Complainant

Respondent

Parties

Olive  Loughran

Health Service Executive

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

  Self-Represented

 Comyn Kelleher Tobin

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-00071132-001

28/04/2025

The Complainant, a Senior Occupational Therapist, gave evidence on affirmation at the hearing. Submissions were received and relied upon at the hearing. She confirmed commenced employment with the Respondent on 30 March 2009 and earned a net fortnightly sum of €1,800. It was the Complainant’s complaint that she was penalised for raising a health and safety complaint.

Mr. Conor White, Solicitor, represented the Respondent with Ms. Maura Kelly giving her evidence on Oath. Ms. Ruth Walsh and Mr. Seamus Beirne swore an affirmation but were not called to give evidence. The Respondent presented and relied upon legal submissions at the hearing.

It was the Complainant’s evidence that she has been penalised for raising a health and safety complaint and for engaging with the Workplace Relations Commission (“WRC”). She stated that during a WRC hearing on 24 October 2024, the Respondent agreed to transfer her away from the management of Ms Walsh, and that discussions were to take place regarding alternative positions. It was her evidence that she made it clear at that time that she did not wish to leave County Mayo and had repeatedly been informed that no suitable alternatives existed within Mayo.

On 3 January 2025, the Complainant gave evidence that Ms Walsh again advised her that no posts were available in Mayo University Hospital or mental health services in Mayo. However, shortly afterwards, on 22 January 2025, Ms Walsh issued a circular advertising a Senior Therapy OT post in Mayo University Hospital. The Complainant submitted that this demonstrates there was no genuine attempt to relocate her as previously discussed.

It was the Complainant’s evidence that she had been told by Ms Walsh that there were no vacancies in Mayo, yet jobs were in fact available. It was her belief that proper efforts were not made to identify an alternative role despite the commitments given during mediation and WRC processes.

The Complainant described a meeting with her line manager, Ms Kelly, on 15 January 2025 regarding the possibility of a Clinical Coordinator role. It was her evidence that Ms Kelly later informed her that matters would be discussed with senior management, but no follow‑up occurred. Instead, she asserts that Mr Beirne told Ms Kelly she did not need to intervene. She further submitted that management thereafter blocked progress on the potential transfer.

The Complainant claims that Mr Beirne has allowed Ms Walsh to “manage” her transfer out of the department and has prevented Ms Kelly from assisting. She believes this amounts to penalisation for raising concerns within her department and for bringing a health and safety complaint to the WRC.

It was her further evidence that while awaiting the outcome of the WRC hearing, she submitted a Stage 1 grievance via her Union, initially scheduled for 28 April 2025. She was told by management then advised there were no available staff to progress the grievance, delaying the process. This she submitted that her situation deteriorated further when she was informed, she would not be permitted to return to any OT role in Mayo, despite earlier assurances that relocation would be within the county.

The Complainant gave evidence of her meetings with senior managers, including the Head of Disability Services, and that she has been told correspondence regarding her case is still outstanding. It was her evidence that she has been subjected to detriment because she raised protected health and safety concerns, engaged with the WRC, and sought union‑supported dispute resolution.

During cross‑examination, the Respondent’s solicitor put it to the Complainant that several Occupational Therapy and related posts in County Mayo had been circulated to her, including positions in St Mary’s, Castlebar, Mayo General Hospital, and a Health Promotion Officer role in Ballina. The Complainant accepted that she had received emails from the transfer panel but stated that she did not apply for these roles because she believed a transfer was being arranged for her as part of the WRC process.

She said she had never been told that she needed to apply for vacancies herself and understood that management would be handling a transfer arising from the earlier WRC engagement. She maintained that, had she been instructed to apply, she would have done so.

The solicitor suggested that engagement had occurred through HR, through the transfer emails, and through the involvement of the individuals present (including her line manager). The Complainant disputed this. It was her evidence that she had received no direct contact, no guidance, and that her line manager, Ms Kelly, had repeatedly told her she had received no information or updates from senior management regarding any transfer.

The Complainant stated that it was perplexing that, if engagement had been intended, her line manager had not been included. She argued that she had been left without direction while roles in Mayo appeared on the transfer list. It was put to the Complainant that she could and should have applied for these roles herself, but the Complainant maintained that she had been told a transfer would be sought, and therefore believed applications were not required.

In conclusion it was put to the Complainant that engagement had taken place in line with the WRC direction and that the parties had exchanged the required correspondence. The Complainant disagreed, stating that she had received no meaningful engagement about transfer options and no communication guiding her to apply for specific roles.

The Complainant relied upon Toni & Guy Blackrock Ltd v O’Neill [2010] ELR 21.

Ms Kelly’s Evidence

Ms Kelly stated that she is a Network Manager with the Respondent and was the operational line manager for the Complainant. She explained that her interaction with the Complainant regarding the Clinical Coordinator role occurred informally during a return to work meeting following the Complainant’s period of sick leave.

In her evidence Ms Kelly described the exchange as a casual conversation, not a formal discussion about redeployment or opportunities. The Complainant had raised the topic of whether Ms Kelly had any role in the Clinical Coordinator processes. Ms Kelly told her she was not involved in those areas and that such roles were governed elsewhere within the Respondent.

It was her evidence that she mentioned that Clinical Coordination roles did exist in other areas and were typically filled via internal expressions of interest, generally offering one day a week of duties alongside a substantive clinical post, in an effort to be helpful. She clarified that no such role was available in the Complainant’s area, which comprised five teams, and that managing all would be substantial. It was her evidence that the Complainant responded that such a workload would be a lot to take on.

Ms Kelly stated she did not view the conversation as significant and therefore, did not retain detailed notes. She later informed her General Manager, Mr Beirne, during a routine monthly meeting, merely noting that the Complainant had asked whether Ms Kelly had any involvement in WIC or redeployment processes. It was her evidence that Mr Beirne confirmed she did not have such a role and did not need to become involved.

Respondent’s Submission

It was the Respondent’s submission that the Complainant did not establish any detriment as required under the relevant legislation. It was submitted that following the parties’ engagement in October 2024, there were ongoing communications, but no agreement was reached, this was acknowledged in correspondence issued on behalf of the Complainant.

The Respondent maintained that it was not obliged to identify or place the Complainant into a new role simply because she wished to move out of Ms Walsh’s line management. While some engagement occurred, these discussions did not result in agreement.

The Respondent submitted that available roles continue to be notified to the Complainant in the ordinary way, including through transfer circulars such as those issued by Ms Walsh in January 2025. The Complainant was and continues to be free to apply for any such roles.

It is the Respondent’s submission that no penalisation has occurred. There has been no act or omission by the Respondent that could amount to a detriment, such as disciplinary action, refusal of promotion, or any comparable adverse measure.

The Respondent submitted that Complainant’s attempt to link the matter to Section 13 of the Industrial Relations Act 1969 dispute to penalisation, the legislation does not provide for moving a penalisation claim into the industrial relations process, particularly where an industrial relations recommendation has already issued. If the matter were purely one of industrial relations, the Respondent submitted that a separate IR complaint could be made only after the internal grievance procedure was fully exhausted. However, given that a recommendation has now issued, the Respondent’s position is that any such issue is moot.

The Respondent relied upon Toni & Guy Blackrock Ltd v O’Neill [2010] ELR 21 Kempis Sales Ltd & Kempis Rolls Ltd v Anthony Byrne (HSD151), Minister for Justice, Equality and Law Reform & Garda Commissioner v Healy (HSD132), Wexford County Council v Siobhan Murphy (HSD174)

Section 27 of the Safety, Health and Welfare at Work Act 2005 (“2005 Act”) provides:

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

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

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

(e) coercion or intimidation.

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

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

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

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

Having considered the evidence outlined, I find that the Complainant has not established that she suffered a detriment within the meaning of Section 27 of the 2005 Act. The statutory test therefore cannot be met for the following reasons:

Engagement between an employer and an employee in the course of an industrial relations dispute is generally a positive step. In this case, the engagement did not result in agreement, and the parties sought a Recommendation from the WRC. A concurrent penalisation complaint was also before the WRC. Neither the Recommendation nor the penalisation Decision made any order directing that the Complainant be transferred to another post. Such a direction would in any event be highly unusual, particularly in a public‑sector context where open recruitment competitions form an integral part of the system.

There is no evidence of any negative alteration to the Complainant’s employment conditions, no disciplinary sanction, no denial of opportunity, and no exclusion from roles. At all times it was open to the Complainant to apply for any vacancy she wished. It is noted that she chose not to do so.

For these reasons, I find that the Complainant was not penalised within the meaning of the 2005 Act.

For the reasons outlined above, I find the Complainant’s complaint is not well founded.

Health and Safety  - Penalisation