Worker

Employer

Anonymised Parties

Assistant Staff Officer

Local Authority

Representatives

1st day - Richard Stapleton Richard Stapleton Solicitors; 2nd day – Bridget Breslin – lay representative

Keith Irvine Local Government Management Agency (LGMA)

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-00059313-001

10/10/2023

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

CA-00059313-002

10/10/2023

The Complainant commenced her employment with the Respondent in September 2000.

On 10 October 2023, the Complainant referred to the Director General of the WRC her complaints alleging that she was penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act, 2005 and that she was penalised or threatened with penalisation for having made a protected disclosure pursuant to the Protected Disclosures Act, 2014.

The Respondent rejects the claims.

Mr Stapleton, on behalf of the Complainant, submits that the Complainant relies on the same set of facts for both complaints. He submits as follows.

BACKGROUND

The Complainant was employed with the Respondent as Clerical Officer in September 2000 and following a successful interview in 2004, she was promoted to the Assistant Staff Officer post.

The Complainant alleges that at a Section Supervisors’ meeting on 9 September 2021 the Complainant’s line manager, an Administrative Officer named an individual (Ms M) as the Complainant’s workplace “stressor” and the Complainant confirmed same. The Complainant was not offered any support action or intervention by her line manager either at that meeting or following on despite the fact the Respondent was aware that the Complainant was attending a Clinical Psychologist as a result of the ongoing difficulties at work.

The Complainant submits that the line management in her section were also aware that the named work colleague was problematic and insubordinate towards other staff. The Complainant submits that previous management in her section managed the colleague and the Complainant felt supported. In June 2019 the Complainant received a “verbal apology” from the named work colleague in the presence of a Staff Officer.

The Complainant submits that, in 2020, new management came on board (an Administrative Officer and a Staff Officer) and allowed the work colleague’s behaviour to escalate without correction or sanction. It is submitted that the Respondent failed to act reasonably to prevent workplace bullying patterns and failed to assess and record and action the Complainant’s complaint as per the LGMA Dignity at Work Policies and Procedures adopted by the Respondent on 12 July 2021.

It is submitted that the Respondent failed to investigate the Complainant’s grievance made on 9 September 2021 and she was denied fair procedure and due process. It is submitted that the Complainant was available to engage with line management in the informal grievance process.

The Complainant commenced sick leave on 11 October 2021.

It is submitted that the Respondent failed at all times to adhere to the principles of fairness and natural justice and to comply with the relevant policies and procedures of the Respondent and the Safety, Health and Welfare at Work Act, 2005 which states at Part 2, Section, point 3:

“General Duties of the employer:

To manage and conduct work activities in such a way as to prevent any improper conduct or behaviour likely to endanger employees”.

It is submitted that the Complainant was not protected by the Respondent in providing her with a safe and supportive place to work. As a result, the Complainant experienced fear, stress and anxiety which put great strain on her personal and family life.

On 8 October 2021, the Complainant departed her workplace in an extremely distressed state as witnessed by her Staff Officer. At her request on the 8 October 2021, the Complainant had attended a meeting with the Staff Officer to further raise the issue of the failure of management to address the alleged workplace stressor's behaviour which, in the Complainant’s view, was allowed to escalate without correction or sanction.

The Complainant submits that she also sought the Staff Officer’s support and guidance. The Staff Officer advised her that he was not in a position to assist. He also advised the Complainant that he was aware of the colleague’s behaviour, that she was “inherited” by him and he had been prewarned as to her behavioural issues by his predecessor. The Staff Officer indicated that there was nothing he could do to assist the Complainant. At that meeting the Complainant requested the Staff Officer to schedule a meeting with him, the Complainant, and with the Administrative Officer on her return to work from preapproved annual leave on 18 October 2021 prior to working on the public counter with the named colleague.

The Complainant submits that she left the meeting on 8 October 2021 in an extremely distressed state and sought medical attention and has remained on certified sick leave since 11 October 2021.

In January 2022, the Complainant was reviewed by an Occupation Health doctor who recommended a further review in 2 weeks’ time. The Complainant was further reviewed by the Occupational Health doctor on 2 March 2022. A further review in 3 weeks was recommended. The Complainant submits that the Respondent failed to follow up on the recommendations of the Occupational Health doctor. The Complainant submitted requests to attend the Occupational Health doctor to the Human Resources Department on 14 April 2022 and 13 May 2022. The Complainant then received correspondence dated 25 May 2022 scheduling a review on 15 June 2022.

The Complainant submits that the Respondent failed to provide the Complainant with sufficient notice of the Occupational Health appointments and failed to provide copies of “Assessment Referrals” to EHA.

The Respondent failed to comply with its “Employee Assistance Policy”.

The Complainant requested that a Workplace Stress Risk Assessment; the Respondent’s policies and procedures – “Prevention and Management of Stress in the Workplace” and “Incident Management - Work Related Stress to be furnished to her on 8 February 2022 and 9 March 2022. The Complainant was advised by the Employee Welfare Officer, Human Resources that the Respondent did not have a “Workplace Stress Risk Assessment” document.

The Complainant was re-examined by the Occupational Health doctor on 15 June 2022. Despite ongoing correspondence between the parties involving risk assessments and an FOI request, no progress was made in relation to the dealing with the Complainant’s grievances and the Complainant wrote to the Senior Executive Officer, Human Resources on 31 August 2023.

By letter of 15 September 2023, the Respondent advised it had no record of the Complainant’s grievance despite multiple correspondence with the Complainant.

The Complainant felt very dejected and isolated and instructed her solicitor to write to the Chief Executive of the Respondent by letter of 21 February 2024 which included the following queries:

“1. Why was our client’s grievance submitted on the 9th September 2021 not investigated? We submit an agreed external investigator should be appointed to deal with how our client’s grievance was handled and to investigate the grievance itself.

2. Why was it denied that there was no documentation supporting the fact that our client made a grievance when documents furnished to our client on foot of a Freedom of Information requests on the 7th March 2023 contradicts said position? We submit this should be investigated in full by an agreed external investigator.

3. What action has been taken (if any) in respect of the subject matter of our client’s grievance and when was such action taken and by whom?

4. Why was our client denied her Long Service Increment without notice and why have you failed to set out clearly the reason for such a denial considering the submissions made by our client to line management [named section] and the Director of Finance and Support Services, [name redacted], in relation to Time in Lieu and untaken breaks. Our client is entitled to be informed as to the reason for such a decision and the exact legal basis for same. We submit it should be granted and backdated to November 2021.

5. What efforts have been made to assist our client in returning to work?

6. Why have you not followed the advise of Dr [named], Occupational Health Physician issued in her report dated 15th June 2022 who suggested that she review our client again? Our client has requested this referral take place so that she could return to work but despite same, you have failed, neglected and/or refused to do so which we submit is a concerted effort to penalise, victimise our client and designed to inflict maximum financial hardship. We submit that our client’s pay should be reinstated and backdated to the 11th October 2021.

7. We refer you to recent recommendation of the Adjudication Office- Reference IR -SC 00001147 Clerical Officer v County Council and we understand that [named] were the County Council referred to in this recommendation and we require you to confirm same. The facts of the case are instructive in so far as the alleged delay in dealing with a grievance but also the efforts of the [Respondent] to have the employee attend for medical examination (which is the opposite to the position adopted in our client’s case). “

In response, the Respondent issued a letter dated 27 February 2024 and to date it has failed to provide the information sought.

The Complainant was re-examined by an Occupational Health doctor on 29 February 2024 who recommended that the Complainant would be in a position to return to work once her work stressor was addressed prior to her return to work.

By letter of 7 March 2024, the Respondent invited the Complainant to attend a meeting on 19 March 2024 and informed her that the workplace stressor was no longer assigned to her section.

The Complainant was not certified fit to return to work by the Occupational Health doctor or her own GP.

A further letter of 7 March 2024 from the Respondent indicated that it had now appointed a Senior Executive Officer to conduct the “examination of the facts”.

The Complainant’s solicitors wrote to the Respondent by letter of 11 March 2024 requesting the queries raised in previous letter from the Complainant’s solicitors be addressed to assist her return to work. It also queried as to when the workplace stressor was removed from the Complainant’s section and under what circumstances, and invited the Respondent to engage directly with the Complainant’s solicitors to see if the matter could be resolved so as to allow the Complainant to return to work. It made it clear that the Complainant would not be attending a return-to-work meeting until such time as the work concerns were addressed as per the advices of Occupational Health.

The Complainant’s solicitors sent further letters on 19 March 2024 and 25 March 2024 by way of a reminder.

The Respondent issued a letter of 26 March 2024 indicating that the Complainant should attend Occupational Health and cooperate with the investigation process.

The Complainant’s solicitors responded by letter of 28 March 2024.

The Complainant’s solicitors issued a letter of 10 April 2024 concerning alleged breach of GDPR and raising a formal protected disclosure in relation thereto. An examination of the protected disclosure conducted by a Senior Executive Officer led to her finding issued on 2 May 2024 that there was no prima facie evidence that a relevant wrongdoing had occurred and that the allegation did not, therefore, constitute a protected disclosure. This was rejected by correspondence from the Complainant’s solicitors of 3 May 2024 and led to the decision to be referred to a Director of Service for her consideration.

A further letter of 9 June 2024 was issued to the Respondent and to date, the Complainant has not been furnished with the outcome of the review into her protected disclosure.

The Complainant also raised the issue directly with the Respondent’s Chief Executive by letter of 5 December 2024 and also externally with the Department of Housing Local Government and Heritage and the Department of the Taoiseach.

On 18 December 2024, the Office of the Protected Disclosures Commissioner identified the Director of Finance of the Respondent to be the appropriate recipient of the Complainant’s report of wrongdoing made on 9 December 2024 to have the competence to provide feedback and follow up in accordance with the Protected Disclosures Act 2014.

The Safety, Health and Welfare at Work Act, 2005 (the “Act”) provides that; and employer shall not penalise or threaten penalisation against an employee for “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”.

The Act also provides that penalisation is “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.”

By letter of 31 August 2023, it is submitted that the Respondent’s refusal to deal with the Complainant’s grievance resulted in the following acts of penalisation:

1. Failure to investigate the Complainant’s complaint of 9 September 2021 in a timely manner, to follow a fair procedure which led to an extended period of absence from work and financial hardship.

2. Failure to pay the LS12 increment on 9 November 2021 which was raised in the first instance with the SEO Human Resources.

3. Failure to be kept appraised of all job vacancies during the Complainant’s period of illness.

4. Failure to be kept appraised of Blended Working Communications issued during the Complainant's period of illness.

5. Failure to be kept appraised of communications of Chief Executive and Human Resources issued during the Complainant’s period of illness.

6. Failure to take appropriate action to provide the Complainant with a safe place of work, which resulted in injury to the complainant with ongoing stress, financial loss and hardship.

7. Failure to follow the recommendations of the Occupational Health report of 29 February 2024.

8. Failure to address the issues raised by the Complainant’s solicitor’s letter of 21 February 2024 which would have facilitated the Complainant’s return to work. It is noteworthy that the Respondent also refused to advise as to when the workplace stressor was transferred and only disclosed same on 7 March 2024.

9. Failure to protect the Complainant’s personal data and information which has led to a protected disclosure arising from the incident at the named hotel on 8 April 2024.

10. Failure to finalise the protected disclosure above.

11. Failure to investigate the Complainant’s grievance in relation to the Senior Executive Officer, Human Resources.

12. Failure to consider the Complainant’s application for extension of TRR (Temporary Rehabilitation Remuneration Circular LG(P) 02/2023) which is equivalent to a payment of €189 per fortnight. TRR payment was exhausted in or around 13 December 2024 and an application to extend same was refused on the basis that the Complainant would not attend Occupational Health. The Complainant attended Occupational Health on 9 October 2024 and advised them that she could not give her permissions to have her records released to Respondent due to a serious breach of her sensitive and personal data by the Senior Executive Officer, Human Resources in a public meeting with an LGMA Representative at the named hotel on 8 April 2024. Complainant made a submission that she could not attend Occupational Health until she received proper assurances in relation to her personal data arising from the events of 8 April 2024.

With regard to the complaint under the Protected Disclosure Act, 2014, Mr Stapleton submits that the Supreme Court has confirmed in Baranya v Rosderra Irish Meats Group Limited that personal complaints in relation to health and safety fall within the scope of protected disclosures for the purposes of Section 5 of the 2014 Act.

It is submitted that the Complainant’s grievance constitutes a protected disclosure as it raises serious concerns in relation to health and safety issues and in particular the unacceptable behaviour of a workplace stressor. In addition, it is submitted that the work colleague’s behaviour was known to the Respondent and had adversely undermined the health and safety of other colleagues and not just the Complainant. This was acknowledged at the meeting of 8 October 2021.

It is submitted that the Complainant was penalised in the following manner:

1. Failure to follow a fair procedure and investigate the Complainant’s complaint of 9 September 2021 in a timely manner and follow due process which led to an extended period of absence from work.

2. Failure to pay the LS12 increment on 9 November 2021 which was raised in the first instance with SEO Human Resources. The Complainant has been advised by HR that "As you were on TRR at the time the increment fell due, a discussion could not take place between you and your line manager (as per CCC procedure for approval of increments). As per the normal procedure, on return to work an increment form will be sent to your line manager. When this has been completed and approved for payment, we will apply your increment from the date you return to work.”

3. Failure to be kept appraised of all job vacancies during the Complainant’s period of illness.

4. Failure to be kept appraised of Blended Working Communications issued during the Complainant's period of illness.

5. Failure to be kept appraised of communications of Chief Executive and Human Resources issued during the Complainant’s period of illness.

6. Failure to take appropriate action to provide the Complainant with a safe place of work, which resulted in injury to the Complainant with ongoing stress, financial loss and hardship.

7. Failure to follow the recommendations of the Occupational Health report of 29 February 2024 which would have facilitated the Complainant’s return to work.

8. Failure to address the issues raised by the Complainant solicitor’s letter of 21 February 2024 which would have facilitated the Complainant’s return to work. It is noteworthy that the Respondent also refused to advise as to when the workplace stressor was transferred and only disclosed same on 7 March 2024.

9. Failure to protect the Complainant’s personal data and information which has led to a protected disclosure arising from the incident at the named hotel on 8 April 2024.

10. Failure to finalise the protected disclosure above.

11. Failure to investigate the Complainant’s grievance in relation to the Senior Executive Office, Human Resources.

12. Failure to consider the Complainant’s application for extension of TRR (Temporary Rehabilitation Remuneration) which is equivalent to a payment of €189 per fortnight. TRR payment was exhausted in or around the 13 December 2024 and an application to extend same was refused on the basis that she would not attend Occupational Health. The Complainant made a submission that she could not attend Occupational Health until she had proper assurances in relation to her personal data arising from the events of 8 April 2024.

13. The Complainant’s career progression and promotional opportunities have been adversely affected.

14. The Complainant’s sick leave entitlements have been exhausted and her reckonable service adversely affected.

15. Failure to provide the Complainant with records/minutes of Supervisors Meeting held on 9 September 2021 and 8 October 2021.

At the adjudication hearing, Mr Stapleton, on behalf of the Complainant submitted that the Complainant relies on the same sets of facts for both her claims. He submitted that the Complainant made health and safety complaints and a protected disclosure on 9 September 2021, 8 October 2021 and by way of a letter of 14 April 2022 and the solicitor’s letter of 21 February 2024. It was alleged that the Respondent failed to provide the Complainant with a safe place of work. Mr Stapleton accepted that the Complainant’s coworker was entitled to fair procedures in relation to the allegations made against her.

Concluding remark of the Complainant’s representative

Ms Breslin, on behalf of the Complainant, said that the Complainant raised a health and safety issue on 9 September 2021.  Her line manager failed to investigate the hazard at work, the Respondent completely abandoned the Complainant. She suffered from stress and financial hardship. The Complainant was not informed when the alleged stressor was removed. She lost her increment and TRR, she also missed out on career opportunities.

Summary of direct evidence and cross-examination of the Complainant

The Complainant said that in September and October 2021 she raised with the Respondent the issues she had with her colleague. She said that she was given no support, there was no intervention or assistance. The Complainant said that she informed the Respondent that she attended a Clinical Psychologist. She suggested that a meeting be organised after her return from pre-planned annual leave.

The Complainant said that an incident with the colleague occurred which was witnessed by the Staff Officer but nothing was done. She said that, after the meeting on 9 September 2021, the work colleague’s behaviour escalated. The Complainant said that she sent an email to the Staff Officer requesting a meeting on 8 October 2021.

The Complainant said that the Staff Officer’s note of the meeting is inaccurate. The Complainant said that at the meeting she told the Staff Officer that the colleague in question was “dealt with” previously and she got an apology. The Staff Officer said that he “inherited” the colleague in question. The Complainant said that, at the meeting, she questioned her Personal Development Plan (‘PDP’) and requested that training that she had requested be provided to her. She said that she informed the Staff Officer that she could not come back from her pre-planned leave and work with the colleague in question. It was agreed that a meeting would take place on the day of her planned return. The Complainant said that she ended up very sick after the meeting and on 11 October 2021 she went to her GP and was certified as unfit for work.

The Complainant said that she got no support from the management. During the Christmas 2021 period she was ostracised and isolated. She was on sick leave with no support. Nobody bothered to pick up the phone and check on her. She said that the Staff Officer contacted her a few times saying “hello, hope you are OK”, like nothing happened. The Employee Welfare Officer contacted her and referred to the Employee Assistance Program (‘EAP’). She was to arrange another meeting.

The Complainant said that it was the HR Department’s duty to investigate the health and safety issue regarding the “stressor”.  She was stressed, suffered from anxiety, was on mediations. She lost her confidence.

The Complainant said that in April 2022 she wrote to the Respondent that she was not pursuing her grievance. She said that the Respondent never contacted her, she felt isolated and upset, she felt that the Respondent caused her harm.

The Complainant said that the Senior Executive Officer, HR contacted her asking her to come back to work. She said that if she knew the “stressor” was moved, she would have, it would have facilitated her earlier return.

The Complainant said that she requested a workplace stress risk assessment to be carried out. She knew that it was used in other organisations.

The Complainant said that she did not participate in an informal meeting because she left in a distressed manner, she was on sick leave. The Complainant said that she did not go to the meeting in January as the Respondent had already not done what they were supposed to have done.

She said that she was advised by someone regarding the employer’s duties under the health and safety legislation and was advised to “go the health and safety route”. She wrote to the Respondent raising the matter in April 2022.

The Complainants said that she did not meet with the management because she was to meet with the Employee Assistance Program Officer.

The Complainant said that her solicitor came on board in January 2024.  She said that the Occupational Health specialist recommended that she was fit to return to work provided that the perceived work stressors were addressed. She instructed her solicitor to write to the Respondent but received no response. The Respondent never engaged as the matter was referred to the WRC. The Complainant said that she lost all faith in the process, policies and procedures of the Respondent.

The Complainant said that she was informed on 7 March 2024 that the colleague in question has transferred but she needs to know when it happened and under what circumstances.

Regarding the increment, the Complainant said that on 22 September 2021 she completed her PDP with her Staff Officer, she got a glowing report. The Complainant said that she requested a Management and Developing People training as she needed to know how to manage the colleague’s behaviour. However, she was told that this particular training was designed for a higher grade. The Staff Officer said that he would check if it would be made available for the Complainant. The Complainant said that she was not advised that the increment was due and that she was not getting it.

The Complainant gave evidence that she had no access to the internet. She said that the Senior Executive Officer, HR sent her a “Keep in Touch” form, but the form had no option to tick that she would like to receive correspondence by post. She said that she has an email address but no internet at home. She said that she has a mobile phone. The Complainant said that she was denied access to promotions and information, she was isolated and ostracised. She said that she was totally ignored. She was denied access to Occupational Health specialist and had to wait 8-9 weeks for an appointment.

Cross-examination of the Complainant

In cross-examination, the Complainant confirmed that she made a health and safety complaint on 9 September and on 8 October 2021. She said that that penalisation started straight after the complaint on 9 September 2021 as the Respondent failed to investigate her complaint. The fact that the Respondent did not investigate her complaint after 9 September and then 8 October 2021, in her view, constitutes penalisation. The Complainant confirmed that her complaints of 9 September and 8 October 2021 were also protected disclosures.

The Complainant accepted that, following correspondence from the Respondent in 2022 where she was asked to proceed with grievance process, she refused to do so and said that she had no grievance. However, she alleged that this was because she got no support. She accepted that it was agreed between her and the Staff Officer that a meeting would be arranged after her return. She accepted that such a meeting was arranged but she said that she was left unsupported.

It was put to the Complainant that the Staff Officer’s recollection was that it was the Complainant who named the alleged stressor. The Complainant disagreed and said that it was the Administrative Officer.  It was put to the Complainant that at that time she said that she wanted no further action taken.

The Complainant agreed that she requested to have a meeting on 8 October 2021, but she did not say in her email what was the issue. She accepted that the last paragraph in the Staff Officer’s diary was correct where it stated that the Complainant and the colleague she had difficulty with would sit down with the Staff Officer on Monday 18 October 2021 when she returned from her leave so that her concerns could be addressed. She confirmed that she received an email setting up this meeting.

It was put to the Complainant that the Staff Officer’s recollection was that she left the meeting on 8 October 2021 satisfied, she was not distressed. 

Regarding the increment, the Complainant said that she had her performance review and, as the increment was performance based, she believed, she was entitled to it. She said that she was too traumatised and was not sure if she ever wrote or brought to the Respondent’s attention that she believed that her performance review was sufficient to grant the increment. It was put to the Complainant that she raised the matter in her correspondence in September 2023 and a response was given. She said that it was explained to her, but she wanted a written procedure. The Complainant was asked why she did not revert explaining that her understanding was that the meeting on 22 September 2021 should suffice for the purposes of the increment. The Complainant replied that it was not her job, it was the HR duty. 

The Complainant accepted that the “Keep in Touch” form was sent to her. The Complainant said that she has no internet and uses her mobile phone only for emergencies, so she did not want an email or text communication, she wanted hard copies. The Complainant said that it is continuing penalisation despite the form being sent to her in 2023 as the hard copy option was not on the form and she wanted hard copies. She confirmed that she did not revert to the Respondent requesting hard copies of all communication. She said that she never received any information regarding jobs advertised and she has not been made aware of opportunities she would have been interested in. It was put to the Complainant that the jobs are advertised in papers. She said that her phone has no memory, so she had no opportunity to download anything.

The Complainant confirmed that she drives and is computer literate. She also confirmed that there is a public library with PCs and internet access some 15 min away from her house, but she did not consider accessing her email there. She said that the Respondent should have sent her everything by post like it did previously in 2018. The Complainant conceded that she used her personal mobile phone for work (answering phone queries, work landline diverted to her mobile) between March 2020 and October 2021. She said that she was answering calls non-stop all day every day but she did not have a work laptop.

With regard to the alleged failure to take appropriate action by the Respondent, the Complainant conceded that the Staff Officer did take action in that he set up a meeting. However, she asserted that she had to request that meeting.

Regarding the allegation that the fact that the Complainant had exhausted her sick leave entitlements and her reckonable service was adversely affected, it was put to the Complainant that her sick leave was exhausted in the end of October 2021, and it was because she was absent not because she allegedly made a protected disclosure. The Complainant said that her health deteriorated.

With regard to the alleged failure to provide the Complainant with records/minutes of meetings held on 9 September and 8 October 2021, the Complainant agreed that she received these after her FOI request. The Complainant said that she requested these around February 2022 and was told that no record existed. It was put to the Complainant that, at that time, the Respondent was not aware that the record existed. It was clarified that the Senior Executive Officer took over the HR role in September/October 2022 and was not aware of these until towards the end of the year.

The Complainant agreed that the Senior Executive Officer sent her a copy of the Respondent’s grievance policy. She confirmed that she had a copy already at home and was familiar with the document. It was put to the Complainant that she never raised a grievance. The Complainant did not dispute that the Senior Executive Officer wrote to her twice sending the policy and asking the Complainant to submit her grievance. The Complainant replied twice stating that she had no grievance. The Complainant said that someone externally advised her to “go the health and safety route”.

It was put to the Complainant that the Respondent does not have a workplace stress risk assessment. She said that other organisations do, she said that the HSE have it and she thought it was a great idea. She further said that she did not know if it was true that the Respondent did not have it but conceded that she did not request it in her FOI. She was asked, if she thought that it was a great idea to implement, had she suggested to the Respondent to do so. She said that she did not as it was “not her business”.

The Complainant confirmed that she wrote to the Respondent on 15 September 2022 and changes in the HR Department occurred around that time. She agreed that the Senior Executive Officer wrote to her on 30 November 2022 but the Complainant did not respond. She submitted her FOI request then. She confirmed that the next letter was sent on 31 August 2023. The Complainant could not remember if she ever wrote to the Respondent informing that she wished to raise her grievance.

The Complainant said that from February 2024, her issue was with the Staff Officer and the Administrative Officer. She agreed that they could not investigate themselves and it had to be done by the HR Department. She said that she was at work between 9 September and 8 October 2021 and they should have investigated her complaint. Her understating was that HR was to investigate a breach falling under the Safety, Health and Welfare Act as to why the Staff Officer and the Administrative Officer did not investigate her informal grievance.

Mr Irvine of LGMA, on behalf of the Respondent, submits as follows.

Background

The Complainant commenced employment with the Respondent on 6 September 2000 as a temporary Clerical Officer and was made permanent on 26 March 2001. The Complainant subsequently secured the post of permanent Assistant Staff Officer on 4 April 2016.

On 8 October 2021, the Complainant requested a meeting with her Line Manager to take place that evening where the Complainant outlined her concerns in relation to how a work colleague interacts with her in the office environment. At that meeting, the Complainant requested that the line manager arrange a meeting to be attended by herself, the work colleague and the line manager on 18 October 2021 on her return from annual leave. The purpose of the meeting was to discuss her concerns.

The line manager met with the Complainant’s work colleague on 13 October 2021 and then arranged the meeting for 18 October 2021 as was requested by the Complainant. As the Complainant was on annual leave, the line manager texted the Complainant on 15 October 2021 to confirm the meeting venue and the time of the meeting. The Complainant replied by text to the line manager informing him that her GP had certified her unfit for work from 10 October 2021 with a review date of 5 November 2021. The Complainant was confirmed to be on certified sick leave from 11 October 2021.

The Respondent arranged an Occupational Health Assessment for the Complainant which took place on 19 January 2022. The report advised that the Complainant was unfit for work but was assessed as fit to engage with management on a discussion around her perceived work stressors. The Respondent wrote to the Complainant on 26 January 2022 confirming the content of the report and advising that a meeting with her section management would be arranged.

The Complainant refused to attend a meeting with the section management as she wished to meet with Human Resources Management and requested a referral back to Occupational Health for a further review. A further Medical Assessment was conducted on 2 March 2022 and stated:

“[the Complainant]...noted to me that she has not met with management regarding her perceived stressors...she is keen to discuss matters...in order to progress her issues...she has communicated her request that a workplace stress risk assessment form be sent to her with a view to completing the appropriate assessment. .. she wishes to have this assessment completed...before engaging in any next steps in her case.

[The Complainant] has advised that she is...keen to return to duties once these perceived workplace issues are addressed and resolved... "

The Respondent subsequently wrote to the Complainant on 31 March 2022 on foot of the Occupational Health Assessor’s report and advised the Complainant that if she had a grievance, she could avail of the relevant policies and procedures and was advised to meet with her line manager in the first instance and mediation could be arranged also if appropriate. She was asked to contact the Administrative Officer in her section to arrange a meeting.

The Complainant wrote to the Respondent on 14 April 2022 asserting that she was "not pursuing a grievance”.

On 3 May 2022, the Respondent wrote to the Complainant confirming that the Employee Welfare Officer had engaged with her on several occasions regarding her perceived work-related issues. She was also advised in that letter that a meeting had been arranged to take place on Tuesday, 17 May 2022 with the Administrative Officer and Staff Officer and if that date didn't suit, she could contact the Administrative Officer to re-arrange it. The Complainant wrote to the Respondent again on 13 May 2022 and confirmed that she would not be attending the meeting on 17 May 2022.

The Respondent replied on 25 May 2022 enclosing the Respondent’s Occupational Health and Safety Parent Safety Statement and Dignity at Work Policy and Procedure. The Complainant was also advised that a further Occupational Health assessment was arranged for 15 June 2022.

A further Occupational Health visit was attended on 15 June 2022, noting the Complainant’s request for a Workplace Stress Risk Assessment form and advising that the Complainant has indicated that "she has not received this to date. She wishes for this to be completed before any further actions in her case”.

On 28 July 2022, the Complainant wrote to the Respondent requesting various documents.

On 17 August 2022, the Respondent wrote to the Complainant outlining the policies and procedures available to her. Further documents were provided to her. On 13 September 2022, the Complainant responded to the correspondence. 

By letter dated 30 November 2022, the Respondent wrote to the Complainant in response to her letter of 13 September 2022. The Complainant was advised that she was previously directed to the various policies and procedures available to her and that if she had an issue that she needed to set it out in detail.

By letter dated 31 August 2023 the Complainant wrote to HR outlining "matters of concern" and perceived failures of the Respondent; asserting that unless action was taken within 14 days "to rectify those failures...a formal complaint to the Workplace Relations Commission” would be submitted as well as a further letter requesting several pieces of information; and this information was provided to the Complainant by letter dated 26  September 2023.

A response issued to this letter on 15 September 2023 which referred the Complainant to the advices in the letter of 30 November 2022. The Complainant was also advised that in order to be considered for approval of an increment, a discussion needed to take place between the employee and the line manager about work performance and as the Complainant was on sick leave since October 2021, this was not possible. In terms of other issues raised including access to information regarding job vacancies, blended working etc, she was advised to sign up to receive text alerts and/or a hard copy of the Bulletin and a form was enclosed for that purpose. The Complainant was also advised that the Respondent was confident that she would be able to return to an ongoing safe environment and confirmed that the Employee Welfare Officer would be in further contact.

The Employee Welfare Office wrote to the Complainant on 6 October 2023, and no response was received.

The Complainant also raised the matter of mediation and was asked to confirm if she was agreeable for the Respondent to contact the other party to arrange a mediation. No response was received.

On 21 February 2024 the Complainant's representative wrote to the Respondent making several unsubstantiated allegations and asserting that "our client raised a grievance … on 9 September 2021". The Respondent responded on 27 February 2024 with several letters being exchanged throughout February.

A medical assessment was undertaken on 29 February 2024 with the report stating that the Complainant “is fit to engage in a process to address matters...it is my opinion that once her perceived workplace stressors have been addressed, this will facilitate her return to work... “

Further correspondence was received from the Complainant's representative on 11 March 2024 asserting:

"... our client's concerns need to be addressed prior to her return to work and if this requires her to wait the outcome of the WRC complaints then so be It … we note that it is confirmed that workplace stressor is no longer assigned to the [named] Department … our client will not be attending a return-to-work meeting... until her concerns are addressed in advance... "

A further medical appointment was arranged, however the Complainant refused to attend and communicated this to the Respondent on 19 March 2024.

Further correspondence was received on 25 March 2024 from the Complainant's representative noting the appointment of a Senior Executive Officer to investigate the Complainant's grievance. This was rejected and it was asserted that "our client requires an agreed external investigator to be appointed …”

The Respondent responded on 26 March 2024 stating:

"I note that you have advised your client not to return to work on 15th March 2024 and thereby Ignore the correspondence from her employer. This is most disappointing.

Your comments with regard to the referral to the occupational health physician are unhelpful. [The Complainant] is required to attend such appointments and I am sure you are fully aware of this requirement.

An investigation process has been arranged at your request. This investigation has been arranged in accordance with [the Respondent’s] formal Grievance Policy and Procedure. It is noted that you are now objecting to this investigation and you have advised your client not to co-operate with [the Respondent’s] policy and procedure. This course of action is alarming.

For the avoidance of doubt, [the Complainant] is required to attend occupational health appointments when arranged and she is also required to co-operate with an investigation process.”

Further correspondence was received on 28 March 2024 repeating previous correspondence. The Respondent responded on 19 April 2024 stating

 “… We note that you are not willing to co-operate with the investigation process which I wrote to you about by registered letter dated 7th March 2024 and enclosed [the Respondent’s] Grievance Policy and Procedure and the Employee Assistance Policy.

Given that you are not co-operating with the investigation process (which was requested by Mr Stapleton), we are now not in a position to proceed. Should you wish to confirm that you are willing to proceed please revert to me.”

“In his correspondence to me, Mr Stapleton refers to the report of the Occupational Health Physician. By letter dated 7th March 2024, I advised you that the perceived workplace stressor (as identified by you) is no longer working in the [named] section and in that regard, there is no reason for you not to return to work. This is in accordance with the medical advice. I note that Mr Stapleton has confirmed that you will not be returning to work (as per his letter dated 11th March 2024).

It is noted that you failed to attend for the arranged medical appointment on the 5th April 2024. Please note that you are required to attend such appointments. A further appointment will be scheduled for you in the coming weeks."

Further correspondence was received on 25 April 2024 in relation to other separate issues and objecting to an investigation carried out by the Respondent requesting an external investigator asserting "our client has no confidence in the ability of [the Respondent] to conduct" the investigation.

CA-00059313-001 under Section 28 of the Safety Health and Welfare at Work Act, 2005

Introduction

In her claim CA-00059313-001 under Section 28 of the Safety Health and Welfare at Work Act, 2005 the Complainant stated:

“l made a grievance complaint to my line manager who correctly named my workplace stressor at that meeting. Not only was my complaint not acted upon, the workplace stressor's behaviour escalated, and resulted in injury to my person, ongoing stress, financial loss and hardship, due to the unsafe place of work and [the Respondent’s] failure to take appropriate action and to comply with the Safety, Health and Welfare at Work Act, 2005, Part 2 - Section 8 and section 27.” 

Preliminary Issues — CA-00059313-001

The Respondent raises a preliminary issue in relation to the complaint of penalisation referred to the WRC under section 28 of the Safety, Health and Welfare at Work Act 2005.

The complaint was received by the WRC on 10 October 2023; therefore, the cognisable period of the complaint is from 11 April 2023 to 10 October 2023.

The current complaint relates to an allegation of penalisation under the Act, where at section 27 of the Act it is stated:

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.

In order to succeed in a claim of penalisation under the Act a complainant must:

         i.             demonstrate something that brings him or her within section 27(3)

        ii.            provide evidence of having suffered a detriment within the meaning of 27(1) and

      iii.            show a causal connection between (i) and (ii).

The Complainant has been absent from work on certified sick leave from 11 October 2021. The Respondent disputes that there was any measure taken by the Complainant under section 27(3) of the Act. It is accepted by the Respondent that the Complainant had sought a meeting with her line manager and work colleague in relation to interpersonal issues. This meeting was organised to take place, however the Complainant did not attend the meeting and went absent on sick leave.

It is also the case that the Complainant wrote to the Respondent on 14 April 2022 asserting that she was "not pursuing a grievance”. No grievance or otherwise has been submitted by the Complainant.

In order to make out a complaint of penalisation contrary to the Act, it is necessary for the Complainant to establish that the detriment of which she has complained was imposed on her "for" having committed the protected act. The penalisation will usually comprise an identifiable act on the part of the employer which affects, to his or her detriment the employee.

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 Court in the case of An Garda Siochana v Hazel Delahunt [HSD 1311] noted that the term "detriment is not defined in the legislation but that it has been considered in some UK decisions which noted that "a detriment exists if a reasonable person/worker would or might take the view that the [treatment] was in all the circumstances to his detriment" Khan v. Chief Constable West Yorkshire [2001] UKHL 48 but also that any act on which penalisation is based "must amount to a detriment in the Complainant's terms and conditions of employment and not something that merely has the potential to lead to such a result is not enough."

In her complaint, the Complainant alleges "...I made a grievance complaint to my line manager my complaint was not acted upon and [the Respondent’s] failure to take appropriate action ... " as being the alleged detriment she suffered. Without prejudice to the matter as to whether she suffered detriment, the Adjudication Officer must decide whether the Complainant suffered the detriment for "I made a grievance complaint"; effectively is there any causal link. In that regard the Respondent relies on Tony and Guy Blackrock Limited v O'Neill HSD095 and St Johns NS v Akduman (HSD102).

In summary, in order to succeed in a case of penalisation the Complainant must not only establish that she suffered a detriment, but that the detriment was imposed or was in retaliation for her doing something that brought her within section 27(3) or the Act.

The Respondent disputes that penalisation has occurred in relation to section 27(1) and 27(2) of the Act, where there has nothing identified by the Complainant amounting to penalisation on any specific date during the cognisable period. 

The Respondent's position

The Respondent in the first instance would refer to its preliminary points raised. Without prejudice to these points the Respondent asserts that the Complainant did not lodge a formal grievance and when she raised the issue in relation to a work colleague to her line manager, the line manager immediately commenced a process in the hope of resolution. The Complainant agreed to attend a meeting in order to discuss and address the matter, whatever that was. When the meeting was arranged, she did not attend and commenced sick leave.

The Respondent is satisfied that it operates a safe place of work for all its employees and the Complainant has been advised of this on several occasions.

The Respondent has not penalised the Complainant in any way where an act of penalisation has not been identified by the Complainant (and not on any specific date).

It is a matter of fact that the Complainant has refused to attend meetings in order to address her perceived issues, where even despite there being no written complaint submitted, the Respondent has agreed to initiate a grievance process to record any alleged grievance (despite the Complainant writing to the Respondent to say that she was not perusing a grievance), in order to try resolve the matter and support the Complainant in returning to work.

In conclusion, the Respondent rejects the claims made by the Complainant that any complaint was submitted in accordance with section 27(3) of the Act or that any penalisation took place in relation to section 27(1) and 27(2) of the Act.

CA- 00059313-002 under the Protected Disclosures Act, 2014

The Respondent raises a preliminary issue in relation to the complaint of penalisation under the Act.

The complaint is stated in the WRC complaint form as:

“I was further penalised under the Protected Disclosure Act, 2014 during my period of certified workplace stress illness when I was;

(a)    ostracised from my place of work whereby [the Respondent] failed to complete and provide me with a work place stress risk assessment;

(b)    Denied promotional opportunities

(c)     Failure to be appraised of job vacancies, blended working, employee newsletters, communications to staff from Chief Executive and Human Resources

(d)    Denied my long service increment (LSI2) and did not provide me with prior notice

(e)    Failure to refer me to occupational Health Physician over a 16-month period.

(f)      Threatened me with discipline (clause 1.4) if I did not go down the grievance route.

These failures by my employer, [the Respondent] constitute a breach of my contract of employment and their duty of care to me…”

The complaint was received by the WRC on 10 October 2023. Therefore, the cognisable period is from 11 April 2023 to 10 October 2023.

The Respondent relies on the definition of protected disclosure as defined in the Act.

The Respondent accepts that the Complainant made a disclosure on 30 November 2022 stating:

“In September 2021 and October 2021, I raised issues with my line managers [named section] regarding an unsafe place of work under the Safety, Health and Welfare Act, 2005.

On 14 April 2022, I submitted a written disclosure under the Safety, Health and Welfare Act, 2005 to [named], Administrative Officer Human Resources which has resulted in injury, harm and financial hardship due to loss of earnings and penalisation.”

The Respondent replied to the Complainant on 20 December 2022 noting that the Complainant was “making a disclosure under the Protected Disclosure Act 2014 in relation to issues raised with your line managers in September 2021 and October 2021…to consider this matter constructively, I would be obliged if you could provide me with further information to support this purported Protected Disclosure”.

The Complainant responded on 1 January 2023 resulting in a further letter to the Complainant dated 13 January 2023 stating:

“I thank you for your letter dated 1st January 2023 and I note that you confirm that the matters you have raised relate to information you have previously supplied to [named] Human Resources Department and is now being handled by [named].

I note you advised you are making a disclosure under the Protected Disclosure Act 2014 in relation to issues raised with your line manager in September 2021 and October 2021.

Having considered the matter. Pursuant to the terms of the Protected Disclosure Act 2014 (“2014 Act”), and based on the information provided to me, I am satisfied that your disclosure is not a Protected Disclosure within the meaning of the 2014 Act. This is based on S5(5) of the 2014 Act which sets out that “a matter is not a relevant wrongdoing if it is a matter which is it the function of the worker or the employers to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer”.

[The Respondent] have a Protected Disclosures Policy and Procedure in place, a copy of which is enclosed for your review. You will note at 1.6 it states that day to day operational matters should be brought to the attention of a line manager to be dealt with through structures established by [the Respondent]. It expressly states that grievances or other allegations will be dealt with under [the Respondent’s] Grievance Policy and Procedure and Dignity at Work Policy.

Grievances at workplace are dealt with by way of [the Respondent’s] Grievance Policy and Procedure. You are encouraged therefore to continue to engage with the Human Resources Department to deal with your grievance.”

The Respondent asserts that the complaint as made by the Complainant is exempt under the Act, specifically section 5(5)(A)which states:

“A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.”

Th Respondent does not accept that the complaint as made constitutes a valid disclosure for the purposes of the Act. Without prejudice, should it be determined that a protected disclosure was made, the issue is whether the Complainant suffered a detriment for raising the matters. With regard to the provisions of the Act, the penalisation or detriment being complained of must have been imposed as a direct result of having made a disclosure.

The Respondent has not penalised, nor has it threatened penalisation against the Complainant in respect of her complaint. Nor does the Respondent accept that it has been responsible for any action or effect which falls within the provision of the Act.

The Complainant must have suffered a detriment/penalisation of a type referred to at section 12(a) to (j) of the Act. The question of what can be considered as a detriment has not been the subject of any definition within the caselaw in this jurisdiction. However, it has been broadly defined within the Courts in the UK case as being “applying a test of whether a reasonable worker could conclude that they were disadvantaged by the treatment in question”. This has also been defined by the House of Lords in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary where Lord Hope advised as follows “An unjustified sense of grievance cannot amount to ‘detriment’.

The Respondent’s position

Without prejudice to the preliminary points raised, it is accepted that the Complainant raised a disclosure on 30 November 2022 where she stated: “I raised issue with my line managers [named section] regarding an unsafe place of work…” However, it was determined by the Respondent that this did not constitute a protected disclosure under the Act based on section 5(5)(A).

In the letter of 30 November 2022, the Complainant also stated, “On 14th April 2022, I submitted a written disclosure under the Safety, Health and Welfare Act, 2005 to [named], Administrative Officer Human Resources …”

The Respondent submits that the letter of 14 April 2022 again raised “a matter concerning interpersonal grievances exclusively affecting a reporting person, grievances about interpersonal conflicts between the reporting person and another worker” where it was stated in that letter that “…I had already communicated to management [named section] the workplace stressor at a supervisors meeting in September, 2021…Due to escalation of [named] behaviour…I outlined to him in detail several incidents/ events that caused me significant distress… by the workplace stressor and… management… who allowed her behaviour to continue, without correction or sanction and failed to manage her… I feel it is imperative that [the Respondent] address my multiple concerns regarding [named], [section] and that appropriate action is taken and sanction recorded by Human Resources… It is my opinion that I should have no professional contact with her on my return to my current post...”

The Respondent asserts that no protected disclosure was made and the alleged penalisation cannot be sustained under the Act.

In relation to (a) being “ostracised from my place of work” and failure to provide “a workplace stress risk assessment”, the Respondent submits that this is not penalisation where the Respondent engaged with the Complainant in order to support and facilitate a return to work. It is also the case that a “workplace stress risk assessment” does not exist. A risk assessment is an analysis of tasks and a recognition of risks associated with those tasks. Where risks are of a medium or high level, they are mitigated where possible. Stress is not a task.

In relation to the allegation that the Complainant was penalised by being “denied promotional opportunities”, the Respondent rejects this assertion. It is a matter of fact that the Complainant dd not apply for any promotional opportunities during the cognisable period of the complaint. The Complainant is an Assistant Staff Officer (Grade IV). It is also a matter of fact that a Grade V Staff Officer competition was advertised in April 2023 and the Complainant did not apply. Similarly, a Senior Staff Officer competition was advertised in October 2022 and the Complainant did not apply for that post. These competitions were advertised in two local newspapers on localgovernmentjobs.ie and on the Respondent’s website and social media.

In relation to the alleged penalisation regarding being “denied my long service increment”, the Complainant wrote to the Respondent on 31 August 2023 stating:

“Can you provide me with…

6. Formal notification issued to withhold my LSI2 prior to 9th November 2021

7. the Respondent’s issued procedure (2021-2023) for approval of increments.

8. Clarification and calculation of shortfall in support of withholding my LSI2”

On the same date, the Complainant also wrote to the Respondent stating:

“…I wish to bring the following matters to your attention

…Failure to pay my LSI2…”

The Respondent wrote to the Complainant on 15 September 2023 advising:

“…with regard to the increment matter which you have raised, you will be aware that to be considered for approval of an increment, a discussion needs to take place between the employee and the Line Manager about work performance. As you are on sick leave, this discussion could not take place…”

The Respondent then wrote to the Complainant on 26 September 2023 stating:

“As advised in my letter dated 15th September 2023, you will be aware that to be considered for approval of an increment, a discussion needs to take place between the employee and the Line Manager. As you are on sick leave, this discussion could not take place and, therefore, a form was not issued to your Line Manager. [The Respondent] has not withheld the increment. The relevant form for an outstanding increment will issue to your Line Manager when you return to work.

The increment process is managed through the Human Resources Department. When an increment is due, a link to an on-line form issues from the Human Resources Department to the relevant Line Manager. A discussion then takes place about work performance and the Line Manager determines whether or not an increment is warranted, subject to Senior Executive Officer approval. “

In relation to the allegation of penalisation regarding “failure to be appraised of job vacancies, blended working, employee newsletters and communication to staff”, the Respondent asserts that this cannot be construed as penalisation under the Act. These matters were raised in correspondence from the Complainant on 31 August 2023 and respondent to by the Respondent on 15 September 2023 stating:

“…with regard to the other issues you have raised including job vacancies, blended working and communications, you may wish to sign up to receive text alerts and / or a hard copy of [named] Bulletin. I have enclosed a form for this purpose. You may already be receiving the text alerts and if you are, there is no need to complete this section of the form…”

This is available to all employees including the Complainant and they were not penalised or treated differently than other staff where the information is available or provided once staff confirm they want to receive the information.

The Complainant has also alleged penalisation in relation to “failure to refer me to occupational health physician for a 16 month period”. Again, the cognisable period for this complaint is from 11 April 2023 to 10 October 2023. The Respondent accepts that the Complainant did not attend an occupational health appointment during this period, however, the Complainant had attended a medical examination on 15 June 2022, where it was recommended that:

“Today, [the Complainant] has re-iterated that she advised that she has communicated her request that a workplace stress risk assessment form to be sent to her, with a view to completing the appropriate assessment as per your local policies and procedures around same. [The Complainant] noted to me that she has not received this to date. She wishes for this to be completed before any further actions in her case.

[The Complainant] has advised that she is subjectively keen to return to duties once these perceived workplace issues are addressed and resolved appropriately. She noted to me today that she wishes to return to a safe and supportive place of work. She has noted to me today that she has communicated the perceived work stressors to management on numerous occasions.

[The Complainant] again articulated to me today that she feels unsupported by the organisation due to her recent perceived work stressors. “

Following this recommendation, the Respondent engaged with the Complainant throughout 2022 and 2023 to try to resolve any workplace issues the Complainant had which would facilitate her return to work. The Respondent does not accept the allegation of penalisation where the Complainant attended medical assessments before and after the cognisable period and the Respondent engaged with the Complainant to resolve any workplace issues in order to facilitate her return to w ork.

The Complainant alleged penalisation also in regard to “threatened me with discipline if I did not go the grievance route”. This is unsubstantiated and rejected out of hand by the Respondent.

In conclusion, the Respondent refers to the preliminary issues raised. Without prejudice to these points, the Respondent asserts that the Complainant did not make a protected disclosure as per the Act. The Respondent also asserts that the Complainant was not penalised, and that any allegation of penalisation has not been proven to be as a direct result of any disclosure.

Concluding remark of the Respondent’s representative

Mr Irvine, in his concluding remarks said that the Complainant allegedly made a complaint in September 2021. The Respondent made numerous requests to her to submit her issues. She repeatedly said that she had no grievance.

Mr Irvine noted that some of the alleged acts of penalisation fall outside the cognisable period.

Mr Irvine noted that, even when the Complainant was informed that the alleged “stressor” moved, she refused to return to work.

Summary of direct evidence and cross-examination of the Staff Officer

The Staff Officer said that he did not recall the Administrative Officer naming Ms M as the alleged stressor. He said that his recollection was that the Complainant called Ms M a “stressor”. However, the Complainant said that she would come back if further action was needed, the Complainant requested that no action be taken.

The witness said that, as the Complainant did not raise a grievance, no further action could be taken at that time.

With regard to the meeting of 8 October 2021, the witness said that his line manager requested his diary entry in November 2022. He said that at the meeting it was agreed that a meeting would be held with the named colleague to get her say. The Complainant was quite happy leaving the meeting.

The Staff Officer said that he would not have used the word “inherited”, he said that he took over staff. His predecessor inferred that there were some previous issues, but they were resolved, it was a typical handover conversation.

Regarding the Complainant’s assertion that she left the meeting “extremely distressed”, the Staff Officer said that she did get emotional during the meeting but composed herself. The meeting lasted approximately 1 hour and 20 minutes and the Complainant left quite happy. The Staff Officer said that he did not take minutes but, after the meeting, he made a note in his diary.

In cross-examination, the Staff Officer confirmed that he had worked in HR previously but in recruitment section and had no experience in industrial relations.

The Staff Officer confirmed that while the Complainant talked about issues she had, she did not raise a grievance. If she did, it would have been written down, details such as dates, times etc. would be recorded.

The Staff Officer accepted that he conducted a PDP interview on 22 September 2021. He said that he would conduct three reviews per year with his staff. At the start of the year, objectives, duties, training would be set, there would be mid-year review and end of year review.

The Staff Officer said that an increment process is a separate one. It requires a separate meeting and a form. Even if the Complainant received a glowing report, as she said, another form would need to be completed at a separate meeting. They would meet, talk, and a form with approval of increment would be signed off. The PDP reviews do not necessarily overlap with an increment review and the date of the increment not always coincides with the PDP review. 

The Staff Officer reiterated that the Complainant was emotional during the meeting but left the meeting quite happy. When asked, he said that he could not answer why she went out sick after that.

The Staff Officer was asked where the colleague in question is now. He said he did not know. He said that there were some 10 employees and numerous changes in the section, but he thought she could have been gone since 2023.

When prompted, the Staff Officer said that it was not his role to contact the Complainant and tell her that her work colleague has moved.

The Staff Officer confirmed that he had a conversation with the Administrative Officer after the meeting on 8 October 2021 and would have told her what the Complainant said and what was proposed.

Summary of direct evidence and cross-examination of the Administrative Officer

The Administrative Officer held, until September 2022, the IR function of HR.

The Administrative Officer said that she wrote to the Complainant on 31 March 2022 following the Complainant’s appointment with the Occupational Health Assessor. The witness noted that the medical report indicated that the Complainant was fit to meet with the management. She noted that a meeting was arranged in October 2021, but the Complainant was unable to attend. She advised the Complainant that the Respondent has policies and procedures and supports in place to deal with any work- related issues available to the Complainant. She sent the Respondent’s grievance policy to the Complainant and explained its purpose.

The Administrative Officer said that her view was that grievances are better resolved as close to the source as possible, so she encouraged the Complainant to meet with her line manager. She said that the Respondent is a strong advocate of mediation process.

The Administrative Officer said that she did not receive any grievance at that stage. The Complainant replied on 14 April 2022 saying that she was not pursuing a grievance. She replied to the Complainant and informed her that a meeting was arranged for 17 May 2022. She said that mediation was again offered. She said that she was impartial and wanted to move things on and meet.

The Complainant replied on 13 May 2022 again confirming that she was not pursuing a grievance but was “invoking the Health, Safety and Welfare at Work Act, 2005 – General Duties of the employer (Part 2, section 8 – point 3”. The Complainant declined to attend the meeting. She requested a copy of the Respondent’s policies and procedures to invoke the Act.

The Administrative Officer replied on 25 May 2022 and forwarded a copy of the Respondent’s Occupational Health and Safety Management System Manual Parent Safety 2022 and a copy of the Dignity at Work Policy. She reiterated that, as part of her contract of employment, the Complainant is obliged to cooperate with the Respondent’s procedures.

The Administrative Officer wrote again to the Complainant on 17 August 2022 informing her that she may submit her complaint under the Dignity at Work Policy and Procedure or the Grievance Procedure. The Complainant was advised that the requirements of the Safety, Health and Welfare at Work Act and the Code of Practice form Employers and Employees on the Prevention and Resolution of Bullying at Work have been incorporated into the Dignity at Work Policy.

The Administrative Officer moved out of HR Department around that time and had no further involvement in the matter.

In cross-examination, the Administrative Officer said that she did not have the detail of the health and safety issue initially and, if there is a grievance regarding coworker, the grievance policy applies.

It was put to the witness that her letter of 17 August 2022 was incorrect where it stated that there was no record of the meetings of 9 September and 8 October 2021. The Administrative Officer said that the request was for the minutes of the meetings, there were not minutes. However, the Staff Officer made notes from his diary available. The Respondent’s position is that there was no formal record/ minutes.

It was put to the witness that the Complainant could not bring a grievance. It was a health and safety issue, her named colleague was a “hazard”. The witness said that the Respondent had no details to determine that.

Regarding an incorrect phone number in one of the letters, the Complainant’s representative questioned whether it was an error. The witness said that it was and that the Complainant was familiar with the extension and would have known that.

The witness was asked if she carried out an investigation of the health and safety hazard. She explained that she clarified to the Complainant that she needed to raise a grievance so an investigation could commence. The Complainant was given plenty of opportunities to tell the Respondent what her issue was.

It was put to the witness that the Complainant disclosed on 9 September 2021 that she was attending a psychologist because of the stress regarding Ms M and, therefore, there was a greater duty to investigate. The witness said that that is what the Complainant said in her evidence, there is nothing about attending a psychologist in the note of the meeting. The Complainant was offered an opportunity to raise a grievance so the Respondent could investigate.

It was put to the witness that even if the alleged stressor moved, the Complainant would be afraid that she would return to the section. The witness said that had the Complainant raised a grievance it would be investigated and dealt with as necessary.

Summary of direct evidence and cross-examination of the Senior Executive Officer, HR

The Senior Executive Officer said a letter dated 13 September 2022 was received from the Complainant. She said that she had just taken over the HR role. She replied on 30 November 2022. In her letter she informed the Complainant that, as far as her request to return to a safe and supportive environment, the Respondent was confident that she would be able to return to such once she is well enough. She explained that the Respondent treats allegations of bullying very seriously and that such complaints should be referred under the Dignity at Work Policy. There was no reply from the Complainant to that letter.

The Senior Executive Officer said that she had no record of the meeting of 9 September 2021, the Complainant did not submit any grievance.

The Senior Executive Officer said that, by letter dated 5 September 2023, the Complainant wrote to her bringing the following matters of concern to her attention:

·         Failure to investigate the Complainant’s grievance of 9 September 2021

·         Failure to pay her the increment

·         Failure to keep appraised of job vacancies

·         Failure to keep appraised of blended working communications

·         Failure to keep appraised of the CEO and HR communications

·         Failure to take an appropriate action to provide the Complainant with a safe place of work.

The Complainant requested that an action be taken within 14 days or she would proceed with her complaint to the WRC.

The Senior Executive Officer said that in her letter of 26 September 2023 she explained the increment process to the Complainant. The process starts with HR issuing an increment form to a line manager who then sits down with the employee to have a discussion and then the manager signs off the form, if appropriate. This could not happen in November 2021 when the Complainant’s increment was due as the Complainant was on sick leave.

The Senior Executive Officer said that the Complainant did not return the Keep in Touch form she had sent to her.

The Senior Executive Officer said that she offered mediation to the Complainant but she did not avail of it. She wrote to the Complainant on 15 September 2023 and informed her that there is no record of any grievance raised by her. She again explained the increment process and forwarded the Keep in Touch form to the Complainant.

The Senior Executive Officer said that the Complainant’s solicitor wrote to the CEO on 21 February 2024. The Senior Executive Officer replied on the CEO’s behalf that, in light of a WRC hearing pending, the Respondent would not engage further and that the Respondent’s position would be provided to the Complainant’s solicitor in line with the WRC procedures. There was some further correspondence from the Complainant’s solicitor. On 11 March 2024, the solicitor confirmed that the Complainant would not attend a return-to-work meeting until her concerns are addressed in advance. The Complainant declined to attend an Occupational Health doctor appointment on 21 March 2024.

The Respondent appointed another Senior Executive Officer to investigate the Complainant’s grievance. However, the Complainant’s solicitor objected to it and requested an external investigator.

The Senior Executive Officer said that she wrote to the Complainant on 19 April 2024 noting that the Complainant was not willing to cooperate with the investigation and, therefore, the Respondent could not proceed with the process. She noted that the Complainant failed to attend a medical review on 5 April 2024 and that a further appointment would be made. She informed the Complainant that the perceived work stressor (as identified by the Complainant) was no longer working in the Complainant’s section and, therefore, there was no reason for the Complainant not to return to work in accordance with the medical advice. She noted that the Complainant’s solicitor conformed that the Complainant would not be returning to work.

In cross-examination, it was put to the witness that the Complainant was led to believe that she never raised an issue regarding the alleged stressor. The Senior Executive Officer replied that it was clear from the correspondence that, if someone has an issue, there are policies and procedures in place to raise them.

It was put it to the Senior Executive Officer that the Complainant had a legitimate expectation that her issues would be investigated. The witness replied that a meeting was arranged for 18 October 2021. The Complainant did not attend as she was on sick leave. She never raised a grievance.

It was put to the witness that the Complainant, in her letter of 31 August 2022 raised the matter of a failure to provide a safe place of work. The witness said that she replied to the Complainant and explained that the Respondent has several policies and nationally recognised standards. Her predecessor also wrote to the Complainant in that regard.

It was put to the Senior Executive Officer that stress is a hazard. She replied that stress is different for everybody, and the Respondent has several supports in place in that regard. However, in order to be dealt with, it needs to be raised and detailed. She said that she tried to get the Complainant to engage and get her back to work, she arranged for senior management to sit down with the Complainant to try to figure out what the issue was, so it could be dealt with.

With regard to the TRR, the Senior Executive Officer said that it is available for 2 years and thereafter it can be extended at the discretion of the Respondent. The Complainant received 2 years and an extension of 1 year. It was put to the Senior Executive Officer that the Complainant wrote to the Respondent on 31 August 2023 in that regard. However, it was noted that the Complainant did not raise the matter of TRR but rather referred to a failure to provide her with a safe place of work which resulted in financial loss and hardship.

Regarding the increment, the witness said that it was addressed and explained to the Complainant. The Complainant had previously had some 8 weeks of sick leave in 2018. TRR was stopped in December 2024.

It was put to the Senior Executive Officer that the solicitor’s letter of 25 March 2024 was another opportunity to review the Complainant’s entitlement to the increment, to try to resolve the issues (the letter objects to an internal investigator and notes that if the matter is to be resolved in a timely manner without further intervention from the WRC, the Respondent needed to engage with the Complainant’s solicitor in a positive manner). The witness said that she tried to engage with the Complainant.

The Senior Executive Officer denied that the Complainant was denied promotional opportunities. She categorically denied that the Complainant was penalised for raising health and safety concerns.  She said that all opportunities are advertised on the Respondent’s website, in local newspapers and on the internet.

CA-00059313-001 pursuant to Section 28 of the Safety, Health & Welfare at Work Act, 2005

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 including 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 Act is silent on the question where the burden of proof lies. 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.”

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

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, Food, and the Marine[2020] IEHC 665.    

The Labour Court in the case of An Garda Siochana v Hazel Delahunt HSD 1311 noted that the term “detriment” is not defined in the legislation but that it has been considered in some UK decisions which noted that “a detriment exists if a reasonable person/worker would or might take the view that the [treatment] was in all the circumstances to his detriment” (Khan v. Chief Constable West Yorkshire [2001] UKHL 48 relying on Ministry of Defence v Jeremiah [1979] 3 All ER 833 at 841,[1980] QB 87 at 104)but also that any act on which penalisation is based “must amount to a detriment in the claimant’s terms and conditions of employment and not something that merely has the potential to lead to such a result is not enough.”

The Labour Court also accepted that “an unjustified sense of grievance cannot amount to a detriment within the Statutory meaning” (Shamoon v. Chief Constable RUC [2003] 2 AER 26 par 35).

I further note the findings of the Labour Court in Cisco Systems Internetworking (Ireland) Limited and Olumide Smith EDA1829, where the Court stated that “It is well settled law that mere assertion cannot be elevated to the status of evidence”. 

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 her complaint to the Director General of the Workplace Relations Commission on 10 October 2023. Therefore, the cognisable period is the period from 11 April 2023 to 10 October 2023. No extension of the time limit was sought. The Complainant is not entitled to seek relief arising out of events post-dating the referral of the complaint.

The Complainant listed some 12 alleged acts of penalisation.

The first question for me to answer is whether the matters raised by the Complainant relate to safety health or welfare at work (as per section 27 3(c) of the Act as alleged by the Complainant.

At the adjudication hearing the Complainant and her representative asserted that the Complainant raised a health and safety issue on four occasions: at the meeting on 9 September 2021, at the meeting on 8 October 2021, by letter dated 14 April 2021 and by letter dated 21 February 2024.

I need to decide whether any of the matters that the Complainant raised fall within section 27(3)(c) namely that they are a complaint or representation as regards any matter relating to safety health or welfare at work.

The Complainant’s solicitor’s letter of 21 February 2024

The Complainant alleged that she raised a health and safety concerns by her solicitor’s letter of 21 February 2024. I note that the Complainant referred her complaint to the WRC on 10 October 2023 and, therefore, she could not have been penalised at that stage as a result of a letter that issued some 4 months later.

Meeting on 9 September 2021

There was no dispute that a meeting took place on 9 September 2021. Two sets of handwritten notes were exhibited. It appears that a variety of issues were discussed at the meeting from forged notes, through to mid-year review. The Administrative Officer’s note does not seem to make any reference to the issues the Complainant voiced at the meeting regarding her work colleague. The Staff Officer’s note contains a point stating “MM [the Complainant] referred to issues she had with [the work colleague]”.

It is unclear what issues the Complainant had or brought to the Respondent’s attention at that meeting. The Complainant herself did not provide much detail other than allegation that the colleague was insubordinate, problematic and that the Respondent failed to investigate her grievance made on 9 September 2021. I note that the Complainant who, by her own admission, was familiar with the Respondent’s grievance procedure did not raise a grievance at that stage.

I find, on the balance of probabilities, that the Complainant did not make a safety, health and welfare complaint at the meeting on 9 September 2021.

Meeting on 8 October 2021

There was no dispute that the Complainant met with the Staff Officer on 8 October 2021. The only record exhibited was the Staff Officer’s diary entry which stated:

“[The Complainant] [grade] requested that I meet with her privately after balancing. We met in room 132 at approx. 4.15 pm.

[The Complainant] outlined her concerns to me in relation to how [work colleague] [grade] interacts with her in the office e.g., not saying hello to her some morning, not using her first name when communicating, “blanking” her.

I listened to [the Complainant’s] concerns and informed her that I would have to meet with [the colleague] to outline [the Complainant’s] concerns and listen to her side.

[The Complainant], requested that [the colleague] and she sit down with me on Monday 18th Oct 2021 when she returns from A/L so that these concerns can be discussed.

The meeting ended at 5.35pm.”

At the hearing, the Complainant asserted that the memo is not an accurate record of what was discussed. However, there was nothing put before me to suggest that the Complainant raised any other issue other than her difficulties with the interactions with her work colleague as described above.

I find, on the balance of probabilities, that the Complainant did not make a safety, health and welfare complaint at the meeting on 8 October 2021.

The Complainant’s correspondence of 14 April 2022

The Complainant commenced her sick leave on 11 October 2021. I note that the Occupational Health assessments were arranged for the Complainant and the reports were shared with the Respondent. The Respondent acknowledged that the Complainant referenced “perceived work stressors” during the reviews (letter of 26 January 2022 and 31 March 2022).  The Complainant was deemed fit to engage with the Respondent and was invited to raise a grievance to allow the Respondent to investigate and address the matter.

At the hearing, the Complainant said that she was advised to “go the health and safety route” at that stage. By her own admission, up to this juncture she did not consider her concerns as health and safety related. By letter of 14 April 2022, the Complainant informed the Respondent that she did not wish to pursue a grievance. The Complainant did not describe the incidents/events she referred to and nothing other than the brief description in the Staff Officer’s note was provided by either party to clarify as to what exactly occurred between the Complainant and her coworker. It appears that at no stage in her correspondence did the Complainant allege bullying or harassment. She stated that the coworker has been “problematic and insubordinate” and named her as the “workplace stressor”. The Complainant further wrote that she outlined to the management “several incidents/events that caused me significant distress and harm in my place of work by the workplace stressor and additionally the lack of support by current management [section] who allowed her behaviour to continue, without correction or sanction and failed to manage her”. The Complainant referenced the Act and noted that she was of the opinion that she was “not protected by the management … from the [coworker], in providing me with a safe and supportive place of work.”

I note that, in the WRC submission, the Complainant’s representative refers to “workplace bullying patterns”.

In assessing whether the interpersonal grievance constitutes a protected act as alleged by the Complainant, I have considered the Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work, which defines bullying as:

“Repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could be reasonably regarded as undermining the individual’s right to dignity at work.”

The Code further clarifies that:

“… other on-going behaviours which may upset or unsettle a person may not come within the bullying definition either. Behaviour considered bullying by one person may be considered routine interaction by another, so the ‘reasonableness’ of behaviours over time must be considered. Disrespectful behaviour, while not ideal, is not of itself bullying. Conflicts and disagreements do not, of themselves, make for a bullying pattern either. There are various workplace behavioural issues and relationship breakdowns which are troubling, upsetting and unsettling but are not of an adequate level of destructiveness to meet the criteria required for a bullying case.”

While not specifically referring to bullying, it is apparent that the Complainant informed the Respondent that the coworker’s behaviour, in her view, created an unsafe place of work. The Complainant set out her complaint which was that she was being adversely affected because of how she was treated by a work colleague. I note that the Complainant did not ask for her complaint to be investigated but rather requested that an action is taken against her “stressor” and sanction recorded by HR. She further requested that she was given “guarantees that I am protected from this employee and facilitated a return to a safe and supportive work environment. It is my opinion that I should have no professional contact with her on my return to my current post…”

Having considered the submissions made and the evidence before me, I am satisfied that the communication from the Complainant to the Respondent reporting her concerns 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 now investigate whether the Complainant provided any evidence to show that she suffered detriment for doing so and the nature of that detriment. If I find that the Complainant has suffered detriment, I must then investigate if there is a causal connection between the detriment suffered by the Complainant and the fact that she raised a health and safety concern. If I find that there is a causal connection between the detriment suffered by the Complainant and the raising of a health and safety concern, it is then open to me to make a finding of penalisation under the Act. However, if I do not make a finding that the Complainant suffered detriment as a result of the protected act, then I will not be in a position to make a finding of penalisation under the Act.

I will now investigate each alleged act of penalisation which falls within the cognisable period of this complaint.

The Complainant listed 12 alleged act of penalisation which I will address below.

1.       Failure to investigate the Complainant’s complaint of 9 September 2021 in a timely manner, to follow a fair procedure which led to an extended period of absence from work and financial hardship.

The Complainant alleged that it was on ongoing penalisation. Having considered the matter, I find that at the meeting on 9 September 2021 the Complainant did not raise a grievance under any of the Respondent’s policies and procedures available to her. I accept the Respondent’s position that it could not embark on an investigation on its own accord. 

I find that the allegation above does not constitute penalisation as defined by the Act.

2.       Failure to pay the LS12 increment on 9 November 2021 which was raised in the first instance with the SEO Human Resources.

As I have found that the Complainant did not raise a protected act until her correspondence of 14 April 2022, I find that the allegation above does not constitute penalisation as defined by the Act.

3.       Failure to be kept appraised of all job vacancies during the Complainant’s period of illness.

4.       Failure to be kept appraised of Blended Working Communications issued during the Complainant's period of illness.

5.       Failure to be kept appraised of communications of Chief Executive and Human Resources issued during the Complainant’s period of illness.

The Complainant asserted that the above are ongoing acts of penalisation. The Complainant did not provide any specifics as to what job opportunities, blended working or CEO / HR communications she was not appraised of. Rather she made a sweeping allegation that she should have received all communication by post. Neither did she provide any evidence to support her assertion that the reason she was allegedly not appraised of the communications listed was because of her raising health and safety concerns.

There was no dispute that the Complainant remained on sick leave during the cognisable period. As a result, she had no access to her work email. There was also no dispute that, once the Complainant brought the matter to the Respondent’s attention, the Respondent forwarded the Keep in Touch form and explained to the Complainant how to sign up for text alerts and a hard copy of the Bulletin, had she not done it so far. The Complainant confirmed that she had not reverted regarding same.

I find that the allegation above does not constitute penalisation as defined by the Act.

6.       Failure to take appropriate action to provide the Complainant with a safe place of work, which resulted in injury to the Complainant with ongoing stress, financial loss and hardship.

The Complainant asserted that this is an ongoing act of penalisation. The Complainant did not provide any specifics regarding this assertion. I note that the Complainant asserted that this alleged failure to take appropriate action stemmed from her complaints in September and October 2021. As I have found that the Complainant did not make a protected act until her correspondence of 14 April 2022, I find that the allegation above does not constitute penalisation as defined by the Act.

7.       Failure to follow the recommendations of the Occupational Health report of 29 February 2024.

At the hearing, the Complainant agreed that this alleged penalisation falls outside the cognisable period. She asserted that the Respondent failed to follow the recommendation of “other” Occupational Health reports that were issued prior to October 2023. The Complainant failed to provide any specifics as to what recommendations were allegedly not followed and why did she believe that it was as a result of her raising a health and safety concern. Consequently, I find that the allegation does not constitute penalisation as defined by the Act.

8.       Failure to address the issues raised by the Complainant solicitor’s letter of 21 February 2024 which would have facilitated the Complainant’s return to work. It is noteworthy that the Respondent also refused to advise as to when the workplace stressor was transferred and only disclosed same on 7 March 2024.

This alleged act of penalisation allegedly occurred after the Complainant referred her claim to the WRC. As it falls outside the cognisable period, I am precluded from considering it.

9.       Failure to protect the Complainant’s personal data and information which has led to a protected disclosure arising from the incident at the named hotel on 8 April 2024.

10.   Failure to finalise the protected disclosure above.

11.   Failure to investigate the Complainant’s grievance in relation to the Senior Executive Officer, Human Resources.

The above alleged acts of penalisation allegedly occurred on 8 April 2024 and after 10 April 2024 when the Complainant’s solicitor wrote to the Chief Executive of the Respondent raising concerns and requesting an investigation into the matter. I note that these alleged acts of penalisation occurred after the Complainant referred her claim to the WRC. As they fall outside the cognisable period, I am precluded from considering them.

 12. Failure to consider the Complainant’s application for extension of TRR (Temporary Rehabilitation Remuneration Circular LG(P) 02/2023) which is equivalent to a payment of €189 per fortnight. TRR payment was exhausted in or around 13 December 2024 and an application to extend same was refused on the basis that the Complainant would not attend Occupational Health. The Complainant attended Occupational Health on 9 October 2024 and advised them that she could not give her permissions to have her records released to Respondent due to a serious breach of her sensitive and personal data by the Senior Executive Officer, Human Resources in a public meeting with an LGMA Representative at a named hotel on 8 April 2024. Complainant made a submission that she could not attend Occupational Health until she received proper assurances in relation to her personal data arising from the events of 8 April 2024.

I note that this alleged act of penalisation occurred after the Complainant referred her claim to the WRC. As it falls outside the cognisable period, I am precluded from considering it.

For all of the reasons set out above, I come to the conclusion that, as a matter of law, the acts and omissions relied upon by the Complainant in grounding her complaints of penalisation are incapable of amounting to a detriment within the meaning of section 27 of the Act. 

CA-00059313-002 under Schedule 2 of the Protected Disclosures Act, 2014

The issue for me to determine is whether the Complainant made a protected disclosure as defined by the Act and whether she was penalised for doing so.  

The Complainant relies on the same set of facts as in the claim pursuant to the Safety, Health and Welfare at Work Act, 20025 considered above.

The Complainant alleges that her health and safety concerns constitute a protected disclosure. It was asserted that the alleged relevant wrongdoing is encompassed by the definition in section 5(3)(b) and (d):

(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,

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

At the adjudication hearing, the Complainant’s representative confirmed that that the Complainant made a protected disclosure on four occasions: at the meeting on 9 September 2021, at the meeting on 8 October 2021, by letter dated 14 April 2021 and by letter dated 21 February 2024. While the Complainant and her representative did not assert that the Complainant made a protected disclosure by her letter of 30 November 2022, the Respondent asserted and accepted that this was the only occasion on which the Complainant made a disclosure.

In denying the Complainant’s allegations, the Respondent submitted that the matters raised by the Complainant related to interpersonal grievance and, therefore, fell outside the scope of the Act in accordance with section 5(5A) of the Act. It was also submitted that the Complainant did not suffer any form of adverse treatment of any description in the course of er employment as a result of making the disclosure.

The relevant law

The entire Act came into operation on 15 July 2014 (Protected Disclosures Act 2014 (Commencement) Order 2014 (S.I. No. 327 of 2014). The amendments effected by the Protected Disclosures (Amendment) Act 2022 came into operation on 1 January 2023 (S.I. No. 510 of 2022.)

The purpose of the Act is to provide protection for individual workers who make one or more protected disclosures from penalisation as a result of making the disclosure(s).

In investigating this complaint, I must first establish whether the Complainant made one or more disclosures which attract the protections of Act. If I establish that she did, I must then investigate whether she was penalised for making the disclosure(s), contrary to the provisions of the Act.

What is a protected disclosure?

The definition of “protected disclosure" is set out at section 5(1) of 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.

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 provides that information related to wrongdoings may be provided to a prescribed person, an employer, a government minister, a legal advisor or to another person.

A “protected disclosure” therefore, 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.”

In Barrett v Commissioner of An Garda Síochána [2023] IECA 112, the Court of Appeal emphasised that in order for something to amount to a protected disclosure, the worker must have a ”reasonable belief” that it tends to show relevant wrongdoing; this introduces an objective standard, requiring that “a reasonable person would have held the belief if he or she had the same information as the worker”.

Section 5(3) of the Act provides that the following are relevant wrongdoings for the purposes of the 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.

Section 5(5) of the Act provides that “a matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer”.

Section 5(5A) of the Act provides that “A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.

Section 5(7) of the Act provides that “the motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure”.

Section 5(8) of the Act provides “in proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is”.  The effect of this provision is to place the burden of proof in relation to a protected disclosure on the Respondent.

Section 6 of the Act sets out the way a disclosure is to be made in order to come within the ambit of the Act:

6. (1) A disclosure is made in the manner specified in this section if the worker makes it—

(a) to the worker’s employer, or

(b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly—

(i) to the conduct of a person other than the worker’s employer, or

(ii) to something for which a person other than the worker’s employer has legal responsibility,

to that other person.

(2) A worker who, in accordance with a procedure the use of which by the worker is authorised by the worker’s employer, makes a disclosure to a person other than the employer is to be treated for the purposes of this Act as making the disclosure to the employer.

Statutory time limits

The time limits are prescribed by section 41 of the Workplace Relations Act, 2015 as follows:

‘(6) 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.’

Subsection 8 stipulates that:

‘(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.’

The complaints were referred to the Director General of the WRC on 10 October 2023. Therefore, the cognisable period for the purposes of the claim is from 11 April to 10 October 2023. There was no extension of the time limits sought.

Burden of proof

The 2022 Act amends the burden of proof in penalisation and detriment claims to provide that in any proceedings for penalisation or detriment, it will be deemed that they were as a result a protected disclosure being made, unless the employer or person whom it is alleged to have caused the damage proves that the act or omission concerned was based on ‘duly justified grounds’.

Section 12(7)(C) of the Act provides that:

(7C) In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds.

In Aidan & Henrietta McGrath Partnership v Anna Monaghan PDD 2/2016 it was held that:

“The Court must first establish that a protected disclosure has been made before it can examine whether a penalisation within the meaning of the Act has occurred.”

The events and correspondence of 9 September 2021, 8 October 2021, 14 April 2021, 21 February 2021 are considered above.

While the Complainant did not assert that a disclosure was made by letter of 22 November 2022, I will address it for completeness.

The Complainant wrote to the Chief Executive of the Respondent on 22 November 2022 stating that she was making a disclosure under the Protected Disclosures Act 2014.

She stated that:

“In September, 2021 and October 2021, I raised issued with my line managers [section] regarding unsafe place of work under the Safety, Health and Welfare Act, 2005.

On 14 April 2022, I submitted a written disclosure to [named], Administrative Officer Human Resources which has resulted in injury, harm and financial hardship due to loss of earnings and penalisation.

To date, management have demonstrated a disregard to my work place safety.”

To constitute a protected disclosure under the Act there must be a disclosure of relevant information that in the reasonable belief of the individual tended to show a wrongdoing. 

Having regard to the foregoing, I find that the matters raised by the Complainant at the meeting on 9 September 2021, at the meeting on 8 October 2021, by letter dated 14 April 2021, and by letter dated 30 November 2022are matters “concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker”. Subsection (5A) provides that a matter solely concerning a personal employment grievance that only affects the reporting person is not a protected disclosure. Accordingly, I find that there were no relevant wrongdoings reported and that no protected disclosure was made.

CA-00059313-001 pursuant to Section 28 of the Safety, Health & Welfare at Work Act, 2005

I declare this complaint to be not well founded.

CA-00059313-002 pursuant to Schedule 2 of the Protected Disclosures Act, 2014

I declare this complaint to be not well founded.

Protected disclosure- health and safety - grievance