Complainant

Respondent

Parties

Cian  Donohoe

Cavan County Council

Representatives

Damien Rudden Damien Rudden Solicitors

Keith Irvine Local Government Management Agency (LGMA)

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-00066828-002

20/10/2024

The Complainant is a Part-time Retained Fire Fighter employed by Cavan County Council. He commenced employment with the County Council in 2017. 

The Complainant provided a detailed written submission.

In his written submission the Complainant puts forward that having commenced as a Retained Part-time Firefighter in July 2016, all was well until the arrival of a new Station Officer (SO) Mr Joey McDonald in or around 2019, when he noticed a change in treatment of himself and other firefighters.

The Complainant submits that in the months leading up to April 2022 he was the subject of several incidents initiated by his SO.  These incidents included the removal from his locker of items of kit, and the checking of his location when he was told to return to his place of work.

The complainant believed these incidents amounted to a pattern of bullying behaviour, intimidation and harassment.  It was because of the way he was treated over a period of 12 months prior to April 2022, that the Complainant spoke to Chief Fire Officer Noel O’Reilly (CFO) under the Respondent’s Grievance and Disciplinary Procedure. The Complainant had several conversations with the CFO about his concerns and having raised these matters informally, the CFO suggested three options to the Complainant.  Of these options the Complainant selected the option of taking a career break. The Complainant applied for an eight-month long career break, which commenced in mid-May 2022.

The complainant submits that the CFO gave him assurances that he would investigate matters with a view to finding a resolution. The CFO said he would work with another person in HR in relation to the concerns raised by the Complainant and that an independent third party would be brought in to carry out an investigation into the matters complained of by the Complainant and to see if there were any other colleagues having issues and/or who wished to lodge a complaint. The Complainant trusted the assurances he was given by the CFO.

The Complainant submits that the CFO undertook investigating matters himself and no independent third party was engaged.  The Complainant understands that the CFO spoke with his colleagues in the station thus alerting the SO of the investigation. The complainant believes that because of the approach of the CFO and the manner of his enquiries the SO was placed “on notice” of the Complainant’s concerns, albeit not officially.  It is because of the mismanagement of the Complainant’s informal grievance at this time that the negative and bullying treatment of the Complainant resumed on his return to work in August 2022 and exacerbated over the following years.

Following a request from the CFO the Complainant cut short his career break and returned to work on 15 August 2022.

In his written submission the Complainant details several incidents which he believes demonstrate attempts to humiliate, harass and belittle him carried out by the SO. Issues described by the Complainant refer to unfairness in the allocation of leave and permitted absences; negative aspersions being made about the Complainant’s competence; being placed in more dangerous positions on callouts than others. 

The Complainant also submits that at a meeting on 23 May 2024, the SO spoke to him, telling him he was “highly disappointed” in him, that he had not shown him respect and accusing him of being outside regulations in regard to where he was living.  The SO also referred to the CFO, whom he said would be leaving his post soon and that the Complainant, “will be out the door like him when he’s done with [the Complainant]. The Complainant found the SO’s level of aggression during this conversation to be shocking and he felt threatened.  It is the Complainant’s case that it was patent at this juncture, something he had long suspected, that the SO harboured resentment towards him for having raised concerns with the CFO in 2022.

The Complainant submits that he attended his GP and was given a certificate stating he was suffering from work related stress. However, while on sick leave a video was circulated on the station’s WhatsApp group showing the Complainant, on which the SO made a derogatory comment.  The Complainant is of the view that this comment makes clear the attitude of the SO towards him as negative, intimidatory, undermining and a continuation of the bullying behaviour towards him, even while absent on work related stress sick leave. The Complainant feels he could not return to work and that the SO’s actions have his isolation form the other crew members and made him a figure of derision.

The Complainant submitted a formal grievance to the Respondent on 4 June 2024.  There followed a chain of correspondence between the Complainant and the Respondent.  The suggestion of mediation was made by the Respondent, in October 2024, but turned down by the Complainant.  Due to the delays in processing his grievance and concerns about how the matter was being handled the Complainant lodged a complaint with the WRC.

The Complainant submits that the Respondent has failed in its duty to the Complainant on numerous occasions: in April 2022, when the Complainant’s concerns were handled badly; in August 2022, when he returned to work and being told there was no time to address his concerns; after he initiated a formal grievance which was subject of inexplicable delays.

The complainant, Mr Donohoe, gave evidence on Affirmation at the hearing.

The complainant described his first few years as a fire-fighter as being enjoyable and rewarding. He outlined the duties in being a fire-fighter. The camaraderie of the team in the station helped greatly, especially at times of stress.

The Complainant stated that he had difficulties with the SO, Mr McDonald, with getting leave and felt he was refused leave without good reason. He was made aware of an unofficial leave calendar which favoured the tree station officers above other fire-fighters. The Complainant stated that he was being picked on; gear going missing from his locker was another example of this unfair treatment. Because of this, in or around May 2022, he decided to raise his concerns with the CFO, Mr O’Reilly, who suggested three courses of action he might take.  He chose to take time off. The Complainant was told by the CFO that he would check with others in the station while the Complainant was off, he was told something would happen soon. During this period of absence, the Complainant heard from colleagues that the SO was asking them questions about what was going on.  From this the Complainant deduced that the SO was aware that he, the Complainant, had made some sort of complaint.

The Complainant stated that when he came back in August 2022, he was told by the CFO that there would be no investigation until after Christmas. After he came back his relationship with the SO was “very icy”.  According to the Complainant, the SO seemed to be aware of his complaint.

Several incidents took place which unsettled the Complainant. For example, at the end of a drill night the SO stood the team to attention and told them that he would prefer them to come to him if they had issues.  There were other incidents described by the Complainant; an issue relating to a Hazmat suit; snide remarks about his weight; his driving abilities etc.  Although these issues of themselves might seem petty, the Complainant stated that a pattern was building.  Other incidents caused difficulty for the Complainant including the reaction of the SO to him in his role as union representative during the nationwide industrial action taken by the retained fire-fighter group.

The Complainant referred to a one-to-one meeting he had had with the SO on 23 May 2024, during which he says the SO became aggressive, raising his voice and pointing his finger at the Complainant, while telling him that he had issues over where the Complainant was living, the SO told him he would not be “ducking or diving”.  He told the Complainant he had shown him no respect and that CFO O’Reilly was out the door and that he would be next.  The Complainant felt threatened and believed the SO “was trying to get me sacked.”

In June 2024, the Complainant went to his GP and was signed off on work related stress.

The Complainant stated that in January 2025, while he was still on sick leave, a video was posted on the station’s WhatsApp Group on which the SO commented.  The Complainant believes the SO’s comment was directed at him because he was off on sick leave and because he had complained about him.

In concluding his Examination in Chief, the Complainant stated that he did not think the parties would be in the WRC if the matter had been handled correctly after Christmas [2022]. However, it was mismanaged with delays and it seemed to be forgotten until he raised matters again in 2024. He does not believe management took his concerns seriously.  Although mediation was suggested after he had made his formal complaint, it was well after he had done so and he believed it was another mechanism being utilised by the Respondent to delay things. 

In cross examination, the Complainant stated that prior to April 2022, he had numerous issues with the SO, including unreasonable work demands. The CFO had followed up with informal complaint “unofficially”.  He had waited until 2024 to raise matters officially because things were getting worse and he was worried about repercussions.  When asked how he knew the SO resented him for making an unofficial complaint, the Complainant stated that the SO’s attitude towards him changed after he returned in August 2022. When asked why he did not go to mediation when it was suggested to him, the Complainant stated that it was only put forward after a delay and an indication had been given to the Respondent that the Complainant was contemplating lodging a complaint with the WRC. When asked why he had not gone through an investigation process, the Complainant stated that this was because the matter had been dragged out- he was out on stress leave, he was not being paid and it was taking weeks to get responses from the Respondent.

The Complainant was asked what detriment he had suffered and when he had suffered any such detriment. He stated it was at the meeting when the SO threatened him with losing his job.  The Complainant accepted he had not lost his job but he believed the detriment was he had to go out on stress, he was at his doctor because of the SO. The Complainant accepted that no disciplinary action and been taken against him, he had been threatened and he was in an unsafe environment. The Complainant stated he was in danger of losing his job if he were to go back to work and suffer the same, he would have to go.

Regarding the issue of where he lived the Complainant stated that he and one other fire-fighter had been singled out by the SO for investigation but several other fire-fighters live outside the permitted radius as well.

When asked to say how he had been penalised and what his detriment was the Complainant stated that he could not give examples off the top of his head but they were in the document [submission].

When asked if he was open to the matter being investigated as per Procedures, the Complainant said he was open to that and that is why he was at the WRC today.

The Complainant confirmed that the video he referred to was posted on the WhatsApp Group in January 2025 and that he had lodged his complaint with the WRC in October 2024.

The Complainant stated that he had not suffered any financial loss due to leave not being granted to him. 

Mr Ciaran Fitzpatrick gave evidence on Affirmation at the hearing. Mr Fitzpatrick is a retained fire-fighter employed by Cavan County Council

Mr Fitzpatrick gave testimony on a mediation process in which he had been asked to participate by the Respondent.  He stated that the process took so long he lost faith in it as a way to resolve a dispute he was involved in at work. He stated that he felt if the matter was important there would not have been the delays he outlined.  He lost faith in the process. He felt the process was delayed to put him under pressure.

The witness stated that he had described to the Complainant in this instant case how the process had not worked for him.

In closing, it is the Complainant’s case that there exists a causal connection between the detriment he suffered because an informal grievance which he raised in 2022, which came to the attention of the SO informally at that time, which was mismanaged by the Respondent. This resulted in penalisation through ongoing bullying, humiliation and harassment of him by SO McDonald.

The Complainant has been on sick leave since June 2024 and has been unable to resume his duties owing to the distress and mistrust engendered by the mismanagement of appropriate procedures and inaction of the Respondent. This has resulted in a significant monetary loss for the Complainant.

The Respondent provided a detailed written submission.

The Respondent submits that the substantive basis of the complaint referred to by the Complainant is based on a letter to the CFO dated 3 June 2024 where he himself states this as being a formal grievance under the Grievance and Disciplinary Code.  Whilst the Complainant has raised several issues in this grievance the nature of these issues would appear to constitute general workplace issues rather than matters that would constitute a complaint within the meaning of Section 27 of the Act.

The Respondent submits that regarding annual leave and rostered time off it is a matter of fact that the SO/Sub Station Officer must ensure at all times that there are sufficient staff available to attend calls if the station is alerted.  It is not possible to meet all requests for either annual leave or time off the roster as fire service delivery is critical.  The restrictions imposed on the Complainant are the same restrictions as those imposed on his colleagues.

Regarding the matter of the SO seeking to confirm the Complainant’s home address, this is a standard function of all SOs. Where any SO becomes aware of a possible change of address of a fire-fighter, he will raise it with the individual and if not satisfied with the response may further pursue investigating the matter.  It is a matter of fact that other fire-fighters in Cavan were subject to similar examination as it relates to their work and home address.

The Respondent refers to Tony and Guy Blackrock Limited v O’Neill (HSD095), and An Garda Siochana v Hazel Delahunty.  The Respondent believes that based on the definition in An Garda Siochana v Delahunty there is no evidence of any action on the part of the Respondent which could be considered to constitute detriment for the purposes of the Act, nor does it show any intention or calculated act to “destroy or seriously damage the relationship of trust and confidence between the parties”.

The Respondent further states that it is a matter for the Complainant to establish a causal link between the disclosure and the penalisation.  The Complainant alleges penalisation by the SO as a result of him raising the informal grievance with the CFO, however the Respondent submits that in his WRC complaint under the 2005 Act, the Complainant specifically says that the SO was not aware of this grievance and therefore no causal link between the two.

Chief Fire Officer Noel O’Reilly gave evidence on Affirmation at the hearing.

Mr O’Reilly stated that he had been the CFO for the station during the relevant period. The Complainant visited him in April 2022, and related several issues he had at work.  He had a good relationship with the Complainant. The issues mentioned by the Complainant were to do with his gloves and torch being taken without his knowledge, he, the Complainant believed the SO was behind these occurrences. The CFO stated that the Complainant was having problems with his own shop open when he was called to incidents.

The CFO stated that he followed up on the issues raised by the Complainant.  He checked with other fire-fighters if there were problems.  He did not tell the SO about the complaints that had been made by the Complainant.

In response to questions put to him in cross examination, the CFO stated that when the Complainant came to him in April 2022, he did not treat it as a complaint, more a conversation.  The Complainant did raise issues about the SO. The witness agreed that the matters that the Complainant raised with him were within the range of what would be bullying.

Regarding the issue of advising the Complainant to take time off the CFO stated that this was because the Complainant was having difficulties with his business, his advice to him was to let the business settle down and then come back.

The CFO doubted he would have said that he would investigate, rather something more like that he would keep an open ear and make some informal enquiries. The CFO did make enquiries and although he did not inform the SO he was doing so it was possible that the SO would have got word of it.

The SO stated that the reason he did not get back to the Complainant on the matter was because the Complainant did not raise any issues with him afterwards; he thought it was over.

Regarding the processing of the Complainant’s formal complaint (4 June 2024) the SO acknowledged that it took him a month to reply to the Complainant and there were subsequent delays, he could see why the Complainant thought nothing was being done about it as there were delays. This may have been because he was waiting on advice from HR.

The SO accepted that within a few days of getting the Complainant’s letter he set up an investigation into the Complainant’s living arrangements/address and although these were two different issues, he could appreciate how it may have appeared to the Complainant.

In closing, the Respondent submits that as stated in the complaint form there is no evidence upon which to base a claim that the Complainant suffered any detriment or indeed has asserted any rights under Section 27(3) of the Act. If the Complainant is alleging a general failure on the part of the Respondent to adhere to the Act, then his remedy rests elsewhere; outside the terms of Section 27 of the Act.

I have considered this matter very carefully.

Section 27 of the Act states:

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.

The Labour Court in Toni & Guy Blackrock v Paul O’Neill [2010] 21 ELR 1 set out the test for penalisation:-

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

To succeed in a claim under this section the Complainant must (i) demonstrate something that brings him within section 27(3); provide evidence of having suffered a detriment within the meaning of section 27(1) and (2); and show a causal link between (i) and (ii).

The questions that need positive answers in order for this claim to succeed are;

(i)                Did the Complainant in this instant case make a complaint as regards any matter relating to safety, health or welfare at work?

(ii)              Did he suffer a detriment as per the Act?

(iii)             Was there a causal link between him making a complaint (i) above and suffering a detriment (ii) above?

The Complainant gave cogent evidence at the hearing.  I found his testimony to be sound and I have no doubt in his genuine belief in the story he told.  I also accept the bona fides of CFO O’Reilly and how he related his evidence.  Tellingly, Station Officer McDonald did not attend the hearing to give evidence. His input would have illuminated the matter to a significant degree.

Based on the evidence adduced, I find the following answers to the questions laid out above:

(i)                Did the Complainant in this instant case make a complaint as regards any matter relating to safety, health or welfare at work?

I find he did make a complaint relating to a matter of health or safety at work.

Section 75(3) of the Act states;

“(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,”

 The taking of a fire-fighter’s personal equipment is not a trivial matter. Torches and specialist gloves are issued to fire-fighters for good reason, a torch is an important tool and gloves are an important of personal protective equipment (PPE). Although the Complainant may have been able borrow a torch and a pair of gloves from a colleague he should not have to do so. PPE is personal for a reason. He raised these issues with the CFO. 

Other incidents raised by the Complainant relating to the granting of leave, his residential location being checked etc, do not fall within the scope of health and safety.

(ii)              Did he suffer a detriment as per the Act?

I find he did suffer a detriment as per the Act.

Section 27 of the Act states;

“(2) Without prejudice to the generality of subsection (1), penalisation includes—

       (e) coercion or intimidation”

Although many of the allegations raised by the complainant refer to dates outside the cognisable period (both before and after the cognisable period), these matters came to a climax at the meeting between the Complainant and SO McDonald which took place on 23 May 2024, which is within the cognisable period.  I find the SO said things  to the Complainant which amounted to coercion and/or intimidation.  The manner in which the SO spoke, as related in the Complainant’s evidence, supports the contention. I find this satisfies the requirements of  s27(2)  (e) of the Act. 

(iii) Was there a causal link between him making a complaint (i) above and suffering a detriment (ii) above?

I accept the Complainant’s view, (particularly in the absence of any evidence to the contrary) that his SO took umbrage at him having informally complained about him to the CFO in 2022, and from there stemmed the detriment outlined in (ii) above.  If the Complainant had not made his complaint I do not believe he would have been subject to the coercive comments made by the SO at the meeting of 23 May 2024.

Section 28 of the Workplace Relations Act, 2025 states:

Decision of adjudication officer under section 41 of Workplace Relations Act 2015

28.—A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 27 shall do one or more of the following, namely—

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

(b) require the employer to take a specified course of action, or

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

The complaint is well founded. I find compensation is warranted in this instant case and I believe an amount of €15,000 is just an equitable having regard to all the circumstances.

The complaint is well founded and I order the Respondent to pay the Complainant €15,000.

Safety, evidence.