HSD2518

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00037355 (CA-00048676-001)

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.  A Labour Court hearing took place on 7 October 2025.

The following is the Decision of the Court:-

DECISION:

This is an appeal by Renata Capala (“the Complainant”) against a Decision of an Adjudication Officer given under the Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”) against Maybin Support Services Ire Ltd (“the Respondent”).

The Adjudication Officer found that the complaint was not well founded.

The Complainant lodged an appeal of that decision and a linked appeal PDD2515 to the Labour Court.

1. Preliminary Matters

A preliminary matter was raised by the Respondent in relation to the time limits under the Act for lodging a complaint. The Respondent submits that the complaint was statutorily barred as it was not presented to the Adjudication Services within the relevant statutory timelines. The complaint was lodged to the Workplace Relations Commission on 16 February 2022. The relevant period for consideration by the Court in the first instance is the period from 17 August 2021 until the 16 February 2022.

Rule 34 of the Labour Court Rules provides that: -

“The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling and/or where it has the potential to be determinative of the case”.

The Court proposed that it would hear and decide the preliminary matter of time limits in the first instance. It advised the parties that should it decide that the appeal was lodged within time, a further hearing would be scheduled, and the Court would proceed to consider the substantive appeal. If the Court decided that the complaint was lodged outside the time limits set down in the Act, the appeal would be found to be out of time and statute barred.

By agreement with the parties, the Court proceeded on that basis and heard submissions from both parties on the preliminary matter. The parties lodged supplementary submissions on the preliminary matters raised.

2. Summary of Respondent’s position

The complaints raised by the Complainant were not protected disclosures. She was never penalised for raising matters.

The complaint is statutorily barred as it was not presented to the WRC within the period of six months beginning on the date that the contravention relates.  No reasonable cause has been identified by the Complainant, to extend the timeframe for consideration of his complaint.

No application was made by the Complainant to extend the statutory at the WRC hearing.

The Complainant was at all times represented by a professional registered Trade Union, who acted on her behalf throughout the entirety of her case and would have been fully aware of the statutory time limits in filing complaints to either the Labour Court or the Workplace Relations Commission.

Accordingly, as no reasonable cause exists, we respectfully suggest that the Complainant's claims cannot proceed.

3. Summary of Complainant’s position

The Complainant was employed as a cleaner in a public hospital and raised serious health and safety concerns affecting staff and patients. The complaint was lodged within 6 months of the final act of detriment and, therefore, within the statutory time limit under Section 41(6).

On 21 July 2021, she was threatened with disciplinary action for making a protected disclosure under the Act. The Complainant opposed this threat and the dispute remained active until 17 August 2021, when management stated that the matter was “closed.”

The Complainant was absent on medically certified sick leave from May 2020 due to stress caused by the unsafe working conditions and the disciplinary threat. This leave continued uninterrupted until April 2023. During this period the employer made no contact with the Complainant for approximately six months. The Complainant was excluded from company mailing lists and denied access to her employer account, preventing her from receiving updates or participating in workplace processes. The Complainant remained in dispute until the end of March 2023.

The 2005prohibits any act or omission that affects an employee to their detriment in retaliation for raising safety concerns. This includes threats, exclusion, failure to resolve complaints, and reassignment. The Complainant experienced a continuous pattern of penalisation from July 2021 to April 2023, including:

• Medically certified sick leave sustained by employer conduct
• Exclusion from company mailing lists and employee systems
• Ongoing dispute over contract of employment
• Lack of resolution of health and safety concerns

These conditions persisted until April 2023 and represent a continuing pattern of penalisation. Therefore, the final act of detriment is not confined to 21 July 2021, but includes the ongoing exclusion and disadvantage sustained through employer omissions.

(ii) An application to extend the time frame for consideration of contraventions of the Act,

The absence of a formal application at first instance does not preclude the Court from considering reasonable cause for delay.

In this case, the Complainant was involved in an ongoing dispute over her contract status and unresolved health and safety issues. Throughout the relevant period, she was on medically certified sick leave and excluded from workplace systems and communications. These factors created a procedural and psychological barrier to an earlier filing of her complaint. Furthermore, the public interest in hearing this case, given its implications for hospital safety and whistleblower protection, reinforces the appropriateness of granting an extension. Dismissing the case on technical grounds would undermine the protective purpose of the legislation.

The Supreme Court’s judgment in Stokes v Christian Brothers High School Clonmel [2015] IESC 13 apply provides authoritative support for the complainant’s position, which confirms that procedural fairness is a legal requirement and focuses on the legal standards of audi alteram partem, disclosure of evidence, and impartial adjudication. The Labour Court, as an appellate body, has the authority and responsibility to correct procedural defects and ensure that justice is administered in accordance with these principles.

4. 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.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

Statutory Time Limits

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015, provides 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.”

“(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.”

5. Deliberations and Findings

The Complainant raised several matters in her submission to the Court regarding the conduct of the hearing at first instance and the findings of the Adjudication Officer. As advised to the parties, a complaint on appeal to the Labour Court is a de novo appeal, where it hears the complaint afresh.  It is not open to the Court to review of how the Adjudication Officer conducted the hearing at first instance or came to their conclusions and findings.

When considering a complaint on appeal under the 2005 Act, the Court’s jurisdiction is confined to assessing breaches that occurred within the cognisable period for the complaint, having regard to the statutory time limits set down at section 41 of the Workplace Relations Act 2015.

Section 41(6) of the Workplace Relations Act requires that complaints are submitted to the Director General of the Workplace Relations Commission within 6 months of the date of the contravention to which the complaint relates. Section 41(8) of the 2015 Act allows the six-month timeframe to be extended for a further six months for reasonable cause.

In claims of penalisation under the 2005 Act, the Court must consider whether there was an act or omission that constitutes penalisation within the cognisable period.

In this case, as the Complainant referred her complaint to the WRC on 16 February 2022 the relevant period for consideration by the Court, in the first instance, is the period from 17 August 2021 to 16 February 2022.

• (i) Was the complaint submitted in time?

The Complainant contends that she experienced a continuous pattern of ongoing penalisation in the six-month period from 17 August 2021 up to the time she lodged her complaint to the WRC on 16 February 2022.  The Complainant was absent on sick leave during this time.

The Complainant contends that she was threatened with disciplinary action on 21 July 2021 (which falls outside the 6-month period for initial consideration by the Court) and, thereafter, she was subject to exclusion and disadvantage through her employer’s omission, which constitutes penalisation under the Act. In that regard, she submits that the penalisation arose during her absence on sick leave, as the employer excluded her from company mailing lists and employee systems, and there was an ongoing dispute over her contract of employment and a lack of resolution of health and safety concerns.

The Complainant submits that these conditions persisted throughout the cognisable period and represent a continuing pattern of penalisation.

Section 41(6) requires a complainant to set out a specific contravention or act of penalisation that occurred in the six-month period before lodging a claim, to ground a claim under the Act.

In Health Service Executive v McDermott [2014] IEHC 331 where Hogan J held that: -

“…the key question is the “date of the contravention to which the complaint relates.” In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates.” (paragraph 14) p

Applying the law as set out by Hogan J in Health Service Executive v McDermott, Section 41(6) requires a complainant to set out a specific contravention or act of penalisation that occurred in the six-month period before lodging a claim to ground a claim under the Act.

The wording in Section 41(6) differs from time limits under employment equality legislation where consideration of continuing or ongoing contraventions may be permitted.

Section 77(5)(a) Employment Equality Acts, 1998–2015 allows for claims to be referred within six months from ‘the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence’.

By contrast, the time limit set out in Section 41(6) of the 2015 Act specifies that a complaint cannot be entertained unless it is presented after the expiration of the period of 6 monthsbeginning on the date of the contravention to which the complaint relates. The 2005 Act does not provide for claims to be considered from the date of the most recent contravention. The claim must be submitted within six months of the contravention to which the complaint relates, or within 12 months.

In this case no specific contravention was identified to the Court that occurred in the six-month period prior to the Complainant lodging her complaint to the WRC.  Considering that fact, the Court finds that this aspect of the complaint was submitted outside the six-month time limits for bringing complaints underthe Act.

(ii) Application to extend the time frame

The Complainant made an application to extend the time frame for consideration of the complaint for reasonable cause, as, as per section 41(8) of the Workplace Relations Act 2015.

The Complainant accepts that no such application was made before the Adjudication Officer but contends that the absence of a formal application at first instance does not preclude the Court from considering reasonable cause for delay.

In Stokes -v- Christian Brothers High School Clonmel & anor [2015] IESC 13 Clark J (as he was then), addressed a similar point, stated: -

“7.5 …it is incumbent on a respondent to a claim before the Director to make any point concerning time which may be open to them so as to put the claimant on notice that there is a time issue, and to afford the claimant an opportunity to seek to persuade the Director to extend time. Against that background, it seems to me that a failure to raise the time question before the Director may lead to a legitimate conclusion that a respondent is, thereby, precluded from raising the point thereafter. It must be acknowledged, however, that there may be cases where a failure to raise a time point might not be decisive. For example, there might be cases where a respondent would be able to argue that it was, through no fault of its own, unaware of aspects of the factual matrix against which the question of possible reliance on a time bar would have to be considered. However, no such circumstances appear to have arisen on the facts of this case. To now rule that Clonmel High School is entitled to rely on a time bar, and thus to deprive John Stokes of the opportunity to persuade the Director to extend time would, in my view, be to countenance a manifest injustice. In those circumstances, it seems to me that Clonmel High School is precluded from raising the time bar issue. It follows that it is unnecessary, therefore, to consider any other aspect of that issue, or to determine when time began to run on the facts of this case.”

Clarke J took the view that an applicant was effectively prevented from raising the time limit point on appeal in circumstances in which it had not been raised at first instance. It follows that the jurisdiction to extend time is conferred on the first instance tribunal and that only a decision to grant or refuse an extension can be pursued on appeal.

It is not a matter for the Labour Court to speculate on how the Adjudication Officer may have dealt with such an application had it been raised.  The Adjudication Officer is required to issue a decision on an application to extend time before this Court can consider the matter on appeal. As no decision was made at first instance, it cannot be raised on appeal.

For the reasons set out above the Court finds that the application to extend time must fail.

Finding

For the reasons outlined above, the Court finds that the Complainant has failed to provide evidence that she was subject to penalisation for the making of a protected act during the cognisable period for the complaint.

As a result, the Court finds that the complaint of penalisation under the Act is not well founded.

The Adjudication Officer’s decision is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
CC	______________________
26 November 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Ceola Cronin, Court Secretary.