HSD263

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00035994 (CA-00047189-002).

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-00048419-002, 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/25/14 and HSC/25/18. The Complainant withdrew her appeal bearing reference number HSC/25/16 during the within hearing. Additionally, she had referred a number of appeals to the Court under section 13 of the Industrial Relations Act 1969 but withdrew these 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 was inappropriately applied to her which in turn led to disciplinary action and a series of disciplinary warnings (including a Final Written Warning on 19 May 2021), all of which, she submits, 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 is 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. The Court, in making its determination on this issue, notes that the period to which the prior decision of a different Division of this Court that Counsel seeks to rely on in support of his application that the within matter is res judicata was 2 February 2020 to 1 October 2020, a period which falls some time before the period comprehended by the within claim.

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) in relation to arrangements to be made for the delivery of special education services to schools at

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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.

The Respondent convened a Performance Review Meeting with the Complainant on 18 November 2020. A PIP was put in place in December 2020. Subsequently, the Complainant received a number of verbal warnings in relation to perceived shortcomings in her performance. A further progress meeting was held on 29 April 2021, following which the Complainant was issued with a Final Written Warning. The Complainant availed herself both an internal appeal and external appeal, however, the latter appeal did not proceed due to circumstances outside the Parties’ control. The Respondent thereafter withdrew the final written warning.

1. 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).

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

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

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

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.)”

1. Application and Discussion

Having carefully considered the Complainant’s evidence, including her answers put to her by Counsel in cross-examination, the Court is not satisfied that the Complainant has demonstrated that the performance improvement process applied to her in late 2020 and through 2021 was due principally, or at all, to the health and safety issues she had begun to raise in August 2020. It is common case, that the Complainant had declined to fulfil a range of specific tasks assigned by Management to her. Management’s response to the Complainant’s decision was, in all the

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circumstances, in the Court’s view, proportionate in so far as it was a reasonable attempt by the Respondent to address the performance issues that had arisen from the Complainant’s unilateral decision that the Respondent’s instructions to her regarding the resumption of school visits were inconsistent with the Return to Work Safety Protocol and health and safety legislation generally.

For the aforementioned reasons, the within appeal does not succeed and the decision of the Adjudication Officer is upheld.

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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