as bullying.  He claimed that TL shouted at him repeatedly and that he once slammed a door on him and told him to get out of an office.  He claimed that TL was gossiping and spreading rumours about him, causing conflict between him and other team members.  He claimed that he had reported this problem but that nothing had been done.

Ms Scrase replied to the complainant by email on Friday March 15th.  She said that she would reply in full after the public holiday on Sunday, March 17th and she gave the complainant the contact details for the employee advice service.  Following a telephone conversation after March 17th, on March 26th, the complainant submitted a grievance in writing to Ms Scrase.

The manager investigating ND’s complaint of harassment interviewed the complainant on March 16th and April 11th 2024.  ND and four other employees were also interviewed.  The investigating manager concluded that there was some substance to the allegations against the complainant.  A disciplinary hearing took place on April 25th 2024.  At the meeting, the complainant advised the guest services manager that he had a new job and that he would not continue working for the respondent.

The complainant’s grievance remained to be investigated and, to this end, he attended a telephone meeting with a manager from a different property on May 16th 2024.  The manager summed up the outcome of the meeting as follows:

§  On October 29th 2023, the operations manager at the City Quay property shouted at the complainant, he was aggressive and pointed his fingers at him.

§  When he raised his concerns about a colleague, the night team manager, they weren’t dealt with.

The complainant suggested that a reasonable outcome from the meeting would be “a couple of months’ pay.”  He told the manager that he had a new job and that he wasn’t coming back to work for the respondent.

On May 21st 2024, the complainant attended a meeting with the general manager, who informed him that the conclusion of the disciplinary investigation was that he had been bullying and harassing a colleague “in relation to their sexual orientation and race” and that he had disregarded his colleagues’ requests to stop.  His employment was terminated with immediate effect.  He was not required to work his notice but was paid two weeks’ wages in lieu.  This was confirmed in a letter from the general manager on May 23rd.  In the same letter, GM advised the complainant of his right to appeal against his dismissal within 10 working days.

Following the hearing at the WRC on January 31st 2025, the complainant’s solicitor sent a copy of an email which the complainant sent to GM on June 5th 2024, in which he stated, “Yes I wish to appeal the decision.”

In an additional submission sent to the WRC by Ms Scrase on February 12th 2025, she said that GM left the company on May 27th.  In response to an email after that date, the sender would have received a reply with the name of a person to contact.  When he didn’t receive a response to his email on June 5th 2024, the complainant didn’t forward his request for an appeal to anyone else.

It is the respondent’s case that, in accordance with s.6(4)(b) of the Unfair Dismissals Act 1977, the complainant was dismissed for serious misconduct.  Ms Scrase submitted that he was dismissed following an investigation and that the decision of the respondent was reasonable in the circumstances.  She asserted also that the process that the respondent followed which ended with the dismissal of the complainant was fair and in accordance with its disciplinary procedures.

Considering the complaint of penalisation for making a protected disclosure, Ms Scrase submitted that the alleged “relevant wrongdoings” that form the basis of the complainant’s alleged protected disclosures are interpersonal grievances between the complainant and his colleagues.  The complainant availed of the grievance procedure to have his grievances addressed.

Addressing the complainant’s contention that he was penalised for making a complaint about health and safety, Ms Scrase referred to the test under s.28 of the Safety, Health and Welfare at Work Act 2005.  She submitted that, on the balance of probabilities, I must find that the complainant did not make a complaint about health and safety in his workplace.  It follows therefore, that he suffered no detriment because he never raised a complaint.

Ms Scrase concluded by submitting that the complainant was dismissed for bullying and harassing a colleague due to that employee’s sexual orientation.  The complainant failed to demonstrate that he was penalised for making a protected disclosure, or for making a complaint about his health and safety at work.  Further, he has failed to demonstrate that he made a protected disclosure within the meaning of the Protected Disclosures Act 2014, and he has not demonstrated that he was penalised for making an alleged protected disclosure.

It is the respondent’s position that the dismissal of the complainant was within the range of reasonable responses of a reasonable employer and that the procedures that ended with his dismissal were fair.  Ms Scrase also argued that the complainant did not appeal against his dismissal, because he didn’t respond to GM’s out of office message by sending his request for an appeal to another manager. 

Opening his submission, Mr Bradley said that the complainant was subjected to “aggressive and violent outbursts” at work and that he highlighted the problem on October 29th 2023.  The next day, Mr Bradley said that the general manager, GM, was dismissive of the complainant’s concerns and said, “we’re here now,” indicating the change in management.

Describing how the complainant’s workplace was unsafe, Mr Bradley said that he was sent text messages late at night.  On December 2nd 2023, Mr Bradley claims that the complainant was ambushed” by the night team leader, TL, when he arrived at work.  The next day, Mr Bradley said that the complainant tried to diffuse the situation, but he was issued with a written warning.  Although he raised his concerns about feeling uncomfortable at work, his concerns were not addressed.  He then requested a transfer to a different property but, Mr Bradley said that this request wasn’t taken seriously.

It is the complainant’s case that he was accused of homophobia, in a thinly veiled attempt to penalise him for raising concerns about how he was treated by managers.  While his grievance was being investigated, he was requested to attend a disciplinary meeting.  He feels that it was unfair to investigate a complaint made about him, when he had been complaining for six months about how he was treated and nothing had been done.  On May 16th 2024, at the meeting to investigate his grievance, he claims that he was advised to just “get on with it.” 

The complainant alleges that he was penalised for making a protected disclosure related to his concerns about health and safety and about being bullied and harassed at work.  In line with the decision of my colleague, Mr Michael McNamee in his decision in A Worker v A Massage Therapy Business[1], Mr Bradley asked me to make a significant award to the complainant.

Relying on the decision of the High Court in Conway v Department of Agriculture, Food and the Marine[2], Mr Bradley submitted that the complainant meets the low threshold of evidence to establish that he was the victim of penalisation for raising concerns about health and safety.

Evidence of the Complainant

In his evidence, the complainant said that he heard a lot about the respondent’s company before he joined.  He said that he was rejected the first time he applied, and when he was interviewed for the second time, he got the job of night manager.  He was responsible for a team of five employees on the night shift and for health and safety in the property.  The complainant said that he passed his probation and that he got good feedback at his annual appraisal.  He said that he got on well with his colleagues.

In September 2023, the complainant said that the management changed but, he said he knows how to build relationships and he kept things professional.  He said however, that “something weird was happening” but he continued to do what he was good at.  Due to a constant turnover of staff, his job involved training the new recruits.

The complainant said that the new management didn’t question his professionalism, but that they had an issue with his personality, because he is honest and he would “speak back.”

Mr Bradley referred to an email the complainant sent to the general manager, GM, on October 29th 2023.  In the email, the complainant told GM that he wasn’t happy with the way he was spoken to by the operations manager, OM, when he was doing the handover at 6.50am.  The complainant had called in sick the previous day and he said that OM was aggressive in tone and words and that he pointed his fingers at him roughly. 

The complainant said that GM arranged to speak to him and OM at 7.00am the following day.  He brought the complainant into the accommodation office and he explained to him that “it’s different now” and said, “we are in charge.”  The complainant said that he didn’t hear any more about this complaint.

The second incident of concern to the complainant occurred in December 2023.  A night porter, TL, was promoted to the job of night team leader.  The complainant said that TL was a friend of the general manager.  He said that he was the kind of person “you couldn’t get to the bottom of.”  He said that TL was supposed to report to him, but he wouldn’t listen.  He was always saying that he was exhausted and then, at some point in the morning, he would show that he was doing a hard job.  The complainant said that TL began threatening him and he asked him to stop.  He said that TL replied, “Well leave then.” 

The complainant was having difficulty finding accommodation for himself and he said that TL offered to help him.  He said that TL showed him a card with his photo on it, indicating that he was a counsellor, but the complainant said that he “cut him short.”  He said that TL “assumed that I had issues” and this made him feel upset and intimidated.  When he cut TL off, the complainant said that he got worse.  He said that he raised his concerns about TL 15 times.

On Saturday, December 2nd 2023, the complainant said that he arrived at work for the start of his shift at 11.00pm.  He said that his team from the night shift weren’t there and just one person was at reception.  He said “there was a new face” sitting beside FOM in the office and TL was also there.  In his evidence, the complainant said that the person he referred to as “a new face” was a new member of the night duty team, ND.  When he approached them, the complainant said that TL complained that he rinsed the “wet floor” sign in the sink.  He said this in the presence of ND.  He said that TL was crying and saying that he was going to leave.  The complainant said that he asked TL why he was going to leave.  He said that TL replied that he wanted things sorted now.  He said that, because of his previous issues with TL, he just walked away.  He said that he didn’t stay for his shift and he “woke up to a warning letter.”  He said that there was no meeting or consultation about his warning and no verbal warning in advance. 

Because TL had threatened to leave, the complainant said that he sent him an email the next day, Sunday, December 3rd.  A copy was included in his book of documents for the hearing.  In the email, the complainant asked TL to discuss ways to build a team and to improve the service to the hotel guests.

The complainant said that TL didn’t like doing the laundry and he wanted to do things his way.  He said that he always had a second opinion.  He said that TL said that he was going to replace him as night manager.

On December 4th, the complainant said that he raised his concerns with FOM about feeling uncomfortable at work and about the written warning.  He said that FOM replied that “the warning is valid.”  He complained to the operations manager, OM about the warning and a meeting was arranged for Tuesday, December 5th 2023 at 2.00pm.

The complainant agreed with Mr Bradley that, on December 5th 2023, when he asked for a transfer to a different property, he was advised to speak to the general manager.

Mr Bradley referred to the complaint from ND, a member of the night duty team, on February 28th 2024.  The complainant said that he was informed about the complaint in a letter, in which he was also informed that he was suspended.  He said that he attended a meeting with the investigating manager on March 16th and April 11th 2024.  A disciplinary investigation was held on April 25th and a final disciplinary meeting with the general manger took place on May 21st. 

At the meeting on March 16th, the complainant said that he was asked a lot of questions.  He said that the investigating manager hadn’t got good English and that the meeting was silly.  ND, who alleged that the complainant called him “Didi,” said that this sounded like he was being referred to as an animal.  The complainant said that he was using ND’s initials which sounded like “Didi.”  ND complained that the complainant whistled at him when he was bringing rubbish to the skip.  The complainant said that he doesn’t know how to whistle and he couldn’t have whistled at ND.  He said that he has no issue with homosexuals and that he’s not homophobic.  He said that he referred to a young female employee as “princess.”  He said that none of the complaints that ND made about him are true.

Mr Bradley referred to the meeting arranged for May 21st 2024 with the general manager, the purpose of which was to give the complainant the outcome from the disciplinary investigation.  The complainant said that GM attacked him.  He said that a manager from the property in Mark Street was beside GM at the meeting and GM “tried to put on a serious and confident face.”  The complainant said that GM “got fired as a result of that.”  He said that he told GM he would bring him to court.

At the conclusion of his evidence, the complainant said that he sent an email to appeal against his dismissal.  In response to a question from me, he said that he was at home around four months after he was dismissed, scrolling on his phone, when he came across Ormonde Solicitors, and he decided to seek advice.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

It is apparent from this that every dismissal is unfair until the employer demonstrates otherwise.  The burden of proof therefore rests with the respondent to set out the substantial grounds justifying the dismissal of the complainant in this case. 

Section 6(4)(b) of the Act provides that,

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

While the responsibility for proving that a dismissal is not unfair rests with the employer, at this s.6(4)(b), the legislation recognises the right of an employer to dismiss an employee for conduct that, considered by another reasonable employer in similar circumstances, is unacceptable or unreasonable.  In the case of the complainant, his letter of dismissal states that he was dismissed for “bullying and harassing a colleague in the workplace, which is deemed a gross breach of the Company’s Dignity at Work Policy.”

In tandem with the reasonableness of the decision to dismiss an employee, the Act also requires an employer to have regard to fair procedures.  Section 6(7) addresses this issue:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so -

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

Before he was dismissed on May 21st 2024, the complainant was suspended on full pay, pending the outcome of an investigation into the allegation that he was harassing a colleague.  As part of the investigation, he was interviewed on March 16th and April 11th.  When the investigating manager concluded that he had a case to answer regarding his treatment of his colleague, a disciplinary meeting was held on April 25th 2024.  The complainant attended a final meeting on May 21st 2024.  At the conclusion of that meeting, the general manager decided that he should be dismissed.  His employment ended that day and he was paid two weeks’ wages in lieu of notice.  Based on this sequence of meetings, and on the fact that the complainant was informed of his right to be represented, I am satisfied that he had an opportunity to respond to the allegations against him and to challenge the evidence of his colleagues.  I am further satisfied that the process that ended with the dismissal of the complainant was a fair process.

On Thursday, May 23rd 2024, the respondent’s general manager sent the complainant an email, to which he attached a letter confirming his dismissal.  In the letter, the complainant was advised of his right to appeal against his dismissal “within 10 working days of the date of this letter.”  An email he sent to his solicitor on February 1st 2025 (the day after this hearing) shows that, on June 5th 2024, he wrote to the GM saying simply, “Yes I wish to appeal the decision.”  As June 5th was nine working days after May 23rd 2024, the complainant’s request for an appeal was submitted on time.  I acknowledge the respondent’s submission that the email that the complainant sent to request an appeal was sent after GM left the company.  The complainant could not have been expected to know this, but the respondent’s case is that the request for an appeal wasn’t received.  It is an undisputed fact however that, to initiate the appeal against his dismissal, the complainant followed the instructions in GM’s letter of May 23rd 2024 in which he said simply,

“Should you wish to appeal, please let me know and I will provide you with contact details for an appeals person.”

As GM left the company four days later on May 27th, it was incumbent on someone in management to monitor his emails, because the window for the complainant to appeal against his dismissal was still open.  It is evident therefore, that the complainant submitted a request for an appeal, but that the respondent did not respond.  It is apparent also that the complainant himself didn’t pursue his appeal with any serious intent, because when he didn’t hear from GM, he made no further enquiries and he took action only four months later, when he said he was scrolling through his phone and he came across the contact details for Ormonde Solicitors.

Was it Reasonable to Dismiss the Complainant?

The reasonableness or otherwise of an employer’s decision to dismiss an employee was considered in 2012 in the Circuit Court appeal of the determination of the Employment Appeals Tribunal (EAT) in Allied Irish Bank plc v Purcell[3].  Mr Purcell was dismissed when he looked at the bank accounts of his colleagues and another person who was not a bank employee.  Setting out the approach of the Court to the process of reaching a decision on the appeal, Ms Justice Linnane referred to what is conventionally known as “the British Leyland test[4],” which requires the decision-maker to ask if it was reasonably open to the employer to make the decision it made.  Regarding how the test should be framed, Judge Linnane stated:

“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

It is not for me therefore, as the adjudicator in this matter, to consider if the complainant should have been dismissed, but to ask if it was reasonably open to his employer to make the decision they made, or if could they have made a different decision and applied a lesser sanction, or no sanction at all.  Based on the evidence presented to me, I must consider if the decision of the respondent was that of “a reasonable employer in those circumstances in that line of business.”[5]

The context of the difficult relationship between the complainant and his employer was the change of management in September 2023.  In an email to the HR department on December 5th 2023, he requested a transfer to a different property.  This followed an incident on December 2nd when he left work at 11.30pm, after about a half an hour into his shift, when concerns were raised by the front office manager about some work-related issues.  The complainant didn’t follow up on the possibility of moving to a different property and he continued working as the night manager in City Quay. 

On February 28th 2024, a member of the night duty team, ND, complained about how he was treated by the complainant, claiming that he called him “Didi,” that he referred to him as a princess and that he mimicked his accent.  The manager who investigated this complaint found that the complainant had been offensive to ND, and that the reason he was offensive is because ND is gay and that he is not a proficient speaker of English.  The investigator also found that the complainant’s colleagues attempted to get him to stop behaving in this way, but that he didn’t stop. 

In his evidence at this hearing at the WRC, I observed that the complainant attempted to place the blame for his dismissal on everyone else.  He complained first about the change of management, then he suggested, wrongly, in my view, that his request to move to a different property wasn’t considered.  He described the disciplinary investigation meeting as “silly” and he complained that the investigating manager hadn’t got good English.

Considering the allegation that he had harassed a colleague, the complainant said that he didn’t refer to ND as “Didi” but that he called him by his initials, which, he said, sound like “Didi.”  It is apparent from the notes of the meeting the investigator had with ND that ND asked the complainant to stop calling him “Didi,” saying that, one day, he asked him to stop five times.  The complainant didn’t stop; at the investigation, he didn’t acknowledge that his conduct was upsetting to ND, and, even at the hearing at the WRC, he seemed unaffected by the possibility that he offended his colleague.

The complainant explained away the “princess” moniker, claiming that this was a name he used for a young female colleague.  Apart from ND, two other employees reported to the investigator that they heard the complainant using this name for ND and I do not accept the complainant’s evidence about this issue.  I find also that the complainant was disrespectful to GM, whom he described as trying to “put on a serious and confident face” at the disciplinary meeting.  Remarks such as these are inconsistent with the normal demeanour of an employee seeking to make a case that they have been treated unfairly.

The respondent’s submission indicates that the complainant was a respected colleague, and, for the most part, he was liked by the management.  It seems to me that his colleagues were conscious of the impact he was having on one member of their team and that they tried to get him to change his behaviour.  The emails submitted show that the front office manager tried his best to help the complainant to see the impact he was having on the night duty team, but the complainant perceived this as FOM “taking sides” and trying to please the new management.

At the conclusion of his evidence, the complainant described his arrival in Ireland as an unaccompanied minor and his progress at work to the point where he is supporting his younger siblings to be educated at university.  He has so many positive and constructive qualities and it is very regrettable that he didn’t seek some wise counsel before he engaged in the disciplinary procedure that ended with his dismissal.  A simple acknowledgement of the effect that his behaviour had on his colleague may have made a difference and could have avoided his dismissal.  In the circumstances however, faced with an employee who was unable to see the effect of his behaviour, and to apologise for the distress he had caused, I can see no alternative but to find that it was reasonable for the respondent to bring the employment relationship to an end.

Conclusion

It is my view that the respondent acted reasonably by dismissing the complainant.  I find also that the disciplinary investigation was conducted fairly and the complainant was clearly informed of the allegations that he had to answer and he was given an opportunity to state his case.  He declined his right to be represented.  At the final stage of the procedure however, the respondent failed to respond to the complainant’s request for an appeal.  It is possible that, at the 11th hour, if he had had an opportunity to make his case to a different person, he may have considered the effect of his actions and taken a different approach.  Because of this procedural failure, I find that the dismissal of the complainant was unfair.

To decide on the issue of redress, s.7(2)(a) of the of the Unfair Dismissals Act requires me to consider the extent to which any financial loss suffered by the complainant as a result of his dismissal is attributable to the conduct of the employer.  I am also required, by s.7(2)(b), to have regard to the contribution of the complainant himself to any losses he suffered.  I note that, at the disciplinary hearing on April 25th 2024, one month before he was dismissed, the complainant informed the general manager that he wasn’t staying on with the respondent because he had a new job.  At the hearing however, he said that he started a new job on August 3rd 2024.  He said that he moved jobs twice before he found a new job as a night manager in December 2024. 

As I have set out in the previous section, I have reached the conclusion that the dismissal of the complainant was unfair and I decide therefore, that his complaint is well founded.  Having regard to all the circumstances, I direct the respondent to pay him compensation of €3,000, equivalent to four weeks’ pay.

The Relevant Law

Section 27(1) of the Safety, Health and Welfare at Work Act 2005 refers to “penalisation” as,

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.

Section 27(2) provides that penalisation includes, at sub-section (d), the imposition of any discipline, reprimand or other penalty and, at sub-section (e), coercion or intimidation.

Section 27(3) provides that,

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.

On October 29th 2023, in an email he sent to the general manager, GM, the complainant alleged that the operations manager spoke to him in an aggressive tone and pointed his finger at him when he was doing the handover at 6.50am.  When GM met him the following day to discuss his email, the complainant claims that GM had a dismissive attitude and was not interested in how the previous management handled issues.  In his submission, Mr Bradley said that the complainant’s concerns were “brushed under the carpet.”

On December 2nd 2023, the complainant left work about a half an hour into this shift, because he felt that he wasn’t listened to when he complained that the front office manager and most of the night duty team were sitting in the back office when there were residents in the lobby of the hotel.  He claims that he was “ambushed by a very hostile exchange in the office” by the night duty team leader, TL.  The following day, without any investigation, he received a written warning for leaving work without permission.

On December 4th 2023, the complainant replied to FOM who had issued him with the written warning.  He alleged that FOM was taking sides with the night staff to please the new management.  He asked for a formal investigation to be carried out into his concerns.  The operations manager asked the complainant to attend a meeting on December 5th.  The complainant claims that the meeting lasted five minutes and that he was informed that the written warning was valid.

The following day, the complainant wrote to the head of HR, Ms Victoria Scrase, seeking a transfer to a different property in Dublin.  He was advised to speak to the hotel manager, or to the operations manager about his request for a change.  If he was uncomfortable speaking to one of these managers, Ms Scrase advised the complainant to contact the regional operations manager or to contact her directly to arrange to speak by telephone.  The complainant didn’t pursue his request to transfer to a different hotel.

On March 14th 2024, two weeks after ND reported that the complainant called him “Didi” and “princess,” the complainant sent an email to Ms Scrase, complaining about what he claimed was threatening and bullying by the night duty team leader.  Because he was the subject of a disciplinary investigation, the investigation into the complainant’s grievance was put on hold.  When he was interviewed by a manager from a different property on May 16th 2024, he referred to the incident on October 29th 2023, when, he claims that OM shouted at him and pointed his finger at him, and he complained that no one listened to his concerns about TL.

Was the Complainant Penalised?

It is the complainant’s case that he was penalised by being issued with a written warning because he left work a half an hour into his shift on December 2nd 2023.  It is apparent from the email from the front officer manager at 22.25 on Sunday, December 3rd, that another staff member raised concerns when the complainant arrived at work the evening before.  It is apparent also that the complainant wasn’t open to listening to what his colleague had to say and he went home, leaving the hotel without a night manager.  I agree with the complainant that the written warning should have been issued only following a proper investigation.  However, the complaint about this matter was submitted to the WRC on October 24th 2024, more than six-months after the incident and outside the time limit for which I have authority to conduct an investigation.

Did the Complainant Carry Out a Protected Act?

Aside from that important finding on the time limit, I am satisfied that the complainant did not make a complaint about health and safety in his workplace.  It is my view that the issues he raised were grievances and that they were addressed by the management.  From my reading of the paperwork for these complaints, it seems to me that the complainant played a part in the conflict that developed between him and the staff in City Quay and that he was unwilling or unable to work constructively with his colleagues.  I note also that the complainant failed to progress his desire to move from the property in City Quay, which would have provided him with an opportunity for a fresh start.   

As I have concluded that the complainant did not make a complaint about a health and safety matter, it follows that he suffered no detriment and his complaint under the Safety, Health and Welfare at Work Act 2005 is not well founded. 

The Relevant Law

The definition of “protected disclosure” is set out at section 5(1) of the Protected Disclosures Act 2014, “the Act.”  

“For the purposes of this Act ‘protected disclosure’ means, subject to subsections (6) and (7A) and sections 17 and 18, a disclosure of relevant information … made by a worker in the manner specified in section 6, 7, 8, 9 or 10.”

Sub-sections (6) and (7A) respectively address the disclosure of trade secrets and legally privileged information and these are not relevant for this complaint.  Sections 17 and 18 refer to law enforcement and international relations and are also not relevant here.  Sections 6 to 10 set out a tiered disclosure process and provide that information related to wrongdoings may be provided to a prescribed person, an employer, a government minister, a legal advisor or to another person.

For our purpose regarding this complaint therefore, a “protected disclosure” is the disclosure by an employee to his or her employer, or another person, of relevant information.  Section 5(2) of the Act provides that,

“information is ‘relevant information’ if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.”

The operative clause concerning whether information shows that a relevant wrongdoing has occurred, is occurring or will occur is “reasonable belief.”  Section 5(8) provides that in these proceedings at the WRC, “involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.”  In the Q & A material included as an appendix to the “Statutory Review of the Protected Disclosures Act 2014,” the reviewers note that,

“…all that is required is a reasonable belief that the information disclosed shows or tends to show that the wrongdoing is occurring.  This is a deliberately low threshold designed to ensure that most reports are made to the person best placed to correct the alleged wrongdoing – the employer.”

It is apparent that the Act intends that “relevant information” concerning an alleged wrongdoing is provided to the employer so that the wrongdoing can be addressed and, that the employee does not have to be convinced that a wrongdoing is occurring but that the lower threshold of reasonable belief applies. 

Section 5(3) of the Act lists the matters that are considered to be relevant wrongdoings:

The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

There are three components to the making out of a claim of penalisation under the Protected Disclosures Act:

1.  An employee must have a reasonable belief that a wrongdoing is occurring, has occurred or might occur;

2.  They must communicate what they know about the alleged wrongdoing to a prescribed person, their employer, a government minister, a legal advisor or another person;

3.  They must show that, because of their communication about the alleged wrongdoing, they have been penalised.

Did the Complainant Make a Protected Disclosure?

The complainant asserts that he was penalised by being “accused of homophobia in a thinly veiled attempt to penalise him for raising the issues he raised, and subsequently dismissed.”

On February 28th 2024, a member of the night duty team, ND, alleged that the complainant was offensive to him because he is gay.  On March 14th 2024, a meeting was arranged for the complainant to be interviewed by a manager investigating the allegation.  On that day, he wrote to the head of HR, Ms Scrase, and complained that he wasn’t happy with the conduct of TL, who reported to him.  Following a phone call between the complainant and Ms Scrase in which she advised him to submit a formal grievance, the complainant wrote to Ms Scrase again on March 26th 2024.  He alleged that TL was threatening and bullying him.

Due to the sequence of these complaints, with the complainant’s allegation about TL following a complaint about him from ND, it cannot be argued that the complainant was “accused of homophobia” for raising an issue about a colleague.  The complainant made a formal complaint about his colleague only after another employee made a complaint about him.

The respondent did not accuse the complainant of homophobia.  The plain fact is that a colleague complained that he was offensive to him because he is gay.  It is clear to me that the complainant didn’t get on with another employee, TL, who reported to him.  When he complained about TL on March 14th and 26th, 2024, I am satisfied that he did not have a reasonable belief that a wrongdoing was occurring, but that he was attempting to distract attention from ND’s complaint about him. 

It is my view that the complainant did not make a protected disclosure, and that his correspondence to Ms Scrase on March 14th and 26th 2024 does not meet the definition of a relevant wrongdoing as set out at s.5(3)(a) to (h) of the Protected Disclosures Act.  As I have decided that the complainant did not make a protected disclosure, there is no basis for an investigation into his allegation that he was penalised by being dismissed for so doing.  The cause of the complainant’s dismissal is clear, and I have reached a conclusion on this in my investigation under the Unfair Dismissals Act.

The complainant has not established that the matters he referred to in his submissions to the WRC and in his evidence at the hearing are protected disclosures within the definition at Section 5.5 of the Protected Disclosures Act 2014.  It follows therefore, that he cannot satisfy the second part of the test set out in section 12 of the Act, that his dismissal resulted wholly or mainly from having made a protected disclosure.  On this basis, I decide that his complaint is not well founded.

Conduct, dismissal, protected act, protected disclosure, penalisation