Complainant

Respondent

Parties

Lorraine  O'Brien

Stewarts Care [amended on

consent at hearing]

Representatives

Self-Represented

Self-Represented

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00070220-001

24/03/2025

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

CA-00070220-002

24/03/2025

This matter came before the Workplace Relations Commission dated 24/03/2025.  The Complainant alleges contravention by the Respondent of provisions of the above listed statute in relation to her employment with the Respondent.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 25/07/2025. 

The Complainant was employed as a catering assistant at all material times.  The Complainant commenced employment with the Respondent on 25/07/2022.  The Complainant works 20 hours per week for which she receives €1587.54 gross per month. 

The Respondent is a service dedicated to providing care for individuals with intellectual disabilities and operates both a Residential Service and a Day Service.  The Respondent employees 1550 staff across 177 locations. 

The Complainant alleges that she was penalised by the Respondent after she raised Health and Safety issues. 

The Respondent refutes these allegations in their entirety.   

Both parties provided helpful written factual submissions in advance of hearing for which I am grateful.  There were no legal submissions filed.   Accordingly, the burden of proof was explained to the parties both of whom presented as litigants in person. 

Overview of WRC complaint form

CA-00070220-001

Complaint pursuant to section 28 of the Safety, Health and Welfare at Work Act, 2005

The Complaint submits that on March 3 she was 2025 she was told by her manager the Food Services Division Manager that she was being moved from her post in Millie’s to be upskilled.  She was told she would be moved from place to place during this upskilling meaning that she would have no real base as she does with Millie’s.  The Complainant submits she mentioned that she never asked to be upskilled and said that she was happy in Millie’s.  The Complainant submits the Food Services Division Manager then said “that’s not what your emails said.”  The Complainant submits she said she had sent some emails about concerns she had about Health and Safety Issues and vulnerable service users in Millie’s but never once had she said that she was unhappy working there.  The Complainant submits she has worked there for nearly three years now and she is hard working, diligent and she loves her job.  The Complainant submits that when she is not in work she cares for her mother so she works around this.  The Complainant submits she tried to ask questions but she was interrupted and spoken over.  The Complainant submits she even asked the Food Services Division Manager at one stage if she was not allowed to ask questions.   The Complainant submits she felt intimidated and embarrassed at how she was being spoken to because she was aware a care staff member and service user were sitting nearby and could hear everything.  The Complainant submits that she feels that because she raised concerns in her work place that she has been penalised and turned into a ‘spare part’ or a ‘floater’ which has not happened to anyone else in the catering department.  The Complainant submits the whole situation has left her feeling completely disrespected and distressed. 

CA-00070220-002

Complaint pursuant to section 28 of the Safety, Health and Welfare at Work Act, 2005

The Complainant submits that on 23 January the Food Services Division Manager phoned her to say Millie’s would be closed the following day because of storm Eowyn.  The Complainant submits she had already been informed that all other staff in Rosse Court were told that the building would be closed and that they would be paid emergency leave for that day.  The Complainant submits the Food Services Division Manager said he still wanted her to come in and clean Millie’s and she said no.  The Complainant submits her shift was scheduled to be 8 – 12 on the day of the storm.  The Complainant submits the Food Services Division Manager asked why she would not come in and she said she was following Government guidelines and staying safe.  The Complainant submits she was at home the following morning when she received a message on Microsoft Teams from the Food Services Division Manager asking her to confirm that she would be taking the day as annual leave to which she submits she replied no because she had been informed of her rights.

The Complainant submits she had been paid for the storm day but she had no contact or conversation with the Food Services Division Manager regarding the situation at any time during or after this.  The Complainant submits the whole situation left her feeling there was a complete lack of respect or dignity for her in her workplace and she also feels that it contributes to why she is being penalised at the moment.   

Summary of direct evidence of Complainant on oath

The Complainant submits she was told by the Food Services Division Manager and Louise Tucker (Food Services Division Deputy Manager) (hereafter LT) that they were moving her because she needed to be upskilled and she was upset.     The Complainant submits she liked it where she was and she never said she wasn’t happy there.  The Complainant submits during the meeting to discuss the Food Services Division Manager spoke over her, he was loud, he told her it was none of her business whoever else was being moved and the Complainant submits it was a horrible conversation.

The Complainant submits LT told her they could extend the date for the move.  The Complainant submits she felt embarrassed and upset and this was being done because she raised concerns.  The Complainant submits she was being victimised and penalised because she raised concerns.  The Complainant submits her trade union did not provide any support to her in filing her claim.

The Complainant submits she raised her first complaint in June 2024 in which she flagged an issue for what she refers to as “safety reasons”.   

The Complainant submits in January 2025 she was asked to come in to clean the restaurant the morning of storm Eowyn despite the building being closed. 

The Complainant submits she sent another email on 14 January 2025 raising issues about service users not having enough cash or their cards being declined and about staff asking can they take a drink or a bar of chocolate and they will come in and pay later.

The Complainant submits she sent an email on 22 January detailing her concerns about a service-user in which she expressed concerns about his safety. 

The Complainant submits she was being moved because she spoke out about these things and they just moved her out and made her a floater.  The Complainant submits the Respondents position on the transferability policy just does not stand up.  The Complainant submits there was no need to move her as she and her colleague had come up with a proposal which was an alternative to moving her. 

The Complainant submits she is currently on sick leave and that there are two people working there who are related which is against company policy.  The Complainant submits the 25 April was her last day in work and that she did return on the 19 May to a different location where she worked for one day and then she went sick again. 

Summary of cross-examination of Complainant

The Complainant is asked about email from the shop steward to which she replies nobody contacted her.  It is put to the Complainant that she didn’t lodge a grievance to which she replies she did send an email but it was ignored.  It is put to the Complainant that the issues she had raised about the service users were found to be objectionable by the Respondent as the service users have a right to be in all the areas and that they are entitled to go into the restaurant to which the Complaint replies she is not going to have this turned on her and that she has a great rapport with all the service users. 

The Complainant is asked if the matters referred to in her emails were reported as incident reports on the SIMS system to which she replies she once sent an incident report.   It is put to the Complainant that it is not her job to raise incidents such as those raised by her as they are care responsibilities and not a catering assistant responsibility. 

Complainant’s closing submission

The Complainant submits that but for her raising these issues she would still be in Millies and that the cross over suggested by her and her colleague would have worked. 

Overview of Respondent written submission

The Respondent has set out a chronology of email traffic commencing in February 2023.  It is submitted that on 3 March 2025 a meeting took place attended by the Complainant together with LT and the Food Services Division Manager in relation to a restructuring within the Food Service Division and that as part of that restructuring the Complainant would be transferred to a new location on campus and the Complainant was advised that this would help with upskilling her.  The Complainant requested an additional month in Millie’s which was granted.  The Complainant commenced sick leave on 28 April 2025. 

The Respondent submits the Complainant’s claim regarding the storm day in January 2025 was processed and paid appropriately through payroll consistent with payments made to other affected staff.  The Respondent submits the March notification of the Complainant’s transfer was conducted in accordance with the Staff Mobility and Transferability Policy embedded within all staff contracts.

It is submitted this policy supports professional development by enabling all staff to gain experience in various organisational areas.  It is submitted the transfer was independent of the storm day claim; therefore, any suggestion of penalisation related to this matter is unfounded.  It is noted by the Respondent that the Complainant did not utilise the organisation’s internal grievance procedure which would have facilitated a formal and timely resolution of her concerns. 

Summary of direct evidence of Respondent witness Louise Tucker hereafter LT on oath

The witness submits there was a requirement to look at an overlap scenario with regard to staffing in the restaurant at the busy time as at the time there were two staff both of whom worked a 4 hour day.  The witness submits alternatives were looked at including staggered breaks and that there are 5 different catering areas.

The witness submits the Complainant’s move was pushed out and that when her mother became unwell she had looked for force majeure days but during a phone conversation between the Complainant and the witness the witness submits she told the Complainant not to be worrying any of this now and suggested maybe to get a cert to avoid using up her annual leave. 

The Complainant did not avail of the opportunity provided to cross-examine the Respondent witness

The Complainant did ask a question of the Respondent attendees as to why she was asked to come in during storm Eowyn and it was submitted by way of response that some departments were left open. 

Upon inquiry the Complainant submitted she was asked to come in; she refused and she didn’t attend and she did get paid and she submits she should never have been asked in the first place. 

Upon inquiry LT submitted that it was she and the Food Services Division Manager who held the discussions on the Complainant’s proposed move and that they rotate staff all the time and locations change all the time. 

Respondent closing submission

It is submitted there is no location set out on the contracts of employment and that contractually they don’t have to give a location due to the business requirements.  It is submitted the Complainant once a year relocates to the Coach Houe when Millies’s is closed so that she does not take annual leave and she is facilitated by the Respondent is doing so. 

CA-00070220-001

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.   I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

Having carefully considered at length all the evidence presented to me I find the within complaint is characterised by significant disparity in the perception of the parties as to the manner in which events unfolded.  The timeline of the relevant events is not in dispute albeit each party sought to interpret events in accordance with their respective positions.  

Notwithstanding, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing.   

This complaint was received by the WRC on 24/03/2025.    

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 24/03/2025.   Therefore, the cognisable period runs from 25/09/2024 to 24/03/2025. 

In the instant case, the Complainant claims that she was subjected to penalisation by the Respondent in relation to her conditions of employment contrary to Section 27(2) of the Act for having made a series of complaints to management in relation to matters concerning health and safety issues in the workplace. 

The Relevant Law

Safety, Health and Welfare at Work Act, 2005 (the “SHWWA”) states:

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

28.—(1) Without prejudice to section 27 (4), an employee may present a complaint to a rights commissioner that his or her employer has contravened section 27.

(2) Where a complaint under subsection (1) is made, the rights commissioner shall—

(a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint,

(b) give a decision in writing in relation to it, and

(c) communicate the decision to the parties.

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

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

(b) require the employer to take a specific course of action;

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

(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of the contravention to which the complaint relates or such further period not exceeding 6 months as the rights commissioner considers reasonable.

The jurisdiction of the WRC under section 27 of the SHWWA is narrow.  Section 27 of the SHWWA only applies where an employer penalises or threatens penalisation against an employee for making a complaint or representation to their employer regarding a matter relating to safety, health, or welfare at work.

In order to succeed in a claim under section 27 of the SHWWA a complainant must demonstrate that he/she has:-

(a) committed a protected act within the meaning of subsection (3) of section 27 of the SHWWA;

(b) suffered a detriment within the meaning of subsection (1) of section 27 of the SHWWA; and

(c) can show a causal connection between (a) and (b).

The requirements to establish that penalisation under section 27 of the SHWWA has occurred were set out most clearly in Paul O’ Neill v. Toni and Guy Blackrock Ltd (2010) 21 ELR 1.

The test for this is set out in Toni & Guy Blackrock Ltdin which the Labour Court determined that the employee must prove on the balance of probabilities that he/she made complaints regarding health and safety in the workplace and such complaints resulted in him/her being penalised in the workplace.

Once these two proofs have been satisfied, it is for the employer to satisfy the court that the health and safety complaints did not influence the treatment of the employee. The Court stated:

“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 Labour Court also gave consideration to what was required in order to discharge this burden of proof stating:

“…the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act…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 detriment.”  [emphasis added]

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

The Relevant Facts

At the outset it is necessary to establish if there has been a protected act and the second requirement is the Complainant must have suffered a detriment as a result of raising a concern protected by the SHWWA.   

In the instant case the Complainant must establish: (a) on the balance of probabilities, that she committed a protected act, (b) that she suffered a detriment (c) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed.

The first detriment alleged is that the Complainant was re-relocated.  The second detriment alleged is that the Complainant was asked to come to work the day of storm Eowyn. 

The Complainant’s claim is grounded in three emails she sent to management which she claims are protected acts under the 2005 Act as follows:

1.      An email on 26 June 2024

2.      An email on 14 January 2025

3.      An email on 22 January 2025

The matter that I need to decide is whether any of the matters that the Complainant raised in emails 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. 

I have carefully reviewed the content of the email of 26 June and I note the Complainant writes “I feel like I have to flag what is going on up here in Millie’s mainly for safety reasons.  From 12 onwards it is total chaos and it seems to be getting worse as the days go on.  The restaurant is overcrowded and I feel like it is an accident waiting to happen.”  [SIC]

I am satisfied that this email raising concerns with management constituted a protected act under the SHWWA.  I am satisfied the complaint related to safety, health or welfare at work and satisfies the requirements of the SHWWA. 

I have carefully reviewed the content of the email of 14 January 2025.  This email describes issues with service users not having enough cash or their cards being declined.  The email describes issues with staff asking if they can take a drink or a bar of chocolate and they will come back in and pay later.  The email sets out that they have had “some service users erupt when we tell them they don’t have enough money to buy their items but that should not be our issue because we feel that staff should be on top of this before service users come into Millies.” [SIC]   

The matters raised in this email from the Complainant to the Respondent relate solely to operational matters and have no bearing on or relationship to health and safety matters even by affording that email content the broadest interpretation.  For the reasons set out, I am not satisfied the Complainant’s email of 14 January 2025 constitutes a protected act. 

I have carefully reviewed the content of the email of 22 January 2025.  I note the Complainant sets out what she perceives as a deficit in the care being provided to one of the service users.  I note the Complainant expresses her concerns about the service user’s safety when he is rearranging things at the counter during rush hour and when he is trying to bring out the bins which the Complainant states is not safe for him.  I am satisfied this email relates specifically to care issues regarding the service user and not to health and safety matters within the remit of the Complainant as catering assistant.  I note the Complainant herself very clearly sets out in her email that she is not care staff and that she is a caterer and she expresses a preference that as they are extremely busy this particular service-user might use the restaurant at a time between 9.30 until 10.30 when they are less busy as that would be more convenient.   For the reasons set out, I am not satisfied the Complainant’s email of 22 January 2025 constitutes a protected act. 

I am satisfied that the email of 26 June 2024 constitutes a protected act.  Having found that the Complainant had made a protected act, I must establish whether or not she has suffered a detriment for so doing.  The word “detriment” is given its ordinary and natural meaning of causing harm or damage as held by Hyland J in Conway v. Department of Agriculture [2020] IEHC 665.    

Accordingly, it falls to me to determine whether or not there is a causal connection between the protected act and the alleged detriment which the Complainant claims is her re-location.  It is ironic that it is the content of the aforesaid email in which the Complainant set out her concerns about the “total chaos” in the restaurant that she states is “very overwhelming for one member of staff to be dealing with” which was the catalyst that triggered a review of the resources in the restaurant which was duly undertaken by the Respondent. 

It is not in dispute the Complainant works from 8 – 12.  The Complainant’s colleague works from 12 – 4.  The Complaint submits in her email that it is “total chaos” from 12 onwards.   It would appear that as she would have left at 12 then the colleague coming on to undertake her 12 – 4 shift would have been on her own.   

The Respondent submits they reviewed the resourcing and could see there was a requirement for an overlap of resources during the busy lunch time period.  The Respondent submits it was decided to replace the Complainant with a staff member who works 7 hours per day and this would provide the necessary overlap. 

I am of the view it is a managerial prerogative to manage resources and to deploy resources in a manner which suits the needs of a business and this would be consistent across both the private and the public sector. 

I note the Complainant submits that she and her colleague had already come up with a solution that would provide the necessary cover. 

However, I note this solution proposed by the Complainant and her colleague was not a cost neutral solution as it would involve the payment of overtime which the Respondent states was unsustainable given they already had the resources available and they were not in a position to incur any cost increases when there was a viable cost neutral solution available to address the requirement for extra cover during the busy lunch time period.      

Having carefully considered the facts as set out by both parties and having applied the law to the facts it is apparent that there is more than one causal factor in the chain of events leading to the detriment complained of namely the re-location of the Complainant.   I am unable to accept that being re-located having considered all the circumstances provides grounds to substantiate a claim of detriment. 

Section 27 of the SHWWA requires that any alleged penalisation must be in response to and because of a complaint being made.  It cannot be that it would have happened anyway.   On the balance of probabilities, I am satisfied the re-location of the Complainant would have happened anyway when I consider the totality of the circumstances as set out.  I am satisfied it was inevitable that it was the Complainant who would have been re-located for the following reason.      

I am satisfied that when the catering assistant working a 7 hour per day shift would re-locate to Millie’s this would result in resources superfluous to requirements for the whole of the Complainant’s shift as there was no evidence presented to me that there might have been a requirement for two catering assistants in the morning.  I am satisfied it would have been counter-productive to re-locate the Complainant’s colleague on the 12-4 shift as this would have resulted a scenario with only the 7-hour shift person in situ during the period of chaos as described by the Complainant as she (the Complainant) would have left at 12 having completed her shift.    

Having considered the evidence I am satisfied that when the Complainant raised an issue about the “total chaos” in the restaurant there was an onus on the Respondent to act on that.  The unintended consequences of this action on the part of the Respondent to address the very issues raised by the Complainant culminated in a re-location for her due to the fact her hours would now be covered by a staff member working 7 hours.   

Section 27(2)(c) indicated that changing a location of a place of work may amount to penalisation, I find that the Respondent has established a reason for the change of location of the place of work that is unrelated to possible penalisation.  I find that it was reasonable for the respondent to move the complainant to another location in all the circumstances and that penalisation has not been established in relation to this complaint.  Accordingly, I do not find that the complainant was penalised within the meaning of the Act.

CA-00070220-002

The Complainant submits she received a phone call on 23 January 2025 from the Food Services Division Manager informing her the restaurant would be closed the following day because of the storm and requesting that she come in and do her usual 8 – 12 shift carrying out cleaning.  I note the Complainant submits this contributes to why she is being penalised at the moment. 

I note at hearing the Complainant submits the building was closed and there was nobody in it yet she was asked to come in about which she clearly feels aggrieved.  However, I note in attendance in the building on that particular day were a security guard, a maintenance technician, a catering assistant together with two independent living staff.  Having considered totality of the circumstances I am unable of find that a request to attend on the day to be an act of penalisation arising from the email of 26 June 2024 which I have found to be a protected act. 

I note the Complainant refused to attend on the day.  I note the Complainant was paid for the day.  I note the Complainant submitted at hearing this is not the point and the point is that she should not have been asked. 

However, I note the Complainant was not the only person requested to attend as her colleague was also asked.   I am unable to find the request to attend to be a detriment suffered by the Complainant in circumstances where others also were asked to attend.    

I am satisfied the Complainant was not the only catering assistant requested to attend on the day and I am unable to find that the request to attend to be a detriment suffered by the Complainant as alleged. 

I find that the complaint of penalisation is not well founded as the Complainant has not established a primary causal link to a request to attend the building on the day of the storm and the complaint made under the Safety, Health & Welfare at Work Act, 2005 as amended.   I find that the complaint is not well founded.

CA-00070220-001

For the reasons set out above I decide this complaint is not well-founded. 

CA-00070220-002

For the reasons set out above I decide this complaint is not well-founded. 

Detriment; causal link; more than one causal factor;