Complainant

Respondent

Anonymised Parties

Detective

An Garda Siochana

Representatives

Matthew Byrne Burns Nowlan LLP Solicitors/ Neil Rafter BL

Zoe Hughes Chief State Solicitor's Office/ David McGrath BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00061241-003

23/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00061241-004

23/01/2024

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

CA-00061241-005

23/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00061241-006

23/01/2024

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

CA-00061241-007

23/01/2024

The complaint was lodged with the Commission on the 23rd of January 2024.

Several dates had been set for the hearing and allowing for requests from the parties the dates were adjourned.  Hearings were held in February, May and the case proper began on the 12th of August and the 14th of August 2025.

The complaint form detailed several complaints that allege penalisation relating to leave and training. Those claims were refined and reformulated in amended complaint submissions.

An application was made for the hearing to be heard in private by the Employer and allowing for the sensitive matters that related to security that were agreed to. In addition, there are health matters relating to the Complainant that the Adjudicator has decided warrant anonymisation. However, that anonymisation is only about the actors and others who have given evidence as the case cannot practically be written up without some context about the organisation.

While the Complainant brings several complaints under different statutory headings, they all share the same factual matrix.

The Complainant states that when he sought to exercise his right for parental leave that is allowed in law and under his terms and conditions of employment, that it was initially not approved and later begrudgingly so.

The case concerns how the Complainant perceives how he was treated by his immediate reporting sergeant/supervisor who he believes did not believe him when he needed to apply for force majeure leave. It is also alleged that further penalisation occurred when training he was meant to attend was withdrawn and without reasonable cause his right to hold a firearm was temporarily revoked.

He believes that these acts of alleged penalisation are linked and amount to senior officers colluding to show their disapproval because he raised a grievance. He also claims that this right for his grievance to be heard was frustrated and amounts to another act of penalisation.

These allegations are denied, and the leave was approved. The first training day was rescheduled and the second training day in issue was approved and was conditional on being fit to attend. The officer was certified sick and therefore could not attend. The temporary firearm revocation was made in the best interest of the officer and the public and had nothing do with his rights to pursue grievance.

The context of the application was a state visit where resources were stretched and were required to meet the security and operational challenges of such a visit. He perceives that his reason for applying for the leave, because his child was unwell, was not believed and that it was made clear that it would be viewed very negatively. The leave was sought at a weekend and by association the Complainant believes that his superior did not believe him.

The leave was subsequently approved, and it is argued by the Respondent without undue delay.

The Complainant believes that he was punished in a very public and humiliating way. His right to have his firearm was removed. This was a contrived act by senior management where it is alleged his superiors colluded to ensure that he was put in his place and for raising a grievance. It is alleged that the right to be fairly heard was met with punishment, commencing with social disapproval and continued to training programmes that he was approved to go on being cancelled.

His line managers categorically refute the allegations being made against them. The firearm was removed based on a concern that the Complainant was exhibiting anxiety and stress and was treated like any other colleague would be in this situation. The action to carry out an assessment was taken based on the duty of care to him and the public. An early appointment was sought with occupational health and once the Complainant was certified fit to hold a firearm it was restored. The entire process and how the decision was made was balanced and fair.

 The courses were not withdrawn. The officer would be facilitated to attend training and in fact what the Complainant is raising a grievance about is delay about attending these courses not a decision where he was denied access to go on these courses. There were good reasons for the delay; they were unrelated to his grievance.

The Complainant details his case in his submission as follows:

FACTS

1. The Applicant is a Detective member of An Garda Síochana in the Special Detective Unit and the Applicant has worked for An Garda Síochana since February 2007.

2. The Applicant has been in receipt of a Firearms Authorisation Card pursuant to Section 3 of the Act of 1925 since January 2018 in connection with his work as a Garda Detective.

 3. The Applicant has an ongoing grievance with his supervisor which occurred due to a complaint regarding the conduct of his superior having engaged in bullying behaviour in April 2023 following the Applicant having to take Force Majeure leave due to his children being ill on the 15 April 2023.

4. The Applicant was informed that he would have a meeting with his supervisor about his having taken this Force Majeure leave by text while he was caring for his ill children one of whom is on the autism spectrum compounding the difficulty. The Applicant had sought to request that his Superior provide an explanation in writing as to what the issue was before the meeting and this was denied. On his return to work an altercation occurred with the Applicant’s superior in front of this team giving rise to the said grievance.

5. The Applicant was criticised for having taken this leave in the first place and informed “We’ll see if redacted or redacted accept that” referring to the force majeure FM1 form – which the Applicant completed on the 16th April 2023 on his return to work.

6. The unwarranted and wholly un-necessary contact from the D/Sergeant redacted, the Applicant’s superior, on the evening of Friday the 14th April 2023 was discriminatory in nature in that the contact interfered with his utilization of his Force Majeure leave for the following days tour of duty. Family status is one of the nine prohibited grounds pertaining to the Employment Equality Act – the Applicant’s status as a parent was discriminated against in that he could not freely avail of the leave concerned for the reason it was taken. The Applicant should have been solely focused on his children’s needs whilst they were ill, was forced to deal with texts he had received and what awaited him on his return to work given he was to be spoken to when he returned with the clear indication of censure.

 7. On the 17th April 2023 was that the Applicant was called out in front of colleagues in to a room and verbally reprimanded by D/Sergeant redacted. Furthermore the Applicant has been penalised as a result of it. The Applicant was previously selected to attend the Close Protection Course in October 2022. It was cancelled to be re-scheduled. The next available course, was within a week or two after the Applicant’s situation with D/Sergeant redacted. The Applicant was not selected to attend despite communication in January 2023 with the Protection unit regarding its re-scheduling and his attendance on it. This deselection was a direct consequence of the grievance.

 8. The Applicant made a complaint in respect of this grievance on 17 April of 2023. Following this the issues with the Applicant’s superiors escalated. Following the said complaint having been made the Applicant was removed from a Close Protection Course which he had been scheduled to attend in May 2023.

9. The Applicant was informed by D/Superintendent, Protection on the 12th May 2023 that his grievance was passed on Chief Superintendent SDU to deal with.

 10. Since June of 2023, following no action having been taken on foot of the grievance complaint submitted on behalf of the Applicant, he sought to request the assistance of his local Garda Superintendent, who was ultimately the decision maker in the decision of the 21 August 2023 to revoke his Firearm’s license. The Applicant attended at the office in order to raise these issues on the 2 June 2023 and made a phone call on the 8 June 2023.

 11. The Applicant wrote to the office of the Detective Chief Superintendent by way of email on the 11, 13 and 18 June 2023. 12. In the email of the 11 June 2023 the Applicant calls in to question the Respondent’s inaction on foot of a recommendation from their own independent medical assessor, Dr. redacted, in a report dated March 2023 following an in person consultation with the Applicant following a suspected health matter in May 2022. The Applicant asked was the Chief Medical Officer happy with the head of HR’s action on foot of his letter reflecting the advice of Dr. redacted and her recommendations being the involvement of senior HR. Her report is clear there are no issues with the Applicant in terms of mental illness.

13. The Applicant looked up the Dispute Resolutions Procedures himself when he received no response. It was his understanding from reading this document that a form “ERB1” had to be completed by the Applicant to progress a complaint and as his email of the 11th June 2023 was not replied to after the four weeks since the 12th May 2023 that the Applicant understood that D/Chief Superintendent, SDU was dealing with the matter and would contact him. The Applicant felt he had no choice but to complete this form when it became clear he was not going to be communicated with by return or as a result of D/Superintendent, Protection’s referral to D/Chief Superintendent, SDU.

14. An “ERB1” meeting was held on the 18th June 2023. At this meeting the Applicant’s grievance was determined solely to be “interpersonal issues” in the meeting and expressed “full confidence” in the superior the Applicant had complained was bullying him.

15. The Detective Chief Superintendent replied on the 28 June 2023 “Employee Relations has advised that the Disputes Resolution Procedures (DRP) are not applicable to complaints of bullying or harassment, which is the stated nature of the complaint on the ERB1 form submitted on 13 June, but that interpersonal issues which do not fall within the definitions of bullying or harassment are appropriate to the DRP.”

16. On the 22 July 2023, the Applicant replied to the email of the 18 June 2023. The Applicant rehearsed the history of the issue and complaint. The said email stated that there had been a failure to deal effectively or at all with the grievance. The Applicant stated that his career opportunities, potential earnings and progression is being hampered and impeded and he is now in a position where he cannot apply for the temporary re-instatement in that unit because of this issue and the failings in how his complaints have been addressed up to this point. Whilst the Applicant would like to work in his unit, the actions of its supervisor towards him preclude expression of interest in that unit and in advancing his career progression / experience for future roles and because that supervisor has been deemed to have committed no wrong towards the Applicant arising from ERB 1 meeting on 18th June 2023, which is clearly wrong and not based on the merits and facts presented..

17. There was no further action taken in respect of the grievance complaint referred to and no interaction between the Applicant and the Detective Chief Superintendent up to the date of the revocation of his firearms authorisation on the 21 August 2023. It appears that the revocation was predicated upon the foregoing interactions as there has not been any other interaction that the Applicant is aware of which could give rise to the within issues.

18. In October 2023 the Chief Medical Officer corresponded with the Applicant and determined that there was no basis for the revocation of his firearms authorisation. This has since been returned; however the Applicant has remained unselected for any further training courses and deskbound as a direct consequence of having to take up force majeure leave.

19. The treatment of the Applicant in this manner was directly calculated to not only directly harm the Applicant’s career prospects and advancement, but also to injure his reputation in the eyes of his colleagues. The fact of the Applicant having since been cleared medically has not resulted in the return of his position and treatment in work prior to having taken force majeure leave and thereafter complaining regarding his treatment for being bullied for doing so. The revocation was directly intended to infer instability mentally on behalf of the client to his colleagues and superiors.

The following is a letter sent to the Complainant’s Solicitor on 24th of September 2023 and summarises the Respondent’s position to the allegations being made against them:

Dear Mr.,

I refer to recent correspondence sent by you to Garda Civil Legal on the 12th September 2023 and the 21st September 2023 on behalf of your client D/redacted. In your letters two distinct issues are raised by you on behalf of your client namely the temporary revocation of his “firearms licence” and his proposed participation in a CBD2 car course on the 20th September 2023. Our clients reply is set out as follows:

As you will be aware on the 22nd July 2023 your client sent an e-mail about an issue that he was having in relation to annual leave. At the time of the requested leave President Joe Biden was making a visit to Ireland and all such leave had been cancelled by the Commissioner. During the Presidential visit your client was detailed to provide protection duty but on the morning in question he rang in indicating his intention to take force majeure leave. Given the reference made to stress and anxiety in his e-mail there was a concern for your client’s welfare.

This concern was accentuated by a previous incident on the 15th November 2020 when your client called in sick to Detective Sergeant with a stress related issue. At that time your client’s firearms authorisation was temporarily revoked and an instruction given by Detective Inspector to your client that his firearm be surrendered. This instruction was complied with immediately by your client. This temporary firearms revocation was subsequently lifted on 7th January 2021.

As you will be aware there had been an investigation of an alleged incident which had occurred in the surgery of a GP who had been treating your clients late father which your client indicated had caused him considerable stress.

Given that stress was raised by your client as a common factor in relation to the above matters and was now being raised again by him in his correspondence of the 22nd July 2023 it was important that this be investigated in the interests of both your client and the general public.

On the 18th August 2023 a case conference was held attended by Detective Chief Superintendent, Dr. redacted Assistant CMO, (who had consulted with your client previously in relation to prior stress related issue), Detective Superintendent redacted and redacted from Human Resources. Given his concerns for your clients welfare Detective Chief Superintendent decided that he should refer your client to the CMO for further assessment and a request was made that this appointment be expedited. A decision was also taken by Detective Chief Superintendent that your client’s firearms authorisation ought to be temporarily revoked pending this completion of the medical assessment by the Chief Medical Officer. On the 21st August 2023 Detective Superintendent met with your client and informed him of the direction of Detective Chief Superintendent dated the 21st August 2023 to temporarily revoke his firearms authorisation and your client surrendered his firearms. 

To enable the medical assessment to be made a remote appointment for the 13th September 2023 was made for your client with the Independent Medical Assessor.  On that date your client did not attend his remote telephone appointment and a number of attempts to contact him by telephone proved unsuccessful. Subsequently we were informed that your client’s decision not to attend his medical appointment was made on the written legal advices of your office. Your client’s failure to attend is regrettable as it creates the difficulty that no determination as to whether or not your clients firearms authorisation ought to be restored to him could be made.

In an attempt to move matters forward we have arranged an in person appointment with an Independent Medical Assessor for your client at 11am on the 8th November 2023 and you might let us know if your client is both willing and able to attend on that date.

In these circumstances, it is clear that your client was informed on the 21st August 2023 of the decision of Detective Chief Superintendent redacted to temporarily revoke his firearm authorisation card, official firearm and ammunition.  This direction was issued to your client while awaiting the advice and assessment of the Independent Medical Assessor and Chief Medical Officer. In addition we note that your client wishes to appeal the decision of Detective Chief Superintendent to temporarily revoke his firearms authorisation we are instructed that no such direct appeal exists at this juncture against the temporary revocation of a firearms authorisation pending medical assessment.

Following your clients nomination on 9th September 2023 to attend at the CBD2 car course which was due to commence on the 21st September 2023 there are a number of requirements that all participants must fulfil in advance. It came to the attention of Detective Superintendent redacted that one of these requirements is that the proposed candidate must “have been deemed medically fit to undergo the course”. Detective Superintendent redacted contacted the CMO to ascertain if your client had been deemed medically fit to undergo the course and was informed that your client had not attended his remote medical appointment on the 13th September 2023 as outlined above.

On the 20th September 2023 Detective Superintendent redacted met with your client and asked him why he had failed to answer telephone calls on the day of his appointment and was told that this was advised by your office not to do so. Detective Superintendent then informed your client that he was not going to go forward with his nomination to attend the CBD2 course as a result of his conversation with the CMO’s office but informed him that all else being equal he would nominate him for the next available car course. Your client made no response and simply left the office of Detective Superintendent redacted. A short time later Detective Superintendent contacted Detective redacted to ask your client to return to his office as he had received information about the new medical appointment and he wished to relay the message in person. Detective Sergeant redacted returned to say that your client did not wish to return and an e-mail could be forwarded to him with the necessary details which was subsequently done.

In view of the above circumstances, there was clearly no attempt made to penalise your client from attending the CBD2 car course and we do not accept any issue as to penalisation against your client arises in this situation.

Furthermore, we do not accept that your client was in any way subjected to any targeted campaign of harassment.

The Complainant argues that he has been penalised and relies on the same facts to ground his case under the various statutory headings.

1.Employment Equality Act 1998 Family Status CA-00061241-003

The Complainant states that he was treated less favourably on the grounds of his family status:

The unwarranted and wholly un-necessary contact from the D/Sergeant redacted, the Applicant’s superior, on the evening of Friday the 14th April 2023 was discriminatory in nature in that the contact interfered with his utilization of his Force Majeure leave for the following days tour of duty. Family status is one of the nine prohibited grounds pertaining to the Employment Equality Act – the Applicant’s status as a parent was discriminated against in that he could not freely avail of the leave concerned for the reason it was taken.

The facts show that his leave was in fact given. However, what is being alleged is that because of his family status he was treated poorly and unfairly by his superior who questioned the motives for the leave.

The Act defines Family Status as:

“family status” means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

The Complainant needed to look after his sick child. As the leave was approved the facts required to establish that he was treated less favourably than someone who was not a parent must demonstrate how he was treated less favourably.

As previously stated, this in turn relates to the entire factual matrix of this case, where it is alleged because he exercised that right to look after a sick child at a time of operational challenges and because of this, he was punished by his superiors by being denied training when originally approved and he was further punished by his firearm being withdrawn without a reasonable basis to do so.

The pattern of alleged wrongs would amount to less favourable treatment if it can be established or to be precise if an inference of discrimination can be established, that show that family status was the reason for the less favourable treatment and the Respondent fails to rebut that inference.

The Complainant carries the burden to establish facts that tend to show that discriminatory treatment occurred. While it is argued that the leave was approved, further punitive action took place because that leave was sought. The facts must show a causal connection between the ground and the less favourable treatment. That connection has not been established. While the allegation has been made, it must be linked to the ground. Sworn evidence has been given by the supervisor overseeing the training that the only reason why the first training was delayed solely related to numbers and had nothing to do with any grievance or the Complainant. The second course in controversy, he was approved to attend, and it had a condition that he would be fit to attend, due to the demands of the course. As he was absent on certified sick leave, he didn’t meet that condition.

On the facts it would appeal that delay is the detriment relating to training rather than a withdrawal of training opportunities.

However, withdrawing a firearm cannot be said to be de minimis. That decision if based on an animus would be egregious. The context of that decision and the factual matrix concerning that decision is crucial.

A superior officer has a duty both to the work colleague and to the public. While a supervisor is not a medical professional it is entirely appropriate if concerns are genuinely held to assess if an officer should hold a firearm. The law provides a wide discretion in these circumstances to the supervisor and is analogous to a band of reasonableness often referred to in employment cases. Another supervisor may have taken a different approach; however, that is not the issue to be decided. The question is was the decision to request an  assessment reasonable.

 A distinction must be made between withdrawing a firearm and assessing if a risk existed and taking temporary measures until a full assessment including an occupational assessment could take place. The decision-making process to assess was not made in isolation, was informed by  previous stressful events linked to a personal matter for the officer and a concern of another supervisor. An early occupational medical appointment was sought so that the Complainant could be independently and properly assessed.

Ultimately the senior officer carries the responsibility for taking reasonable steps if he has a concern about a colleague under his charge and if they are physically and mentally fit to hold a firearm. That is an onerous responsibility. Just as a physical condition would be assessed so should a concern about a colleague showing signs of stress and anxiety, that does not give rise to a judgement or to a stigma. While it is understandable that the Complainant may feel that it does create a stigma; it is comparable to requesting a physical examination. The officer was certified fit to hold a firearm. The steps taken to confirm that, were reasonable and made in consultation with other work colleagues and medical professionals. It was an assessment not a decision to withdraw a firearm.

The training allegations relate to a delay to attend courses and the allegation about a withdrawal of a firearm relates to an assessment to hold a firearm.  Do these facts give rise to an inference of discrimination? The factual matrix does not give rise to an inference of discrimination on the ground of family status. The parental leave was approved; the alleged detriment about training being cancelled or being referred for a medical assessment do not demonstrate acts intended to punish as the alleged less favourable treatment in fact has been rebutted and the reasons provided by the Respondent are credible and reasonable.

While counsel maintains that the right to hold a firearm can only be withdrawn based on fair procedures analogous to a private individual holding a firearm, this is not a correct comparison in an employment relationship. The Complainant is an employee and fulfils statutory functions solely linked to his appointment and employment to be a police officer. The contract is one of service and not of service. The nature of such a contract is supervisory control. That control in this case was exercised fairly and reasonably and solely related to the request to complete a medical assessment it was not a final decision.

For these reasons I determine that the Complainant was not discriminated against on the ground of family status.

Both parties have referenced key cases concerning the law and discrimination.

Prima Facie Test

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a claimant establishes a prima facie case of discrimination the onus shifts to the respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant must ‘prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58)

I have determined that the Complainant has not made out a prima facie case of discrimination and find that he was not discriminated against on the ground of family status.

 2. Penalisation Parental Leave Act 1998 CA-00061241-004:

The Act defines penalisation at section 16 A as:

Protection of employees from penalisation.

16A.— (1) An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to parental leave, force majeure leave, leave for medical care purposes, domestic violence leave or his or her entitlement to make a request referred to in section 13B(1) or 15A(2).

(2) Penalisation of an employee includes—

(a) dismissal of the employee,

(b) unfair treatment of the employee, including selection for redundancy, and

(c) an unfavourable change in the conditions of employment of the employee.

The factual matrix does not show any diminution in terms or conditions of employment. The alleged adverse treatment does not meet the test as set out in the leading employment  case Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, where the Labour Court made the following comments in relation to the “but for” test:

“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 suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he, or she, would not have suffered the detriment. This involves the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment.”

I note that the Court has stated that where there is more than one causal factor in the chain of events leading up to the dismissal or other adverse treatment, the commission of the protected act must be an operative cause of the alleged adverse treatment. In this case the detriment is a delay to attend courses and a temporary restriction on carrying a firearm. The Respondent has provided credible explanations for the training delays and the need to complete a medical and for the temporary revocation of a firearm. The Complainant has not provided facts that are sufficient where an inference of discrimination has been met, that his seeking parental leave, or raising a grievance about  how he was treated by his reporting supervisor, gave rise to any detriment.

It is alleged that the claim for parental leave gave rise to the delay on being selected for training courses. That allegation has been rebutted and on sworn evidence the explanation related to operational reasons and the demand for the programme and was simply a numbers challenge and the second course delay arose due to the requirement to be fit to complete the course. The temporary restriction on carrying a firearm was based on exercising reasonable care both to the employee and to the public and that was independently assessed through occupational health. There is no detriment in these actions.

This complaint is not well founded.

3. Safety Health and Welfare at Work Act 2005CA-00061241-005:

At the conclusion of the Complainant’s submission it is stated that:

CONCLUSION 46. The Respondent’s actions towards the Applicant, failure to comply with protective employment legislation in respect of him, and penalisation for having sought to vindicate those rights were egregious. 47. The Respondent completely failed to apply its own or any valid policies or fair procedures in respect of the matters complained of by the Applicant. 48. The Applicant was penalised firstly for having taken force majeure leave and secondly for having sought to raise a grievance in respect of this penalisation and the grievance was never resolved. 49. As a consequence of the actions and failures of the Respondent the Applicant was subjected to loss, stress and anxiety made worse by the manner in which the Respondent dealt with the Applicant following his complaint.

Grievances not Investigated Fairly

 The Complainant states that he experiences Unfairness of Process amounting to Penalisation and Bullying:

 In the decision of Ruffley v Board of Management for St Annes School [2017] IESC 33 the Supreme Court stated as follows regarding the utilisation of procedure as a form of bullying: “In theory it is possible that a disciplinary process conducted in accordance with the rules of fair procedures might still constitute bullying, and even irrespective of the outcome of the process. An ostensibly fair process, and punishment for an established breach may constitute bullying if it is established it was instituted maliciously, and as part of a campaign to victimise an individual.”

The Respondent denies that allegation and replied:

b) The alleged failure to deal with the complainant’s complaint on a formal basis.

42. The respondent made significant efforts to deal with the complaint.

i) On foot of the letter to D/Superintendent redacted on 17 April 2023, D/Superintendent redacted did what was asked of him and approved the force majeure leave and confirmed that the complainant had done nothing wrong.

ii) 1 May 2023 - The Complainant re-ignited matters by demanding an apology via text message

iii) 3 May 2023 - D/Superintendent redacted acknowledged formal complaint and offered support in respect of same.

iv) 8 May 2023 -The complainant served a solicitor’s letter on D/Sergeant redacted.

v) 12 May 2023 - D/Superintendent redacted referred the matter up to D/Chief Superintendent redacted SDU

vi) 13 June 2023 – D/Inspector redacted holds a meeting to discuss the matter with the complainant. ERB1 Form submitted

vii) 28 June 2023 – Employee Relations state contact is required to assess the options open to the complaint in order to progress the matter.

viii) 22 July 2023 – Email to Employee Relations and D/Chief Superintendent redacted SDU. No specific action requested, or contact made on foot of contact on 28 June 2023.

43. It is submitted that the Respondent made significant efforts to resolve the matter and that the complainant pursued the complaint in a hypersensitive and inflammatory manner. There was action by the respondent at each step of the process and the complainant failed to carry out the instruction of 28 June 2023 from Employee Relations to contact them to discuss the options available. The letter of 22 July 2023 does not amount to such contact. As such, the respondent cannot be said to have failed to investigate the complaint and the complainant is the author of his own misfortune in progress the formal aspect of the complaint in that regard.

O’Donnell J also stated at paragraph 32 in Ruffley that:

It is also important to keep in mind the role of fair procedures in this case. They clearly loom large in the High Court judge’s assessment of the case, and were relied on to a significant extent in the dissenting judgment of Finlay Geoghegan J. in the Court of Appeal. However, it is not necessary to establish a breach of fair procedures to succeed in a bullying claim, and conversely, the presence of unfair procedures does not establish bullying. Bullying often involves a question as to how something was done rather than what was done. In theory it is possible that a disciplinary process conducted in accordance with the rules of fair procedures might still constitute bullying, and even irrespective of the outcome of the process. An ostensibly fair process, and punishment for an established breach may constitute bullying if it is established it was instituted maliciously, and as part of a campaign to victimise an individual. It is important therefore not to blur the distinction between these two different claims by assuming that there is any logical connection between a breach of procedures, and a claim of bullying entitling a party to substantial damages.

This is a case where the absence of a fair hearing of a grievance is alleged to constitute penalisation and amounted also to a continued patten of oppressive conduct. That has been rebutted comprehensively by the Respondent.

O’Donnell J also references in Ruffley a leading UK Authority when considering if bullying has occurred at para 54:

In Dowson v. Chief Constable of Northumbria [2010] E.W.H.C. 2612 (Q.B.), Simon J. offered a summary of the necessary features of a claim under the legislation:

“(1) There must be conduct which occurs on at least two occasions,

(2) which is targeted at the claimant,

(3) which is calculated in an objective sense to cause alarm or distress, and

(4) which is objectively judged to be oppressive and unacceptable.

(5) What is oppressive and unacceptable may depend on the social or working context in which the conduct occurs.

(6) A line is to be drawn between conduct which is unattractive and unreasonable, and conduct which has been described in various ways: ‘torment’ of the victim, ‘of an order which would sustain criminal liability’.”

The Factual Matrix of this case does not meet this threshold.

The matters now complained about as egregious I have determined were not so. They may have caused upset and disappointment; however, they were not acts that objectively meet the test of being oppressive. I also find that the failure to resolve the matter at an early stage was an insistence by the Complainant that his reputation and principled conduct be vindicated. The fact that work colleague involved in this case received a solicitor’s letter also made the resolution of the matter more difficult. It would appear on the facts, that the Complainant perceived a  maligning of his character when the  motives for looking for force majeure leave at a challenging time operationally for the division was questioned, and in his view the questioning of this leave by his supervisor amounted to a personal attack on his character.

In Ruffley v The Board of Management of Saint Anne’s School [2017] IESC O’Donnell J considered the issue of ‘dignity at work’:

The word dignity, carries a considerable charge with a distinct moral component. ... The denial of fair procedures is never a trivial matter but I do not think it can be comfortably said in this case, to be undermining of human dignity, particularly when it is the same breach of procedures which is also contended to be inappropriate. More importantly I consider that the requirement that the procedure be repeated inappropriate and undermining of dignity is a test which uses language deliberately intended to indicate that the conduct which will breach it is both severe and normally offensive at a human level.

There is not sufficient evidence to support the Complainant’s allegation that the way the grievance procedure was applied in his case in turn was oppressive.

The entire factual matrix when considered does not amount to conduct that is severe and normally offensive at a human level. The parental leave was in fact approved and what is argued to be grossly offensive cannot be classed as such when objectively reviewed and the reasons provided for why he did not attend the courses as scheduled and why his firearm was temporarily revoked are credible and reasonable.

The Act defines penalisation as follows:

Protection against dismissal and penalisation.

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.

A question arises about whether a safety issue was raised. The Respondent in detail addressed this question in their submission:

i) Did the complainant raise complaints regarding health and safety as defined by the Act?

ii) Did the complainant suffer a detriment as defined by the Act?

iii) Can the complainant establish a causal link between the detriment suffered and the complaint raised?

36. In ADJ-00046980 – A Site Lead vs An Employer, the adjudicator stated as follows: “A report referencing bullying in the workplace to OM [operating manager] can be considered a protected act pursuant to Section 27(3)(c). Therefore, the Complainant has discharged the burden of proof in relation to this first limb.”

37. It is submitted that questions two and three can be dealt with together.

ii. Did the complainant suffer a detriment as defined by the Act?

iii. Can the complainant establish a causal link between the detriment suffered and the complaint raised?

38. In Trevor O’Mahony v Mycrosports Gear Ltd ADJ-00037135 the Court stated:

The word “detriment” was also considered by the Labour Court and relied on Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All E.R. 26 which is the authority for the “proposition that the test for what constitutes a detriment is an objective one and the Court should consider if a reasonable worker would or might take the view that the treatment complained of was, in all the circumstances, to his or her detriment”. (emphasis added)

39. The commonly cited Toni & Guy test is well established as the applicable test under this heading and is set out as follows in O’Neill v. Toni and Guy Blackrock Limited [ELR21]

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected

by Subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent”. (emphasis added)

40. There are 4 such actions (or omissions) raised by the complainant which could be considered as penalisation as follows (chronological order):

a) The alleged failure/refusal to add the complainant to a “close protection course” scheduled in either May or June 2023 (1-2 Months) after the complaint.

b) The alleged failure to deal with the complainant’s complaint on a formal basis.

c) The revocation of the complainant’s firearm licence

d) The CBD2 Driving Course on 21 September

a) The alleged failure/refusal to add the complainant to a “close protection course” scheduled in either May or June 2023 (1-2 Months) after the complaint

41. This course was cancelled for all participants. It is not the case that the complainant was withheld from this course. As such the complainant was not penalised nor could he have been considered so.

b) The alleged failure to deal with the complainant’s complaint on a formal basis.

42. The respondent made significant efforts to deal with the complaint.

i) On foot of the letter to D/Superintendent Dunne on 17 April 2023, D/Superintendent redacted did what was asked of him and approved the force majeure leave and confirmed that the complainant had done nothing wrong.

ii) 1 May 2023 - The Complainant re-ignited matters by demanding an apology via text message

iii) 3 May 2023 - D/Superintendent redacted acknowledged formal complaint and offered support in respect of same.

iv) 8 May 2023 -The complainant served a solicitor’s letter on D/Sergeant redacted.

v) 12 May 2023 - D/Superintendent redacted referred the matter up to D/Chief Superintendent redacted SDU

vi) 13 June 2023 – D/Inspector redacted holds a meeting to discuss the matter with the complainant. ERB1 Form submitted

vii) 28 June 2023 – Employee Relations state contact is required to assess the options open to the complaint in order to progress the matter.

viii) 22 July 2023 – Email to Employee Relations and D/Chief Superintendent redacted SDU. No specific action requested, or contact made on foot of contact on 28 June 2023.

43. It is submitted that the Respondent made significant efforts to resolve the matter and that the complainant pursued the complaint in a hypersensitive and inflammatory manner. There was action by the respondent at each step of the process and the complainant failed to carry out the instruction of 28 June 2023 from Employee Relations to contact them to discuss the options available. The letter of 22 July 2023 does not amount to such contact. As such, the respondent cannot be said to have failed to investigate the complaint and the complainant is the author of his own misfortune in progress the formal aspect of the complaint in that regard.

c) The revocation of the complainant’s firearm licence

44. The revocation of the complainant’s firearm licence was a temporary measure arising out of standard precautions put in place upon the complainants return to work on 31 March 2023. The respondent has a duty of care to the public and members of the respondent to ensure that all persons who are entitled to hold a firearm are suitable to do so. These “standard precautions” arose prior to the complaint made by the complainant and once the issue of stress was cited by the complainant, it was a wholly reasonable and proportionate step to take in all the circumstances. The failure by the complainant to attend his medical appointment on 13 September 2023 simply delayed the re-instatement of his firearms certificate and he was yet again the author of his own misfortune. It is expressly submitted that this was not an act of penalisation but rather a proportionate and justified response to the reports of stress cited by the complainant for which he is subject to standard precautions for matters which predate the issues arising in this claim..

d) The CBD2 Driving Course on 21 September 2023 45. The respondent actually sought to include the complainant on this course and the complainant was contacted to assess his suitability for same. Given he did not attend his medical appointment on 13 September 2023 he was deemed not a suitable candidate for same and he was never added to the course. He was in no way penalised for the complaint made in relation to D/Sergeant redacted. Had he attended his medical appointment, he would in all likelihood been added to the course. Further, no other members of SDU attended on this course in September 2023.

I cannot find for the Complainant, as the matters complained of do not constitute penalisation. The attendance on the training programmes was delayed and were not withdrawn as an act of punishment. The temporary revocation to carry a firearm fell well within a band of supervisory discretion and reasonableness where there was a concern about the manifestation of stress and how it may impact on his work and possibly decision making. It was not an arbitrary decision and was a considered one based on a duty of care to the colleague and the wider public and was made after reasonable inquires and consultation with others.  The Complainant is an employee subject to   an employment contract and the temporary revocation of a firearm was entirely reasonable. The complaint of penalisation under the Act is not well founded.

4. Victimisation Employment Equality Act 1998 CA-00061241-006:

The Complainant stated in his form that he was:

“I was victimised for taking an action set out in section 74 of the Employment Equality Acts”

The Complainant in their submission refer to victimisation in the following manner:

27. Herbert J. in Sweeney v Board of Management of Ballinteer Community School [2011] IEHC 131 stated that: “In my judgement a particularly vicious form of bullying involved isolating the victim in the workplace by influencing others by actual or suggested threats to their own interests and by undermining the victim’s standing in the organisation and amongst colleagues by disparaging references.”

4. In the decision of Ruffley v Board of Management for St Annes School [2017] IESC 33 the Supreme Court stated as follows regarding the utilisation of procedure as a form of bullying: “In theory it is possible that a disciplinary process conducted in accordance with the rules of fair procedures might still constitute bullying, and even irrespective of the outcome of the process. An ostensibly fair process, and punishment for an established breach may constitute bullying if it is established it was instituted maliciously, and as part of a campaign to victimise an individual.”

The allegations made against the Respondent do not amount to victimisation as the detriment alleged and the acts cited do not constitute victimisation and the reasons why have been detailed. The factual matrix is the same for each heading of claim and the rebuttal of the allegations by the Respondent holds for each act of alleged victimisation.

The Act defines victimisation at section 74 of the Act:

Interpretation (Part VII).

74:

victimisation” shall be construed in accordance with subsection (2).

(2) 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.

The alleged incidents of discrimination such as delay about training and the temporary suspension of holding a firearm for the reasons as detailed already cannot ground a claim of victimisation under the Act. As no animus whatsoever was intended by the Respondent and the decisions were not made to punish the Complainant for alleging that he was discriminated against on the ground of family status. The actions and decisions taken about the training delay and firearm temporary revocation have been explained and the explanations provided under oath were reasonable. The training was paused not withdrawn. The training delay cannot amount to detriment as good reasons existed for the decisions. The decision to temporarily revoke the right to hold a firearm was rational as there was a duty of care to this officer and to the public, when there is genuine concern about the pressure and stress that the officer was apparently experiencing, and that justified the making of that decision pending a medical occupational assessment. The concern was real and not contrived. The attribution by the Complainant that this decision was made to punish him is not sustained by the facts. Under a contract of employment, a supervisor has the right to direct and control the work of an employee in so far as that discretion is reasonable. The decision to refer the officer to occupational health was reasonable. The fact that occupational health decided that he was fit to hold a firearm does not negate the right to make the referral. By analogy a colleague could have been referred for a physical assessment based on a physical fitness issue that caused concern. The process is about an assessment to hold a firearm.

On these facts I determine that the Complainant was not victimised for making a complaint that alleged discrimination on the ground of family status. The complaint is not well founded.

5. Protected Disclosures Act, 2014 CA-00061241-007:

The Complainant ticks the following on his form:

I was penalised or threatened with penalisation by my employer for having made a protected disclosure under the Protected Disclosures Act,

The Respondent state in their submission for having hearing held in private:

The special circumstances of the case to be considered are as follows: i) The complainant has made a claim (which is denied) pursuant to the Protected Disclosure Act 2014. Ii) Any such protected disclosure investigation has a legal obligation which prevents the complainant and other persons being named. Iii) The complainant remains an employee of the respondent and the circumstances which gave rise to the complaint are of a sensitive nature which should not be revealed or publicised. Iv) The subject matter of the dispute involves the suitability of Garda personnel to hold a firearm and factors which may be considered for same which should not be made public in the interest of national security.

I have determined that witnesses and other named parties would be anonymised. However, it is not possible to frame this case without some concrete facts as that would make the decision unclear and an obligation exists to give reasons for a decision. That means that the facts must be referred to with sufficient detail, so that the reason for each decision is understood.

The Respondent in their submission state that the matters before this tribunal are not protected disclosures:

In order to succeed in any such claim the complainant must have made a “protected disclosure” as defined by the Principal Act. The definition of a protected disclosure is found in Section 5 of the Protected Disclosure Act 2014. Section 5, subsection 5 of the Protected Disclosure Act 2014 was amended by the Protected Disclosures (Amendment) Act 2022 which inserted a S5. Subsection 5A. The revised section 5 states as follows: 5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6)] and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10. (2) For the purposes of this Act information is “relevant information” if— (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in a work-related context]. (3) The following matters are relevant wrongdoings for the purposes of this Act— (a) that an offence has been, is being or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, (f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur, (g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,(h) that a breach has occurred, is occurring or is likely to occur, or (i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information. (4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory. (5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer. (5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.  (6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice. (7) The motivation] for making a disclosure is irrelevant to whether or not it is a protected disclosure. (8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

On the face of it the facts would tend to show that the complaint is not a protected disclosure and is more a workplace grievance with reference to what the Act states at section 5(5A) and so should not come under the ambit of a Protected Disclosure Investigation. A question arises does the factual matrix only affect this employee and that others also are affected? The factual matrix is wholly or mainly about this employee. While the Act does use the term exclusively the meaning of that word should be interpreted as an amendment made to provide clarity that a personal grievance typically is not a protected disclosure; however, it may depend on the factual matrix. The characteristic of this complaint is interpersonal differences with the Complainant’s immediate supervisor. The detriment allegedly made against him relate to training programmes that he was scheduled to go on that were changed. The temporary revocation of his firearm was about the Complainant solely.

 The allegation that this was a collusion between colleagues to isolate him and to punish him would come under the ambit of the Act as it would be an unlawful Act.

The Act states that it will be presumed that a matter will be considered a protected disclosure where:

b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services

Where colleagues and in this case, those supervising this officer allegedly colluded to penalise him by withdrawing training and isolating him and withholding his firearm based on an animus that would meet the definition of a protected disclosure. The Act now shifts the burden onto the Respondent to rebut that allegation as the Act states at section 5.8 states:

8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

Section 5 also continues to state that the

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker [in a work-related context

And section 12 states:

12. (1) 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.

7C) In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds

In this case the Respondent has rebutted the allegations that any penalisation occurred, and the alleged acts or omission were based on duly justified grounds that have been detailed at length. That justification also clearly rebuts the allegation that there was collusion between the Complainant’s higher ranked officers to punish him. Absent of an allegation of collusion the matters complained about on the face of it appear to be individual grievances. Even if that proposition is denied and the alleged detriments are linked so that the protected disclosure is about failing to provide a safe working environment, that allegation must fail as the allegations of detriment have been rebutted as being duly justified as normal explanations for cancelling a programme, being fit to attend a programme and also to be assessed to hold a firearm when showing signs of stress. The Complainant has an obligation to particularise their complaint. The complaint form and the Complainant’s submission have a dearth of detail with the specific alleged wrong that is alleged to have occurred with reference to the Act. So that there is no confusion I have determined that no relevant wrongdoing as detailed at section 5.3 has occurred as the matters complained about have been duly justified and do not constitute wrongdoing as defined in the Act.

I have determined that the detriment alleged is not well founded.

There is not sufficient evidence to support the Complainant’s allegation that the way the grievance procedure was applied in his case in turn was oppressive.

The entire factual matrix when considered does not amount to conduct that is severe and normally offensive at a human level. The parental leave was in fact approved and what is argued to be grossly offensive cannot be classed as such when objectively reviewed and the reasons provided for why he did not attend the courses as scheduled and why his firearm was temporarily revoked are credible and reasonable

1.Employment Equality Act 1998 Family Status CA-00061241-003

The Complainant states that he was treated less favourably on the grounds of his family status:

The unwarranted and wholly un-necessary contact from the D/Sergeant redacted, the Applicant’s superior, on the evening of Friday the 14th April 2023 was discriminatory in nature in that the contact interfered with his utilization of his Force Majeure leave for the following days tour of duty. Family status is one of the nine prohibited grounds pertaining to the Employment Equality Act – the Applicant’s status as a parent was discriminated against in that he could not freely avail of the leave concerned for the reason it was taken.

The facts show that his leave was in fact given. However, what is being alleged is that because of his family status he was treated poorly and unfairly by his superior who questioned the motives for the leave. It is alleged that the scheduled dates for training were changed and delayed and finally that his firearm was temporarily revoked. The rationale for these decisions was explained, and all were duly justified and reasonable. No detriment arises.

I have determined that the Complainant has not made out a prima facie case of discrimination and find that he was not discriminated against on the ground of family status. The complaint is not well founded.

2. Penalisation Parental Leave Act 1998 CA-00061241-004:

It is alleged that the claim for parental leave gave rise to the delay on being selected for training courses. That allegation has been rebutted and on sworn evidence the explanation related to operational reasons and the demand for the programme and was simply a numbers challenge and the second course delay arose due to the requirement to be certified fit to complete the course. The temporary restriction on carrying a firearm was based on exercising reasonable care both to the employee and to the public that was independently assessed through occupational health. There is no detriment in these actions. The actions have been duly justified. I have determined that the complaint is not well founded.

3. Safety Health and Welfare at Work Act 2005CA-00061241-005:

At the conclusion of the Complainant’s submission, it is stated that:

CONCLUSION 46. The Respondent’s actions towards the Applicant, failure to comply with protective employment legislation in respect of him, and penalisation for having sought to vindicate those rights were egregious. 47. The Respondent completely failed to apply its own or any valid policies or fair procedures in respect of the matters complained of by the Applicant. 48. The Applicant was penalised firstly for having taken force majeure leave and secondly for having sought to raise a grievance in respect of this penalisation and the grievance was never resolved. 49. As a consequence of the actions and failures of the Respondent the Applicant was subjected to loss, stress and anxiety made worse by the manner in which the Respondent dealt with the Applicant following his complaint.

I cannot find for the Complainant, as the matters complained of do not constitute penalisation. The attendance on the training programmes was delayed and were not withdrawn as an act of punishment. The temporary revocation to carry a firearm fell well within a band of supervisory discretion and reasonableness, where there was a concern about the manifestation of stress and how it may impact on his work and possibly decision making. It was not an arbitrary decision and was a considered one based on a duty of care to the colleague and the wider public and was made after reasonable inquires and consultation with others.  The Complainant is an employee subject to   an employment contract and the temporary revocation of a firearm was entirely reasonable. The complaint of penalisation under the Act is not well founded.

4. Victimisation Employment Equality Act 1998 CA-00061241-006:

The Complainant stated in his form that he was:

“I was victimised for taking an action set out in section 74 of the Employment Equality Acts”

The alleged incidents of discrimination such as delay about training and the temporary suspension of holding a firearm for the reasons as detailed already cannot ground a claim of victimisation under the Act. As no animus whatsoever was intended by the Respondent and the decisions were not made to punish the Complainant for alleging that he was discriminated against on the ground of family status. The actions and decisions taken about the training delay and firearm temporary revocation have been explained and the explanations provided under oath were reasonable. The training was paused not withdrawn. The training delay cannot amount to detriment as good reasons existed for the decisions.

The decision to temporarily revoke the right to hold a firearm was rational as there was a duty of care to this officer and to the public, when there is genuine concern about the pressure and stress that the officer was apparently experiencing, and that justified the making of that decision pending a medical occupational assessment. The concern was real and not contrived. The attribution by the Complainant that this decision was made to punish him is not sustained by the facts. Under a contract of employment, a supervisor has the right to direct and control the work of an employee in so far as that discretion is exercised reasonably. The decision to refer the officer to occupational health was reasonable. The fact that occupational health decided that he was fit to hold a firearm does not negate the right to make the referral. By analogy a colleague could have been referred for a physical assessment because of a physical issue that caused concern. The process is about an assessment it is not a permanent decision.

On these facts I determine that the Complainant was not victimised for making a complaint that alleged discrimination on the ground of family status. The complaint is not well founded

5. Protected Disclosures Act, 2014 CA-00061241-007:

In this case the Respondent has rebutted the allegations that any penalisation occurred, and the alleged acts or omission were based on duly justified grounds that have been detailed at length. That justification also clearly rebuts the allegation that there was collusion between the Complainant’s higher ranked officers to punish him. Absent of an allegation of collusion the matters complained about on the face of it, appear to be individual grievances. Even if that proposition is denied and the alleged detriments are linked, so that the protected disclosure is also about failing to provide a safe working environment, that allegation must fail as the allegations of detriment have been rebutted as what was complained about has been duly justified and do not amount to penalsiation.

The Complainant has an obligation to particularise their complaint. The complaint form and the Complainant’s submission have a dearth of detail about the specific wrong that is alleged to have occurred with reference to the Act. So that there is no confusion I have determined that no relevant wrongdoing as detailed at section 5.3 has occurred as the matters complained about have been duly justified and do not constitute wrongdoing as defined in the Act.

I find that the complaint(s) are not well founded.

Family Status-Penalisation-Protected Disclosure-Parental Leave-