HSD2517

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00033539 (CA-00044397-002)

BACKGROUND:

The employee appealed the Decision of the Adjudication Officer to the Labour Court 13 September 2023 in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts 2005-2014.

A Labour Court hearing took place on 3 June 2025.

The following is the Decision of the Court.

DECISION:

This is an appeal by Daniel Hughes (“the Complainant”) against a Decision of an Adjudication Officer given under the Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”) against his former employer Action Alarm Control 24 (“the Respondent”).

The Adjudication Officer found that the complaint was out of time.

The Complainant lodged an appeal of that decision and two other appeals UDD2535 and PDD2513 to the Labour Court. A hearing scheduled on 27 November 2024 was adjourned to allow the parties to lodge further submissions. All three appeals were heard on 3 June 2025. The Court heard evidence from the Complainant and three witness for the Respondent company – Aaron Mooney, Managing Director, Pat Moloney, Director and Sean Leavy, Technical Operations Manager.

1. Background

The Respondent operates in the security industry providing intruder alarm and monitoring services to domestic and commercial premises. The Complainant worked as an Alarm Control Operator in the Respondent’s monitoring centre. 

On 21 December 2020, the Complainant was reported as a Covid-19 close contact and left the workplace shortly thereafter. The Respondent contends that he did so without authority. The Complainant contends that he did not attend work on the advice of his GP. He submitted a medical certificate stating that he was unfit to attend work from 21 December 2020 to 4 January 2021.

On his return to work, the Complainant was issued with a Final Written Warning if 12 months duration. The Final Written Warning was reduced to six months duration on appeal, which was accepted by the Complainant on 4 February 2021.

On 10 February 2021, the Complainant instigated a grievance in relation to the disciplinary process and in relation to the denial of a trail promotional opportunity.  On 8 March 2021, the Respondent informed the Complainant that it considered the matter closed.

The Complainant resigned his employment on 9 April 2021, citing constructive dismissal.

2. Complainant- summary position and testimony

On 21 December 2020, after being identified as a close contact, the Complainant received a directive from his GP to self-isolate. This advice mirrored HSE public health guidance and had legal force under the Health Act 1947 and accompanying regulations. His notification to management of this obligation constituted a disclosure of relevant information. The employer failed to acknowledge or assess the disclosure.

On 21 December 2020, the Complainant made an oral disclosure to his manager, Sean Leavy, upon learning he had been identified as a close contact of a confirmed COVID-19 case. He informed Mr Leavy that his General Practitioner had directed him to self-isolate and that, as a result, he could not attend work. This oral statement, made contemporaneously and in response to a legally significant health risk, constitutes a disclosure within the meaning of Section 27(3) of the 2005 Act, as it related to a legal obligation to comply with a relevant statutory provision and constituted a representation relating to safety, health or welfare in the workplace.

• The Complainant suffered multiple forms of penalisation as a result of making a protected disclosure including a disciplinary warning, denial of promotional opportunity, a mishandled grievance, workplace intimidation and psychological harm and unfair dismissal by way of constructive dismissal.
• The penalisation consisted of the initiation of disciplinary proceedings, the imposition of a final written warning, an undeclared and retrospective ban on promotion opportunities, and procedural irregularities that compounded and extended the harm. In addition, the Complainant was constructively dismissed because of the employer’s continued retaliatory conduct after he made a protected act. These actions constituted a continuing wrong until the date of resignation.

3. Respondent – summary position and testimony

The Complainant left the employment on 9 April 2021. The complaint is out of time, as the Complainant has failed to identify any act of penalisation within the cognisable period for the complaint. The matters raised by the Complainant relates to matters prior to the disciplinary process. When the Complainant accepted the outcome of the Appeal hearing those matters were closed. 

The long delay in submitting the claim suggests that the allegation of penalisation was not in the Complainant’s mind at the time of his resignation. The only allegation of penalisation that falls within the six-month timeframe is his allegation of constructive dismissal.  That allegation is refuted.

Without prejudice to the above, the company takes its health and safety responsibilities very seriously. The company was in total compliance with HSE guidelines. It followed close contact guidelines was not in breach of health & safety legislation. 

The Respondent refutes all allegations made by the Complainant that he was subject to penalisation.

4. Relevant Law

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

Protection against dismissal and penalisation.

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

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

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

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

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

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

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

Statutory Time Limits

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015, provides as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

5. Deliberations and Findings

When considering a complaint under the 2005 Act the Court must address three questions. In the first instance, the Court must be satisfied that a protected act or acts has or have taken place as described in the Act. Secondly, the Court must be satisfied that the Complainant suffered a detriment during the relevant period as described in the Act. Finally, the Court must decide whether the detriment was suffered because of the employee the protected act or acts.

Time Limits

The Court’s jurisdiction is confined to assessing breaches that occurred within the cognisable period for the complaint, having regard to the six-month statutory time limits set down at section 41 of the Workplace Relations Act 2015.

As the Complainant referred his complaint to the Workplace Relations Commission on 6 October 2021, the relevant period for consideration is from 7 April 2021 to 6 October 2021. As the Complainant resigned on 9 April 2021, the Court is confined to assessing any penalisation occurring in the three-day period from 7 April 2021 to 9 April 2021, when the Complainant’s employment ended.

Was there a protected Actas described at Section 27 of the Act?

The Complainant contends that he made protected acts on 21 December 2020 and on 24 December 2020.

On 21 December 2020, the Complainant was identified as a close contact of a confirmed COVID-19 case. The Complainant’s evidence was that on the same day his general practitioner instructed him to self-isolate immediately in accordance with HSE public health guidelines. He informed his manager, Sean Leavy, of that fact and subsequently provided medical certification. The Complainant’s evidence was that he made a protected act as he raised concerns about his own general health and that of his colleagues in good faith. He understood that he would breaking the law if he disregarded the advice of his GP.

On 24 December 2020 the Complainant emailed the CEO, Aaron Mooney, stating:

“Hi Aaron I really understand yous are really stuck at this time with what is going on.

I have been constantly asking could I have a computer so I could work from home, I have never once refused that option and I'm fully willing to work from home, I just can't come into work, I'm really not trying to be awkward at this time but I have to follow the hse and gp advice and guidelines,

I'm still awaiting results from my HSE COVID test that I had yesterday and my doctor has signed me off because I'm a close contact to a positive case of Covid in work. And because of how long I have spent with Martin lesson and Patrick. My GP has advised me also that even if this test comes back negative I have to have another test in 7 days, and I still have to isolate for the full 14 day period.

If you can organise a computer and phone for me to work from home I will do(sic).”

The Complainant submits that he communicated a belief that his attendance at work posed a risk to health and safety, which amounts to a representation concerning a matter affecting his own health and potentially that of others in the workplace. While the Respondent takes issue with the Complainant’s viewpoint that he was required to self-isolate, it does not dispute that the Complainant communicated his concerns about remaining in the workplace on 21 and 24 December 2020.

Having regards to the submissions made and evidence preferred, the Court finds that the communications from the Complainant to his employer on 21 and 24 December 2020 amount to protected acts, in that those communications raised matters relating to the Complainant’s safety, health, or welfare at work.

As a result, the Court finds that the Complainant has satisfied the first leg of the test in that he made a protected act as provided for at Section 27(3)(c) of the Act.

Was the Complainant penalised as described in the Act at Section 27?

Having found that the Complainant had made a protected act, the Court must establish whether he was penalised for so doing.

The Court has no jurisdiction to consider allegations of penalisation that fall outside the cognisable period for the within complaint. The Court’s jurisdiction is confined to assessing any complaints of penalisation that occurred in the period from 7 to 9 April 2021.

What penalisation is alleged?

Firstly, the Complainant contends that he was penalised on 24 December 2020 as per s.27(2)(e) of the Act when he alleges that the CEO Aaron Mooney exercised coercion via texts and phone calls in attempt to make him return to work despite medical instructions.

Secondly, the Complainant contends that he was penalised on 7 January 2021 as per s.27(2)(d) of the Act when he was subjected to a disciplinary hearing chaired by the CEO without any investigation.

Thirdly, the Complainant contends that he was penalised on 13 January 2021 as per s.27(2)(d) of the Act when the Respondent issued him with a Final Written Warning and again on 25 January 2021 when the duration of the warning was reduced appeal.

As the allegations of penalisation above all fall outside the cognisable period for the complaint under the Act., the Court finds that it has no jurisdiction to consider those matters.

Fourthly, the Complainant contends that he was penalised on 10 February 2021 as per s.27(2)(b) of the Act, when he was denied a trial promotion, which was never disclosed to him as part of the disciplinary process.

Representatives on behalf of both parties made legal submissions on the Court’s jurisdiction to consider the denial of a promotional opportunity as a complaint of penalisation that fell within the cognisable period for the complaint.

The Complainant contends that the denial of promotional opportunities amounts to a continuing wrong as it remained in place until his resignation on the 9 April 2021. The Complainant contends that the only reason that he was denied that opportunity was because he had a disciplinary warning in his file for self-isolating and, whether the promotion was guaranteed or not, being excluded from consideration due to a protected act is penalisation under law.

The Complainant relies on Health Service Executive v McDermott [2014] IEHC 331 where Hogan J held that: -

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

The Respondent contends that the Complainant’s reliance on a continuing wrong doctrine is misplaced, as the decision to postpone the supervisory trial was a single time-bound action in early February 2021, which was not repeated and as time progressed its impact diminished.

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

The wording in Section 41(6) differs from time limits under employment equality legislation where consideration of continuing or ongoing contraventions may be permitted. Section 77(5)(a) Employment Equality Acts, 1998–2015 allows for claims to be referred within six months from ‘the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence’. By contrast the time limit set out in Section 41(6) specifies that a complaint cannot be entertained unless it is presented after the expiration of the period of 6 monthsbeginning on the date of the contravention to which the complaint relates.

The 2005 Act does not provide for claims to be considered from the date of the most recent contravention. The claim must be submitted within six months of the contravention to which the complaint relates.

In the circumstances of this case and having regard to how the complaint was framed by the Complainant, the Court finds that the contravention cited occurred in early  February 2021 when Mr Leavy advised the Complainant that his trial would be postponed because he had a disciplinary warning on file at that moment. No specific contravention relating to that matter occurring in the six-month period prior to lodging a claim was identified to the Court.  As a result, the Court finds that this aspect of the complaint was submitted outside the six-month time limits for bringing complaints underthe Act and the Court finds that it has no jurisdiction to consider that matter.

Fifthly, the Complainant contends that he was penalised in accordance with s.27(1) of the Act when the Respondent failed to properly investigate his grievances and denied him a fair process as the grievance process was conducted by the same parties that had failed to investigate the matters that had led to his disciplinary sanction.

The Court notes that on 8 March 2021 Mr Leavy advised the Complainant that his grievance was deemed closed due to his failure to provide additional information requested. It is accepted that the Complainant did not raise any further issues relating to his grievance after Mr Leavy’s email of 8 March 2021. As a result, the Court finds that process concluded on 8 March 2021.

As the allegation of penalisation relating to the grievance process concluded on 8 March 2021 it falls outside the cognisable period for consideration in this complaint.  Accordingly, the Court finds that it has no jurisdiction to consider that matter.

Finally, the Complainant contends that he was penalised in accordance with s.27(2)(a) of the Act when he was constructively dismissed on 9 April 2021, as the Respondents’ conduct, including the Respondent’s refusal to reverse the flawed penalty and continuing enforcement of the promotion ban, breached the mutual trust and confidence at the heart of the employment relationship. The allegation is refuted by the Respondent.

In UDD2535 the Court found that the Complainant was not constructively dismissed from his employment with the Respondent.  The Court therefore finds this element of the complaint is not well founded. 

5. Finding

The Court has carefully evaluated the evidence adduced during the hearing and has taken full account of the written submissions and legal arguments made by the parties.

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

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

The Adjudication Officer’s decision is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
FC	______________________
6 October 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Fiona Corcoran, Court Secretary.