Complainant

Respondent

Parties

George  Moloney

Bus Éireann

Representatives

Hamilton Turner Solicitors

 Head of Employee Relations

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00072389-001

13/06/2025

The Complainant referred his complaint of penalisation under the Safety, Health and Welfare at Work Act 2005 (the “Act” or “2005 Act”) to the Workplace Relations Commission (“WRC”) on 13 June 2025 wherein he alleged that by initiating personal injuries proceedings against his employer, he has suffered a financial penalty in the failure of the Respondent to follow its own policy and assess his eligibility for early retirement due to ill health.

The Complainant, a Coachmaker with the Respondent since his date of commencement on 5 September 1984, was in receipt of €961.53 gross per week at the time of referral of his complaint. It was his complaint that he was

The Complainant gave evidence on affirmation. He was represented by Mr. Ronan Cunningham, Solicitor with Hamilton Turner Solicitors.

Legal submissions and documentary evidence were received and relied upon at the hearing.

The Respondent denied that the Complainant was penalised.

The Respondent was represented by the Head of Employee Relations, Mr. Graham Fagan, who also gave evidence of affirmation. Mr. Joseph Scott, Regional Engineer, and Mr. Ronan Tully, Head of Engineering, swore affirmations.

Legal submissions and documentary evidence were received and relied upon at the hearing.

Preliminary Objection

Complaint is within time, or alternatively time should be extended

The Complainant disputed that the complaint was out of time. It was submitted that no formal written decision concerning ill-health retirement was communicated in 2023 and that the Complainant was unaware of any alleged telephone discussions between the Respondent and his union representative. The Complainant argued that he was entitled to a reasoned written decision on such a significant matter.

The Complainant submitted that he remained engaged in an ongoing process, including a grievance procedure and efforts by the Respondent to identify alternative employment. The grievance appeal outcome of 7 February 2025, communicated on 17 February 2025, was said to be the first written notification that any decision on ill-health retirement would be linked to the personal injuries claim. It was argued that the alleged penalisation therefore crystallised at that point or alternatively constituted an ongoing act of penalisation.

In the alternative, the Complainant applied for an extension of time, contending that any delay arose from his participation in the Respondent's internal processes and the search for alternative employment, which he was required to exhaust before ill-health retirement could be considered.

High Court proceedings

The Complainant submitted that the WRC complaint and the High Court personal injuries proceedings concern separate and distinct causes of action. The issue before the WRC was whether the Complainant had been penalised, contrary to Section 27 of the 2005 Act, whereas the High Court proceedings concern liability for the alleged injuries suffered by the Complainant.

It was submitted that the WRC was the only forum with jurisdiction to determine the penalisation complaint and that any overlap in evidence did not deprive the WRC of jurisdiction or justify delaying the hearing.

Adjournment

The Complainant opposed the application for an adjournment. It was submitted that the Respondent had been aware of the proceedings for a considerable period and had ample opportunity to arrange legal representation. The Complainant further argued that the matter had already been subject to significant delay, as it was lodged in June 2025, and that a further adjournment would cause ongoing hardship and prejudice.

The Complainant also submitted that the Respondent had not completed the final stage of its own grievance procedure, having failed to nominate the independent third party provided for under that procedure.

Substantive Matter

The Complainant gave evidence that he commenced employment with the Respondent in September 1984 as an apprentice coachmaker and remained employed at the date of the hearing. He described his role as involving physically demanding work refurbishing buses and trailers and the extensive use of vibrating and pneumatic tools, including air saws and pneumatic knives used in removing and replacing bonded glazing.

The Complainant stated that, following medical investigations in 2023, he was diagnosed with a hand condition which he understood to be attributable to prolonged exposure to vibrating tools during his employment. Having been absent from work due to unrelated health issues, he was referred to the Respondent's Chief Medical Officer ("CMO") in June 2023 when seeking to return to work. He gave evidence that his wages were withheld pending occupational health assessment and that, when assessed, the occupational health personnel expressed the view that the diagnosis was consistent with prolonged exposure to vibrating tools. The Complainant stated the Respondent committed to identifying an alternative position for him or consider him for retirement on ill-health grounds. He subsequently instructed solicitors who, on his behalf, wrote to the Respondent in August 2023 alleging that the requirement that he use vibrating tools over a prolonged period constituted an unsafe system of work.

The Complainant gave further evidence that thereafter he sought clarification through his trade union representative, Mr Hewitt, regarding his employment status and the possibility of ill-health retirement. He stated that, despite repeated enquiries, there was little engagement from the Respondent and no substantive update regarding retirement or alternative employment. The Complainant referred to correspondence dated 11 October 2023, with Mr Graham Fagan, Head of Employee Relations stating that it was a matter for the CMO as to whether he was a candidate for ill-health retirement. However, following the CMO assessments in 2023, he received little meaningful engagement from the Respondent regarding his future employment status, save for a further review by the CMO in January 2024. He denied ever receiving a phone call or having a conversation with Mr Hewitt about the conversation on the Respondent’s position in or around late 2023.

It was his evidence that, frustrated by the lack of progress regarding redeployment or retirement on grounds of ill health, he invoked the Respondent's grievance procedure by letter dated 26 June 2024. The outcome of that grievance issued on 22 July 2024 by Mr Joseph Scott who advised that any decision concerning medical retirement would be considered in tandem with the management of his personal injury claim.

It was the Complainant’s evidence that he later became aware that the Respondent had linked any decision regarding retirement due to ill-health to his personal injuries’ proceedings.

Another suggested outcome of his grievance was consideration of alternative employment. The Complainant described attending for a medical appointment to assess his fitness to work as a bus driver and being told due to his hand injury, he would not pass. He further added that despite a commitment by the Respondent to refer him to the redeployment panel, he was never contacted by that panel nor offered any suitable alternative position by the Respondent.

It was the Complainant's evidence was that the Respondent's refusal or failure to progress his retirement on grounds of ill health was directly connected to his raising of health and safety concerns through the initiation of legal proceedings. He stated that the uncertainty surrounding his employment status, the absence of a resolution regarding ill-health retirement, and the loss of income had caused him significant financial hardship and mental distress.

In rebuttal, the Complainant confirmed that he was familiar with a memorandum from the CMO, dated 29 June 2023, which recorded that he remained unfit for work involving vibrating equipment, that the condition was likely to be long-term in nature, and that his absence was linked to a workplace-attributed condition.

Cross Examination

Under cross-examination, the Complainant confirmed that he initially went on sick leave in January 2023 due to blood clots in his leg and that the issue relating to his hand emerged subsequently following medical assessment. He accepted that he attended the Respondent's CMO and was certified unfit for work.

He acknowledged that his union representative had made representations regarding ill-health retirement and that there were ongoing efforts to obtain a determination from the CMO in that regard.

The Complainant maintained that no final decision on ill-health retirement had been communicated to him and that he remained uncertain as to his employment.

He accepted that correspondence from the Respondent stated that the issue of ill-health retirement was linked to his personal injury claim, although he strongly disagreed with that position.

The Complainant also accepted that the Respondent had addressed issues relating to the temporary cessation of his sick pay and that this aspect of his grievance had been resolved. The Complainant further confirmed that he pursued the Respondent's grievance and appeal procedures regarding the handling of his situation, while maintaining that communication from the Respondent throughout the process was inadequate. He reiterated that he understood from visits to the CMO that he was unable to return to his substantive role but there was an absence of engagement with the Respondent.

Further inquiries

Upon inquiry from the Adjudication Officer, the Complainant confirmed that his case was that the Respondent had refused to progress his retirement on ill-health grounds because he had instituted personal injury proceedings arising from his workplace injury. He stated that the first occasion on which this link was explicitly communicated to him was in correspondence dated 3 October 2024, which indicated that the issue of early retirement on ill health grounds was linked to the management of his personal injury claim.

The Complainant maintained that, had he not pursued legal proceedings, he believed he would have been medically retired.

Upon further inquiry, the Complainant confirmed that he had instructed his trade union representative to pursue all stages of the Respondent's grievance procedure, including an appeal of the Stage D grievance outcome, although he accepted that he held no written confirmation of such an appeal.

The Complainant also described despite repeated engagements with the Respondent's CMO he was not routinely furnished with copies of medical reports arising from those assessments. He gave evidence that no manager or representative of the Respondent met with him to discuss the contents of occupational health reports, seek his observations on them, or explain the Respondent's intentions regarding his future employment. He stated that occupational health physicians had informed him that he was unfit to return to work and had indicated that alternative employment or retirement on grounds of ill health should be considered. He further stated that, apart from correspondence concerning the cessation of his wages, there was little direct engagement from management regarding his situation.

Respondent’s Preliminary Objection

At the outset of the hearing, the Respondent raised three preliminary objections:

Complaint out of time

The Respondent submitted that the alleged penalisation arose from communications to the Complainant that his ill-health retirement application could not be determined independently of his personal injuries claim. This position was communicated in late 2023, again in July 2024, and on 3 October 2024. The Respondent argued that each communication constituted the alleged contravention and, as the complaint was not lodged until 13 June 2025, it was outside the statutory time limits and therefore, statute barred. It was also submitted that the Complainant had been legally represented since August 2023 and had no basis for an extension of time.

High Court proceedings

The Respondent submitted that the complaint is inextricably linked to ongoing High Court personal injuries proceedings concerning the alleged work-related injuries. It was argued that the issue of ill-health retirement cannot be separated from those proceedings and that any determination by the WRC could overlap with, or prejudice, matters to be decided by the High Court, including issues relating to liability and loss of earnings.

Application for adjournment

In light of the ongoing High Court proceedings, the Respondent requested that the WRC either decline to proceed or adjourn the hearing pending the outcome of the High Court action.

The Respondent further submitted that, Mr Fagan, was representing the Respondent was also a potential witness in the matter and wished to arrange separate legal representation. It was stated that, due to the timing of the hearing and the unavailability of legal representatives during the holiday period, such arrangements had not been possible. Accordingly, the Respondent sought an adjournment to allow the High Court proceedings to progress and to address representation issues arising from representative potential role as a witness.

Substantive Matter

Mr Joe Scott, Regional Engineer

Mr Joe Scott, Regional Engineer, gave evidence that he became aware of the Complainant’s absence and hand-related medical condition following his appointment to the role. He stated that he was not generally the recipient of CMO reports, these being issued to local HR, although he was aware of a January 2024 CMO review.

The witness recalled speaking with the Complainant in or around April 2024, during which the Complainant expressed frustration regarding the absence of progress in respect of his employment situation and his wish to be medically retired. Mr Scott stated that he undertook to make enquiries regarding the Complainant’s position and subsequently dealt with the matter through the grievance process once a formal grievance was lodged.

The witness gave evidence that he investigated the issues raised by the Complainant and met him as part of the grievance process. He stated that he was informed that the question of early retirement due to ill health would be managed in conjunction with the Complainant’s personal injury claim and that he conveyed this position to the Complainant at the grievance meeting and again in the grievance outcome letter dated 22 July 2024.

Mr Scott’s evidence was that he did not regard early retirement as having been ruled out but rather that it would be considered alongside the ongoing claim. He further stated that he did not accept that there had been no engagement with the Complainant, as representations had been made by the Complainant’s trade union on his behalf and it was normal practice for management to engage through the union representative where one was acting for an employee. He acknowledged, however, that a January 2024 CMO appointment had been cancelled without the Complainant being informed and stated that he apologised for that failure during the grievance process.

The witness also gave evidence that the Complainant had informed him that he had not received copies of his occupational health records despite having requested them. As an outcome of the grievance, Mr Scott undertook to pursue the matter with the occupational health department and understood that the records were subsequently issued. He stated that efforts were also made to explore alternative employment for the Complainant. In that regard, the Complainant was assessed for participation in a bus driver training programme as a potential redeployment option; however, he was subsequently found medically unsuitable for that role. Mr Scott stated that he thereafter referred the Complainant’s case for consideration of alternative employment opportunities through a central redeployment process, as there were no suitable vacancies available in the Tralee garage at the time.

Finally, Mr Scott confirmed that his involvement in the matter concluded when the Complainant appealed the grievance outcome, at which stage the appeal was assigned to another manager.

Cross examination

Under cross-examination, Mr Scott confirmed that, prior to the Complainant’s case, he had no direct experience of managing an ill-health retirement process and generally relied on HR for guidance in such matters. He described his understanding of the normal process as involving assessment by the CMO, consideration of alternative employment and, where no suitable alternative could be found, consideration of retirement on grounds of ill health. He accepted that this general process made no reference to involvement by CIE Legal or Group Risk. The witness further accepted that he engaged with HR and the Respondent’s legal function because he was aware that the Complainant had instituted personal injury proceedings. He stated that discussions took place with HR and legal personnel regarding the appropriate course of action and that, arising from those discussions, he understood that the issue of medical retirement would be dealt with in conjunction with the personal injury claim.

Mr Scott rejected the suggestion that he had acted outside the applicable process or had predetermined the outcome of the Complainant’s grievance. He maintained that the decision whether to grant ill-health retirement was not one for him as local manager. He stated that, prior to hearing the grievance, the Complainant had contacted him seeking an update regarding his position and that he had made enquiries to establish the status of the matter. Mr Scott accepted that, when conducting the grievance process, he informed the Complainant that medical retirement would not proceed independently of the personal injury claim and subsequently recorded that position in his grievance outcome correspondence.

Mr Scott further confirmed that he had participated in a meeting with Mr Adrian O’Loughlin during the appeal process and outlined his recollection of the matter. However, he could not recall whether he informed Mr O’Loughlin of the discussions he had held with HR and the Respondent’s legal advisers. When taken to the Respondent’s pension scheme provisions concerning retirement on grounds of ill health, Mr Scott accepted he was generally familiar with the policy but could not say whether the Complainant’s case had ever been referred to the Board for consideration under those provisions.

Mr Ronan Tully, Head of Engineering

Mr Ronan Tully, Head of Engineering with the Respondent, gave evidence that he had 19 years' service with the Respondent, including nine years in his current role. He described significant changes in work practices over time and stated that since the late 1980s and particularly following organisational changes in 2002, much of the heavy body repair, painting, glazing and fabrication work previously undertaken in-house had been outsourced to specialist contractors. He stated that bonded window replacement work, involving the use of air saws and similar vibrating tools, had been contracted out from approximately 2005 onwards. Mr Tully accepted that craft workers continued to use a range of hand and power tools, including grinders, cutting tools and impact drivers, but maintained that employees were not engaged in continuous fabrication or production-line type work and that the use of vibrating tools formed only a limited part of their duties. He further stated that all tools used by the Respondent complied with applicable safety standards. Mr Tully was not aware of any complaints made by the Complainant during his employment regarding exposure to vibrating tools or any adverse health effects arising from their use.

Cross Examination

Under cross-examination, no substantive questions were put to Mr Tully concerning his evidence. The Complainant's representative stated that, while the Complainant disputed aspects of Mr Tully's evidence regarding the nature and extent of tool usage, such matters were not relevant to the issues for determination in the present complaint. It was submitted that the relevant questions before the WRC were whether the Complainant had made a complaint or representation concerning health and safety at work and whether he had subsequently been subjected to penalisation. Accordingly, Mr Tully's evidence was not challenged in any material respect.

Preliminary Objections

The following decisions were made at the outset of the hearing, after each party was given an opportunity to make submissions.

Time-Limit Objection

It was determined that the Respondent's objection regarding time limits would not be dealt with as a preliminary issue. Given the lengthy history of the matter and the parties' differing positions as to when the alleged contravention occurred, and whether it constituted an ongoing act, it was considered necessary to hear the full evidence before reaching a conclusion. Accordingly, the question of time limits, and any application for an extension of time, was reserved for determination following the hearing of the substantive complaint. Accordingly, it is dealt with in detailed below.

High Court Proceedings

The Respondent's submission that the existence of parallel High Court proceedings deprived the WRC of jurisdiction or required the matter to be adjourned was not accepted. The jurisdiction of the WRC is confined to determining whether the Complainant was subjected to penalisation contrary to Section 27 of the 2005 Act. The personal injuries proceedings concern distinct issues, including liability and the alleged injuries sustained by the Complainant, matters which fall outside the jurisdiction of the WRC.

While there may be some overlap in the factual background and evidence, witnesses are required to give evidence on Oath and are under the same obligation to be truthful regardless of the forum in which they give evidence.

Furthermore, it was concluded that concerns regarding overlap in respect of financial loss were misplaced. Section 28 of the 2005 Act provides for compensation and other specified remedies and does not require proof of actual financial loss or future loss in the manner required in civil proceedings. Accordingly, there is no overlap between the issues to be determined by the WRC and those before the High Court.

The issue of parallel proceedings before the WRC and the civil courts has previously been considered by the courts and, in particular, reliance was placed upon the judgment of the Court of Appeal in Culkin v Sligo County Council & Anor [2017] IECA 104.

Accordingly, it was determined that the complaint could proceed without encroaching upon matters reserved to the High Court.

Application for Adjournment

The Respondent's application for an adjournment was refused. The complaint had been lodged in June 2025, and the parties were notified of the hearing date on 23 June 2026. While it was acknowledged that the Respondent may have experienced difficulties in obtaining legal representation during the legal long vacation, it is noted that the hearing notification was issued to the parties on 23 June 2026, within the legal term. No application for a postponement was made at that time based on the unavailability of the Respondent’s legal representative, which would have been considered accordingly. It is further noted that the Respondent only sought to contact the legal representative in the week preceding the hearing. Submissions had been received from both parties, and, having regard to the fact that the Complainant had been waiting almost 14 months for a hearing, it was concluded that the Respondent was not prejudiced. Accordingly, the hearing proceeded as scheduled.

It subsequently transpired during the course of the hearing that the Respondent also had the benefit of in house legal which was referenced by its own witnesses throughout their evidence.

Time

The Respondent submitted that the complaint was out of time. It was contended that any alleged act of penalisation occurred outside the six-month period prescribed by Section 41(6) of the Workplace Relations Act 2015 (“2015 Act”).

The Complainant submitted that the alleged penalisation was ongoing and therefore remained within the cognisable period.

That argument is not accepted. Neither the Safety, Health and Welfare at Work Act 2005 nor Section 41 of the Workplace Relations Act 2015 contains any provision for continuum. This contrasts with the Employment Equality Acts which expressly provide that time runs from the date of the most recent occurrence of the discrimination or victimisation complained of. No equivalent provision exists in Section 41(6) of the 2015 Act. Consequently, each allegation of a contravention is a standalone or separate act.

Section 41(6) of the 2015 Act provides that a complaint must be presented within six months of "the date of the contravention to which the complaint relates". In that regard, the reasoning of Hogan J. in Health Service Executive v McDermott [2014] IEHC 331 is particularly helpful. While the judgment concerned the Payment of Wages Act 1991, the relevant statutory wording is identical. Hogan J. held that the relevant question is the date of the contravention to which the complaint relates.

The Complainant relies upon the solicitor's letter of 10 August 2023 as the protected act for the purposes of Section 27 of the 2005 Act. For the purposes of determining the time-limit issue only, I am satisfied that the letter is capable of constituting a protected act within the meaning of Section 27(3)(c) of the 2005 Act.

The issue for present purposes therefore becomes identifying the act alleged to constitute penalisation. The Complainant relies upon the grievance appeal outcome of 7 February 2025, in which the Respondent confirmed that consideration of medical retirement would not proceed independently of the Complainant's personal injury proceedings. The Complainant contends that this constituted penalisation.

The grievance appeal outcome of 7 February 2025 therefore constitutes an identifiable act alleged by the Complainant to amount to penalisation. As that act occurred within six months of the presentation of the complaint, it falls within the cognisable period prescribed by Section 41(6) of the 2015 Act.

Accordingly, I find that the complaint, insofar as it relates to the grievance appeal outcome of 7 February 2025, was presented within the statutory time limit. Any alleged acts occurring prior to January 2025 fall outside the cognisable period. The complaint is therefore properly before the Workplace Relations Commission, and I proceed to consider the substantive complaint.

Substantive Complaint

Section 27(1) of the Safety, Health and Welfare at Work Act provides that “penalisation” includes:

“(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.”

Section 27(3) of the Act prohibits penalisation or the threat of penalisation:-

“(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.”

The second limb of the test requires consideration as to whether the Complainant suffered “detriment” as a result of raising the complaint with a causal connection between the acts and the complaint. This was determined by the Labour Court inO’Neill v Toni and Guy Blackrock Limited HSD095.

In order to consider the test set out in Section 27 of the Act, it is necessary to break down the matter into two questions: (a) was there a protected act and, if so (b) was the Complainant penalised to his detriment.

(a) Whether the Complainant carried out a protected act within the meaning of Section 27(3)(c) of the 2005 Act.

Section 27(3)(c) of the Act provides that a protected act includes the making of a complaint or representation to an employer relating to safety, health or welfare at work.

The Complainant submitted that the letter issued by Hamilton Turner Solicitors on 10 August 2023 constituted such a complaint or representation. Reliance was placed upon Stobart (Ireland) Driver Services Ltd v Carroll [2013] IEHC 581, wherein Kearns P. held that there is no requirement that a complaint be made through a formal grievance procedure in order to come within the protection afforded by Section 27 of the Act. The Complainant further submitted that a complaint made through solicitors on an employee's instructions is capable of constituting a protected act.

This submission is accepted on the basis that the solicitor's letter of 10 August 2023 expressly alleged that the Complainant's diagnosed condition arose from prolonged exposure to vibrating tools in the workplace. The correspondence further asserted that requiring the Complainant to use such equipment for significant and prolonged periods constituted an unsafe system of work.

The substance of the correspondence was therefore a complaint concerning workplace health and safety. While the letter was issued in the context of contemplated personal injury proceedings, that fact does not alter its character as a complaint or representation relating to the safety, health and welfare of the Complainant at work.

I am satisfied that the letter was sent on the Complainant's instructions and with his authority. Consistent with the approach adopted in Stobart, there is no requirement that the complaint be made personally by the employee or through any particular procedural mechanism.

Accordingly, I find that the letter of 10 August 2023 constituted a complaint or representation within the meaning of Section 27(3)(c) of the Act.

I therefore find that the Complainant carried out a protected act for the purposes of Section 27 of the Act.

In those circumstances, the next question can be address.

(b) Whether the Complainant was subjected to penalisation within the meaning of Section 27(2)(d) of the Act.

The Respondent submitted that no decision had been made regarding the Complainant's entitlement to retire on grounds of ill health. Its evidence was that, under the Welfare Scheme for Regular Wages Staff policy, a case would ultimately be referred to the Board of Trustees, which would obtain an independent medical assessment and determine whether the criteria for retirement on grounds of ill health had been satisfied. The Respondent therefore argued that no adverse decision had been taken and that the matter remained unresolved.

This is partially accepted where the issue for determination is not whether the Complainant was entitled to ill-health retirement under the terms of the Welfare Scheme for Regular Wages Staff policy, nor whether the Board of Trustees would ultimately have approved or rejected such an application. Those questions never arose because the Complainant's case was prevented from progressing to the stage where the Board of Trustees could consider it.

The evidence establishes that the Respondent's position was that the Complainant's application for ill-health retirement would not be considered while legal proceedings remain live. That position was repeatedly communicated to the Complainant and was ultimately summarised by Mr Fagan's statement at the grievance outcome stage that:

"the company position relating to ill health retirement is that no consideration can be given to same while any Criminal/Civil claim is in being, and until such time that claim is concluded."

That statement is unambiguous. Rather than allowing the Complainant's case to proceed through the established process, including referral to the Board of Trustees, the Respondent adopted a position that no consideration would be given to the matter while legal proceedings were pending.

The evidence of Mr Scott was that the ordinary process involved occupational health assessment, consideration of alternative employment and, where appropriate, progression to consideration of ill-health retirement. He accepted that this process did not ordinarily involve CIE Legal or Group Risk. However, because the Complainant had initiated personal injury proceedings, discussions occurred with HR and the Respondent's legal department, and the issue of ill-health retirement became linked to those proceedings.

While it is acknowledged that the Respondent has a right to defend itself in any proceedings before the Courts, that right co-exists with the rights of the employee and cannot be done to the detriment of the Respondent’s employee, the Complainant in this instance.

There is no dispute between the parties as to the Respondent’s decision, namely, to prevent the Complainant's case from progressing through the ordinary ill-health retirement process. The practical effect of that decision was to deny the Complainant access to potential consideration by the Board of Trustees and the independent medical review contemplated by the Welfare Scheme for Regular Wages Staff.

It is further noted that the position articulated by Mr Fagan was expressed as a general company policy rather than a decision confined to the Complainant's individual circumstances. If applied generally, such a policy is capable of deterring employees from pursuing legal remedies arising from workplace health and safety concerns, as employees who initiate proceedings could be prevented from accessing consideration for ill-health retirement while those proceedings are ongoing.

While one redeployment option was explored through assessment for bus driver training, the Complainant was found medically unsuitable for that role. No evidence was adduced that his case thereafter progressed to referral to the Board of Trustees.

It is further noted that there was no ongoing engagement or consultation with the Complainant by the Respondent during his extended period of sick leave. In addition, the reports generated following the Complainant's attendances with the CMO were not routinely furnished to him, nor was there any meaningful engagement regarding his medical condition or prognosis notwithstanding that he had been on long-term sick leave since 2023.

The personal injury proceedings arose directly from the workplace health and safety concerns raised in the solicitor's letter of 10 August 2023, which has been found to constitute a protected act. It is undisputed that the Respondent departed from its ordinary process and prevented the Complainant's case from progressing because of those proceedings. The resulting denial of access to the ill-health retirement process carried obvious financial penalty given the pension and retirement benefits potentially available under the Welfare Scheme for Regular Wages Staff, a policy which forms part of his terms and conditions of employment. Instead, the Complainant income has been limited to Invalidity Pension from the Department of Social Protection.

Accordingly, on the balance of probabilities, it is found that the Respondent's refusal to permit the Complainant's case to progress through the policy provided for ill-health retirement process was causally connected to the protected act and constituted a financial penalty, a detriment, within the meaning of Section 27(2)(d) of the Act.

Accordingly, the Complainant was subjected to penalisation contrary to Section 27 of the Safety, Health and Welfare at Work Act 2005 and his complaint is well founded.

In the circumstances where the complaint is well founded, he is entitled to redress pursuant to Section 28 of the Act.

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

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

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

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

The Complainant sought an order requiring the Respondent to progress the Complainant’s application for early retirement due to ill health in accordance with the Welfare Scheme for Regular Wages Staff along with compensation.

In assessing compensation, I have regard to the nature and seriousness of the penalisation established. The detriment suffered by the Complainant was not a mere procedural irregularity. The evidence was clear, the Respondent adopted and maintained a position that the Complainant's eligibility for consideration for retirement on grounds of ill health would not be progressed while civil proceedings remained live. As a consequence, the Complainant was denied access to the process established under the Respondent's Welfare Scheme, including the possibility of referral to the Board of Trustees for independent consideration of his case.

I have regard to the fact that this position was repeatedly affirmed by the Respondent and remained unchanged following both the grievance and appeal processes. It is further noted the distinct absence of independence in this decision-making process.

The penalisation was therefore directly connected to the protected act and had significant financial implications for the Complainant. While it is not possible to conclude that the Complainant would ultimately have been granted ill-health retirement, he was denied the opportunity to have his case considered in accordance with the Respondent's own procedures.

Having regard to all of the circumstances, including the seriousness of the penalisation, the detrimental consequences for the Complainant and the need to provide an effective remedy, pursuant to Section 28(a) of the Safety, Health and Welfare at Work Act 2005, I declare the complaint to be well founded.

Furthermore pursuant to Section 28(b) of the Act, I direct the Respondent as follows:

·       The Respondent is directed, within 10 weeks of the date of this decision, to process the Complainant's case for consideration under the Welfare Scheme for Regular Wages Staff in accordance with its normal procedures and without regard to the existence of any civil proceedings. This shall include referral to the appropriate decision-making body, including the Board of Trustees if required under the scheme, for determination in accordance with the scheme's provisions.

·       Pursuant to Section 28(c) of the Act, I direct the Respondent to pay the Complainant compensation of €40,000.