CORRECTION ORDER

ISSUED PURSUANT TO SECTION 41(16) OF THE WORKPLACE RELATIONS ACT 2015

This Order corrects the original Decision Adj-00046085 issued on 03/10/2025 and should be read in conjunction with that Decision.

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00046085

Parties:

	Complainant	Respondent
Anonymised Parties	Complainant/Care Assistant	Additional Needs Service Provider

Representatives

Sean Costello Solicitors/Lars Asmussen BL

Des J Kavanagh, HR Consultancy Limited

Complaint(s):

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00056846-001	25/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00056846-003	25/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00056847-001	25/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00056847-003	25/05/2023

Date of Adjudication Hearing: 25/11/2024

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s). The last day of hearing for a related complaint was heard on 24th of July 2025.

I have exercised my discretion to anonymise the parties as the events central to this case relate to a vulnerable child and the naming of the parties could in turn give rise to the identifying of that child. For this reason, I have anonymised all parties and witnesses.

The hearing commenced remotely on the 7th of Feb 2024 and by agreement moved to a Hybrid Hearing in Lansdowne House on the 17th of July 2024 and reconvened in Lansdowne House on the 25th of November 2024.

The procedures to be followed at the hearing were agreed with the parties. That involved swearing in witnesses, hearing preliminary matters, rules about giving evidence, the difference between evidence in chief and cross examination, the hearing process being a formal process and not a debate or discussion. Witnesses should answer questions put to them and not debate with counsel/representative. Both parties agreed to this procedure and were provided with an opportunity to ask any further questions about the process or for further clarification. The parties confirmed they understood the procedure to be followed at the hearing. A party after cross examination was allowed to re-examine if they wished.

The Complainant concluded presenting their evidence on the 17th of July 2024. The Adjudicator summarised the evidence given and explained the law concerning penalisation. The Adjudicator asked the parties to confirm if that also was their understanding and if different to detail their understanding. The parties didn’t differ regarding the issues to be determined or the explanation of the law concerning penalisation.

At the reconvened hearing at Lansdowne in November the Respondent called their witnesses, were called, gave their evidence and were cross examined.

Counsel for the Complainant observed a note being given to a Respondent’s witness by another witness and objected. He asked to see the note. The rule about not assisting a witness was explained. The hearing room was relatively small with parties sitting around a table. The Witness who gave a note to another witness was respectfully asked to move to a different seat, so that the integrity of the Respondent’s evidence would not be challenged.

There was no impediment placed on any party about the ability to communicate with their respective representative. Notes passed or quite conversations to representatives took place throughout the hearings by both sides.

The Adjudicator put to the Respondent Director questions about turnover; the size of the company, the number of employees, to give factual context about the Respondent’s size and scale. Superior courts have ruled that such information is important when having regard to the entire factual matrix and the Adjudicator’s deliberations concerning the case and claims being made.

At the end of the Respondent’s witnesses being called the parties were asked to make their final submissions.

Throughout the hearing as appropriate both the law as relevant and evidential rules were explained to both parties.

After both parties made their final submissions, the Adjudicator summarised the evidence presented by both parties, the timelines central to the case, the marked differences in witness testimony, the legal issues that arose, an explanation of the law relating to the claims and then each representative was asked was that a fair and accurate summary. Both parties affirmed that it was.

Both parties were again asked had they made out their case and was there any further statements or representations to be made and neither party had any further comment or issue to raise. The parties were asked were they fairy heard, and they confirmed that they had.

Each party was allowed to make further submissions only on the claim relating to breaks and the Organisation Working Time Act with specific reference to their respective understanding of the Employer’s statutory obligations. The Respondent at a later date post hearing, presented new facts in their submission, other than statements relating to their statutory obligations, that in turn was objected to by the Complainant as they were not presented at the hearing. This in turn led to the hearing being reconvened for that matter only. A second Adj-00057087 was created for that complaint.

Background:

The Respondent provides services to Children and Vulnerable Adults.

The Complainant commenced employment as a Support Worker with the Respondent on November 2nd, 2022.

The Complainant was employed on Part-time hours and requested an increase in hours some weeks after he started and this was facilitated. The Complainant stated that he worked on average 30 hours a week and his average weekly earnings were €480 gross.

The Complainant alleges that he was unfairly dismissed having made a protected disclosure based on a reasonable belief that there was inadequate safety protection and protocols in place when a client became upset and frustrated.

The Complainant also alleges that he was penalised by being dismissed for making a complaint under the Safety, Health and Welfare Work Act, 2005.

The Complainant worked primarily at a Centre in Leinster. This centre is a day respite and therapy centre for both adult and child service users.

The complaints now brought before the Commission relate to an incident that occurred on or about the 17th of December 2022. There are conflicting accounts concerning what happened.

The Complainant alleges that a child who he was minding became unruly and aggressive. That account is denied by another care worker who has worked with the child previously and stated he was moving his arms but was not unduly aggressive.

The incident revolves around a pony and trap jaunt with Santa arranged for the Children. The child didn’t want to be taken off the ride.

The Complainant describes a lengthy encounter where he believed his own safety was at risk and that this was exacerbated because there was no adequate protective equipment for his safety or the child’s safety. His account was supported by his line Supervisor

This account is denied by the Respondent who was shocked at how a relatively minor occurrence was escalated where the Complainant wanted the child to be restrained forcefully. This runs counter to the ethos of the centre, and it was this that led to the employment being terminated. The bus driver and another care worker who on the day minded the child gave evidence that the child was not aggressive and the incident was short lived and caringly de-escalated very quickly by the other care worker.

The line supervisor gave evidence in contrast to this account and fully corroborated with the Complainant’s account that the equipment to protect the care workers and children was inadequate. That supervisor also stated that the incident went on for at least 30 minutes and was not short-lived.

The incident gave rise to the Complainant having an animated exchange with the manager of the centre and that was witnessed by the Director of the enterprise. It is alleged that the Complainant was visibly shaken, and he complained about his own safety being placed at risk arising from the inadequate protocols to handle such a situation. He was sent home, and his employment ended on the 21st December 2022.

The employer asserts that during a probationary period a contract can be ended without the necessity of a formal hearing and the requirement to follow a more structured investigation, as the contract had been in place for only a few weeks.

The employer was shocked at the conduct of the employee who wished for a child to be restrained and who in their view lost control of a very minor incident and amplified an incident to such an extent that it was clear that employee was not a good fit for the centre.

Summary of Complainant’s Case:

The Complainant also alleges that he was penalised by being dismissed for making a complaint under the Safety, Health and Welfare Work Act, 2005.

Summary of Respondent’s Case:

The employer was shocked at the conduct of the employee who wished for a child to be restrained. In their view the Complainant lost control of a very minor incident and overreacted to a minor incident to such an extent, that it was clear that he was not a good fit for the centre.

Findings and Conclusions:

No expert evidence was opened at the hearing about appropriate protocols that should be followed where a client becomes aggressive or difficult to manage. Evidence was given by the management that the protocols were adequate in their view. The Complainant who has relatively little experience in the sector also stated that in a previous role he had in this sector there were better protocols.

Each party relied upon their own experience and witness testimony.

The Complainant has relatively little practical and clinical experience in such care centres.

The Respondent and the manager have significant practical and clinical experience. The centre is subject to audits.

It is not open to this tribunal to make any finding on the adequacy of the protocols that were in place.

There is clear opposing evidence from each side. On balance I find the evidence of the Respondent’s caretaker to be persuasive that the child did calm down relatively quickly when in her care.

I also find that the Complainant was dismissed arising from the incident on the 17th of December 2022 for making a complaint about how ill equipped he was to deal with what he found to be a very challenging situation. I find that but for making that complaint the employment would have continued.

The question that arises was it reasonable to terminate the employment in this way and having regard to the statutory code on grievance and discipline S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, the answer must be know. In effect he was summarily dismissed for making a complaint.

SI No 146/2000 code of practice requires that the worker is afforded fairness during his probationary period:

6. The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

• That employee grievances are fairly examined and processed;

• That details of any allegations or complaints are put to the employee concerned;

• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

The Labour Court in Beachside Company Limited LCR 21798 considered if a worker could rely upon SI no 146 of 2000 during the probationary period. That decision stated:

Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.

The Employer has the right to dismiss during probation, and a pattern of poor performance may give rise to such discretion being exercised as it related to the worker’s performance of his duties. I note the Court of Appeal in Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37, the Court allowed an appeal against a decision of the High Court restraining the employer from dismissing an employee during his probationary period on performance related grounds.

The Court of Appeal case related to a wrongful dismissal case.

There are several complaints before me, and all share the same factual matrix.

Section 27 of the Safety, Health & Welfare at Work Act, 2005 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.

In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test:

“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 suggests 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 the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment

The Complainant has given credible evidence that he believed that his safety was at risk. The dismissal was not because of any performance review. The procedures normally applied to investigate such an allegation did not take place. On balance it must be concluded he was dismissed for making a complaint where he believed his own safety was at risk.

The evidence overwhelmingly supports a finding that the dismissal followed from a complaint about safety. That does not mean that the matter complained about has merit. However, the Complainant would not have had his employment end other than for making a complaint about safety.

The Employer relies on the probationary clause and right to dismiss during that period. However, the matter that gave rise to the Complainant’s dismissal was his complaint about his own safety. That may have raised concerns about his suitability to work at a centre where the ethos is strongly about client care and flexibility and imposing physical constraints on a client is abhorrent to that ethos. However, the complaint made by this employee was genuine and was not mutually exclusive to a caring and client centric ethos. It was primarily about his own safety, and he was entitled to make that complaint without being penalised for it.

The employee also made a protected disclosure to his employer pursuant to the Protected Disclosure Act 2014 as amended.

Section 5 of the Act states:

Protected disclosures

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection 6 and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section6, 7, 7B, 8, 9, or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker F13[in a work-related context].

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

Under section 6 the disclosure was made to his employer.

Under section 5 there are 2 important subsections:

7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

And 12(7C) states:

(7C) In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds.

Subsection 12 (7C) was effective from the 1st of January 2023, and the matter complained about relate to December 2022. However, was the disclosure relevant information that the Complainant had a reasonable belief to be true? On the facts it was relevant as it related to his Safety in his workplace. The facts also tend to show that he believed it to be true. However, was it a reasonable belief?

In the Court of Appeal Judgement Barrett v Commissioner of An Garda Siochana [2023] IECA 112. Barret determined for a matter to be a protected disclosure, the worker must have a reasonable belief that it tends to show some wrongdoing, requiring that “reasonable person would have held the belief if he or she had the same information”. Whether the same test applies post the changes where the onus shifts to the employer to show that it was not a protected disclosure, is not entirely clear. The reasonable belief test based on Barret may now be displaced by statutory change and a prima facie test may replace a reasonable belief based test.

The employer has argued that a reasonable person could not have held the belief that there was a wrongdoing, if they had the same information. They argue that the entire factual matrix in fact shows a safe and caring environment.

Neither party has proved that the safety protocols and practices in place were adequate or not. However, pre the January 2023 changes to the Act, the burden to prove that it was a reasonable belief was with the employee. Absent of any independent evidence, this tribunal is left with two partisan views that it was a reasonable belief and the employer stating that the factual matrix does not support that conclusion.

On balance I find that the obligation on the employee pre-January 2023 to show that he had a reasonable belief based on the test as set out in Barrett that an objective standard applies, and a reasonable person would have held the same belief, if he or she had the same information as the worker, has been met. While credible evidence by another care worker was given who on oath stated that the matter complained of did not cause her any concern whatsoever, the reasonable belief test is based on the information that the Complainant had. That information related to very basic equipment to hand such as a bean bag, swimming boards and an induction programme that was relatively brief. If a reasonable person with the same short experience had the same information they could have held a reasonable belief that they were ill equipped to cope with a child with special needs who became agitated.

On balance the Complainant has shown that but for making a protected disclosure he was dismissed.

I note the reference to parallel claims in the Arthur Cox Yearbook 2017:

[5.11]

Culkin v Sligo County Council 20—Court of Appeal—Peart, Irvine & Hogan JJ—appeal from High Court 21—Employment Equality Acts 1998 to 2015, ss 77(1) and 101—multiplicity of litigation—rule in Henderson v Henderson—complaint before Equality Tribunal and personal injuries proceedings before High Court arising out of same alleged set of facts

Indeed, Hogan J observed that one could come to the same conclusion by reference to the wording of the Acts themselves and in particular, s 101(2)(a) regarding the issue of complementary remedies. Looking holistically at ss 101 and 102(2)(a) and applying the decision of Black J in The People (Attorney General) v Kennedy, 25 Hogan J found that s 101 of the Acts:

serves to bar complementary claims for discrimination before the Tribunal and at common law in respect of claims based on failure to comply with an equal remuneration term or an equality clause. But it has no wider meaning and, specifically, it does not bar subsequent personal injuries claims per se where an earlier discrimination claim before the Tribunal has failed.

Hogan J therefore allowed the appeal insofar as Kearns P held that the personal injuries claim must automatically fail in limine as an abuse of process by virtue of the plaintiff’s failure to prevail before the Equality Tribunal. However, he again cautioned that it would also be open to the trial court to determine that the personal injuries claim—or, at least, parts of the claim—should fail on the ground that it amounted in substance to a collateral attack on the decision of the Equality Tribunal.

I note that the Labour Court in Sorenson v TeagascEDA 1723, refused to allow facts which were argued in a claim pursuant to the Employment Equality Acts in circumstances where they had been put before the WRC and Labour Court in a claim under the Protection of Employees (Fixed-Term Work) Act 2003.

While a discretion exists to make an award under two headings on the same facts, that would only follow if the two claims were in essence different. In this case they were not as the claims are about being dismissed and would amount to double compensation if awarded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00056846-003/ CA-00056847-003 Safety, Health and Welfare at Work Act 2005

These are duplicate complaints and are treated as one.

The complaint is well founded. He was penalised and let go arising from making a complaint that he perceived to be a safety risk.

The Complainant has relatively short service. He should have been allowed to complete his probationary period and no issues with his performance were highlighted other that what followed from the incident that has been detailed at length. In these circumstances I award compensation as the appropriate remedy. The relationship between the parties has broken down and re-engagement or reinstatement are not suitable remedies in these circumstances.

I award 6 months compensation that approximates to €12,480 gross.

The Complainant was unfairly dismissed arising from making a complaint about his safety and I order that the Employer pay to him compensation of €12480 gross.

CA-00056846-001/CA-00056847-001 Protected Disclosure Unfair Dismissal Act 1977:

Technically I have determined that the safety complaint also constitutes a protected disclosure. However, the facts are the same for the award already determined under the Safety, Health and Welfare at Work Act 2005. I find that the Complainant was unfairly dismissed arising from making a protected disclosure and decline to make a further award as it would amount to double compensation.

Dated: 03-10-25