ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00055623

Parties:

	Complainant	Respondent
Parties	Aleksandrs Fjodorovs	Avoca Handweavers Shops Limited Retail, Cafe

Representatives

Self-Represented

Peter Gilfedder IBEC

Complaint(s):

Act	Complaint/Dispute 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-00067688-001	26/11/2024

Date of Adjudication Hearing: 08/04/2025

Workplace Relations Commission Adjudication Officer: Donal Moore

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Following the judgement in Zalewski v Adjudication Officer, WRC & Ors [2019] the parties were advised that hearings before the Workplace Relations Commission are held in public and, in most cases, decisions are not anonymised. No special circumstances were presented to me to hear the matter in private nor to anonymise the decision.

The parties were advised that Adjudication Officers hear evidence on oath or affirmation and all participants who gave evidence were sworn in and advised of the penalty for being untruthful in evidence to the Commission.

The only witness to give evidence was the Complainant who undertook an affirmation to be truthful with the Commission and the parties were advised that they could cross examine witnesses if they wished.

Both parties were offered the opportunity to cross-examine the evidence and where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute.

Background:

The hearing was attended by the Mr Aleksandrs Fjodorovs, the Complainant, and Mr Peter Gilfedder IBEC, for the Respondent and Mr Darragh Donegan, Respondent HR, also attended.

The Complainant referred the complaint under Section 28 of the Safety, Health & Welfare at Work Act, 2005 that he had been penalised.

Having heard the matter with submissions from both sides, the hearing was properly closed.

Summary of Complainant’s Case:

The Complainant had begun his employment in September 2008 and is a permanent employee working full time.

In the last year, his contention is that he has been penalised in the meaning of the Safety, Health & Welfare at Work Act, 2005. This was through complaints from his coworkers and a subsequent series of events from these to an investigation, disciplinary and failed appeal.

He denies the allegations made against him and is of the view the process was not fit for purpose, with errors and lost documentation and has been incorrectly graded by management.

On the basis of his penalisation, he made his complaint to the Commission.

Summary of Respondent’s Case:

In April 2024 there were complaints from other staff members against the Complainant and this was followed in June by an investigation meeting to discuss misconduct and gross misconduct. The outcome of this investigation was issued in July of that year which recommended a disciplinary process which met in August with an outcome in October. The recommendation was for a final written warning, and this was appealed in October 2024 with the appeal finalised in November where the sanction was upheld.

It is the Respondents case that having alleged penalisation, the Complainant has no issue to refer to, for which he may have been penalised within the cognisable period of six months 27th May 2024 to 26th November 2024.

The Respondent relies upon the Labour Court decision in Tony and Guy Blackrock Limited v Paul O’Neill (HSD095) and is at a loss as to the penalisation and a connection to making of a complaint under the act. The Respondent contends that the Complainant cannot show any protected act under the 2005 that he can rely upon to ground his complaint and asked that the Adjudicator dismiss the complaint.

Findings and Conclusions:

It is not appropriate for me to reinvestigate the process from complaint to appeal. The matter has not been referred under any act that would give me jurisdiction over that issue and it is common cause of the parties that the process occurred and concluded with a final written warning.

The contentious issue is, if that process was the result of the Complainant exercising rights under s27(3) of the 2005 Act and the Complaint can only be investigated, by me, to the extent that the Complainant has been penalised under the terms of s27(3) of the Act.

S27(1) of the act sets out penalisation under various headings, but importantly includes under (d) reprimand, and (c) transfer of duties which somewhat fits the narrative of the Complainant that he may have suffered a detriment through the use of a disciplinary investigation and following processes.

However, at s27(3) it sets out the scenarios for which an employee may be considered to have been penalised in terms of:

“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.”

It is the claim of the Respondent that there have been no activities that could be considered under this section and on my own inquiries to ensure the fairest possible procedures to the Complainant; he could not provide me with a greater explanation or evidence.

The Respondent relies upon the Labour Court decision in Tony and Guy Blackrock Limited v Paul O’Neill (HSD095) the Labour Court set out that;

“in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent 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.”

Applying the “but, for “test I can find nothing of the Complainant that meets the test. Having explained the importance of this to the Complainant I gave him every opportunity to make a case, but he was unable to point to such an act of his that could trigger penalisation in the terms set out.

He has been subject to complaint, investigation, disciplinary sanction and failed appeal, but there is no evidence to show a connection to any ground that could overcome the burden of proof required of him.

The Complainant is aggrieved, but he has made a complaint under an act that cannot offer him redress in all the circumstances and related evidence of the complaint.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the reason set out above I find that the complaint is not well founded.

Dated: 09/04/2025

Workplace Relations Commission Adjudication Officer: Donal Moore

Key Words:

Not well founded, but for test,