HSD269

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00040345 (CA-00051629-002)

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 14 July 2026.

The following is the Decision of the Court:-

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DECISION:

Background to the Appeal

This is an appeal by Ms Kristina Viksna (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00040345/CA-00051629-002, dated 10 February 2025) under the Safety, Health and Welfare at Work Act 2005 (‘the Act’). The Complainant alleges that she was penalised contrary to the 2005 Act. The Adjudication Officer decided her complaint was not well-founded. Notice of Appeal was received in the Court on 5 March 2025. The Court heard the appeal in Dublin on 14 July 2026.

The Factual Background

The Complainant was employed as a General Operative by Cardinal Health Ireland Manufacturing Limited (‘the Respondent’) between November 2005 and 27 April 2022. The Complainant referred prior claims to the Workplace Commission on 30 September 2020 under the Terms of Employment (Information) Act 1994 and under the Employment Equality Act 1998. Those claims were decided by an Adjudication Officer whose decisions are dated 24 February 2023. The Complainant appealed therefrom to the Labour Court. The Labour Court issued its decisions on the appeals on 9 October 2023.

The Complainant, while working on her evening shift on 15 February 2022, appears to have experienced a severe reaction to an alcohol-based cleansing agent that was routinely used in her work environment. This resulted in her being brought to the local hospital in Tullamore for assessment and treatment. She was not admitted and allowed to go home later that evening. She informed the Respondent the following morning that she was fit to return to work. However, the Respondent notified her, by telephone on the 16th and by letter of the same date, that it would have to assess the events that had occurred on the 15th from a health and safety perspective and that it would require medical confirmation of her ability to use and work with alcohol spray going forward before she could return to the workplace. The Respondent organised an assessment of the Complainant by its occupational health specialist, Dr Gleeson. Having reviewed Dr Gleeson’s subsequent report with the Complainant, the Respondent terminated the Complainant’s employment on grounds of capacity with effect from 27 April 2022.

The Complaint

The Complainant referred the within complaint to the Workplace Relations Commission on 11 July 2022. In the narrative section of the Workplace Relations Commission complaint form, the Complainant outlined her complaint as follows:

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“I was penalized in relation to making a complaint to the WRC by my employer who refused to allow me to work and who refused to accommodate my disability arising from an accident at work which led to the decision to dismiss me.”

When asked by the Court at the hearing to clarify her complaint under the Act, the Complainant specified that she was invoking section 27(3)(a) of the Act which provides that:

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

(a) acting in compliance with the relevant statutory provisions ..”

The Complainant expanded on this by telling the Court that she had been working in accordance with certain arrangements that had been recommended by Dr Gleeson in 2021. The arrangements included working 4-hour shifts and not working in the packaging room so as to avoid lifting items above a specified weight. She said that the HR Manager had written to her on 9 February 2022 outlining the Respondent’s proposals to return her to full duties and this led to a number of meetings to discuss the implementation of those proposals. The Complainant submits that she raised health and safety concerns arising from Dr Gleeson’s 2021 recommendations about the maximum weight of items she could safely lift on a regular basis, ergonomics and the performance of repetitive tasks.

The Respondent, in reply, opened the letter of 9 February 2022 in which the Complainant had been informed as follows:

“Based on Dr Gleeson’s reports of 26th July 2021 and 5th October 2021, we will reassign you to the packing room and subbing with effect from 16th February 2022 to exclude lifting overhead which also includes not lifting anything above 9kg on occasion, and a 4.5kg on a frequent basis. However, with the passage of time if you have concerns to return to these tasks, we will organise a further occupational health review to gather information on your ability to work these tasks.

In addition, we will organise for Patrick Dooley to meet with you to review the tasks you are returning to and will organise this week commencing 21st February 2022.”

At 11.25 am on 15 February 2022, the Complainant emailed Ms Perdisatt, the HR Manager, to query certain aspects of the latter’s letter of 9 February.

The Respondent submitted that events that occurred on the Complainant’s shift later that day on 15 February superseded the proposals Ms Perdissat had outlined in her letter of 9 February. The incident of the 15th, the Court was told, led to a further assessment of the Complainant by Dr Gleeson and a report dated 9 March 2022 in which Dr Gleeson concluded that the Complainant “struggles to provide reliable service due to her health issues. Please advise her of the options to retire on health grounds should this become necessary.”

Thereafter, the Respondent, it was submitted, engaged on a capability assessment of the Complainant which culminated in a decision to terminate her employment on grounds of incapacity. Ms Perdissat gave detailed evidence to the Court in relation to meetings that were held with the Complainant on 1 April and 8 April 2022 about the viability of retaining her in employment having regard to her health-related issues. Meeting notes and inter-party correspondence in relation to those meetings were opened to the Court.

The Law

This Court previously considered the import of section 27 of the Act in its decision in O’Neill v Toni & Guy Blackrock [2010] ELR where it observed as follows:

“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.”

Discussion and Decision

The Court notes that the substance of the within complaint as advanced by the Complainant at the within hearing differs materially from the narrative on her Workplace Relations Complaint form. Nevertheless, it was not disputed by the Respondent that she had raised health and safety concerns with it arising from her own medical issues on a number of occasions. The issue, therefore, that arises for determination in this case is whether the Complainant’s dismissal constitutes penalisation within the meaning of section 27 of the Act for having raised those concerns, as she alleges.

Having carefully considered the Parties’ written and oral submissions, and in particular, the detailed and cogent account provided by Ms Perdissat in her evidence of how the events unfolded in relation to the Complainant after the incident of 15 February 2022, the Court concludes that the operative factors that informed the Respondent’s decision to terminate the Complainant’s employment were set in train by Dr Gleeson’s occupational health report dated 9 March 2022 which in turn prompted the Respondent to undertake a capability assessment of the Complainant. It follows, therefore, that the health and safety concerns raised by the Complainant herself prior to 15 February 2022 - which in substance are clearly materially related to the concerns that emerged from the capability assessment that took place in April 2022 – cannot be said to be the causative factor that led to the Complainant’s dismissal.

It follows, therefore, that the appeal fails and the decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Alan Haugh
CC	______________________
27/07/2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Ceola Cronin, Court Secretary.

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