HSD2516

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00039180 (CA-00050541-005)

BACKGROUND:

The Complainant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts, 2005 to 2014. 

Labour Court hearings took place on 17 September 2025. The following is the Decision of the Court:-

DECISION:

1. Background to Appeal:-

This is an appeal of a decision of an Adjudication Officer in relation to a complaint of penalisation made by Jack Cuddy under the Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”) against his former employer, Ballyfin Demesne Limited.

The Adjudication Officer did not uphold his complaint of penalisation under the Act.

The Court heard his appeal together with other linked appeals UDD2534 and EDA2565 on 17 September 2025.  During the hearing, Mr Cuddy withdrew appeals of decisions made under the Terms of Employment Information Act 1994, the Protection of Employees (Part-time Work) Act 2001 and the Employment Equality Acts 1998 (in respect of allegations of discrimination on the gender, age and family status grounds).

The Court heard evidence from Mr Cuddy (the Complainant), and from Mr Peter White (former General Manager), Fiona Diffney (HR Manager) and Josephine Boles (external investigator). 

For ease of reference the parties are given the same designation as they had at first instance. Hence, Jack Cuddy is referred to as “the Complainant” and Ballyfin Demesne Limited is referred to as “the Respondent”.

2. Submission and evidence of the Complainant: -

The Complainant worked for the Respondent in a part-time capacity as a Food and Beverage Assistant from September 2019 to 29 May 2022.

The Complainant sought a meeting with the general manager on 12 November 2021 to discuss a pay increase and other work-related matters, including some concerns about health and safety standards. The general manager refused his request for a pay increase on the basis that he had to prioritise other employees with families and mortgages. He also made a distasteful remark about the Complainant’s own family circumstances. The Complainant subsequently learned that a female colleagues “Ms X”, who was employed in the same capacity was awarded a pay increase in August 2021. 

The hotel owner had previously advised staff to contact him personally with any concerns. He emailed the owner to express his concerns about the matters raised at the meeting of 12 November 2021 and subsequently instigated a formal grievance into those matters.

The HR manager conducted an investigation into his grievances. The investigation was biased. The HR Manager ‘brandished’ a health and safety report at him before he was given an opportunity to articulate his health and safety concerns. He was not given a fair opportunity to be heard during the investigation. The Complainant felt isolated and ostracised at work for raising his concerns. On one occasion he was scheduled for a lunch break on his own.

The Complainant agreed to move to the next stage of the grievance process which was conducted by an external consultant. Terms of Reference were agreed on 28 December 2021.  The investigator deviated from the terms of reference without the Complainant’s consent by suspending the investigation to explore a settlement agreement.

The Complainant was unavailable for work for a period after 22 December 2021, as he was concerned about putting his family members at risk of the Covid-19 virus. He later informed the Respondent that he was available to work the weekend of 19/20 February 2022 but was not rostered for duty over two consecutive weekends.

The Complainant felt ostracised and isolated on his return to work on 6 March 2022, because of the way that his health and safety concerns were addressed at a team meeting.

He was unable to attend work thereafter due to work related stress. He informed HR that he was feeling stressed, but no actions were taken to safeguard his mental health during the grievance process. The Respondent acted unreasonably by failing to address his concerns. 

The investigation findings were disseminated on 28 April 2022. The Complainant resigned his employment prior to the implementation of recommendations arising for the report.

The Complainant was penalised for expressing health and safety concerns. He was penalised at a grievance meeting on 18 November 2021, as the HR Manager displayed bias by “brandishing” a Health & Safety Report at him before he had an opportunity to explain his concerns. He was penalised on 20 November 2021 when he was required to take his lunch break on his own, which made him feel ostracised an isolated.  The General Manager insinuated that he was attempting to blackmail the company. He was suspended without pay for raising health and safety concerns and suffered a financial detriment. When he returned to work on 6 March 2022 after a period of absence, he felt ostracised and isolated at the team meeting because of the way health and safety matters were addressed by the team manager.  The Respondent’s actions contravened section 25 of the Act.

3. Summary of the Respondent’s Case: -

It is accepted that the Complainant raised health and safety matters at a meeting with the General Manager on 12 November 2021. The Respondent rejects that the Complainant was subject to penalisation for raising health and safety concerns. 

The Complainant lodged a formal grievance about his request for a pay increase and other workplace matters that he raised at a meeting with the General Manager on 12 November 2021. His formal grievances were investigated and the outcome issued to him on 1 December 2021, in which he was advised that a review of all pay rates had been undertaken and that he would receive a pay increase in January 2022. The Complainant took issue with the report and alleged bias on the part of the HR manager who conducted the investigation, an allegation that is denied.

The Respondent appointed an external independent investigator to investigate all claims and allegations made by the Complainant. The external investigator found no evidence that the Complainant was denied equal pay with a colleague based on his gender. She noted that out of cycle pay increases should have a solid business case. She was of the view that there was “not a very clear definition” in respect of roles and responsibilities.  She recommended that the Complainant’s pay be backdated to August 2021, the date that the Comparator received her pay increase, on the basis that there was ambiguity regarding the difference between the roles.

The Complainant resigned his position 19 hours after the recommendation was made. The Complainant did not give the Respondent an opportunity to review or act on any of the suggested recommendations before he resigned. The Respondent was asked to reconsider his resignation, but he insisted on resigning.

The Complainant raised several workplace issues. The Respondent took his health and safety concerns very seriously and invested time and resources into fully investigating his complaints. The Complainant has provided no evidence that he was subject to penalisation or suffered any detriment. The Respondent rejects any assertion that the Complainant was penalised for raising health and safety concerns. 

Evidence of Peter White – General Manager

Mr White gave evidence of the meeting on 12 November 2021 when the Complainant requested a pay rise and raised health and safety concerns. The meeting lasted about an hour. He explained to the Complainant that he would receive an increase in January 2022, when the budgetary process concluded. The Complainant had siblings who had worked in the hotel and talked about that fact. He made a frivolous comment that it was a shame the Complainant was the last to work in the hotel, to which the Complainant took offence. He apologised for that comment. He denied saying that the Complainant could pursue opportunities elsewhere.

He accepted that another employee was awarded an out of cycle payment the previous August. Mr White said that he took the Complainant’s concerns seriously and escalated the matters raised to HR who had responsibility for health and safety. Mr White was disappointed when the Complaint resigned as he thought there was a resolution to the matters he raised.

Evidence of Fiona Diffney HR Manager

Ms Diffney commenced employment with the Respondent in October 2021 and was responsible for conducting an investigation into the Complainant’s grievances after he emailed the hotel owners with his concerns.

Ms Diffney met with the Complainant on 18 November to discuss his grievances. His primary focus was on securing a pay increase as he felt that he should receive the same pay as another female employee. Pay awards in the company are not based on gender. The Complainant also raised other concerns relating to an alleged breach of data, comments made by the general manager at their meeting on 12 November and some health and safety matters.

Ms Diffney said that she did not brandish a health and safety report at the Complainant, as alleged.  She shared the findings of a report from the Health and Safety Authority from a few weeks previously that had found no issues. She enquired what outcome the Complainant wanted from the process and addressed those requests in her findings. She recommended that he receive (i) a pay increase, (ii) further training and (iii) that the general manager acknowledge the impact of his comments.  Ms Diffney stepped back when the Complainant accused her of bias, and the Respondent appointed an external investigator to conduct a second grievance investigation.

Ms Diffney was extremely disappointed when the Complainant resigned, as the company had invested a lot of resources into addressing his concerns. His resignation was a rash decision. He did not reply to her request to reconsider his resignation, which would have given the Respondent an opportunity to implement the recommendations of the external investigator.

In cross-examination, Ms Diffney said that she agreed not to roster the Complainant for a period in February 2022 when the external investigator proposed exploring settlement talks. He was rostered for duty as soon as she became aware that he was not interested in exploring a compromise agreement. She did not agree that the Complainant was isolated during break periods when he worked as the standard practice was to have a staggered overlap of breaks.  She was aware that the Complainant had an ear infection, but not of any work-related stress issues.

Evidence of Ms Jo Boles

Ms Boyles was engaged to undertake an independent second grievance investigation. The investigation took some time to conduct. She met with the Complainant by phone on 24 January and 18 February 2022. She interviewed three other people as part of the investigation.  The Complainant had a lot of strong emotions about the issues he raised. He felt that trust had broken down, and she felt it would be remiss of her not to explore a settlement. He later confirmed that this was not what he wanted and agreed that Ms Boles should conclude the investigation.

Ms Bols set out seven recommendations in her outcome report, all of which supported the Complainant. She recommended that he receive a pay increase back dated to August 2021 and payment for shifts missed while the compromise agreement was explored. She also recommended more transparency around out of cycle pay reviews.

4. Relevant Law: -

Section 27 of the Safety, Health and Welfare at Work Act, 2005, provides as follows:

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—

(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,

5. Deliberations: -

The Court’s jurisdiction under Section 27 of the Act is narrow in its application. The section 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.

The Court in considering the complaint must address three questions. In the first instance the Court must be satisfied that a protected act has taken place as described in the Act. Secondly the Court must be satisfied that the Complainant suffered a detriment during the relevant period. Finally, the Court must decide whether the detriment was suffered because the Complainant made a protected act.

It is accepted that on 12 November 2021 the Complainant made a complaint to the General Manager, Peter White, in relation to health and safety concerns. 

As a result, the Court finds 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”.

The Complainant contends that he felt penalised for raising health and safety concerns as follows:- .

18 November 2021: -

The Complainant contends that he was penalised at a grievance meeting on 18 November 2021, when Fiona Diffeny, HR Manager, displayed bias by “brandishing” a Health & Safety Report at him before he had an opportunity to explain his concerns. The Respondent denies that the Complainant did not get a fair hearing and rejects any allegation of bias.

The grievance meeting was scheduled to investigate other matters raised by the Complainant, in addition to his health and safety concerns. The Complainant accepted in evidence that Ms Diffney did not display any bias, nor did he raise any concerns, at the meeting. The Court preferred Ms Diffney’s evidence that the purpose of sharing the Health & Safety Report, which found no health and safety breaches on foot of a HSE inspection in September 2021, was to reassure him. The Complainant expressed concerns of bias on receiving the grievance outcome. At that point, the Respondent engaged an external independent person to conduct a fresh investigation into his grievance complaints.

Having regard to the above, the Court finds the Respondent took concerns raised by the Complainant seriously and finds no basis for the contention that he was penalised at the meeting on 18 November 2021. The Court finds this aspect of the complaint is not well-founded.

20 November 2021: -

The Complainant contends that he was penalised on 20 November 2021 when he was required to take his lunch break on his own, which made him feel ostracised an isolated. The Respondent says that it was not possible for the Complainant to be isolated on his breaks as it is standard practice to have a staggered overlap of breaks. The Court preferred the evidence of Ms Diffney on that matter and finds no basis for the Complainant’s contention that he was penalised for raising a health and safety complaint on 20 November 2021. The Court finds this aspect of the complaint is not well-founded.

Insinuation of Blackmail: -

The Complainant contends that he was penalised for raising health and safety concerns as he the General Manager insinuated that he was attempting to blackmail the company. The Complainant relies on meeting notes dated 23 February 2022 when the General Manager was interviewed as part of the investigation conducted by the by the external investigator.

The meeting notes record the manager paraphrasing his recollection of the meeting on 12 November 202. The manager’s recollection was that the focus of the November meeting was the Complainant’s request for a pay rise and that health and safety concerns were only raised as a ‘threat’ after the requested pay increase was refused. Notwithstanding that fact, the Complainant did not establish any detriment in relation to the manager comments. His health and safety and wider concerns were fully investigated.  He was awarded a pay increase the following January. The Court can find no basis for the Complainant’s contention that he was penalised because of comments recorded in the investigator’s meeting notes, dated 23 February 2022.  The Court finds this aspect of the complaint is not well-founded.

Suspension without Pay: -

The Complainant contends that he was penalised as he was suspended without pay for raising health and safety concerns.  Under cross-examination, the Complainant accepted that was not the case. The Court finds this aspect of the complaint is not well-founded.

Financial Detriment: -

The Complainant contends that he was penalised as he suffered a financial detriment when not rostered for duty on two consecutive weekends in February 2022.

The Complainant was taken of the rota in December 2021, at his own request, as he did not want to put family members at risk of infection due to high levels of Covid-19 at the time. He informed the Respondent that he was available to work the weekend of 19/20 February 2022. The Respondent submits that he was not rostered that weekend as the external investigator was exploring a potential compromise agreement on a without prejudice basis.

On 16 February 2022, the Complainant informed the Respondent that was available to work the weekend of 26/27 February 2022. He was not rostered that weekend, as the roster was finalised by the time the Respondent became aware that the Complainant was not interested in a compromise agreement.

The Complainant accepted that the External Investigation raised the possibility of a settlement in good faith. The Court is satisfied that the fact that the Complainant was not rostered for duty on two consecutive weekends – 19/20 and 26/27 February 2022 – was not related to him making a health and safety complaint. The Court finds this aspect of the complaint is not well-founded.

6 March 2022 :-

The Complainant contends that he was penalised on his return to work on 6 March 2022 at a team meeting. He contends that he felt ostracised and isolated at the team meeting because of the way health and safety matters were addressed by the team manager. The Respondent contends that the Complainant cannot assert that he was penalised by management issuing reminders to staff at team meetings about compliance with health and safety matters.

The Complainant’s evidence was that he was slagged off at the meeting and subjected to ‘constant jibes’ for raising health and safety concerns. In his view the manager was ‘over the top’ in reiterating the need to comply with the exact same health and safety standards that he had raised in his complaint. He said that everyone was joking and nodding towards him.

The Complainant took exception to the way health and safety matters were addressed at the meeting. While the Court found the Complainant reacted in an overly sensitive manner in relation to some events during his employment (which he progressed as complaints under other statutes) the Court found his evidence that he felt ostracised and isolated for raising health and safety concerns at the meeting on 6 March 2022 compelling. The Court heard no evidence from the manager or other staff who attended the team meeting. Whether the manager believed that he was engaging in workplace banter or playful teasing is irrelevant to the impact of his behaviour on the Complainant, which had the effect creating an intimidating work environment for him. On the uncontested facts presented, the Court is satisfied that the Complainant suffered a detriment for raising health and safety at the meeting on 6 March 2022. The Court finds this aspect of the complaint is well-founded.

The 2005 Act prohibits employers from penalising employees for making complaints in respect of health and safety matters in the workplace. The Court is satisfied that the Complainant has established that he committed a protected act within the meaning of Section 27 of the Act. The Court is further satisfied that the Complainant has established that she suffered a detriment of a type referred to at subsection (1) of Section 27 in that he was subject to intimidating behaviour at a team meeting on 6 March 2022.

The Act requires the Court, in considering redress, to have regard to all the circumstances of the within complaint in determining the amount of compensation which is just and equitable arising from a determination that the within complaint is well founded.

Having regard to all the circumstances however, the Court determines that the amount of compensation which is just and equitable is at €3,000.

6. Finding: -

The Complaint under the Act is well founded.

The decision of the Adjudication Officer is set aside.

The Court determines the amount of compensation which is just and equitable having regard to the circumstances of the case at €3,000.  

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
19 December 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Therese Hickey, Court Secretary.