ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00052591
Parties:
| Complainant | Respondent |
Parties | Michelle Spellissy | Legal Aid Board |
Representatives |
| M.P. Guinness BL Edward Kelly Holmes O'Malley Sexton Solicitors |
Complaints:
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-00064329-001 | 26/06/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00064329-002 | 26/06/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00064329-003 | 26/06/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00064329-004 | 26/06/2024 |
Date of Adjudication Hearing: 16/01/2025 and 13/05/2025 and 14/05/2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
How the complaints identified in the Complainant’s Workplace Relations Complaint form (which is date the 26th of June 2024) have come before the WRC.
An employee who becomes concerned that an employer has contravened a provision specified in Schedule 5 (parts 1 or 2) of the Workplace Relations Act of 2015 may (pursuant to Section 41(1) of that Act) present a complaint to the Director General of the Workplace Relations Commission for adjudication by an adjudication officer so appointed.
Section 27 of the Safety Health and Welfare at Work Act 2005 is one of the many provisions and enactments set out in Parts 1 and 2 of Schedule 5 of the Workplace Relations Act aforementioned. Section 27 of the Safety Health and Welfare at Work Act 2005 provides for the protection of employees against dismissal and other penalisation measures which an Employer purports to take. Section 27 of the Safety, Health and Welfare at Work Act 2005 provides that an employer shall not penalise or threaten penalisation against an employee for doing things including (but not limited to):
(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..
Any such complaint (usually presented in the format of a workplace relations complaint form) is made to the Director General of the WRC. The said Director General can then refer the complaint to the Adjudication services. It is in these circumstances that this matter has come before me - an Adjudication Officer engaged by the Adjudication division of the WRC - to make all relevant inquiries into the complaint or complaints made. Where appropriate, I hear the parties’ oral evidence, and I can give consideration to any supporting evidence provided by witnesses or relevant documentation. Thereafter the Adjudicator will make a decision in writing and where appropriate redress might be provided. This is set out in Section 41(4) of the Workplace Relatiosn Act of 2015.
The redress is set out in the Section 28 of theSafety Health and Welfare at Work Act 2005 and will include a
Declaration that the complaint was or, as the case may be, was not well founded,
Require the employer to take a specified course of action, or
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.
“penalisation” in the context of s. 27 of the Safety Health and Welfare at Work Act 2005 would include (but is not limited to) suspension, lay-off, demotion, transfer of duty, imposition of discipline or penalty and coercion or intimidation. The penalisation will usually be an identifiable act or omission on the part of the employer which affects, to his or her detriment, the employee. The word “detriment” is given it's ordinary and natural meaning of causing harm or damage (Per Hyland J. in the case of Conway -v- Department of Agriculture 2020 IEHC665)
In addition to the above, the Complainant asserts that the Respondent has contravened Section 12 of the Protected Disclosures Act, 2014 which is included in Schedule 5 and provides that an employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.
A protected disclosure in this context means a disclosure of relevant information made by a worker in a manner specified. For the purposes of this Act information is “relevant information” if in the reasonable belief of the worker, it tends to show one or more of the relevant wrongdoings which have been set out in the Act including, for example, a failure to comply with a legal obligation, committing an offence, compromising the health and safety of a person or people or endangering the environment.
Redress in the context of the Protected Disclosure Act of 2014 is set out in Schedule 2 of the Protected Disclosure Act of 2014 and will be one or more of the following:
a declaration that the complaint was or was not well founded;
a requirement that the employer take a specified course of action;
a requirement that the employer pay compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 260 weeks remuneration in respect of the employee’s employment
The third complaint brought by the Complainant is brought in accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) wherein a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the Complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral of this matter, by the said Director General, to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I confirm I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the sworn/affirmed oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing (and which has been opened up in the course of the hearing).
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in her Workplace Relations Complaint Form dated the 26th of June 2024) seeks redress from the Respondent in circumstances where she claims her Employer behaved unlawfully and discriminated against her in the course of her employment wherein she says that she was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of her disability (as detailed in Section 6 of the 1998 Act (as amended)). The Unlawful behaviour complained of includes discrimination, victimisation, and harassment.
The Operative Section is Section 6 of the Employment Equality Act 1998 where: -
Sub Section (1) For the purpose of this Act…discrimination shall be taken to occur where -
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (referred to as the “discriminatory grounds”) …
Sub Section (2) As between any 2 persons, the discriminatory grounds ...are…
(g) That one is a person with a disability and the other is not or is a person with a different disability (the “disability ground”) …
Lastly the Complainant says that she has been penalised and or victimised in circumstances where she has previously raised Employment Equality issues.
The Employment Equality Acts also specifically protect a person against dismissal or other adverse treatment by their employer because they have made a complaint to their employer about possible discrimination, taken any proceedings under the Equality legislation, represented or supported a complainant, were named as a comparator, where they were a witness in a complaint under the Employment Equality Acts or the Equal Status Acts, opposed by lawful means an act which is unlawful under these Acts or indicated an intention to do any of the above.
Penalising a person for any of these reasons is defined as victimisation.
The Acts provide for complaints about victimisation to be made to the Workplace Relations Commission, in the same way as for complaints of discrimination, and with the same provision for redress.
See Section 74 of the Acts wherein it states:
For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs
Background:
This matter was initially heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. It was decided that this case is not suitable for remote hearing given the volumes of documentation that has been provided herein. This hearing was thereafter conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. In line with the coming into effect of the Workplace Relations (Miscellaneous Provisions) Act, 2021 on the 29th of July 2021, I can confirm that the witnesses herein were required to give their evidence on oath or affirmation. This was done in anticipation of the fact that there may have been a serious and direct conflict in evidence between the parties to the complaint. It is noted that the giving of false statements or evidence is an offence. The specific details of the complaint are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 26th of June 2024. In general terms, I will therefore be looking at issues that have arisen in the six-month period directly preceding this date. The cognisable period is from the 27th of December2023. |
Summary of Complainant’s Case:
The Complainant represented herself and the Complainant brought a stenographer to the proceedings of her own volition. No objection was raised regarding the presence of a stenographer. The Complainant has provided me with four large folders filled with documents which demonstrate a significant pre-history in this case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. I was provided with three tranches of documentary evidence on the 19th of December 2024 and again on 2nd of January 2025. The Complainant additionally relied on the submission set out in the Workplace Relations Complaint Form. No objection was raised to any of the materials relied upon by the Complainant in making her case. The evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. The Complainant must establish facts which tend to disclose that there is a reasonable cause of action or that there appears to have been a contravention of a Statute or Statutes. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent had full legal representation at this hearing. A number of witnesses attended on behalf of the Respondent (e.g Lucy O’Sullivan Asst Director of HR and Thomas Mahony Acting Director of HR). The Respondent provided me with a comprehensive written submission on the 24th of February 2025. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced over the course of two days of hearing. The Complainant represented herself and the Complainant brought her own stenographer to the fact to face hearings. This was not objected to and created no issue. The Respondent was fully and legally represented and nine witnesses attended, though it was ultimately unnecessary to hear from any of them. There is a considerable pre-history between the parties dating back well before the date on which the workplace relations complaint form the subject matter of these proceedings came into being. The complaints herein were lodged on the 26th of June 2024. As noted, I am initially confined to issues which will have arisen in the six-month period immediately preceding this date. The Complainant represented herself and as the Complainant is a qualified Solicitor herself, I am satisfied that the Complainant was not overwhelmed by the law or the significance of the claims that she was bringing. There can be little doubt that the Complainant and her Line Manager have (for a considerable period) had a difficult relationship. How and why this relationship became tense, is unknown to me as I am to some extent limited to a consideration of issues and occurrences and facts which have arisen in the six-month period immediately preceding the date that the workplace relations complaint form issued on. I am therefore initially restricting myself to a consideration of the time period commencing on the 27th of December 2023 to the 26th of June 2024 Only if certain criteria are met within the six-month period can I look to explore any period of time prior to this initial window of time. That said, I have allowed the Complainant an opportunity to open up her narrative so as to include older issues and dates which are necessary to any understanding I might need to have to understand why the Complainant felt compelled to raise complaints in June of 2024. I accept that, in this regard, the first date that I need to plot is the 19th of January 2023. On this date the Complainant’s line Manager made a complaint about the Complainant bullying of the Line Manager. The Complainant has asked that I recognise how unusual it is that an allegation of bullying has been made and which allegation purports to work downwards, when the line management structure works upwards. Whilst I might accept that this is not commonplace, I recognise that the Line Manager herein (Ms. GK) felt very strongly about this and nothing precludes a Manager from making an allegation of bullying coming from a subordinate. The Complainant was made aware of this bullying complaint towards the end of January 2023. I understand that some sort of preliminary exploration of this issue was performed by a Ms. PB. The Complainant says that she wrote a comprehensive response to each of the complaints, issues and/or accusations raised by her Line Manager GK. The Complainant gave evidence that she thought that BP’s report was very detailed and considered and that she was disappointed that a formal investigation into her conduct was commissioned. There was for management seemingly sufficient concern raised to warrant a full investigation into the bullying of a line manager by a subordinate. The Employer engaged an external professional HR body to investigate the Grievance raised. The appointment of this body happened in June of 2023 – this, I note is still a full year before the issuing of the workplace relations complaint form with which I am dealing. A Mr. HD was appointed by the 3rd party HR body to conduct a comprehensive investigation into the Grievance raised. Before proceeding with this narrative, I must now also note that some three to four months prior to the appointment of Mr. HD aforementioned, an issue had arisen in the workplace which gave rise to a protected disclosure having been made. This obviously involves going further back in time. As I understand it, on or about the 4th of March 2023 the Complainant had raised an issue directly with the Health and Safety Authority concerning the Employer’s requirement that as a matter of convenience that the Complainant ought take lifts with any one of her colleagues who happened to be travelling to Court on any day that the Court was in session and the Complainant’s attendance was required. The Complainant was not happy to rely on the goodwill of her colleagues and was also not confident that from an insurance point of view that that such work-related activity should become the burden of those persons who happened to have cars. I have no view one way or another regarding the concerns raised by the Complainant. I understand that the Respondent appears to have dealt with the issue (once it had been brought to their attention) in a seemingly satisfactory way. A risk assessment was called for by the Health and Safety Authority which request was presumably acquiesced to. In the end I believe that the Complainant had a very satisfactory outcome in that she was allowed to avail of a taxi service thereafter. It seems to me that the Complainant is inviting me to look very carefully at any and all interaction between the Complainant and her Employer through the lens of this openly acknowledged Protected Disclosure having been made by her in March of 2023. In fact, I would go so far as to say that the Complainant identified herself as being marked out for penalisation from the moment she had the temerity to make such a protected disclosure. On the other hand, I have to be mindful of the fact that the Complainant’s line Manger had already triggered a Grievance against the Complainant a good two months before the said protected disclosure was ever made. So, I feel I must hold the two lines of narrative as running concurrently through this employment. The Respondent has quite rightly reminded me that under the dignity at work policy the workplace Employer had to proceed to conduct a fulsome investigation to the required standard. This was owed to the person who had made the complaint. The Employer could not therefore be derailed from that process by reason of the Complainant raising and making a (legitimate) protected disclosure. So that for me, as Adjudicator, I must consider any adverse treatment or decision concerning the Complainant in light of an ongoing Grievance /Disciplinary process as well as the fact of a protected disclosure having been brought by her. I acknowledge that there are concerning issues around the delay between the Grievance being raised by the Line Manger GK in January of 2023 and the appointment of HD in June of 2023 (to implement the formal investigation into conduct). Although as noted, there was a preliminary process in the intervening period and Statements would presumably have been obtained. I accept that when Mr. HD came to interview GK as a part of the Grievance investigation meeting, she (GK) did reference an email exchange as evidence of the unacceptable communication between herself and the Complainant who was her subordinate. It is also true that the email exchange in question concerned those issues that ultimately became a part of the protected disclosure raised by the Complainant with the Health and Safety Authority concerning the ad hoc car-pooling arrangements during the working day. I also accept that Ms. GK might have given/got the impression that the making of the protected disclosure by the Complainant might have been as much an attempt to undermine her (GK) as a Manager as it was a genuine concern about insurance risks in the event of an accident. It is clear that any conversation around that issue (car usage) having been raised with the Health and Safety Authority was done in the context of the bullying investigation to provide an example of how GK perceived that the Complainant was constantly undermining her authority and the requirement that GK be allowed to manage the Complainant in the workplace. GK saw the constant pushback as being bullying by the Complainant. Given the circumstances, I do not think that there is any problem or difficulty with discussing the issues relating to the Health and Safety Authority as a matter of fact. I am satisfied that GK only did it as it was illustrative (as GK perceived it) of how the Complainant set about undermining GK’s role as her Manager. Ultimately, and what is significant is that in his final conclusions Mr. HD upheld almost every aspect of the Grievance particulars raised by GK (See Page 538 of Book 2) stating as a matter of fact that many of the examples wherein the Complainant was alleged to have humiliated, intimidated and/or used threatening behaviour against GK were found to have occurred. The Report was made available in April of 2024. The content of what was a comprehensive report was digested at management level in the first instance. It is clear that many of the workplace colleagues of both parties (GK and the Complainant herein) had been brought into this process to provide witness evidence. It seems likely that the process undoubtedly and possibly inevitably, created a certain amount of bad feeling in the workplace. A Ms. DA on behalf of the Respondent, having considered the outcome of the Investigation Report into the Bullying Grievance asserted that it warranted a disciplinary process This fact was communicated to the Complainant by a Ms. SE on the 25th of June 2024. This date is significant as on the 26th of June 2024 the workplace relations complaint form which I am dealing with issues through the office of the workplace relations commission. The Complainant has outlined her three penalisation complaints as follows: This complaint relates to ongoing penalisation by my Employer towards me from January 2024 and June 2024 inclusive and includes the decision of Angela McDonnell dated the 25.06.24 namely:- “Dear Ms Spellissy, I am writing to you in respect of a recent investigation pursuant to the Dignity at Work Policy, an anti-bullying, harassment and sexual harassment policy for the Irish Civil Service. In the circumstances where a finding that behaviour by you comes within the definition of workplace bullying contained in the Code of Practice, my determination is that this matter should now be dealt with under the Civil Service Disciplinary Code (“the Code”). I have appointed Ms Emily Sherlock, Director of Internal Service Delivery (Civil), as the “Relevant Manager” pursuant to the Code. She will be in contact with you shortly with the next steps in the process. I attach a copy of Circular 19 / 2016 Civil Service Disciplinary Code for your information. Regards, Angela McDonnell Director of Human Resources” I assert I am being subjected to further penalisation which are related to the disclosure/ complaints made by me in my original complaints to the WRC which were filed on the 22.04.22 and on the 29.07.22 and the fact that I filed complaints with the WRC and because I contacted the Health and Safety Authority on or about the 04.03.23 as I was being required to get into colleagues’ private cars and because I sent an email transmission to Emily Sherlock on the 21.02.23 which included copies of an email transmission that had been removed from two files on the case management system. The original complaints to the Workplace Relations Commission were heard on the 17.02.23 and on the 06.09.23 (reference number ADJ-00038974). The decision is dated the 11.01.24, Mr David Murphy upheld my complaint under the Payment of Wages Act 1991 and I am appealing the decision in relation to the complaint under Protected Disclosure Act and the complaint in relation to the Safety, Health and Welfare at Work Act to the Labour Court which are listed for hearing on the 20.08.24. I say that I filed additional complaints with the WRC on the 18.12.23 (ADJ-00048941), 04.03.24 (ADJ-00050579) and 08.04.24 (ADJ- 00051160) which were heard on the 12.03.24 and on the 22.05.24 in relation to ongoing penalisation from August 2022 to December 2023 inclusive which included that my employer initiated the investigation against me which is referred to in Angela McDonnell's decision dated the 25.06.24. In January of 2023 my Line Manager, Katie Gilhooly, made a complaint against me under the Legal Aid Board's Dignity at Work policy. Mr Peadar Browne was appointed as the Designated Person by Lucy O'Sullivan, Assistant Director, Human Resources. Mr Peadar Browne's Report dated the 22nd of May 2023 states:- “The Complainant (my Line Manager, Katie Gilhooly) has not provided the names of any witnesses to the matters complained of and the Respondent (me, Michelle Spellissy) disputes them. I conclude there is insufficient evidence to determine the behaviours complained constitute instances of bullying as defined in the Department of Public Expenditure and Reform’s Dignity at Work Policy 2015.” Notwithstanding that Mr Browne has stated there is insufficient evidence Ms Lucy O'Sullivan sent me a letter dated the 01.06.23 (received by me on the 31.05.23) which states that she has decided that Ms Gilhooly's complaint should proceed to a formal investigation. Based on Mr Browne’s Report I believe that there should not be a formal investigation. Ms Gilhooly had a copy of the Dignity at Work Policy 2015 and knew exactly the information Mr Browne required. It is also very clear from Mr Browne’s report that he gave Ms Gilhooly plenty of opportunities to give him the information. Mr Browne in his report stated:- “By e-mail dated 20 March 2023, I sent a draft of my typed account of the complaint to the Complainant to confirm the content of the complaint.” I fully engaged with Mr Browne. I sent him an email transmission on the 20th of March 2023 and Mr Browne also received a 50-page document which sets out my position in relation to the allegations. I assert that my Employer has followed none of their own procedures and are acting unlawfully. I say that my Line Manger met RSM Ireland on the 25.01.24 and claimed that I was bullying her which included Katie Gilhooly said that I had informed Emily Sherlock that she was:- “deleting emails” . Katie Gilhooly also claimed I was bullying her which included that I made:- “a complaint to the Health & Safety Authority”. In the course of the hearing conducted before me, I was obliged with the assistance of the parties to tease out those issues which have been referenced in the above narrative, some of which have also already been litigated before up to two other Adjudication Officers on two separate previous occasions as well as a preliminary issue before the Labour Court. It is not appropriate for me to have any view on issues which have already been competently considered elsewhere. I am therefore confining myself to acts of penalisation which occurred between January of 2024 and June of 2024. In fact, having heard the evidence I am satisfied that the act of penalisation being zeroed in on by the Complainant herself is a single issue concerning the decision made by Ms. AD on behalf of the Employer to escalate the findings made in the Investigation Report to a full disciplinary process. The Complainant has asked that I consider the argument seemingly made by Ms. GK (as part of her interview process) that the act of involving the Health and Safety Authority (which was done by the Complainant) was a form of bullying and undermining by the Complainant and perpetrated on the Line Manager (GK). GK had asked that this act be investigated as evidence of bullying. The Complainant asserts that if that complaint made by GK is being upheld and then being used against the Complainant, then the Respondent in effect has penalised the Complainant for having made the protected disclosure in the first place. The Complainant then argues that the decision to move to a disciplinary process compounds the penalisation for having made a protected disclosure. The Respondent, of course, has resisted this in the most strenuous terms. The Respondent rejects that the decisions made and the intelligence gathered as part of the Grievance Investigation and/or the consequent Disciplinary process was so gathered as some sort of retaliatory action for the Complainant having made a protected disclosure to the Health and Safety Authority. There is, says the Respondent, absolutely no nexus between the two issues. As I myself noted earlier there are the two lines of narrative running concurrently through this employment. The Respondent went on to assert that no matter where and with whom the burden of proof lies there is simply no case for the Respondent to answer. I was told that the fact that Ms. GK may have referenced the communication with the Health and Safety Authority as part of her story is neither here nor there. The Respondent particularly directed me back to the RSM Final Investigation Report. This is an extensive and detailed report. I have re-considered the findings made over three pages I was directed to by the Respondent which demonstrate the humiliating behaviour directed at GK in her role as Manager. The emails concerning the use of private cars or taxis were not considered (as part of the investigation) in the context of the content, but were considered in the context of insubordination and unacceptable tone therein. These emails simply demonstrated a very strained relationship between the two colleagues. The Respondent invited me to consider Ms. GK’s complaints which were highlighted in her interview with DH page (4 of 32) as follows: Over the last 18 months I have been subjected to shouting, slamming doors, controlling emails, being inflexible, insisting everything has to be her way, ignoring me, being sarcastic, blaming me, humiliating me in front of others or by cyber methods… The Respondent accepts that not all the issues which were raised by GK were found to have occurred. However enough of them had been found to have occurred so that the Complainant herein was facing a disciplinary process. The Respondent is adamant that any concerns which may have been raised with the Health and Safety Authority in no way impacted on the findings within the investigation report much less any decision made by AD to move to a disciplinary. The Respondent noted, and I am inclined to accept, that the Respondent cannot be paralyzed into inaction by reason of the fact that a protected disclosure has been made. The Respondent emphasised the need to balance the protection afforded to each employee in a delicate set of circumstances where balance is needed. At this stage the Employer is obliged to press on with a disciplinary process where such a large number of aggressive acts have been found to have been directed at a line Manager in the workplace. Looking at the four complaints before me Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 CA-00064329-001 - The initial burden of proof herein is on the complainant to establish the existence a protected act and a detriment. If and only if the complainant establishes a protected act and a detriment does the burden shift to the respondent to put forward evidence that the detriment suffered was not due to the protected act being the operative cause. Paul O’Neill -v- Toni & Guy Blackrock [2010] 21 E.L.R. 1 established that the burden of proof is on a complainant to establish that on the balance of probabilities (a) she/he committed a protected act, and (b) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed. The Labour Court held that if both limbs were satisfied, the burden shifted to the employer to show, on credible evidence, on the balance of probabilities, that the protected act did not influence the detriment imposed. The Toni and Guy case establishes the “but for” test in penalisation cases where it states :- “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 Section 27(3) of the Safety Health and Welfare at Work Act 2005. 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 suggestion that where there is more than one causal factor in the chain of events leading to the detriment complained of, then the commission of the protected act must be the 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” I am absolutely satisfied that the perceived detriment was not imposed by reason of a protected disclosure having been made. Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 CA-00064329-002 The Complainant asked me to consider the deletion of a series of emails to have had some relevance under this complaint. I struggled to understand the relevance of this issue which had been raised in the Complainant’s own grievance against GK back in August2022The Complainant failed to give me a reason that would allow me to consider that issue as relevant to the cognizable period under consideration up to June of 2024. I am also satisfied that much of this complaint has already been aired in the other hearings conducted into the different complaints raised by the Complainant. There is plenty of resistance to the idea that the Complainant might be allowed a second bite of the cherry. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00064329-003 – I cannot make any finding that the Complainant has established a Prima facie case herein. I understand that the Complainant has an ongoing and very real sense of grievance against her Employer. This is evidenced by the different attempts to bring the Employer to the attention of the WRC. The Complainant has tried to hold that she has an issue with her hearing. She has failed to establish that any hearing issue which she might have (a fact not accepted by the Respondent) has led to a negative impact for her in the workplace. The Complainant could not identify unfavourable treatment or any act of discrimination falling within the relevant six-moth period, or at all. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00064329-004 There is no evidence of victimization or penalisation for having raised an issue in connection with the Employment Equality Acts. Lastly, the Complainant had asked that this matter be anonymised. I am refusing this request in circumstances where no legitimate or compelling reason was given. The Respondent was resisting this request. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 CA-00064329-001 - The complaint was not well founded. The complaint fails. Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 CA-00064329-002 - The complaint was not well founded. The complaint fails. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00064329-003 - The Complainant has failed to demonstrate a Prima facie case. The complaint fails Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00064329-004 – The complaint herein fails
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Dated: 4th February 2026.
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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