ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00048658
Parties:
| Complainant | Respondent |
Parties | Klaudiusz Tuchowski | Elis Textile Services Limited |
Representatives |
| Judy McNamara IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00059685-001 | 30/10/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00059685-002 | 30/10/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00059685-003 | 30/10/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00059685-004 | 30/10/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00059685-007 | 30/10/2023 |
Date of Adjudication Hearing: 08/05/2025
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant as well as one witness on behalf the Respondent, namely the HR Director, gave evidence on oath/affirmation and the opportunity for cross-examination was afforded to the parties.
This hearing was held in conjunction with ADJ 52717.
Background:
The Complainant commenced employment with the Respondent on 27 April 2015 in the role of General Operative and remains in their employment. On 30 October 2023, he referred several complaints to the WRC concerning alleged breaches of his employment rights, including illegal changes made to his break times as well as to his contract of employment, and penalisation arising from complaints he had made in the workplace. |
Summary of Complainant’s Case:
CA-00059685-001: The Complainant stated that that his breaks were reduced by 2-3 minutes because of the Respondent’s insistence that he returned to his workplace within 15 minutes of the break commencing. He stated both that this is contrary to the provisions of the Organisation of Working Time Act given that he must receive a 15 minute break and is now required to walk to and from the canteen during the break period. CA-00059685-002: The Complainant stated that his terms and conditions of employment contain no provisions requiring the achievement of a specific performance target or a defined number of pieces to be processed per hour or per day. While the contract includes a non-exhaustive list of examples of gross or serious misconduct, including “poor work performance/sub-standard work,” it does not specify any measurable criteria for assessing such performance. For a number of years, an informal expectation developed around the achievement of a weekly performance target of 91%. This figure, however, was never formally incorporated into the Complainant’s contract of employment. In 2019, the Complainant’s previous employer attempted to formalise a performance requirement of 80% daily and 91% weekly by asking employees to sign a reminder document. The Complainant declined to sign, and no formal contractual variation followed. Instead, performance guidance began to appear informally on machines used by staff, providing advice on the number of pieces that needed to be processed per hour to reach 100%, and indicating that 91% was the minimum acceptable level. These notices were advisory in nature and did not constitute contractual obligations. Following the acquisition of the Complainant’s employer by the Respondent in 2022, there was a marked shift in managerial approach. The Respondent began to enforce the 91% target as a firm requirement, while simultaneously introducing an additional, unannounced expectation that a specific number of pieces be processed. This piece-count requirement had not been formally communicated to or agreed upon by employees, nor was it ever integrated into contractual terms. Despite this, the Respondent began to use failure to meet the unspecified piece-count as evidence of poor work performance. On 20 July 2023, during an investigative meeting, the Production Manager compared the number of pieces processed by the Complainant with that of another employee, using this comparison as a basis for criticism. Subsequently, during the appeal meeting on 7 September 2023, the same manager stated that achieving the 91% target “means nothing” and alleged that it was possible to manipulate the system to reach that figure. The very next day, on 8 September 2023, the Complainant received a letter from the HR Director stating: “You are expected to achieve the target of 91% and the pieces below (per hour),” referencing the same piece-counts that had previously been presented only as advice for achieving a 100% target. Furthermore, whereas these targets had originally applied to groups of up to four people working together on a single machine, they were now being applied to individual employees. This marked a significant and unilateral change in performance expectations. The original guidance had related to team output and was linked to a 100% performance level; now the same figures were being used to define the minimum 91% target and were being applied to individuals, effectively multiplying the workload without consultation, consent, or contractual amendment. Compounding this, the performance metric which had previously been relied upon—91% weekly—was dismissed as irrelevant or fraudulent, with no transparent explanation or agreed-upon replacement. The evolving demands placed on the Complainant by the Respondent have not only lacked contractual foundation, but have also been inconsistent, unreasonably escalated, and introduced without formal communication or agreement. These practices have created a situation in which the Complainant is being judged against arbitrary and shifting standards, applied retrospectively and without the protections of due process. He stated that the shifting of these targets, along with their retrospective application, constitutes a change to the written statement of his terms and conditions of employment, and asserted that he had not been informed of this change in writing. CA-00059685-003: On 13 July 2023, the Production Manager initiated an investigation into the Complainant’s performance and posed several questions to him. A follow-up investigative meeting took place on 20 July 2023, during which the Complainant responded to 25 of the Production Manager’s questions but did not have an opportunity to address any additional queries. Subsequently, at a disciplinary meeting on 24 July 2023, the Complainant provided the HR Specialist with his answers to those additional questions. He explained that when a machine is jammed, he leaves his workstation to inform his supervisor about the malfunction, and while waiting for the issue to be resolved, he typically uses the toilet. Three days later, on 27 July 2023, the HR Specialist issued the Complainant a verbal warning. The warning stated that General Operatives are expected to report breakdowns to supervisors and return to their positions immediately. This action was taken solely on the basis of the information the Complainant had provided during the disciplinary meeting. The HR Specialist concluded that the Complainant had not returned to his position immediately after reporting the issue. On 2 August 2023, the Complainant submitted an appeal letter to the HR Director. In it, he stated that he had never been made aware of any such rule requiring an immediate return to his position after reporting a breakdown. He also pointed out that he had not seen other employees follow such a rule, nor had he witnessed anyone being disciplined for not doing so. He felt he was being penalised for breaching a rule that had never been communicated to him. Despite this, on 8 September 2024, the HR Director sent the Complainant an email with a letter confirming her support for the HR Specialist’s decision to issue the verbal warning. The Complainant asserts that he was unfairly punished for not immediately returning to his workstation after reporting a malfunction. He stated that his written statement of terms and conditions of employment did not make him aware that he would be subjected to disciplinary action if he failed to return to his workstation immediately after reporting a malfunction, and that the Respondent’s failure to inform him of this constituted a breach of the Act. CA-00059685-004: The Complainant stated that he was not aware that he had to return to his workplace immediately after reporting a breakdown to the supervisor. He claims that he was not previously aware of such a rule, he was not notified either orally or in writing of same, and he did not give his consent to follow such a rule. Thus, the requirement to comply with this rule is contrary to the Act. CA-00059685-007 On 29th May 2023, a Health & Safety incident occurred during which the Production Manager behaved inappropriately towards the Complainant. The Manager singled him out without justification, then stood behind him while giggling and making faces. This unsettling behaviour caused a sudden deterioration in the Complainant’s health, prompting him to seek urgent medical attention at Tallaght Hospital. There, he was diagnosed with musculoskeletal chest pain, which doctors attributed to stress. The Complainant strongly believes that the Production Manager’s behaviour was the direct cause of this episode. He also claims to have felt unsafe while operating machinery with the Production Manager standing behind him, fearing potential harm. On 5th June 2023, the Complainant submitted a formal complaint to the HR Specialist, detailing the events of 29th May and expressing concern about the Production Manager’s conduct. A review meeting was arranged for 16th June 2023. However, during that meeting and the subsequent investigation, the HR Specialist allegedly disregarded the Complainant’s concerns, failed to acknowledge reports of safety violations, defended the Production Manager’s actions, and distorted the situation to portray the Complainant as emotionally unstable. On 29th June 2023, the HR Specialist sent the Complainant a letter concluding that the investigation had found no evidence of mistreatment by the Production Manager. It cited the Complainant’s statements, witness accounts, and CCTV footage as grounds for this conclusion. However, none of the 23 referenced pieces of evidence were shared with the Complainant. In response, on 10th July 2023, he wrote to the HR Specialist highlighting this lack of transparency. A follow-up meeting was held on 13th July 2023, during which the HR Specialist and the HR Director presented what they claimed was proof of the Production Manager’s innocence—evidence the Complainant found unconvincing. Still dissatisfied, the Complainant emailed the HR Specialist on 17th July 2023 to express his continued concern about the investigation’s outcome and fairness. On the same day he was informed that the investigation into the 29th May incident had concluded, the Production Manager launched a new investigation into the Complainant’s “performance to date.” This investigation culminated in a disciplinary meeting on 24th July 2023, where the Complainant felt subjected to unfair procedures and baseless accusations. He was subsequently issued a verbal warning on 27th July 2023 by the HR Specialist. On 2nd August 2023, the Complainant appealed the decision in a letter to the HR Director. He argued that he had not been presented with specific allegations or supporting evidence at any stage of the process. He maintained that he was accused of violating a rule that was neither formalised nor previously communicated, that his explanations had been disregarded, and that he had been given insufficient time to prepare his defence. His request to postpone the disciplinary meeting had also been denied. An appeal meeting was set for 7th September 2023, but the HR Director refused the Complainant’s request for a professional Polish translator. During the meeting, the HR Director allegedly showed no interest in understanding the Complainant’s perspective, interrupted him, raised her voice, and persisted in making accusations. The following day, on 8th September 2023, the HR Director issued a letter upholding the verbal warning and expanding the accusations against the Complainant to include a new allegation of “logging out from the target system without a reason.” The Complainant asserts that following his Health & Safety complaint, he became the target of increased scrutiny, biased procedures, groundless allegations, and mistreatment. He believes that the investigation into his performance, initiated on 13th July 2023 and leading to the verbal warning issued on 27th July 2023, was a form of retaliation for his complaint about the Production Manager. Instead of fulfilling their duty to protect employee health, safety, and welfare—as mandated by the Safety, Health and Welfare at Work Act 2005—the Respondent allegedly retaliated against him, misused its authority, and suppressed his efforts to resist unfair treatment and to safeguard the workplace for himself and others. |
Summary of Respondent’s Case:
CA-00059685-001 The Respondent highlighted that ‘working time’ is defined in the 1997 as: “working time” means any time that the employee is— (a) at his or her place of work or at his or her employer's disposal, and (b) carrying on or performing the activities or duties of his or her work, It was asserted that the time the Complainant spends going to and returning from his breaks cannot be considered working time within the above definition. The Respondent also stated that to include, monitor and facilitate breaks, all sites are signalled with bells to notify employees that breaks will commence and finish. The Complainant works normally from 6am to 4pm during the low season and 6am to 2pm during the peak season. Breaks are scheduled for all employees in every area with 3 breaks of 15 minutes for those who work from 6-4pm and two 15 minute breaks for those who work from 6-2pm. The bell is scheduled to go off one minute before and after to provide extra time for employees to organise their lunch. There is a local arrangement with management that allows employees up to 3 minutes to return to their workstations. CA-00059685-002: This Respondent stated that the targets do not form part of the Complainant’s terms and conditions of employment and the complaint is therefore misconceived. CA-00059685-003: The Respondent stated that the Complainant alleged that his terms and conditions of employment were changed because he was issued with a verbal warning for leaving his workstation before breaks and late arrival to his workstation after breaks. The Respondent stated that this complaint is misconceived because there was no change made to his written terms and conditions of employment. Accordingly, there was no question of any written notification in respect of same. CA-00059685-004: The Respondent stated this complaint references violation of ‘a rule that I had not heard about’ and is misconceived. CA-00059685-007: The Respondent disputed this complaint. They maintained that the Complainant was not subjected to penalisation under Section 27 of the Act. The Respondent also stated that no act committed by the Complainant qualifies as a protected act under Section 27(3), and that no detriment, as defined by Section 27(2), was imposed as a result of any such act. Specifically, the Respondent argued that the Complainant's complaint following the 29th 2023 May incident was treated as a workplace grievance rather than a health and safety complaint. The complaint was formally investigated in line with internal policies, including reviewing CCTV and interviewing witnesses, and the outcome was a finding that the Production Manager had no case to answer. In support of their defence, the Respondent referenced case law such as Toni & Guy Blackrock Limited v. Paul O’Neill (HSD095) and Citizens Information Board v. John Curtis (HSD101). These cases establish that for a claim of penalisation to succeed, the employee must first show that they carried out a protected act under Section 27(3), and second, that a detriment was imposed because of that protected act. In other words, there must be a clear causal link—a “but for” relationship—between the protected act and the alleged penalisation. |
Findings and Conclusions:
CA-00059685-001: The Act defines “working time” as: “any time that the employee is— (a) at his or her place of work or at his or her employer's disposal, and (b) carrying on or performing the activities or duties of his or her work,” Even if I accept the Complainant’s evidence that his breaks were reduced by 2-3 minutes because of the Respondent’s insistence that he returned to his work station within 15 minutes of the break commencing, contrary to what had happened in the past when he was given time to go and return from the canteen, I noted that there was no evidence presented by him to suggest that he was either at his place of work, at his employer’s disposal or carrying on or performing the activities or duties of his work during any of the break times listed on his timesheets. Accordingly, I find that this complaint is not well founded. CA-00059685-002: Under the Terms of Employment (Information) Act 1994–2014 in Ireland, a "term and condition" of employment refers to the essential elements that make up the employment relationship between an employer and an employee, which must be provided in writing. These include core details such as: Core Terms (must be given within 5 days of starting work): a) the full names of the employer and the employee; (b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; (d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000; (e) the number of hours which the employer reasonably expects the employee to work— (i) per normal working day, and (ii) per normal working week (f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) are treated, (g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places; (h) either— (i) the title, grade, nature or category of work for which the employee is employed, or (ii) a brief specification or description of the work; (i) the date of commencement of the employee’s contract of employment; (j) any terms or conditions relating to hours of work (including overtime); (k) where a probationary period applies, its duration and conditions. Remaining Terms (must be given within 1 month): These make up the broader “terms and conditions” and include: · a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order, · that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section, · the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval, · any terms or conditions relating to paid leave (other than paid sick leave), · any terms or conditions relating to— - incapacity for work due to sickness or injury and paid sick leave, and - pensions and pension schemes, · the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice, · a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made · the training entitlement, if any, provided by the employer, · in the case of a temporary contract of employment, the identity of the user undertakings (within the meaning of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 20085 on temporary agency work), when and as soon as known, and · if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of — - the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours, - the reference hours and days within which the employee may be required to work, and - the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with section 17 of the Organisation of Working Time Act 1997, and - where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer. Analysis: This complaint relates to targets allegedly imposed by the Respondent retrospectively. The Complainant’s remuneration does not change if he fails to meet the Respondent’s targeted expectations. These targets are therefore not linked to the Complainant’s remuneration, nor can the imposition or any change of same be said to constitute a change in any of his other written terms and conditions of employment set out in the Act above. Accordingly, I find that this complaint is misconceived. CA-00059685-003: Under the Terms of Employment (Information) Act 1994–2014 in Ireland, a "term and condition" of employment refers to the essential elements that make up the employment relationship between an employer and an employee, which must be provided in writing. These include core details such as: Core Terms (must be given within 5 days of starting work): a) the full names of the employer and the employee; (b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; (d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000; (e) the number of hours which the employer reasonably expects the employee to work— (i) per normal working day, and (ii) per normal working week (f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) are treated, (g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places; (h) either— (i) the title, grade, nature or category of work for which the employee is employed, or (ii) a brief specification or description of the work; (i) the date of commencement of the employee’s contract of employment; (j) any terms or conditions relating to hours of work (including overtime); (k) where a probationary period applies, its duration and conditions. Remaining Terms (must be given within 1 month): These make up the broader “terms and conditions” and include: · a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order, · that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section, · the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval, · any terms or conditions relating to paid leave (other than paid sick leave), · any terms or conditions relating to— - incapacity for work due to sickness or injury and paid sick leave, and - pensions and pension schemes, · the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice, · a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made · the training entitlement, if any, provided by the employer, · in the case of a temporary contract of employment, the identity of the user undertakings (within the meaning of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 20085 on temporary agency work), when and as soon as known, and · if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of — - the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours, - the reference hours and days within which the employee may be required to work, and - the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with section 17 of the Organisation of Working Time Act 1997, and - where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer. Analysis: The Complainant stated that he was unfairly punished because he was issued with a warning in July 2023 in respect of a rule that he had not been made aware of in his written statement of his terms and conditions of employment. The imposition of a sanction in respect of a breach of a rule or a practice that the Complainant alleged he was not aware of cannot be said to constitute a change in any of the terms and conditions of employment set out in the Act above. I therefore find that this complaint is misconceived. CA-00059685-004: Under the Terms of Employment (Information) Act 1994–2014 in Ireland, a "term and condition" of employment refers to the essential elements that make up the employment relationship between an employer and an employee, which must be provided in writing. These include core details such as: Core Terms (must be given within 5 days of starting work): a) the full names of the employer and the employee; (b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; (d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000; (e) the number of hours which the employer reasonably expects the employee to work— (i) per normal working day, and (ii) per normal working week (f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) are treated, (g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places; (h) either— (i) the title, grade, nature or category of work for which the employee is employed, or (ii) a brief specification or description of the work; (i) the date of commencement of the employee’s contract of employment; (j) any terms or conditions relating to hours of work (including overtime); (k) where a probationary period applies, its duration and conditions. Remaining Terms (must be given within 1 month): These make up the broader “terms and conditions” and include: · a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order, · that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section, · the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval, · any terms or conditions relating to paid leave (other than paid sick leave), · any terms or conditions relating to— - incapacity for work due to sickness or injury and paid sick leave, and - pensions and pension schemes, · the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice, · a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made · the training entitlement, if any, provided by the employer, · in the case of a temporary contract of employment, the identity of the user undertakings (within the meaning of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 20085 on temporary agency work), when and as soon as known, and · if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of — - the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours, - the reference hours and days within which the employee may be required to work, and - the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with section 17 of the Organisation of Working Time Act 1997, and - where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer. Analysis: The Complainant stated that the Respondent had not communicated in writing, through his terms and conditions of employment, that he was required to return to work immediately after reporting a breakdown and asserted that this constituted a breach of the Act. The alleged change of a rule or a practice around the return to work following a breakdown cannot be said to constitute a change in any of the terms and conditions of employment set out in the Act above. Accordingly, I find that this complaint is misconceived. CA-00059685-007: The Act states as follows at section 27: 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 considering this complaint, I must address three key questions:
At the outset, I note that the Respondent disputes that the Complainant made a protected act within the meaning of the legislation. The Respondent asserts that the Complainant invoked the internal grievance procedure in relation to the conduct of the Production Manager on 29 May 2023, but contends that this does not constitute a protected act. 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: “An isolated incident of the behaviour described in this definition may be an affront to dignity at work, but, as a once-off incident, is not considered to be bullying.” I note firstly that the incident relied upon by the Complainant occurred on a single date—29 May 2023. As such, it does not meet the definition of bullying under the Code, which requires repeated behaviour. Furthermore, I note that Appendix 2 of the Code explicitly references Section 8(2)(b) of the Act, which obliges employers to manage work activities so as to prevent, insofar as is reasonably practicable, any improper conduct or behaviour likely to endanger employee safety, health, or welfare. The inclusion of this provision indicates that the Government intended only repeated improper conduct—not an isolated incident—to fall within the protective scope of the Act. Considering the foregoing, I find that the Complainant has not satisfied the first requirement of the legal test—namely, that he made a protected act 29 May 2023 as defined in Section 27(3). Accordingly, I find that this complaint is not well-founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00059685-001: I find that this complaint is not well founded for the reasons set out above. CA-00059685-002: I find that this complaint is misconceived for the reasons set out above. CA-00059685-003: I find that this complaint is misconceived for the reasons set out above. CA-00059685-004: I find that this complaint is misconceived for the reasons set out above. CA-00059685-007: I find that this complaint is not well founded for the reasons set out above. |
Dated: 17/06/2025
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Key Words:
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