HSD262

HSC/25/14

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00035994 (CA-00047189-001).

BACKGROUND:

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

A Labour Court hearing took place on 13 May 2026. The following is the Decision of the Court:-

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DECISION:

1. Background to the Appeal

This is an appeal by Ms Máire Aherne (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00035994/CA-00047189-001, dated 25 March 2025) under the Safety, Health and Welfare at Work Act 2005 (‘the Act’). Notice of Appeal was received in the Court on 3 May 2025. The Court heard the appeal in Galway on 13 May 2026. The Complainant gave sworn evidence. No witnesses were called on behalf of the National Council for Special Education (‘the Respondent’).

The Court also heard and determined the following related appeals in conjunction with the within appeal: HSC/25/15 and HSC/25/18. The Complainant withdrew her appeal bearing reference number HSC/25/16 during the within hearing. Additionally, she had referred several appeals to the Court under section 13 of the Industrial Relations Act 1969 but also withdrew those at the outset of the hearing.

2. The Complaint in Summary

The Complainant alleges that she was penalised for making representations to the Respondent in relation to safety concerns she had regarding proposed school visitations during the Covid-19 Pandemic and for acting, in her understanding, with relevant statutory provisions. The Respondent submits that its actions towards the Complainant do not constitute penalisation but were taken because of the Complainant’s refusal to follow a reasonable instruction.

The within complaint was referred to the Workplace Relations Commission on 16 November 2021. The period comprehended by the complaint is, therefore, 17 May 2021 to 16 November 2021. The Complainant submits that a performance management process that led to a series of disciplinary warnings (including a Written Warning on 21 April 2021 and a Final Written Warning on 19 May 2021) constitutes penalisation within the meaning of the Act in retaliation for her having raised health and safety concerns with the Respondent.

3. Preliminary Jurisdictional Issues

It was submitted on behalf of the Respondent that the originating complaint herein was statute-barred. Counsel for the Respondent made an application to have the within appeal dismissed on this basis. However, having regard to the dates outlined in the previous paragraph, the Court finds Counsel’s submission to be not well-founded as the acts of the Respondent which the Complainant submits constitute penalisation within the meaning of the Act, in her submission, occurred within the period comprehended by the complaint. The application was refused on this basis.

Counsel also submitted that the within claim is res judicata, the matters herein having been previously litigated by the Complainant in proceedings before the Workplace Relations Commission, this Court and the High Court. Having closely considered the various elements of litigation initiated by the Complainant, the Court – while in agreement with Counsel for the Respondent that they are all interconnected in so far as they have their ultimate origin in events that flow from the Complainant’s response to certain instructions given to her by the Respondent in August 2020 – the Court, nevertheless, finds that the particular matters at issue in the within claim/appeal have not been previously determined in earlier litigation and are not, therefore, in the Court’s view, res judicata.

4. Factual Background

The Complainant is a civil servant and has been employed by the Respondent as a Special Educational Needs Organiser (‘SENO’) since 1 September 2004. It is common case that the events which form the backdrop to the Complainant’s various claims commenced in August 2020. The Respondent issued instructions to SENOs (including the Complainant) at that time in relation to arrangements to be made for the delivery of special education services to schools at the commencement of the new school year. The arrangements in question included a requirement for each SENO to complete in-person school visits. The Complainant raised safety concerns about the proposed in-person school visits in the context of the ongoing pandemic on 25 and 31 August 2020.

The Complainant’s Team Manager raised a complaint about the Complainant’s work performance on 7 September

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2020. This was subsequently formalised into a Management of Underperformance process in the course of which the Complainant was successively issued with a first Verbal Warning (8 April 2021), a second Verbal Warning (22 April 2021), a Written Warning and a Final Written Warning (19 May 2021) pursuant to the Civil Service Disciplinary Code. The Complainant sought to avail herself of her right to appeal under the Code to an External Appeal Officer, but no such appeal took place due to no fault of the Complainant who had prepared and submitted her written appeal submission. Ultimately, the Final Written Warning sanction was withdrawn on 1 September 2022 because of the Respondent’s inability to identify an External Appeal Officer.

The Law

Section 27 of the Act provides:

“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

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within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

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

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

This Court gave detailed consideration to the proper interpretation and application of section 27 in its decision in O’Neill v Toni & Guy Blackrock [2010] 21 ELR 1 where it stated:

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

Burden of proof

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 v Kirwan Determination HSD082 (June 13, 2007). 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 v Dubina Labour Court Determination HSD0810 (December 10, 2008) 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 I.R. 273, per Palles C.B.)”

In the instant case what is at issue is the motive or reason for the claimant's dismissal. That is to be found in the thought process of the decision-makers at the time the decision to dismiss the complainant was taken. That is something which is peculiarly within the knowledge of the respondent. It would be palpably unfair to expect the claimant to adduce direct evidence to show that the respondent was influenced by his earlier complaints in deciding to dismiss him. Conversely, it is perfectly reasonable to require the respondent to establish that the reasons for the dismissal were unrelated to his complaints under the Act.

Having regard to these considerations, it seems to the Court that a form of shifting burden of proof, similar

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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.”

1. Application and Discussion

It is common case that the Respondent’s decision, confirmed on 24 December 2021, to maintain its imposition of a Final Written Warning sanction on the Complainant was the culmination of a series of disciplinary processes, including internal and external appeals, that had their origin in the actions taken by the Complainant commencing in August 2020 in response to an instruction she (and her colleagues) had received from management to put in place arrangements for in-person school visits. It is also common case that the Complainant raised health and safety concerns in relation to the instructions in this regard that she had received. The Respondent seeks in the within proceedings to characterise the ensuing disciplinary steps taken by it as a legitimate and proportionate response to what it perceived to be the Complainant’s refusal to comply with a legitimate instruction from management.

Applying the observations of this Court in Toni & Guy quoted above, it is patently the case that what is at issue in the within appeal is the motive or reason for the Respondent’s decision to maintain the sanction of Final Written Warning against the Complainant notwithstanding a finding by Ms O’Carroll Kelly BL, a most experienced employment counsel and Adjudication Officer of many years standing, that the process that culminated in the decision to impose that sanction on the Complainant was fatally flawed from the outset.

The thought process of the decision-maker in December 2021 is something which is peculiarly within the knowledge of the respondent. Having regard to the operation of the peculiar knowledge principle, it would be palpably unfair to expect the Complainant to adduce direct evidence to show that the Respondent was influenced by her raising her original health and safety concerns in deciding to maintain the Final Written Warning sanction on her. Conversely, it is perfectly reasonable to require the Respondent to establish that the reasons for the sanction were unrelated to the Complainant’s concerns raised under the Act. However, the Respondent chose not to call any witnesses to adduce direct evidence from them of the Respondent’s motives for its extraordinary decision to ignore Ms O’Carroll Kelly’s recommendation in December 2021. It follows that the Respondent has not established that the reasons for its decision in this regard was unrelated to the concerns raised by the Complainant in August 2020 and thereafter.

Accordingly, the Complainant’s appeal must succeed. The decision of the Adjudication Officer is set aside. The Court awards the Complainant compensation of €16,500.00 for the detriment she has experienced.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
24th August 2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Therese Hickey, Court Secretary.

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