Complainant

Respondent

Parties

Dusan Klika

InisCare Limited

Representatives

Harriet Burgess BL instructed by   Cumiskey Solicitors

Ibec

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991

CA-00068566-001

12/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997

CA-00068566-002

12/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997

CA-00068566-003

12/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994

CA-00068566-005

12/01/2025

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

CA-00068566-006

12/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act 2014

CA-00068566-007

12/01/2025

The complainant commenced employment with the respondent in 2021, initially working as a health care assistant.  In February 2024, he was formally appointed to a training role with the respondent. 

The complaints referred to the Commission varied in nature, from alleged penalisation to non-receipt of rest breaks at work.

At the time of the first hearing date, the complainant remained on sick leave from employment, which sick leave was certified from 17 October 2024.  By the second hearing date, the complainant’s employment with the respondent had ceased.  

The complainant commenced employment with the respondent as a carer in September 2021, and was promoted to the role of Training Officer in/around June 2023, which role was formalised in February 2024.  The complainant’s salary was €38,000 per annum. 

The complainant suffered greatly whilst in employment with the respondent; regularly working excessive hours, unable to take breaks and forced to work in an unsafe working environment.  The complainant did not get any breaks, typically worked a 12-hour day and a minimum of 50 hours per week.

Detail was provided of matters complained about by the complainant throughout his work with the respondent which it was submitted should be treated as complaints regarding health and safety and/or protected disclosures.   There was no investigation of the complaints raised.   The complainant was penalised for raising the complaints with the respondent:-

§  he was directed to carry out training in offices that were over an hour apart from each other and forced to carry out his care role;

§  he was directed to train high numbers of employees with little / no adequate resources;

§  the respondent ceased paying the complainant’s wages when on sick pay during the purported investigation of complaints raised by the complainant’s partner;

§  when the complainant raised that he was suffering from exhaustion and could not safely complete a care visit, he was directed to carry out the visit by the respondent.

The complainant sought wages not paid during sick leave, compensation for not receiving any/adequate breaks at work and for being required to work more than the statutory maximum weekly working hours, compensation for not receiving a contract of employment that reflected his terms of employment, compensation for penalisation for raising complaints in respect of health and safety and for penalisation for making protected disclosures.  

Summary of complainant’s evidence

The complainant initially commenced employment with the respondent as a carer in September 2021.   

The complainant raised a concern with the office and Daniela Ciobanu about double calls, specifically the non-attendance of a second care assistant on a double call.  This issue did not happen all the time, but maybe 3 or 4 times in a year.  The complainant was not doing double calls in the period from July 2024 to January 2025.  In 2024, when the complainant was delivering training, he made sure the carers were informed to follow procedure.  The complainant continued to raise the issue with Roisin Wrenn and Stephen Brady. 

The complainant outlined other work practices he complained about, including ‘blank calls’ where a client was scheduled but the carer was told they didn’t need to do the call.  The complainant raised this issue with Ana and Daniela in 2023/2024 and told them that he did not want ‘blank calls’ in his schedule as he was not comfortable with them. 

By reference to a work schedule, the complainant stepped through a workday in May 2022.  He raised complaints to Ana, Adina and Daniela in the summer of 2022 about overwork and ongoing complaints about overwork when working as a trainer in the period from July 2024 to January 2025.  The complainant talked through his working day on 23 July 2024 by reference to a schedule that recorded his care hours of work.   He described it as a typical working day.

The complainant’s new role as a trainer was formalised in or around February 2024.  The complainant outlined the training provided to enable him to undertake this role.  He did not receive training for delivery of induction day training to new carers.  He was given a PDF document to review, and maybe Ms Mooney spent a couple of hours with him on induction training.

From February 2024, the complainant was based in Glasnevin, prior to that he had delivered training in both the Glasnevin and Dundrum offices.   The complainant had raised issues with Daniela about the Dundrum training space being unsuitable; the response from the respondent was to move training to Glasnevin.  The issues the complainant had with the Glasnevin base were the long drive and how he was removed from having the same office location as his partner.

The complainant was not aware of a system for recording his training hours of work.  There was no system for recording breaks.  The complainant was asked about breaks at work and outlined how he went for a 10-minute smoke and coffee break when delivering training.  He worked in the office during lunchtime doing paperwork and certs, taking a 15-minute break for lunch.  The complainant went out for a cigarette in the afternoon.

In the summer of 2024, the complainant was asked by a colleague to provide her with a certificate although she had not attended training.  He was also asked in or around this time to fix manual handling certs dating back 4/5 years.  The complainant did this, but he was not comfortable with it and mentioned it to Rosin, Amy and Stephen. 

The complainant’s manager was on leave during the summer of 2024.

The complainant asked for the evening care calls of 15 and 16 October 2024 to be removed.   The complainant told the respondent he was tired, stuck in traffic coming from Glasnevin and did not think he would make the evening care call.   The complainant was not doing the morning care call at this point.

The complainant was in work in Glasnevin on 17 October 2024 delivering training to carers.   One of the attendees became upset during the morning break in connection with training content delivered on the prevention of workplace bullying and harassment.   The complainant also became upset with Ms Wrenn and another staff member.  The complainant told them that he thought policies had been broken and were not working.  The respondent was aware of his and his partner’s case, but nothing was happening and he still had to deliver the training.    

The complainant was asked to continue with training delivery on 17 October, but he was so emotional and upset that he was unable to and sent everyone home.  The complainant went home at 1.00pm approximately and has been out of work since that time.  The complainant told the respondent he could not be in work because he was stressed and couldn’t deliver lies to people.  The complainant did not have personal issues, he himself was unwell.

The written statement provided to the complainant did not reflect the nature of the complainant’s work with the respondent; the hours of work clause was inaccurate.

The complainant never received an incident report form after making complaints and was never told his complaints were being investigated.  After instructing a solicitor, a request was made on 9 March 2025 for an investigation of complaints.  The complainant is not aware of any investigation having been carried out.

Cross-examination

The complainant was aware from the Employee Handbook and his contract of employment that there was no provision for company sick pay, however his manager told him to take leave and that the respondent would look after him.

When the complainant officially took up the Training Officer role in 2024, he requested to continue with care calls for two specific clients as he wanted to provide the best for them.  Nobody in the respondent offered to take these care calls away.  Ms Mooney cleared the complainant’s schedule from October 2024 however there were times when the complainant was very tired and asked for the care calls to be removed but this was refused.  The complainant could not recall specific dates on which he made such a request.

The complainant called the office to request cover for the evening care call on both 15 October and 16 October 2024 as he was very tired and stressed.  He was told by the person who answered the ‘phone that they would check and call the complainant back.  He was ultimately told that he would have to do the calls as no cover could be secured.  

The complainant was paid mileage from the client’s home to Glasnevin.  Induction training started at 9.15am and finished at approximately 4.00/5.00pm. There were three breaks during a training session.  There was no training delivered on Fridays.  The complainant was never instructed not to take breaks, and the complainant did not raise an issue with anyone about not taking or getting breaks. 

The complainant did not work over 48 hours after 1 August 2024.

In relation to complaints raised about health and safety, the complainant did not make these complaints in writing rather he had a chat about them.  The complainant referred to when a second carer did not turn up on a double call and the coordinator told the complainant to do the call himself.  The complainant did not officially report this.

In relation to an alleged complaint of unsafe training practices, the complainant agreed that he sat in on induction training on policies and procedures for managers.  The complainant stated that he did not make a complaint to anyone about unsafe training.   

The complainant accepted that he did not raise a complaint about alleged fraudulent manual handling certification.  The complainant asked who he could have reported it to and, when the respondent’s whistleblowing policy was put to him, the complainant accepted he could have raised it with someone higher up than his manager.

In 2023/2024 when working as a carer, the complainant raised an issue about payment for incomplete visits with Ana and Daniela and advised that he did not want these included in his schedule.  The complainant agreed that what he meant by incomplete visits was cancelled calls.  The complainant was aware of the agreement between the respondent and the HSE regarding cancellation of visits and payment within a certain timeframe.  The complainant was also aware of the respondent’s cancellation policy in respect of private clients.

In re-examination, the complainant stated that it was his decision to take on the two care call clients.  He never had an option to do either the training role or caring role. The complainant raised complaints about the training facilities in Dundrum but he never raised a complaint or made a report to anyone about fraudulent certification.

The complainant commenced employment with the respondent as a health care assistant in September 2021 and was promoted to Training Officer on 1 February 2024.  The complainant has been on certified sick leave since 17 October 2024.

The respondent fully refutes the complaints referred to the Commission on 12 January 2025 under five different enactments.

The cognisable period having regard to the Workplace Relations Act 2015 is 13 July 2024 to 12 January 2025.

The respondent submitted that the complainant’s claims should not be permitted to proceed to adjudication on the substantive matters by reason of the following preliminary issues:-

(i)      a failure on the part of the complainant to particularise the claims presented to the Commission on 12 January 2025 and to meet the evidential burden to support a stateable case prejudices the respondent in its ability to respond to the allegations.  Caselaw on the burden of proof, effect of record keeping obligations under section 25(4) of the Organisation of Working Time Act 1997, and the right of the respondent to mount a defence was cited. 

(ii)     under section 41(6) of the Workplace Relations Act 2015, complaints presented outside the six-month statutory period cannot be entertained. Compliance with the statutory timeframe cannot be determined as the complainant did not provide dates of alleged contraventions.

Without prejudice to the foregoing, the respondent’s position is summarised as follows:-

CA-00068566-001:  Payment of Wages Act 1991

Wages properly payable to the complainant are set out in the complainant’s contract of employment and were paid to the complainant.  There is no provision for payment while on sick leave. The respondent paid discretionary sick pay for a 3-week period on commencement of the complainant’s sick leave.  

CA-00068566-002:  Organisation of Working Time Act 1997

An allegation that the complainant did not get breaks is denied.  The complainant had not raised any complaint in respect of his working hours nor invoked the internal grievance procedure prior to referral of this complaint to the Commission.

CA-00068566-003:  Organisation of Working Time Act 1997

The respondent is prejudiced in its ability to respond to an allegation that the complainant was required to work more than the maximum permitted numbers of hours where the allegation is not particularised and the complainant had not previously raised any issue in this regard at local level.

CA-00068566-005:  Terms of Employment (Information) Act 1994

The complainant received written statements of employment in compliance with the legislation.  A statement of terms with the complainant’s signature was exhibited by the respondent.

CA-00068566-006: Safety, Health and Welfare at Work Act 2005

The complainant did not raise any health and safety issue within the meaning of section 27(3) of the 2005 Act, and no action was taken by the respondent to the detriment of the complainant arising from any complaint raised.

CA-00068566-007:  Protected Disclosures Act 2014

The respondent denies that the complainant made a protected disclosure and further that there was any penalisation of the complainant. The respondent has a protected disclosures policy which contains a disclosure procedure.  The first mention of a protected disclosure made by the complainant was in the WRC complaint referral form.  Various cases concerned with the fundamentals required to ground a complaint of penalisation under the 2014 Act were cited.

Summary of Christina Mooney’s evidence

This witness was the complainant’s line manager and looked after training, compliance and complaints within the respondent organisation.  The witness set the complainant’s training work schedule and was aware of care calls averaging between 4-7 hours per week also undertaken by the complainant. 

The witness outlined her meeting with the complainant in the Santry office on 1 February 2024 regarding the contract for the Training Officer role.  The complainant confirmed to the witness on that date that he wanted to keep the care calls with the two specific clients.

On a date in January 2024, the witness had discussed the induction training, and the complainant was in attendance when all the induction day training slides were presented.  The witness had asked the complainant whether he had any questions on the induction training and manual handling training.  The witness scheduled a colleague to sit with the complainant on 8 February 2024 to address any questions or outstanding issues.  The witness sat in on the complainant delivering induction training on 14 February 2024 and considered the complainant to be comfortable in delivery.  The witness had a follow-on meeting and asked the complainant about any issues and whether he was comfortable.  The complainant did not raise any issue concerning delivery of induction training.

The training schedule was for training to start at 9.30/9.45am and to finish at 4.00/4.30pm.  The witness had no indication from the complainant or anyone else that training did not finish at that time.  

The witness received an email from the complainant late on 16 October 2024 and that is when she became aware that he had requested cover for the evening care calls on 14 and 15 October but that this had not been available. The witness responded to the complainant’s email saying to leave it with her and contacted the co-ordinators in Dun Laoghaire to inform them to facilitate any request from the complainant to come out of shifts.  When the complainant went out on sick leave on 17 October 2024, the witness requested immediate removal of the complainant from the scheduled calls. 

The witness had received a telephone call from a colleague in the Glasnevin office on 17 October 2024 advising that the complainant was upset.  The witness telephoned the complainant at approximately 1.00pm to speak with him about what had happened; she could tell the complainant was upset on the call and suggested to him about going home.  The witness subsequently sent the complainant a message at approximately 2.30pm, checking that he was home and provided him with the EAP number.

The witness described the Dundrum training room and its capacity.  The complainant had raised with the witness about more than the maximum of 10 attending for training.  The witness took follow-up action by speaking with relevant recruiters advising of the maximum of 10 attendees at training.  It was company policy to keep training attendee numbers to a maximum of 10.  Between Ms McArdle and the complainant, the decision was taken for the complainant to move to delivering training exclusively at Glasnevin.

Under cross-examination, the witness was asked about oversight of the complainant’s daily working hours, the witness outlined a 1-hour morning and 1-hour evening care call and contractual daily hours as a trainer. The witness made sure in collaboration with Ms Grand that the complainant was not working more than 48 hours per week.   The complainant did not raise with the witness any issue of overwork or with client care.  The witness works in compliance and had the complainant raised any issue, she would have requested it in writing with particulars of dates. The complainant emailed the witness on 16 October 2024 and asked for help; the witness did not ignore his request.  The first time the complainant requested the witness to have something removed from his schedule was on 16 October 2024.  The witness accepted there was no written record of a colleague or the witness having sat with the complainant or on his delivering induction training in February 2024, and that the emails of 16 October 2024 had not been submitted to the Commission.  The witness had telephoned the complainant on 17 October 2024 before he started training to inform him that she was getting him removed from the care call schedule.  The witness did not consider the interactions with the complainant over the 16 and 17 October 2024 to warrant completion of an incident report form.  The witness did not accept that the complainant had not received specific training to deliver training for carers.  The move to training delivery in Glasnevin was to centralize the training and Glasnevin had facilities for the training to be delivered in one room.  Dundrum was a working office, the Glasnevin office was more suitable for training delivery.  The company policy to have a maximum of 10 attendees at training continued on the move to Glasnevin even though it was a bigger room.  The complainant and Ms Mooney had agreed 10 as the appropriate number of attendees at training.  The witness did not agree that the training move to Glasnevin was because of the complainant raising a health and safety issue; it was because of the respondent’s decision to centralise training.  The respondent was actively seeking to rehouse training facilities at a city centre location and the move to Glasnevin was temporary pending that outcome.

In re-examination, the witness advised that the train the trainer training enabled the complainant to deliver any training course.

Summary of Roisin Wrenn’s evidence

This witness is People & Culture manager with the respondent and worked in the Glasnevin office with the complainant. 

The complainant never raised a health and safety issue or a protected disclosure with the witness.  

The witness explained how in or around August 2024 the respondent was preparing for a WRC inspection and was in the process of putting all documents on a particular software system.  There were 22 manual handling certificates missing on the system and the complainant was asked to input  certificate details such as the issue and expiry dates.

The witness listened to the recordings of the complainant’s telephone calls to the Dun Laoghaire office in October 2024, which the complainant had referred to in his evidence as calls made to request removal of his evening care calls and that this had been denied.  The calls were very pleasant in nature.   

The complainant came to the witness on 17 October 2024 about the employee who became upset during the complainant’s delivery of refresher training.  The witness found a colleague who agreed to speak with the upset employee.  The colleague conducted an investigation.  The complainant was not upset at this stage, he just wanted to make sure the upset employee was looked after.  Subsequently, in or around lunch time, the complainant came into the kitchen where the witness and her colleague were sitting and divulged personal information concerning a relationship.  The complainant was upset and the witness asked him whether he should go home and advised him that she and her colleague could finish off the training. The colleague telephoned the complainant’s line manager to advise her of the complainant’s upset. The complainant and Ms Mooney had a telephone conversation, and the complainant left the office at approximately 1.30pm.  The witness was not aware of anyone having instructed the complainant to continue with the training.

Under cross-examination, the witness advised that she had reviewed the complainant’s work schedules in the 6-month cognisable period.  She accepted that she did not assign hours of work to the complainant.  There were no records of the calls of 17 October 2024 that the witness had referred to in her direct evidence.  The witness did not agree that the complainant had raised with her an issue concerning double calls and she was not aware of the complainant having raised the issue with anyone else.  The witness was not familiar with a practice of ‘blank calls’.  The witness outlined the billing procedure for calls cancelled at short notice.  When asked why this procedure had not been explained to the complainant, the witness stated that she did not believe that employees needed to be informed of the respondent’s billing arrangements.  The witness was not aware of any complaints about the training room prior to February 2024.   The decision for the complainant to move to the Glasnevin office was a collaborative decision between Ms McArdle and the complainant.   In relation to the manual handling certificates, the witness outlined how the complainant was asked to input information from paper manual handling certificates that were missing from the software system, to take the certificate from the employee’s file and upload to the system assigning the issue and expiry dates.  The witness confirmed that the respondent had the physical paper certificates for the relevant personnel but that the relevant information from the certificates had not transferred on a system change.  The witness accepted that the complainant had not trained these people, but that they had been trained by another trainer/outsourced company.  The complainant was not being asked to certify these people as having received training rather he was being asked to do an administrative task to upload information from certificates that issued to the software system. The complainant was not being asked to sign off on the certs, they had already been signed off by somebody else.   The first time the witness heard of issues concerning double calls, blank calls and the training room was at the Workplace Relations Commission.  It was not the decision of the witness to cease discretionary sick pay to the complainant.   There was no investigation of complaints made by the complainant because he did not make any complaints.

In re-examination, the witness was asked about the minutes of a wellness check meeting with the complainant that took place on 20 February 2025.  The witness’ understanding at this meeting was that the complainant’s position and the stressors he referred to related to his partner’s complaints, the investigation of which had been completed in November 2024 and an appeal outcome issued at the end of December 2024.

Summary of Mary McArdle’s evidence

This witness is managing director of the respondent.  She worked with the complainant in the Glasnevin office.

The witness and the complainant discussed moving all the training to Glasnevin because of the better training facilities at that location.  Before the move to Glasnevin, the complainant had delivered training at different locations.  The complainant spoke with the witness about the Dundrum training room being too small, and the witness agreed it was not ideal.   There was discussion and agreement about claiming mileage because Glasnevin was the other side of the city from the complainant’s home.

When Ms Mooney went out on leave in 2024, the witness advised the complainant that she would be his manager.  The complainant contacted the witness about annual leave and other matters, including people coming late to training.  The witness and complainant got on very well.

The complainant did not raise with the witness any issue concerning double calls and/or unsafe work practices.  The witness had never heard of ‘blank calls’.

The witness made the decision to pay the complainant when he went out on sick leave.  The complainant was paid 3 weeks sick pay which was what was initially certified.  The witness knew the complainant was upset about his partner and made the decision to give the complainant the time certified as paid sick leave.   The witness had been told about the complainant being upset in Glasnevin on 17 October 2024.

Under cross-examination, the witness stated that the complainant had been working 2 days per week on the Northside before fully moving to the Glasnevin office.  The witness and the complainant mutually agreed that Glasnevin was the best place for the training to be delivered.  The witness did not accept that the complainant raising the issue of mileage signified his dissatisfaction with the location; mileage was agreed because the complainant did refer to the travel distance and wear and tear on the car.  The witness did not accept that the complainant was forced to move to the Glasnevin office when asked about penalising the complainant by making him to go to the Glasnevin office and taking the complainant from the same workplace as his partner.  When Ms Mooney was out, the witness had a verbal exchange with the complainant that the witness would be his manager.  It was for an 8-week period and was not put in writing. The witness was not aware of the complainant having raised any issue concerning double calls, blank/cancelled calls and was not aware of the complainant’s name having been put on certificates that he did not deliver manual handling training for.  Asked why the change in reasoning for paying the complainant his certified sick leave, the witness stated that it had been agreed to pay the 3 weeks and that she had expected the complainant would return to work at that stage.   The witness did not accept that the complainant’s pay stopped after he made complaints to the WRC and/or after his partner’s appeal was lodged.

Summary of Stephen Brady’s evidence

The witness works as branch manager in Glasnevin.  He had a very good working relationship with the complainant.  They took their breaks together and would talk nearly every day.  The complainant would never be at the branch until his rostered finish time of 5.00pm.   The complainant never complained about his work hours.

Under cross-examination, the witness accepted that record-keeping of rest breaks was not implemented until after a WRC inspection.  The witness agreed that there was no record of when the complainant finished his working day in Glasnevin.  The complainant did not raise a concern about double calls or manual handling certs with the witness.

In re-examination, the witness advised that he was not the complainant’s manager, had no part in determining or overseeing the complainant’s terms and conditions of employment and did not issue the complainant’s contract of employment.

Summary of Amy Nesbitt’s evidence

At the material time, the witness undertook the Quality Assurance & Compliance role for the Dundrum and Dun Laoghaire branches.   The complainant did not raise with the witness any of the matters referred to in these proceedings such as staff training, health and safety, double calls or cancelled calls.  The only issue he raised was about the Dundrum office being too warm.

Under cross-examination, the witness stated that she had no awareness of certificates having been produced by the complainant.  The witness described the Dundrum theory and practice rooms.

Summary of Daniela Ciobanu’s evidence

The witness has worked with the respondent since 2014 and was employed in the role of Regional Manager from October 2022.  The complainant never raised any health and safety issue or issue about unsafe working practices.  The witness never had a conversation with the complainant about cancelled calls and never demanded a certificate for manual handling, CPR or anything else.

Under cross-examination, the witness advised that she was the complainant’s manager in Dundrum and set his care hours of work.   The complainant never raised an issue of ‘blank calls’ or overwork.   The complainant did raise with the witness too many people having attended for training and told the witness that the Dundrum training room was not suitable for more than 10 people.  The witness subsequently spoke with the recruiter to limit the number of attendees to 10.  The witness did not accept that she had asked the complainant to certify her for training she had not done.  

Summary of Ana Grand’s evidence

The witness has been branch manager in Dun Laoghaire since November 2022.  The coordinators scheduled the complainant’s care hours of work.  It was not protocol for office staff to take on care calls.  The two care calls remained in the complainant’s schedule when he took up the Training Officer role because he requested them.  The witness was not aware of any issue with double calls.

Under cross-examination, the witness stated that she had wanted to introduce a new carer to replace the complainant in his evening care call, but the complainant had refused as he wanted to continue with the client.  When the complainant went out on sick leave, he continued to go to that client.  The complainant did not complain to the witness about a practice of ‘blank calls’ or of overwork.  The witness outlined what happened with pay if a carer did not attend a double call and the arrangement for a rapid responder or branch manager in lieu.  The witness was asked about the complainant’s work schedule for 23 October 2023, she accepted it was a long day but did not accept that this made sense for the complainant to have been raising an overwork issue at the time.    The witness never asked the complainant for a manual handling certificate; the witness had been certified previously by someone else.

Notwithstanding a lack of particulars in the complaint form, written submissions on behalf of the complainant provided particulars of alleged contraventions under certain enactments and it was appropriate to hear from the complainant on the substance of his complaints.  Furthermore, it was clear from the outset of the first hearing day that the case would not conclude in the time available on that date meaning that the respondent had an opportunity to fully respond to particulars put forward by the complainant in respect of the alleged contraventions.

CA-00068566-001 – Payment of Wages Act 1991

The complaint referred to the Commission under section 6 of the Payment of Wages Act 1991 (the “1991 Act”) was for unpaid wages arising from being overworked and wages that should have been paid whilst on sick leave.

By way of written submissions, the complainant claimed 6 months’ wages for unpaid wages whilst on sick leave.

It was agreed between the parties that at the material time the rate of pay for care work undertaken by the complainant was €15.50 per hour and that the complainant was paid a salary of €38,000 for the Training Officer role. 

The complainant was medically certified as unfit to attend work from 17 October 2024.  He remained on sick leave at the time of the first hearing date.

The respondent initially paid the complainant in respect of his certified sick leave absence.   Documentary evidence submitted on behalf of the complainant corresponded with the respondent’s evidence that the respondent ceased paying the complainant on sick leave with effect from in or around 7 November 2024.  

This complaint was referred to the Commission on 12 January 2025. 

The cognisable period in respect of the complaint under section 6 of the 1991 Act is 13 July 2024 to 12 January 2025. 

Section 5 of the 1991 Act prohibits deductions from wages save in certain circumstances.  Section 5(6) of the 1991 Act provides that where on any occasion an employee is paid less than the total amount of wages that is properly payable to the employee on that occasion, the amount of the deficiency or non-payment is to be treated as a deduction. 

To succeed in the claim referable to sick pay under the 1991 Act, sick pay must have been properly payable to the complainant in the cognisable period. 

The complainant’s statement of terms and conditions of employment expressly states that there is no contractual sickness/injury payments scheme in addition to state benefit.  The respondent’s Employee Handbook, exhibited by the complainant, sets out the entitlement to statutory sick pay if absent from work due to sickness or injury and provides information on the statutory sick pay scheme and qualifying criteria.  It was not claimed that the complainant was not paid statutory sick pay to which he was entitled.

The complainant’s evidence was that his manager (Ms Mooney) told him to take leave and that the respondent would look after him.  A written communication from the complainant to Ms Mooney queries the respondent’s decision to cease payment from 7 November 2024 and refers to his understanding that he would be looked after until he returned to work.  Documentation submitted by the complainant included a communication from Ms Mooney after sick pay ceased which referred to Ms McArdle’s decision to pay the complainant sick pay as a goodwill gesture.  Minutes of a meeting of 20 February 2025, also exhibited by the complainant, record Ms Mooney disputing the complainant’s assertion that she had told him he would be looked after and paid as she did not have that authority.  Ms McArdle’s evidence was that sick pay is discretionary, and that she made the decision to pay the complainant because she had been informed by Ms Wrenn that he was upset about his partner.  Ms McArdle stated that she told Ms Mooney to pay the complainant for his certified sickness.  Under cross-examination, when asked why the decision was taken to cease payment to the complainant, Ms McArdle stated that it was because payment for 3 weeks was what had been agreed and that it was at that stage that the respondent expected the complainant back to work. 

The height of the complainant’s evidence in support of sick pay being properly payable is that Ms Mooney told him he would be looked after and paid, however I am not satisfied that this establishes the sick pay claimed as properly payable to the complainant.  The information before me is that Ms McArdle exercised discretion notwithstanding the written terms and conditions concerning sick pay, and made the decision to pay the complainant when he went out on sick leave.  The complainant was paid for 3 weeks of his certified sick leave absence which I am satisfied was based on the first medical certificate the complainant submitted to the respondent, which certificate was for a 3-week period.   The complainant’s expectation that sick pay would continue and his evidence of Ms Mooney telling him he would be looked after falls well short of establishing an entitlement to the sick pay claimed.

Written submissions referred to the complainant having been significantly overworked in/around December 2022 to March 2023 and indicated that evidence would be tendered of weekly working hours.  The complainant’s evidence in relation to his hours of work in the cognisable period was of a care call at 8.00am and of working until 9.00/10.00pm when he got home from his last care call.   The complainant said that he complained of overwork in the period from July 2024 to January 2025 to Ana, Adina and Daniela.  Daily work schedules for a timeframe outside of the cognisable period were submitted by the complainant. 

Payslips coming within the cognisable period detailed ‘overtime’ as 25 hours in the month ending 31 July 2024 and 12 hours in the month ending 31 August 2024.  The evidence established that the overtime referred to in these payslips related to the complainant’s work as a health care assistant / the care hour he continued with when he took up the role as Training Officer.

The statement of terms of employment concerning the complainant’s training role details available hours of work of 40 hours per week, 09.00am to 17.00, Monday to Friday.  The care schedule in July 2024 detailed one care hour in the morning before 09.00 and one hour in the evening, commencing in or around 19.00.  The care schedules for August 2024 to October 2024 schedule the complainant for a 1-hour care call in the evening, commencing in or around 19.00.  The care schedules were not disputed by the complainant in evidence, and it was not the complainant’s evidence that he undertook more care calls than those scheduled. 

The payslips reflect the complainant’s pay for the care hours at the agreed rate of pay and the complainant’s agreed monthly salary for the training role.  There was no evidence to suggest that the complainant did not receive the payments detailed in the payslips.

There was no evidence before me to support the claim under the 1991 Act of unpaid wages for overwork, specifically wages for overwork properly payable and deductions in contravention of section 5 have not been established. 

For completeness, the suggestion in a line of questioning of the respondent’s witnesses that cessation of sick pay was as a reaction to, or because of the complaints to the Workplace Relations Commission is not supported by the timeline.  A further line of questioning that sick pay to the complainant ceased because of complaints made by the complainant’s partner, who was also in the respondent’s employment, was not established on the complainant’s evidence.  I note Ms Wrenn’s evidence of completion of an investigation of the complainant’s partner’s complaints in November 2024, with an appeal outcome in respect of that investigation issuing at the end of December 2024.  The evidence before me does not support a connection between cessation of sick pay to the complainant and complaints raised by the complainant’s partner.

I am not satisfied of evidence supporting the claims of unpaid wages in contravention of the 1991 Act.

For the reasons set out above, I find that the complaint under the 1991 Act is not well founded.

CA-00068566-002 – Organisation of Working Time Act 1997

This complaint referred under section 27 of the Organisation of Working Time Act 1997 (the “1997 Act”) was that the complainant did not get rest breaks.

Submissions on behalf of the complainant were that the complainant received no adequate breaks whilst in employment and sought redress of 2 years’ compensation, the maximum under the 1997 Act, having regard to the nature of the complainant’s role and the work undertaken.  Weekly work schedules for certain dates in the period from March 2022 to May 2024 were submitted by or on behalf of the complainant. It was further submitted that, on full notice to the respondent, the complainant was regularly working days with no breaks and that payslips recording overtime for sometimes over 30 hours a week was evidence that the complainant was unable to take breaks during the working day. 

The complainant was initially employed by the respondent in 2021 as a health care assistant.  He was formally promoted to the role of Training Officer in February 2024, and it was in or around this time that the complainant’s base moved to the Glasnevin office.  It was common case that the complainant requested to continue with two specific clients on taking up the Training Officer role and that he undertook a 1-hour care call with these two clients, one call in the morning and one in the evening.   The uncontested evidence was of the morning care call ceasing after 26 July 2024 and from that time, the only care call the complainant worked was the evening care call.   It was also accepted that there were no care calls undertaken by the complainant on Mondays and Fridays in the cognisable period, and that the complainant did not deliver training every day; some weeks there were three training sessions per week, other weeks there was no training, and the complainant never delivered training on a Friday. 

In direct evidence, the complainant described the work schedule provided for the 23 July 2024 as a typical working day when he was undertaking work as a carer and trainer for the respondent.  He outlined how he left home at 7.30am for his first care call from 07.50 to 08.50, drove from that care call to the Glasnevin office to undertake his work as trainer from 09.15 to 16.30/17.00, leaving Glasnevin to go home for 30 minutes approximately before leaving home at 18.40 to go to the evening care call from 19.05 to 20.05.   In direct evidence, the complainant advised that he had breaks for coffee or a cigarette when training and that he worked during lunchtime on training certificates.  He also stated that he mainly worked through breaks, that the coffee and cigarette break he took was approximately 10 minutes and the lunch break approximately 15 minutes.  He also referred to an afternoon break for a coffee or cigarette.  Under cross-examination, the complainant described a training day where there was a morning break after 2 hours, lunch at 1.00pm and a third break at around 3.00pm.  The complainant said that he did not normally sit with colleagues in the break area for the duration of the break.

In accordance with section 41(6) of the Workplace Relations Act 2015, the cognisable period is 13 July 2024 to 12 January 2025.  It is noted that the complainant was on sick leave from 17/18 October 2024.

I accept the respondent’s submission on the effect of section 25 of the 1997 Act as outlined by the Labour Court in ISS Ireland Ltd v Gfencheva (DWT1157).   The 1997 Act does not confer on an employee a cause of action for an employer’s failure to maintain records in accordance with section 25(1) of the Act.

On the matter of working time and travel time, the Court in Gfencheva stated:-

“The time spent by a worker while engaged in travelling, which is wholly, exclusively and necessarily undertaken in the performance of a contractual obligation of their employment, and where the commencement point and the finishing point together with the time allocated for travelling is determined by the employer, must be regarded as working time with the meaning of the Act.”

Applying the above to the facts of the present case, I am satisfied that the complainant’s travel time between the morning care call and the Glasnevin office constituted working time.  My finding in this regard is supported by Ms McArdle’s evidence of an agreement with the complainant on moving to the Glasnevin office for the payment of mileage from the client’s home (the morning care call) to the Glasnevin office and further by her evidence that the travel time for certain categories of employee, for example travel time between care calls, is considered working time and also attracts a mileage payment.

However, I am not satisfied that travel time to the morning care call, travel time from the Glasnevin office after the complainant’s hours of work as a trainer and travel time to and from the evening care call constituted working time within the meaning of the 1997 Act as the respondent did not determine the commencement point, finish point and time for such travel. 

Therefore, in the period from 13 July to 25 July 2024, the complainant’s maximum daily working time was from in or around 07.45 to 16.30/17.00 followed by an hour from in or around 19.00 to 20.00.  I note that the complainant did not undertake the evening care call on 2 dates in the previously mentioned period.  In the period from 26 July to 17 October 2024, the complainant’s maximum daily working time was from in or around 9.00am to 16.30/17.00 followed by an hour from in or around 19.00 to 20.00.

I find that the complainant’s evidence does not support a stateable case of a breach of section 12 of the 1997 Act in the cognisable period.   The complainant’s evidence was of having had the opportunity to take breaks and of having taken breaks that complied with section 12 of the 1997 Act, based on my findings in relation to the complainant’s working time as set out in the preceding paragraph.

In circumstances where the complainant did not discharge the evidential burden on him, I find the complaint of a contravention of section 12 of the 1997 Act to be not well founded. 

CA-00068566-003 – Organisation of Working Time Act 1997

The complaint referred under the 1997 Act was that the complainant was required to work more than the maximum permitted number of hours.  It was submitted on the complainant’s behalf that the complainant worked in excess of permissible hours in the 6-month cognisable period and that this was evidenced on documents submitted by the respondent.  Maximum compensation was sought by way of redress for this alleged contravention of the 1997 Act.

There was no evidence to support the complaint of a contravention of section 15 of the 1997 Act in the cognisable period.

In this regard, I refer to the complainant’s weekly working hours having regard to my findings on his working time in CA-00068566-002, which findings are based on the documents submitted by the respondent and the complainant’s oral evidence, the limited reference period, including the fact that the complaint was on sick leave from 17/18 October 2024 and had annual leave in the cognisable period, which periods are excluded from a reference period by virtue of section 15(4) of the 1997 Act.   I also refer to the complainant’s evidence under cross-examination in relation to the work schedules whereby he stated that he never worked over 48 hours from 1 August 2024.

In the circumstances, I find that this complaint is not well founded.

CA-00068566-005– Terms of Employment (Information) Act 1994

The complaint referred of a breach of the Terms of Employment (Information) Act 1994 (the “1994 Act”) was that the complainant was not provided with a contract of employment or notice of changes to the contract of employment.  It was submitted that a statement of terms of employment, provided to the complainant in February 2024, did not reflect the complainant’s role with the respondent, specifically that “his core hours were not defined adequately and the respondent required him to work overtime and additional hours without any prior adequate notice.”

Section 41 of the Workplace Relations Act 2015 Act (the “2015 Act”) applies to this complaint of a contravention of the 1994 Act.  Section 41(6) of the 2015 Act requires a complaint be presented to the Director General before the expiration of the six months period beginning on the date of contravention to which the complaint relates.  

The complainant first began delivering training for the respondent in the first half of 2023.  The respondent provided the complainant with a written statement setting out particulars of terms of employment at the beginning of 2024, which the complainant signed acceptance of on 1 February 2024.  The statement did not set out particulars of the terms of the complainant’s work as a health care assistant/carer, for example pay and hours of work.  The complainant’s evidence was that the hours of work clause and minimum rest periods clauses in the statement provided to him were not accurate.  

By reason of the foregoing, I find that the complaint of a contravention of the 1994 Act, specifically both the complaint of not being provided with a contract of employment and / or of not being notified of changes to the contract, has been presented outside of the statutory timeframe for referral of a complaint under section 41(6) of the Workplace Relations Act 2015.  The date of contravention to which the complaint relates is the date the statement issued to the complainant.  Given that the statement was signed by the complainant on 1 February 2024, it issued on or prior to that date.  The complaint presented to the Commission on 13 January 2025 related to that statement which it was submitted did not adequately define the complainant’s core hours.  I find therefore that the statutory timeframe is reckoned from the date the impugned statement issued to the complainant. 

My decision is that this complaint is not well founded as it was presented outside of the timeframe for referral as per section 41(6) of the 2015 Act and there was no reasonable cause before me to warrant an extension of the statutory timeframe.

CA-00068566-006 – Safety, Health & Welfare at Work Act 2005

Section 27 of the Safety, Health & Welfare at Work Act 2005 (the “2005 Act”) protects against penalisation.  Penalisation is defined in section 27(1) as follows:-

“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.”

Section 27(2) provides, without prejudice to the general definition in section 27(1), examples of penalisation, and specifically includes change of location of place of work.

Section 27(3) sets out the protected acts:-

“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 statutory timeframes in section 41 of the Workplace Relations Act 2015 apply to this complaint under the 2005 Act.   As there was no information before me as to reasonable cause to warrant an extension of the 6-month timeframe provided for in section 41(6) of the 2015 Act, it follows that my adjudication is concerned with assessing whether there was a contravention of section 27 of the 2005 Act in the cognisable period of 13 July 2024 to 12 January 2025. 

Various acts or omissions were put forward in submissions on behalf of the complainant as constituting penalisation.  I consider it appropriate to address each one in turn.

(i)                  “[the complainant] was directed to carry out training in offices that were over an hour apart from each other as well as being forced to carry out his caring role”

The evidence did not support the above submission.  The complainant was not, in the cognisable period, carrying out training in offices over an hour apart.  It was common case that the complainant delivered training in the Glasnevin office from February 2024.  I further find that this was agreed between the complainant and Ms McArdle following issues raised by the complainant concerning the adequacy of training facilities in the Dundrum office.  My finding in this regard is supported by an agreement between the parties on a mileage rate from the complainant’s first care call location to the Glasnevin office.  Regarding the assertion that the complainant was forced to carry out his caring role, the complainant’s evidence was that he requested to continue with care calls for two clients on officially taking up the training role.  There was no evidence of the complainant having requested that this work be discontinued or that he was forced to continue doing the care calls.  In relation to the complainant’s requests to have the evening care call on Tuesday 15 October and Wednesday 16 October 2024 removed, it was an agreed term or condition of the complainant’s employment, albeit not evidenced in writing, that the complainant undertake the evening care call for the specific client.  On balance, having regard to the fact that the complainant made the telephone calls requesting removal of the care call on the day or en route to the call itself, and the complainant’s evidence that the person who took the call in the Dun Laoghaire office said they would check and call the complainant back, I accept that the respondent was unable to secure cover to facilitate the complainant’s request at short notice.  I am not satisfied that this constitutes an act or omission that affects to the complainant’s detriment any term or condition of his employment within the meaning of section 27 of the 2005 Act.

By way of general observation on the merit of this submission of a contravention of the 2005 Act, it was the complainant’s direct evidence that he felt his move to the Glasnevin office was done with the objective of removing the complainant from his partner’s work location.

(ii)                 “[the complainant] was directed to train high numbers of employees with little/no adequate resources (in particular in the Dundrum office, where he had to show trainees how to use a hoist in a corridor)”

The complainant’s evidence did not support this submission and there was no identifiable contravention of the 2005 Act in the cognisable period in this regard.

It was common case that there were issues with the training facilities in Dundrum in terms of the room layout where training was delivered. I am satisfied that this is why, with the complainant’s agreement, there was a move to delivery of training at the Glasnevin office, which had a dedicated training room, from February 2024 onwards.

The complainant’s evidence was of having undergone training, provided for by the respondent, including training with ‘train the trainer’, manual handling, CPR and Pathway training.  On the complainant’s account, Ms Mooney spent some time with him on induction training, and he was provided with a PDF file.  I found Ms Mooney to be a credible witness and accept the specific detail provided in her account of having sat in on the complainant’s training on 14 February 2024.  

In relation to the assertion that the complainant was directed to train high numbers, two witnesses outlined how they addressed a training room capacity issue raised by the complainant.  It is noted that this issue related in particular to the Dundrum training room, and that training was delivered from the Glasnevin office from February 2024.  

(iii)               “during the purported investigation of complaints raised by his partner, when the complainant was on sick pay, the respondent ceased paying his wages”

The respondent ceased paying the complainant’s wages in or around 7 November 2024.  In evidence, the complainant acknowledged the respondent’s policy on sick pay but that the respondent had said it would look after him.  Ms McArdle was asked in cross-examination about a coincidence in sick pay ceasing after the complainant raised complaints with the WRC and after his partner’s appeal at local level was lodged.  Notwithstanding the evidence that sick pay ceased before the referral of the within complaints to the Commission, these contentions for cessation of sick pay are not sufficient to ground the complaint under section 27 as they are not in the nature of the protected acts provided for under section 27(3) of the 2005 Act.

(iv)               “when [the complainant] raised that he was suffering from exhaustion and could not safely complete a care visit, he was directed to carry out the visit by the respondents.”

I have referred under (i) above to the evidence before me of the complainant requesting he be removed from the evening care call on Tuesday, 15 October, and Wednesday, 16 October 2024.  The complainant made the request by telephoning the co-ordinators in the Dun Laoghaire office.  I note from the complainant’s submissions that in or around this time the complainant emailed Ms Mooney, the complainant’s manager, advising of being refused on two occasions despite how tired he was and asking whether it was something to do with his partner.  I further note that Ms Mooney, after the complainant left the workplace on 17 October 2024, directed the complainant’s evening care calls be removed.  This was before the medical certificate of unfitness for work was received.  The care call work was carried out by the complainant under his contract of employment with the respondent.  The complainant’s evidence was of telephoning the office and telling them he was tired and stuck in traffic coming from Glasnevin.  I am satisfied that the respondent was unable to get cover for the complainant’s care calls on 15 and 16 October 2024 at short notice and it was in those circumstances that the complainant did the evening care call.  I am not satisfied that the foregoing amounts to an act or omission affecting to the detriment of the complainant any term or condition of his employment within the meaning of section 27 of the 2005 Act.

In closing submissions on behalf of the complainant, it was submitted that the evidence supported additional acts of penalisation in relation to the complainant having been forced to do double calls by himself, forced to work outside of his contracted hours and forced to move to Glasnevin.  I am fully satisfied that the evidence did not support the foregoing submissions and find that there was no evidence of penalisation in the manner alleged in the cognisable period.   On the complainant’s account, he did not do double calls in the period from July 2024 to January 2025, he requested in 2024 to continue with the care calls for two specific clients, which work formed part of his contracted hours of work with the respondent, and the move to delivering training exclusively in Glasnevin occurred in or around February 2024.  For completeness, assertions of penalisation of the complainant by making him go to the Glasnevin office and taking him from his partner’s workplace in Dundrum do not support the complaint of a contravention of section 27 of the 2005 Act.

The evidence also did not support submissions that the complainant raised health and safety issues relating to double call visits, unsafe training practices and/or overwork.

The complainant’s evidence that he continued to raise a concern with Ms Wrenn and Mr Brady about double calls after he stopped doing them was disputed by the evidence of Ms Wrenn and Ms Brady.  The complainant’s evidence on this was non-specific and, in circumstances where he was no longer undertaking double calls and ensuring in delivery of training that carers were aware of the procedure, on balance, I am not satisfied that he raised an issue about double calls after he took up the training role in February 2024.  It is noted that the double call issue in the complainant’s case constituted both an alleged act of penalisation and the subject matter of the protected act.  I have addressed above the absence of penalisation in the cognisable period.  As regards the submission of penalisation for having raised a health and safety issue in relation to unsafe training practices, this too grounded the penalisation aspect of this complaint.  I find that the complainant raised issues about the adequacy of the training facilities in Dundrum.  I further find that this was addressed by the respondent in consultation with the complainant and a move to using the Glasnevin office for all training delivery agreed.  The complainant’s evidence in cross-examination was that he did not make a complaint about unsafe training practices.  In relation to the submission that the complainant raised or made a complaint about overwork, it is unclear who he made any such complaints to after the summer of 2022.  His role changed on promotion in early 2024 and I note his evidence that he did not raise an issue with anyone about not having an opportunity to take rest breaks at work and of not working over 48 hours per week from August 2024.  I am not satisfied on the information before me that the complainant raised any complaint about overwork for which he was penalised in contravention of section 27 of the 2005 Act.

In conclusion, there was no evidence of the complainant having incurred detriment within the meaning of section 27 of the 2005 Act in the cognisable period because of or in retaliation for the complainant having undertaken a protected act.

I therefore decide that the complaint of a contravention of section 27 of the 2005 Act is not well founded.

CA-00068566-007 – Schedule 2, Protected Disclosures Act 2014

It was submitted that in addition to seeking redress for penalisation under the 2005 Act, the complainant is entitled to compensation for penalisation after raising protected disclosures in relation to alleged fraudulent practice concerning manual handling certification and unlawful practices in and around payment for incomplete visits. The respondent fully disputed the alleged practices and the complainant having raised same with it/made protected disclosures.  As the parties were informed during the hearing, it is not my function to investigate the subject matter of the alleged protected disclosures, nor is it my function to assess the adequacy of the respondent’s response to a protected disclosure in terms of an investigation or alleged failure to investigate.

The complainant relied on the same set of facts to ground his complaint of penalisation under the 2014 Act as in the complaint of penalisation under the Safety, Health & Welfare at Work Act 2005.

Schedule 2 of the Protected Disclosures Act 2014, as amended, (the “2014 Act”) provides for redress for contravention of section 12(1) of the 2014 Act.

Section 12(1) protects employees from penalisation for having made a protected disclosure:-

“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.”

Penalisation is defined in a broad manner in section 3 of the 2014 Act as meaning:-

“… any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes—

(a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of a promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

[(e) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training,

(j) a negative performance assessment or employment reference,

(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker's reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;

A complaint of a contravention of section 12(1) of the 2014 Act must be referred to the Commission within the statutory timeframes set out in section 41 of the Workplace Relations Act 2015.  There was no evidence of reasonable cause such as to warrant an extension under section 41(8) of the 2015 Act.  There must therefore have been a contravention of section 12(1) within the 6-month cognisable period prior to referral of the complaint.

Submissions on behalf of the complainant concerning penalisation under the 2014 Act referred to the same acts or omissions as set out at (i) to (iv) of CA-00068566-006.  My findings of fact in respect of each of those alleged acts or omissions apply to the within complaint.

(i)                  “[the complainant] was directed to carry out training in offices that were over an hour apart from each other as well as being forced to carry out his caring role”

Firstly, the complainant’s evidence did not support the above submission and my findings of fact in this regard are set out above.   Furthermore, there was no identifiable contravention related to the above submission in the 6-month period prior to referral of the complaint to the Commission.

(ii)                 “[the complainant] was directed to train high numbers of employees with little/no adequate resources (in particular in the Dundrum office, where he had to show trainees how to use a hoist in a corridor)”

This submission as to penalisation in contravention of section 12 was not supported by the complainant’s oral evidence and, in this regard, I refer to my findings of fact under CA-00068566-006.  I am not satisfied on the submissions or the evidence of a contravention occurring within the cognisable period.

(iii)               “during the purported investigation of complaints raised by his partner, when the complainant was on sick pay, the respondent ceased paying his wages”

The respondent ceased paying the complainant’s wages in or around 7 November 2024.  This is an act that caused detriment to the complainant.  I am however satisfied that the cessation of the complainant’s wages was justified by reference to the written terms and conditions regarding sick pay, the respondent’s evidence on the decision to pay the complainant and the initial medical certification for a 3-week period.   I find that the respondent exercised its discretion on receipt of the medical certificate from the complainant and decided to pay the complainant for the period certified, namely 3 weeks.  I cannot find that the decision to stop sick pay was unjustified in circumstances where the complainant did not have a contractual entitlement to sick pay.  I further cannot find that the decision to cease sick pay was prompted by the making of a report because it does not stand to reason on the information before me.    It was submitted that the complainant’s complaints about double calls, unsafe training practices, fraudulent certification and incomplete visits should be treated as protected disclosures.  Any such complaints, which it was fully disputed were raised, were raised before the respondent exercised its discretion to pay the complainant for his sick leave when it commenced in or around 17 October 2024.  There was no evidence of a report having been made in the period following commencement of the complainant’s sick leave and the respondent ceasing sick pay to the complainant on 7 November 2024.  Furthermore, the complainant’s evidence on making complaints was inconsistent.  Under cross-examination, the complainant accepted that he did not make a complaint to anyone about the alleged unsafe training and alleged fraudulent manual handling certification.  In re-examination, he confirmed that he never raised a complaint or reported to anyone about fraudulent certification.   In direct evidence, he stated that he raised the issue of incomplete visits or ‘blank calls’ in 2023/2024 and alleged overwork from 2022.  Finally, I note the minutes of the meeting of 20 February 2025 which were submitted by the complainant and record the complainant seeking redress for how his partner and he had been treated and stating that he could not return to work until his partner’s issues have been resolved.  In conclusion, I have serious reservations about the complainant having made any report of relevant wrongdoing within the meaning of the 2014 Act.     

(iv)               “when [the complainant] raised that he was suffering from exhaustion and could not safely complete a care visit, he was directed to carry out the visit by the respondents.”

I have set out above under CA-00068566-006 the evidence before me of the complainant requesting removal from the evening care call on Tuesday, 15 October, and Wednesday, 16 October 2024.  The complainant made the request by telephoning the co-ordinators in the Dun Laoghaire office.  I note from the complainant’s submissions that in or around this time the complainant emailed Ms Mooney, the complainant’s manager, advising of having been refused relief on two occasions despite how tired he was and asking whether it was something to do with his partner.  The care call work was carried out by the complainant under his contract of employment with the respondent.  I am satisfied that the respondent was unable to get cover for the complainant’s care calls on 15 and 16 October 2024 and that it was in those circumstances that the complainant completed the evening care call visit on 15 and 16 October.  I am not satisfied that the foregoing amounts to an act or omission which caused unjustified detriment to the complainant; the complainant was required to do the evening care call because the respondent could not secure cover for same at short notice. 

I have very carefully considered the evidence and am not satisfied of penalisation or threatened penalisation against the complainant in the cognisable period.  I therefore find the complaint of a contravention of section 12(1) of the 2014 Act to be not well founded.  

CA-00068566-001:  Payment of Wages Act 1991

For the reasons set out above, I find that this complaint is not well founded.

CA-00068566-002:  Organisation of Working Time Act 1997

For the reasons set out above, I find that this complaint is not well founded.

CA-00068566-003:  Organisation of Working Time Act 1997

For the reasons set out above, I find that this complaint is not well founded.

CA-00068566-005:  Terms of Employment (Information) Act 1994

For the reasons set out above, I find that this complaint is not well founded.

CA-00068566-006:  Safety, Health & Welfare at Work Act 2005

For the reasons set out above, I find that this complaint is not well founded.

CA-00068566-007:  Protected Disclosures Act 2014

For the reasons set out above, I find that this complaint is not well founded.

Written statement of employment – Rest breaks – Working time – Weekly working hours – Sick pay – Properly payable – Penalisation – Health & Safety – Protected disclosures