Complainant

Respondent

Parties

Marie  Bridget O’Connell

Vulturous Ltd. T/A Therapie Clinic

Representatives

Self-represented

Peter Dunlea, Peninsula Business Services

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00067836-001

03/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00067836-002

03/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00067836-003

03/12/2024

The Complainant commenced her employment with the Respondent on 27 February 2024. Her employment terminated on 9 August 2024.

On 3 December 2024, the Complainant referred the above complaints to the Director General of the WRC.

The Respondent rejects the claims.

In her WRC complaint referral form, the Complainant alleged that:

·         She was penalised or threatened with penalisation by the Respondent for having made a protected disclosure under the Protected Disclosures Act, 2014.

·         She was penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act, 2005.

·         She had to leave her employment due to the conduct of the Respondent or others at work. She alleged that her complaint was based on her exercising her right under the Protected Disclosures Act.

The Complainant submitted that she experienced bullying and harassment by a named colleague (Ms I) which made her life extremely difficult and had an impact on her confidence and mental health.

The Complainant submitted that she raised her first complaint with the then Clinic Manager (Ms M) in early May 2024, but Ms M subsequently left the position. The Complainant then brought her complaint to the attention of the then Regional Manager, Ms Sinéad Downey on two occasions but no action was taken. The Complainant submitted that soon after she raised the complaints about the colleague, the Respondent’s attitude towards the Complainant changed and she was penalised. The colleague in question was made a manager and had more authority to make the Complainant’s life miserable.

The Complainant submits that during the first six months of employment she had to complete three probation meetings to discuss her progress. The first ones were standard. After the complaint about the colleague, now her manager, the colleague was conducting the third probationary meeting, which made the Complainant very uncomfortable. Prior to the meeting it was clear to the Complainant that the colleague told an untruth to the Regional Manager about the Complainant’s performance. The Complainant submitted that she tried to ring the Regional Manager after the meeting but could not reach her, so she emailed her about the failure to address her bullying concerns and said that she had no alternative but to resign. At the hearing, the Complainant confirmed that there was no communication between the probation meeting and her resignation regarding her concerns.

On 8 April 2026, the Complainant furnished a written submission as follows.

The Complainant submits that during her employment as an assistant manager, she was subjected to repetitive bullying by another work colleague, Ms I. Ms I was employed at the clinic as a laser skin therapist before the Complainant joined in 2024. Both Ms I and another laser therapist (Ms A) had applied for the assistant manager position but were unsuccessful. The Complainant began working for the Respondent at the end of February 2024.

The Complainant submits that she noticed very quickly that both Ms I and Ms A were very cold and unfriendly towards her, especially Ms I. The bullying started shortly after the Complainant started the job. Ms I was constantly watching the Complainant and standing over her while she was carrying out her duties. She passed smart condescending comments about the Complainant and her work daily. She repeatedly undermined the Complainant in front of customers and work colleagues at the clinic. This went on for a number of months, so the Complainant decided to inform the Clinic Manager of the situation. Shortly after that the Clinic Manager announced that she was leaving the Respondent in May of 2024. The Complainant submits that she expressed her concerns to the Clinic Manager that the bullying would escalate once she had left the clinic. And it did unfortunately. The Complainant had a meeting with the Clinic Manager and the Regional Manager about the situation and expressed her concerns. The Complainant wanted to make both of them aware of what was going on and hoped the situation would be resolved before the Clinic Manager left in May.

The Complainant submits that when the position of the Clinic Manager became available both Ms I and Ms A applied for the role. Ms I was successful and was appointed by the Regional Manager as the Clinic Manager. This put the Complainant in a compromised vulnerable situation as the Assistant Manager. Shortly after that the bullying escalated and became unbearable to tolerate. The Complainant was repeatedly spoken down to, intimidated, humiliated and belittled by Ms I leading to a very toxic work environment. Ms I also made a number of complaints and told lies about the Complainant to the Regional Manager prior to the Complainant’s 6-month probation meeting. The Complainant felt that this was a strategy constructed by Ms I and Ms A to get her out of the job. The Complainant submits that, shortly after she resigned, Ms A was promoted to the Assistant Manager.

The Complainant submits that the bullying was so bad on two occasions she left the clinic in tears. Ms I would often not speak to her inside and outside of the clinic or acknowledge the Complainant’s presence at the clinic. The Complainant was excluded from doing certain duties and tasks and held back by Ms I so she would not progress in her role. The Complainant was told by Ms I not to engage in consultations and was obstructed from some of her duties. This was done so the Complainant would not receive any commission or recognition for her sales consultations and product selling at the clinic. The Regional Manager and the former Clinic Manager were both aware of what was going on but there was no informal or formal process carried out by management to resolve the situation. Therefore, the Complainant was left with no option but to resign.

On the Complainant’s final day of work, the Regional Manager was supposed to conduct an exit interview with her, but she decided to get Ms I to conduct the exit interview instead. Once the Complainant became aware of this, she contacted the Regional Manager and explained it would be highly inappropriate and very distressing for her to engage in an exit interview with Ms I given the circumstances. She explained that she was not comfortable to do the exit interview with Ms I but was willing to do one at a later date with the Regional Manager, if possible.

The Complainant believes that she was targeted and bullied by Ms I because Ms I was not hired initially for the Assistant Manager role. The Complainant felt that something should have been done by management to address the situation and resolve it promptly. Had this been done and informal and formal procedures carried out by the Respondent, the situation could have been resolved. Having to resign from her job has impacted the Complainant’s finances very negatively and has affected her confidence going forward when applying for other jobs.

Summary of direct evidence and cross-examination of the Complainant

At the adjudication hearing, the Complainant stated that she was bullied out of her job. The Complainant said that within a week from the commencement of her job, she noticed that two coworkers were not so friendly. She learned that they had applied for the job she was hired for. The Complainant said that, in months prior to the Clinic Manager’s departure the work environment became toxic. The Complainant expressed her concerns to the Clinic Manager in May 2024 via text messages. She was concerned that the behaviour would escalate. The Clinic Manager arranged a call with the Regional Manager on 8 May 2024 at 2pm when the Complainant explained the situation.

The Complainant was concerned when Ms I was appointed the Clinic Manager after the former manager’s departure. The situation escalated thereafter.

The Complainant said that she felt uncomfortable when Ms I was asked to sit in and take notes at her 6 months’ probation review. The Complainant contacted the Regional Manager after the meeting and explained that she was surprised Ms I was in attendance. On the next day, the Complainant resigned her employment.

The Complainant stated that, in her view, no procedures were followed. She said that the Regional Manager accepted her resignation. She said that she was never asked to reconsider and she started looking for a new job straight away. The Complainant said that she told the Regional Manager that she would not leave them stuck and could work a longer notice period but made it clear why she was leaving.

The Complainant said that she relied on section 5(3)(a) of the Protected Disclosures Act that “an offence has been, is being or is likely to be committed” in the context of her protected disclosure claim as she was bullied and nothing was done about it.

Regarding the detriment, the Complainant said that when she initially made her complaint to the Clinic Manager on 8 May 2024, the manager spoke with Ms I and, as a result, the behaviour escalated, her job became stressful, therefore, she was punished.

The Complainant stated that her claim pursuant to the Safety, Health & Welfare at Work Act, 2005 was based on the same facts. She made a health and safety complaint to the Clinic Manager on 8 May 2024. She was penalised by virtue of the escalation of the behaviour of Ms I.

The Complainant stated that she relied on the same set of facts in the context of her unfair dismissal claim. She stated that after she made a protected disclosure, Ms I’s behaviour escalated and, as a result, the Complainant had to resign her employment.

In cross-examination, the Complainant stated that she sent a text message to the Regional Manager saying that she was surprised Ms I was at the meeting. It was put to the Complainant that in her complaint form, she stated that she tried to contact the Regional Manager, in her evidence she said that she spoke with the Regional Manager, and in cross-examination she said that she sent a text. The Complainant said that she tried to contact the Regional Manager but she could not get through, so she either sent an email or a text. The Complainant was given some time to check whether it was an email or text. She confirmed that there was no email and undertook to deliver a copy of the text message. The Complainant confirmed later that there was no communication between the probation meeting and her resignation.

The Complainant said that she mentioned to the Clinic Manager that the two coworkers might be disgruntled as they did not get the job. When asked about specifics of the alleged bullying, the Complainant said that Ms I would ignore her, was very abrupt, unfriendly, unresponsive, and she would talk down to the Complainant. When asked about specific incidents, the Complainant said that one day Ms I stood behind her and stared at her while she was processing a voucher for a client. The Complainant felt she undermined her and embarrassed her in front of the client.

The Complainant said that when an employee makes an allegation of bullying, it is up to management to try to resolve it before it gets worse. It was put to the Complainant that a failure to address issues between staff is not penalisation.

In the context of a formal process, the Complainant said that she was never invited to do anything. She said that she did not want to leave her job.

When asked if there were any complaint about her, the Complainant said that not that she was aware of. She said that the Regional Manager mentioned something about getting rooms ready for the next client.

It was put to the Complainant that the Regional Manager was aware of a disagreement between the Complainant and Ms I. The Regional Manager's understanding was that the matter had been addressed and resolved through a meeting facilitated by the Clinic Manager.

The Complainant confirmed that the Clinic Manager had invited both her and Ms I to attend a meeting. She stated that she was upset during the meeting, while Ms I largely listened. The Complainant said that she had hoped the situation would improve following the discussion; however, in her view, matters subsequently deteriorated. She maintained that the informal intervention was unsuccessful and that no formal investigation was undertaken. The Clinic Manager told them that she wanted them to work together and to be kind to each other. The Complainant said that she told Ms I that she was delighted for her that she got the job and that she would be supporting her.

The Complainant said that a meeting was set up with the Regional Manager, Ms Downey, before the Clinic Manager left. It took place between 8 May and 10 May. At the call, Ms Downey asked the Complainant about the situation with Ms I. The Complainant said that she was conscious that, at that stage, Ms I did not sign her new contract yet. She wanted her to progress, and she did not want to cause her any trouble.

It was put to the Complainant that her protected disclosure seems to be about talking down and being rude. She said that it was bullying. The Complainant said that as part of her calls between her, the Clinic Manager and the Regional Manager, the Regional Manager would have become aware of the issue. The Complainant agreed that, as a consequence, a meeting between her, Ms I and the Clinic Manager was arranged to resolve the issues. The Complainant said that after Ms I became the manager, things got worse. The Complainant said that Ms I would contradict the Regional Manager’s instructions.

The Complainant agreed that she had the impression that Ms I did not like her from the beginning, even before she made the protected disclosure.

Regarding the performance review, the Complainant recalled the first one with the then Clinic Manager. They discussed staff shortages and enormous pressure. She had another meeting with Ms Downey on 6 June 2024 at a different location. It was put to the Complainant that she should have known that there were improvements to be made and a 2-weekly check in was set up. The Complainant said that she did not recall Ms Downey saying that she did not meet standards. Rather, it was about more training and support.

It was put to the Complainant that Ms Downey raised a number of issues. For that reason, 1:1 meetings and daily briefings were arranged.

The Complainant said that the probationary meeting was very uncomfortable, she did not expect Ms I to be there. The Complainant did not dispute that she had at least two 1:1 meetings with the Regional Manager but she did not raise any difficulties with Ms I. It was put to the Complainant that she did not mention Ms I at the 4-month review in June, at the link-in two weeks later or in July. The Complainant said that she had no issue with the performance review, her issue was with Ms I’s attendance.

It was put to the Complainant that in her WRC complaint referral form, she said that Ms I “had told lies” about her performance but she never raised it at the meetings, she did not disagree with the review. She agreed that after 8 May 2024, she never raised any concerns again. However, she said that she contacted the Regional Manager stating that she would not attend the exit interview with Ms I and the interview was cancelled. She said that her manager saw no problem with the exit interview being carried out by the person who bullied the Complainant.

The Complainant said that the Regional Manager replied to her resignation email, they had communication over and back, however, she was not asked to reconsider. The Complainant said that even if she was asked to reconsider, she would not do so.

The Complainant said that the reason she resigned was because the work environment was unbearable. She knew nothing would be done. She said that she raised her complaint in May 2024 and then by way of her resignation.

The Complainant agreed that she sent a message on 25 July 2024 at 18.32 thanking the Regional Manager for doing the probation meeting and asking would it be possible to have a quick chat. The Regional Manager replied “yes”, “absolutely”. 

After a short recess, the Complainant confirmed that there was no further conversation or email communication between the probation meeting and her resignation.

The Complainant confirmed that she was aware of the handbook and grievance procedure. She further confirmed that she did not raise the issue again after her initial engagement with the then Clinic Manager in May 2024.

Regarding her loss, the Complainant said that she was reluctant to apply for jobs as her confidence was lost. However, she applied for a few jobs but was without an income for 4 weeks. She secured new employment after 4 weeks. The Complainant furnished the details of her earnings.  

The Respondent submits as follows.

The Complainant commenced her employment with the Respondent on 27 February 2024 as the Assistant Manager at the Respondent’s clinic.

In May 2024, the Complainant’s line manager left the business and at this stage Ms Downey, the Regional Manager stepped into the managerial role at the clinic at which the Complainant worked. This was intended to be temporary situation until the role of manager at the clinic could be filled.

The Regional Manager had received feedback form the Complainant’s previous line manager that there were some areas in which the Complainant’s performance had been lacking. This is evidenced by the performance review conducted with the Complainant by her line manager on 23 April 2024.

The Respondent submits that the performance review noted areas of necessary improvement for the Complainant and outlined how the Respondent would assist the Complainant in achieving the goals. This included more training and shadowing at different clinics.

The Respondent refers in particular to section E Additional Comments of the probationary review form which states as follows:

“Marie has made an improvement over the last week comparing to her first six weeks, areas that need to be working on is engaging with the team more in regards to checking in with them throughout the day and making the girls feel supported.

Overall Marie will improve over the course of the next two months and it has been communicated clearly what needs to be worked on – engaging with girls, reduce phone use”.

These clearly show that the Respondent felt the Complainant’s performance needed improvement while acknowledging that there were already signs of improvement from previous discussions.

The Regional Manager continued these reviews based on this feedback. The Respondent submits that an email from the Regional Manager to the Complainant dated 7 June 2024 provides an account of the Complainant’s four-month probationary review which was held on 6 June 2024.

The meeting began with a discussion of how the Respondent could support the Complainant going forward. The Regional Manager noted the areas in which the Complainant needed to improve at length.

“You have had training with [the Clinic Manager] over your first 3 month and also had time in Cork with [name] to help you upskill into the Assistant manager position and understand there has been lots of changes in Crescent over past couple weeks but now I really need you to put your training into action while also continuing to learn.

You should know your Targets weekly for Sales, Revenue, Customer Satisfaction this has been given to you and can be seen in your week to date reports.

With all changes in the Crescent as of late your team need to feel supported and have a leader as this will feel like such an uncertain time for them so you need to be completing 1-2-1’s with them addressing performance but also most importantly given them time to give you feedback and needs they require from their management team. “

The Regional Manager concluded the note by stating:

“I need to see you own this role and understand this takes time, but we can move forward and see the day to day management come into effect.”

The Regional Manager stated that she would “link in bi-weekly to see the approve come into action, as I spoke about yesterday, I want to set you for success and ensure you’re in the right role.”

The Regional Manager, as per the above, held a check in on 20 June 2024 as illustrated by the brief notes prepared at the time. These form part of live document that tracked all of the Complainant’s probationary meetings.

The Regional Manager noted significantly that:

“Addressed that not seeing above being put in place and not looking at Targets and setting plan to achieve them not just noting what is left to achieve Target as ASM should be creating plan based what is in diary and bringing team on the journey.

1-2-1 not being performed consistent with team and not talking about performance KPI’s with team in ASM role is to coach team to get best from them.

Daily Briefings couching team on plan for day ahead setting targets promoting offers getting team excited this is not being done.

Know your business do you know pricing/Offers you need to be confident in pricing so can help your team but also as you are at FOH should be able to go through with clients and new clients to add to sales daily.

Addressed needing to step into to ASM with confidence and treat clinic as own as a ASM you are part of the management team and have same responsibilities as manager and responsible for driving all KPI’s Service, Sales, Revenue and People daily and working with manager on ways to grow the business.

Maire took all this feedback and said would work on all in clinic.”

On 23 July 2024, the Complainant’s line manager (for the avoidance of doubt the individual who was the subject of the alleged protected disclosure) held a meeting with her to discuss her performance and noted:

“addressed no confidence with talking to clients about laser, not knowing packages, pricing and current deals even if checking in the computer not sure what packages we do when client asks, and by these loosing opportunities for the clinic.

addressed pulling back girls from break out of treatment to sign in clients or rebook or to chat to client about laser.

Asked about confidence with AEs as said was covered during laser training and has all documents. Needs refreshing training

Dealing with complains seen some improvement but still many numbers left in my column to ring after days off. Addressed that needs to make decisions asassistant manager when I am not in the clinic, not put back to me to deal with different day.

Addressed phone usage during shift and leaving desk without cover mentioned that got feedback of girls and complain of customer.

Overall addressed that more help and support is needed for me as I can’t look after everything myself

Marie took feedback and said she is always happy to help but with many things still needs more training.”

Furthermore, the Complainant was invited to a formal probationary review meeting on the 25 July 2024 by way of an invite dated the 22 July 2024.

This meeting was held on the 25 July 2024 with the Regional Manager conducting the meeting and the Complainant’s line manager (Ms I) as note taker. The minutes of this meeting were exhibited at the hearing.

This probationary review meeting contained a very detailed assessment of the Complainant’s performance. In particular the meeting focused heavily on the matters discussed in the meeting on the 6 June 2024.

At several points, when asked why certain actions were not being performed the Complainant stated she was undertaking them, but the Regional Manager noted they had not been actioned. Several other matters were discussed such as phone usage on shift, leaving the reception desk with no cover and complaints not being handled properly.

The Complainant, when asked, stated she would like more training on staff management and other aspects of her role.

When asked if there was anything else she wanted considered the Complainant stated (as summarised by her line manager):

“Added that had a bit shaky start with [the Clinic Manager] leaving and would be ideal if had the same manager for all 6 months of training to get to know business. Conscious that there is still lots to learn. Had training with [the Clinic Manager] for 3 months and 1 week in Cork. No negatives, learned a lot especially since [the Clinic Manager] left and had to grab things faster and understands that needs to be responsible for her role too.

The Regional Manager concluded the meeting stating:

“I will review the information that you have provided to me and I will arrange a meeting to deliver the outcome of the of this Probation Review meeting. I would like to remind you that the outcome of this process may result in a continuation or termination of your probationary period. I would also like to remind you that we are very much here to support you during your probation period and to never hesitate to ask for assistance. Do you have any questions or anything you would like to add?”

The Complainant, however, resigned her employment the next day, 26 July 2024 via an email.

In this the Complainant stated that ‘I feel it has become very difficult to work along side Clinic Manager.... I will not be subjected to rudeness bullying and being lied about.’

The Complainant went on to say that she felt many of things she had been criticised for the previous day had been because her line manager had told her to do these things, stating that ‘It would not have been right for me to say this all to u yesterday while [Ms I] was there Sinead.’

She further stated that there had been further incidents of her line manager being rude and these has been raised with the Regional Manager previously.

Notably the Complainant stated that:

“I have no idea why she has such an issue with myself I had made [the Clinic Manager] and u aware of this before [the Clinic Manager] left and unfortunately it hasn't changed Sinead.

It's a toxic work environment and I've never had to deal with this in previous jobs or my own business.

I also feel there will be more people leaving the clinic due to this.”

The Respondent immediately contacted the Complainant by phone asking her to reconsider her resignation but she declined to do so. In particular the Complainant was invited to air her grievance and make the Respondent fully aware of her concerns.

Ultimately the Complainant did not reconsider her resignation and finished employment with the Respondent on 9 August 2024.

The Respondent submits that the Regional Manager was not aware of any complaint from the Complainant regarding her line manager as, if she had been aware, the line manager would not have been permitted to be a notetaker in the probationary review meeting with the Complainant. The Regional Manager was aware of a discussion with the previous Clinic Manager but understood this had been resolved.

The Regional Manager was under the belief that the Complainant and her line manager worked well together, and the Complainant had actually stated she was happy with her line manager.

The Respondent submits that any actions taken with regards to the Complainant related solely to her performance as was reported to the Regional Manager who made considerable efforts to assist and discuss any issues with the Complainant.

Penalisation Claims

CA-00067836-001 Penalisation under the Protected Disclosures Act 2014

The Respondent submits that the Complainant has filed three fundamentally similar claims alleging that she was penalised for having made a protected disclosure.

The complaint under the Protected Disclosures Act 2014 was that she reported bullying and harassment by her colleague to multiple individuals including the Regional Manager, Ms Downey.

The Complainant then alleges that as a result of these protected disclosures ‘the respondent attitude changed towards me and I was penalised.’ The Complainant further alleges that her colleague, who had been promoted to her manager, told lies about her to Ms Downey. Ultimately due to this alleged penalisation the Complainant states she had no alternative but to resign.

The Respondent submits that the Complainant must elect which of the penalisation claims she wishes to pursue.

CA-00067836-002 Penalisation under the Health, Safety and Welfare at Work Act

The Respondent refers to section 27 (5) of the Health, Safety and Welfare at Work Act 2005 which states as follows:

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.

The Respondent submits that as the Complainant cannot recover under both the Health, Safety and Welfare at Work Act 2005 and the Unfair Dismissals Act, the Complainant must elect which claim to pursue.

CA-00067836-001 and 002 - Penalisation

The Respondent refers to the very recent case of Ali Izzy v Solarwinds Software Europe DAC ADJ-00054523 which provides a comprehensive summary of the law surrounding protected disclosures particularly in the context of unfair dismissals claims.

In particular the case provides a helpful analysis of the Protected Disclosures Act 2014 (hereafter referred to as “the PDA”). The decision goes on to cite the Court of Appeal in Barrett v Commissioner of An Garda Siochana and Minister for Justice [2023] 34 E.L.R. 165as the authority regarding statutory presumption as follows:

Regarding presumptions, the Court stated:

“Section s.5(8) of the 2014 Act provides that in proceedings involving an issue as to whether a disclosure is a protected disclosure it shall bepresumed, until the contrary is proved, that it is. Thus, there is a statutory presumption in favour of an applicant on this particular issue, although of course it is a rebuttable presumption. The use of the words “until the contrary is proved” suggests that the burden on a respondent who seeks to rebut the presumption is on the balance of probabilities”

Barrettconfirms that the statutory presumption applies to every element of the definition of a protected disclosure. That presumption may be rebutted on the balance of probabilities, but only if a respondent succeeds in disproving any one element of the definition. A complainant is not required to establish a prima facie case or adduce affirmative evidence that the disclosure meets the statutory criteria; rather, the determination turns on whether a respondent has discharged the burden of proving that the disclosure was not a protected disclosure.”

This makes clear that the burden falls to the Respondent to rebut the presumption that a disclosure is a protected disclosure. The decision however is silent as to if the Complainant is required to prove if any disclosure has been made at all.

Detriment

The Respondent relies on the definition of “penalisation” in section 3(1) of the Act.

The Respondent submits that, in the present instance, it is somewhat unclear what direct act or omission the Complainant believes was an unjustified detriment from her submission. The Respondent suspects the Complainant may be referring to ‘a negative performance assessment’ as the alleged detriment.

In this regard, the Respondent accepts that there was a relatively critical assessment of the Complainant’s performance on a number of occasions, namely on 26 April, 6 June, 20 June, 23 July and 25 July 2024. While the Respondent acknowledges that these may be considered ‘a negative performance assessment’ for the purposes of a protected disclosure, the Respondent wholly denies that such acts were in anyway unjust or detrimental to the Complainant.

Causation

The Respondent refers to the decision in Tony and Guy Blackrock Limited v O’Neill [2010] E.L.R,where the court considered the test of causation between a disclosure made under the Safety, Health and Welfare at Work Act, 2005 and alleged penalisation. The Labour Court stated that:

“it is necessary for a claimant to establish that the determent of which he or she complains was imposed ‘for’ having committed one of the acts protected by subs.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.”

The Respondent again refers to the decision in Ali Izzy v Solarwinds Software Europe DAC ADJ-00054523with regards to unfair dismissal relating to protected disclosures which will be quoted below at length:

“In general, unfair dismissal cases the burden of proof shifts to an employer to show that a dismissal was unfair in respects. However, this burden shifts to the employee when a specific claim of penalisation by dismissal is argued. The extent of the burden was described in the Circuit Court case of Dougan andClarke v Lifeline Ambulances Ltd [2018] E.L.R. 210which involved an application for interim relief to the Circuit Court pursuant to Schedule 1 of the PDA. Judge Comerford stated:

‘It seems to me that the most difficult area for the employee's application of this nature is to deal with the issue of the dismissal resulting wholly or mainly form the making of the disclosure. The dismissal has to result wholly or mainly from that. It is not enough that the protected disclosure contributed to the dismissal or was a factor in the employer making the decision. It has to meet that fairly heavy test. This protection will not apply unless the dismissal results wholly or mainly from it. ...It is not enough that it is just a factor or an influence or...whether it was a consequence of the protected disclosure, that wouldn't be enough. It has to result wholly or mainly from that protected disclosure.’

I am satisfied that the statutory test under section 6(2)(ba) is a causation test, a view reiterated by Circuit Court Judge Comerford in Dougan and Clarke. It is not sufficient that a protected disclosure was made and that a dismissal later occurred. The question is whether, on the facts, the making of the disclosure was the operative reason for the dismissal, to the level required by the Act, namely that the dismissal resulted “wholly or mainly” from the protected disclosure.”

The decision goes on to state:

“I accept that these authorities demonstrate that causation is not always to be approached through a narrow or technical “but for” analysis. It is well established that adverse treatment may arise from a protected disclosure even where the influence of that disclosure is unconscious or indirect, and that tribunals must, where the evidence warrants it, look beyond the stated rationale to determine whether an apparently legitimate explanation masks a retaliatory motive. The House of Lords in Chief Constable of West Yorkshire v Khanput it succinctly, albeit a discrimination case, when it was stated “... The phrases ‘on racial grounds’ and ‘by reason that’ denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.”

The decision goes on to state:

“The approach advised above requires a focused inquiry into why the Respondent acted as it did and what, consciously or unconsciously, motivated the decision at the relevant time. The assessment requires me, as far as is possible, to attempt to analyse the motivation of the decision-maker rather than a mere sequence of events. Therefore, I must evaluate the evidence to determine whether the dismissal was motivated by the Respondent’s asserted ground or arose from the protected disclosures of the Complainant, bearing in mind that causation is a legal conclusion, whereas the reason for the act is a question of fact. Ultimately, the application of that principle depends on the facts of the individual case.”

Non-withstanding the envisaged broader test, the decision went on to note that the “wholly or mainly” causation requirement for protected disclosures under the Unfair Dismissals Acts remains.

Performance reviews

In the present instance the causal link the Complainant suggests that she received poor performance reviews as a direct result of her alleged protected disclosure.

The Respondent submits that the sole reason for the poor performance reviews discussed with the Complainant was the Complainant’s performance. During the Complainant’s probationary period there were numerous discussions of areas in which the Complainant needed to improve and as outlined in the 6-month probationary, many of these criteria were not met. These were discussed repeatedly with the Complainant as outlined above and it is only in her resignation email dated 26 July 2024 that she stated she felt she could not discuss why she was failing to meet these targets. This is despite meeting with Ms Downey on a number of occasions and being in regular email contact.

The Respondent submits that, ‘it is not sufficient that a protected disclosure was made and that a dismissal later occurred. The question is whether, on the facts, the making of the disclosure was the operative reason for the dismissal, to the level required by the Act, namely that the dismissal resulted “wholly or mainly” from the protected disclosure.’

In the present instance the poor performance reviews resulted from the Complainant’s performance and reports from colleagues.

The Respondent reiterates that it had no knowledge of any protected disclosure save for a discussion at the beginning of the Complainant’s employment which was resolved informally between the parties.

Even if the poor performance reviews can be said to be based upon the reports of the Complainant’s line manager, they were not wholly so. The Regional Manager analysed the Complainant’s performance based upon the information available to her.

Unfair dismissal

The Complainant has failed to show that her dismissal was ‘wholly or mainly’ linked to any protected disclosure. The Complainant elected to resign her employment due to what she alleges was penalisation. However, the Respondent submits that the Complainant failed to exhaust the internal procedures available to her before resigning and as such cannot be seen to have acted reasonably in resigning.

The Respondent refers to Conway v Ulster Bank Ltd. UD 474/1981where it was held that the claimant had not acted reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints.”

This is further supported by in Redmond’s Dismissal law[third edition Paragraph 19.14],which notes that just as an employer must go through disciplinary procedures before a dismissal for reasons of fairness and natural justice, so too should an employee utilise the employer’s grievance procedure in an effort to resolve their grievance.

M Reid v Oracle EMEA Ltd UD1350/2014as referenced in Area Manager v Health Care Company ADJ-00020041,where it was stated that “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”

The Respondent further refers to A Worker (Mr O) (complainant) v An Employer (respondent) No.2 [2005] 16 E.L.R 132 where the Labour Court stated: ‘in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.’

In the present instance the Complainant failed to raise her grievance before resigning in spite of being expressly invited to do so in the email from Ms Downey on 26 July 2024. As such the Complainant cannot be said to have been reasonable in resigning.

Conclusion

The Respondent submits that the present claims should be dismissed as the Complainant has failed to set out any grounds for the cases before the WRC.

Furthermore, the Respondent submits that even if any protected disclosure was made, the Complainant’s dismissal was not “wholly or mainly” connected to the disclosure and therefore the Complainant cannot succeed in the present claim.

Without prejudice to the above should the Adjudication Officer find any claim to be well founded, the award to the Complainant must be proportionate to the harm suffered as per the principles laid out in von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891.

Summary of direct evidence and cross-examination of Ms Sinéad Downey, the Regional Manager at the relevant time

Ms Downey said that the Clinic Manager at the time brought it to her attention that there was some issue between the Complainant and Ms I. She understood from the Clinic Manager that a meeting was arranged, and it was resolved. Ms Downey said that the Clinic Manager left the Respondent on 10 June 2024. She did not hear any more on the matter.

Ms Downey said that she had a number of meetings with the Complainant as there were some concerns regarding KPIs and performance, she wanted to give the Complainant her support and some progress was made. There was not much feedback from Ms I regarding the Complainant’s performance.

Regarding Ms I’s attendance at the meeting on 25 July 2024, Ms Downey said that Ms I was the Clinic Manager at that time. Ms Downey was training her how to take over that role. She said she did not notice anything between the two employees, the meeting was very professional.

Ms Downey said that she was shocked when she received the Complainant’s resignation after the probation meeting. What had happened before did not cross her mind. Ms Downey said that she wrote to the Complainant and offered to reconsider and instigate grievance. However, the Complainant did not want to. The Complainant said that she would work 2-3 weeks, but Ms Downey thought that it would be uncomfortable for her to work together with Ms I.

Ms Downey said that after the Complainant’s resignation, Ms I was informed of the allegations against her and she was told if any issues arose, she was to contact Ms Downey.

Ms Downey said that she agreed that Ms I should not have been tasked to undertake the exit interview in the circumstances. However, she said it was standard practice within the Respondent that the line manager conducted the interview. Ms Downey was on annual leave at that time and she was not precisely sure what was the issue. She understood that the initial issue was resolved and the parties moved on.

In cross-examination, it was put to Ms Downey that the Complainant was never asked to reconsider her decision to resign. Ms Downey said that she asked during her call to the Complainant (and not in her email as suggested in her direct evidence).

The Complainant put it to Ms Downey that she knew about the issues with Ms I but decided to have her at the probation meeting. Ms Downey said that she understood that the issue was resolved. She had never heard from either party that it was not resolved, and the Clinic Manager told her it was.

Ms Downey apologised for the fact that the exit meeting was scheduled with Ms I. She said that it would typically be a line manager who does the interview, she was on leave at that time and until the resignation she was not aware of any issue.

It was put to Ms Downey that it was a co-worker who got the Complainant flowers at the end of her employment and not the manager. It was further put to Ms Downey that there was no offer to withdraw the resignation or intention to investigate the matter. Ms Downey said that she rang the Complainant and offered her to withdraw the resignation and forward a grievance. After the call she sent an email accepting her resignation.

The issue for me to determine is whether the Complainant made a protected disclosure as defined by the Act and whether she was penalised for doing so.  

The Complainant alleges that her concerns that she raised with the Clinic Manager constitute a protected disclosure. It was asserted that the alleged relevant wrongdoing is encompassed by the definition in section 5(3)(a):

(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,

The relevant law

The Act came into operation on 15 July 2014 (Protected Disclosures Act 2014 (Commencement) Order 2014 (S.I. No. 327 of 2014). The amendments effected by the Protected Disclosures (Amendment) Act 2022 came into operation on 1 January 2023 (S.I. No. 510 of 2022.)

The purpose of the Act is to provide protection for individual workers who make one or more protected disclosures from penalisation as a result of making the disclosure(s).

In investigating this complaint, I must first establish whether the Complainant made one or more disclosures which attract the protections of Act. If I establish that she did, I must then investigate whether she was penalised for making the disclosure(s), contrary to the provisions of the Act.

What is a protected disclosure?

The definition of “protected disclosure" is set out at section 5(1) of the Act:  

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 section 6, 7, 7B, 8, 9 or 10.

A “protected disclosure” therefore, is the disclosure by an employee to his or her employer, or another person, of relevant information. Section 5(2) of the Act provides that,

(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 in a work-related context.

In Barrett v Commissioner of An Garda Síochána [2023] IECA 112, the Court of Appeal emphasised that in order for something to amount to a protected disclosure, the worker must have “areasonable belief” that it tends to show relevant wrongdoing; this introduces an objective standard, requiring that “a reasonable person would have held the belief if he or she had the same information as the worker”.

Section 5(3) of the Act provides that the following are relevant wrongdoings for the purposes of the Act:

(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,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,

(h) that a breach has occurred, is occurring or is likely to occur, or

(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.

Section 5(5A) of the Act provides that “A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.”

Section 5(7) of the Act provides that “the motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure”.

Section 5(8) of the Act provides “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”.  The effect of this provision is to place the burden of proof in relation to a protected disclosure on the Respondent.

Section 6 of the Act sets out the way a disclosure is to be made in order to come within the ambit of the Act:

(1) A disclosure is made in the manner specified in this section if the worker makes it—

(a)    to the worker’s employer, or

(b)    where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly—

(i) to the conduct of a person other than the worker’s employer, or

(ii) to something for which a person other than the worker’s employer has legal responsibility,

to that other person.

(2) A worker who, in accordance with a procedure the use of which by the worker is authorised by the worker’s employer, makes a disclosure to a person other than the employer is to be treated for the purposes of this Act as making the disclosure to the employer.

Statutory time limits

The time limits are prescribed by section 41 of the Workplace Relations Act, 2015 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.’

Subsection 8 stipulates that:

‘(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.’

The complaints were referred to the Director General of the WRC on 3 December 2024. Therefore, the cognisable period for the purposes of the claim is from 4 June 2024 to 3 December 2024. There was no extension of the time limits sought.

Burden of proof

The 2022 Act amends the burden of proof in penalisation and detriment claims to provide that in any proceedings for penalisation or detriment, it will be deemed that they were as a result a protected disclosure being made, unless the employer or person whom it is alleged to have caused the damage proves that the act or omission concerned was based on ‘duly justified grounds’.

Section 12(7)(C) of the Act provides that:

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.

 In Aidan & Henrietta McGrath Partnership v Anna Monaghan PDD 2/2016 it was held that:

“The Court must first establish that a protected disclosure has been made before it can examine whether a penalisation within the meaning of the Act has occurred.”

To constitute a protected disclosure under the Act there must be a disclosure of relevant information that in the reasonable belief of the individual tended to show a wrongdoing. 

The Complainant alleges that her communication with the management regarding the behaviour of her coworker constitutes a protected disclosure. In particular, the Complainant alleged that her complaint to the then Clinic Manager regarding the alleged bullying behaviour of Ms I in early May 2024 constituted a protected disclosure. It was asserted that the alleged relevant wrongdoing is encompassed by the definition in section 5(3)(a) of the Act “(a) that an offence has been, is being or is likely to be committed”.

It appears that the Complainant believed that her relationship with two coworkers, Ms I and Ms A was fragile from the outset of her employment with the Respondent. The Complainant submitted that, Ms I in particular was unfriendly and rude and, as a consequence she felt bullied. The Complainant submitted that she discussed the matter with the then Clinic Manager who, in turn, arranged a meeting with Ms I and the Complainant during which she asked them to work together and to be kind to each other.

Having regard to the foregoing, I find that the matters raised by the Complainant are matters “concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker”. Subsection (5A) provides that a matter solely concerning a personal employment grievance that only affects the reporting person is not a protected disclosure. Accordingly, I find that there were no relevant wrongdoings reported and that no protected disclosure was made.

I declare this complaint to be not well founded.

The Complainant alleges that she was penalised for raising a health and safety complaint with the Respondent. She relies on the same set of facts as in the claim pursuant to the Protected Disclosures Act considered above.

The jurisdiction of the Labour Court and by extension of the WRC in complaints of penalisation under the Safety, Health & Welfare at Work Act 2005 (‘the Act’) has been considered in a number of cases including Iarnrod Eireann v Nick P Neary HSD139 where the Labour Court held as follows:

“The Court’s jurisdiction under this Act is limited and narrow in its application. It has jurisdiction to hear claims of penalisation referred under Section 27 only.  The Court has no jurisdiction to hear allegations of breaches of safety, health and welfare at work under the Act and such allegations cannot in themselves form part of claims of penalisation or unfavourable treatment within the meaning of Section 27 of the Act.”

What is in issue in the within case is whether the Complainant was penalised within the meaning of section 27 of the Act.

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.

The Act is silent on the question where the burden of proof lies. In the case of Toni & Guy Blackrock Limited v Paul O’Neill HSD095 the Labour Court held that: 

“The act is silent on the question of how the burden of proof should be allocated as between the parties. This question was considered by this Court in Department of Justice Equality and Law Reform and Philip Kirwan (Determination HSD082). Here the Court held as follows: -

It is clear, however, that in the absence of any contrary statutory provision, the legal burden of proof lies on the person who asserts that a particular fact in issue is true (see Joseph Constantine Steamship Line v Imperial Sheltering Corporation [1942] A.C.154 where this rule of evidence was described by Maugham V.-C. as “an ancient rule founded on considerations of good sense and it should not be departed from without strong reasons”.

Later, in Fergal Brodigan T/A FB Groundworks and Juris Dubina Determination (HSD0810) the Court qualified the statement made in the Kirwan case as follows: -

It is, however, settled law that in civil matters there is an exception to this rule known as the peculiar knowledge principle. This is a rule of evidence which provides that where it is shown that a particular fact in issue is peculiarly within a defendant’s knowledge the onus of proving that fact rests with the defendant (see Mahoney v Waterford, Limerick and Western Railway Co.[1900] 2.IR 273, per Palles C.B.)”

The Court went on to state:

“…it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus, the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.”

The Complainant must demonstrate that the making of a complaint within the meaning of the Act was the operative cause leading to the detriment alleged. In Oglaigh Naisiunta na hEireann v McCormack HSD115, the Labour Court stated that there is a requirement “to show a chain of causation between the impugned detriment and the protected act or omission."  In St Johns NS v Akduman HSD102 the Labour Court also determined that:

“It is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by Subsection (3) and but for the protected act the employee would not have suffered the detriment complained of and the respondent’s treatment of the claimant.”

In Paul O'Neill v Toni & Guy Blackrock Limited [2010] ELR 21, the Labour Court held that the detriment complained of must have been imposed “for” having made a protected act within the meaning of Section 27(3) of the Act when it found:

“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 determent.”

The Toni & Guy case firmly establishes the “but for” test as it is generally referred to in penalisation cases. 

The word “detriment” is given its ordinary and natural meaning of causing harm or damage as held by Hyland J in Conway v Department of Agriculture, Food, and the Marine[2020] IEHC 665.    

The Labour Court in the case of An Garda Siochana v Hazel Delahunt HSD1311 noted that the term “detriment” is not defined in the legislation but that it has been considered in some UK decisions which noted that “a detriment exists if a reasonable person/worker would or might take the view that the [treatment] was in all the circumstances to his detriment” (Khan v. Chief Constable West Yorkshire [2001] UKHL 48 relying on Ministry of Defence v Jeremiah [1979] 3 All ER 833 at 841,[1980] QB 87 at 104)but also that any act on which penalisation is based “must amount to a detriment in the claimant’s terms and conditions of employment and not something that merely has the potential to lead to such a result is not enough.”

The Labour Court also accepted that “an unjustified sense of grievance cannot amount to a detriment within the Statutory meaning” (Shamoon v. Chief Constable RUC [2003] 2 AER 26 par 35).

I further note the findings of the Labour Court in Cisco Systems Internetworking (Ireland) Limited and Olumide Smith EDA1829, where the Court stated that “It is well settled law that mere assertion cannot be elevated to the status of evidence”. 

Statutory time limits

The Workplace Relations Act, 2015 at Section 41(6) provides:

“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.”

My jurisdiction in this case is confined to assessing any complaints of penalisation that occurred within the cognisable period for the complaint. The Complainant referred her complaint to the Director General of the Workplace Relations Commission on 3 December 2024. Therefore, the cognisable period is the period from 4 June 2024 to 3 December 2023. No extension of the time limit was sought.

The first question for me to answer is whether the matters raised by the Complainant relate to safety health or welfare at work. The Complainant alleged that she made a complaint to the Respondent in May 2024 regarding alleged bullying by a coworker. The Complainant alleged that her complaint fell within the scope of section 27(3)(c) of the Act i.e. she made a complaint “as regards any matter relating to safety, health or welfare at work” to the Clinic Manager on 8 May 2024. She was penalised by virtue of the escalation of the behaviour of Ms I.

I need to decide whether any of the matters that the Complainant raised fall within section 27(3)(c) namely that they are a complaint or representation as regards any matter relating to safety health or welfare at work.

It is unclear precisely what concerns the Complainant raised with the Respondent in early May 2024. The Complainant provided limited detail beyond alleging that Ms I was cold, unfriendly and rude towards her, and that she felt she was being spoken down to, belittled and humiliated. These allegations have been outlined in detail above.

When invited to provide specific examples, the Complainant referred to an incident in which Ms I observed her while she was dealing with a customer's voucher. No evidence was presented to suggest that the Complainant raised any issues other than those relating to her interactions with Ms I. Accordingly, the matters brought to the Respondent's attention appear to have concerned difficulties in the working relationship between the Complainant and her colleague, as described above.

I note that the Complainant who, by her own admission, was familiar with the Respondent’s grievance procedure and dignity at work procedure, did not raise a grievance at any stage.

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 that:

“… other on-going behaviours which may upset or unsettle a person may not come within the bullying definition either. Behaviour considered bullying by one person may be considered routine interaction by another, so the ‘reasonableness’ of behaviours over time must be considered. Disrespectful behaviour, while not ideal, is not of itself bullying. Conflicts and disagreements do not, of themselves, make for a bullying pattern either. There are various workplace behavioural issues and relationship breakdowns which are troubling, upsetting and unsettling but are not of an adequate level of destructiveness to meet the criteria required for a bullying case.”

It is apparent from the evidence that the Complainant brought the coworker's conduct and the interpersonal difficulties she was experiencing to the Respondent's attention. However, no evidence was adduced to suggest that the Complainant characterised the conduct in question as creating an unsafe working environment, or that she made an allegation of bullying. There was no evidence before me that she made a complaint concerning a matter relating to safety, health or welfare at work.

Having considered the submissions made and the evidence before me, I am not satisfied that the Complainant’s communication in early May 2024 reporting her concerns about the coworker constituted a protected act within the meaning of the Act at section 27(3)(c) in that those communications amounted to a representation in relation to a matter relating to the Complainant’s safety, health, or welfare at work. I find, on the balance of probabilities, that the Complainant did not make a safety, health and welfare complaint.

I declare this complaint to be not well founded.

The Complainant alleged that she had to leave her employment due to the conduct of the Respondent or others at work. She alleged that her complaint was based on her exercising her right under the Protected Disclosures Act.

The Complainant stated that she relied on the same sect of fact in the context of her unfair dismissal claim as in her claims pursuant to the Protected Disclosures Act, 2014 and the Safety, Health & Welfare at Work Act 2005. She alleged that after she made protected disclosure, Ms I’s behaviour escalated and, as a result, the Complainant had to resign her employment.

Generally, an employee must have at least one year’s continuous service at the date of dismissal to bring an unfair dismissal claim under the 1977 Act. Section 6(2D) creates an exception to this requirement where section 6(2)(ba) applies. This means that if an employee establishes that their dismissal resulted wholly or mainly from making a protected disclosure, the one‑year service requirement does not apply, and the 1977 Act applies to their claim.

Exclusions

(1) Except in so far as any provision of this Act otherwise provides, this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him […],

Section 6(2) of the 1977 Act provides in relevant part:-

… the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from …

(ba) the employee having made a protected disclosure,

6(2D) Sections 3 and 4 do not apply to a case falling within paragraph (ba) of subsection (2) and that paragraph applies to a person who would otherwise be excluded from this Act by any of paragraphs (a) to (c) and (e) to (k) of section 2(1).

Section 1 of the Unfair Dismissals Acts, 1977 provides that a ‘protected disclosure’ has the meaning given by the Protected Disclosures Act, 2014. 

Section 5 of the Protected Disclosures Act 2014 Act provides for the meaning of a protected disclosure and related matters and is quoted above.

As the Complainant’s employment was terminated prior to her accruing one year’s service, the onus is on the Complainant in this claim under the 1977 Act to establish that the dismissal resulted wholly or mainly from her having made a protected disclosure.

Having regard to section 5 of the Protected Disclosures Act 2014, it must first be established that there was, in fact, a “disclosure of relevant information” made by the Complainant in a manner contemplated by the Act.

In the present case, as per my findings above, I am not satisfied that the Complainant made a protected disclosure within the meaning of the Protected Disclosures Act. The evidence before me does not demonstrate that the Complainant communicated any information tending to show a relevant wrongdoing,

While I accept that the Complainant did raise issues regarding her relationship with the named coworker, my jurisdiction is limited to considering the complaint by reference to the relevant statutory provisions. As per my findings above, these matters do not amount to the disclosure of relevant information. They, therefore, cannot be classified as a protected disclosure within the meaning of section 5 of the Act. In the absence of any such disclosure, the protections of the Unfair Dismissals Act do not arise.

In conclusion, I find that the Complainant has not established that the dismissal resulted wholly or mainly from the making of a protected disclosure.

It follows from the foregoing that the Complainant has insufficient service to maintain an unfair dismissal claim under the 1977 Act.  

Accordingly, my decision is that the complainant was not unfairly dismissed contrary to the 1977 Act.

For the reasons set out above, my decision is that the Complainant was not unfairly dismissed.  Accordingly, I find that this claim is not well founded.

Protected disclosure – health and safety complaint – dismissal-