Complainant

Respondent

Parties

Ms Zara Wachuku

Mr Derek Merrins

Complainant

Respondent

Anonymised Parties

Representatives

Mr Setanta Landers Solicitor Setanta Solicitors

Mr Hugh O’Donnell BL instructed by Murphy Gibbons Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00068624-001

15/01/2025

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

CA-00068624-002

15/01/2025

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

CA-00068624-003 WITHDRAWN AT HEARING

15/01/2025

This matter came before the Workplace Relations Commission dated 15/01/2025.  The Complainant alleges contravention by the Respondent of provisions of the above listed statutes in relation to her employment with the Respondent.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place initially 26/05/2025.  The Complainant and her Representative attended at hearing on 26/05/2025.  The Respondent did not attend.  The hearing was adjourned on the basis I was not satisfied the Respondent was properly on notice.  Accordingly, the matter was set down again for hearing on 19/12/2025 at which both parties were in attendance. 

The Complainant was employed as a Counter Teller at all material times.  The Complainant commenced employment with the Respondent on 15/08/2023.  The Complainant worked 20 hours per week for which she received €13 per hour. 

The Respondent is the Post Master of a post office.    

The Complainant alleges that she was penalised by the Respondent after she made a protected disclosure and she alleges she was penalised after she made complaints about health and safety.   

The Respondent refutes these allegations in their entirety.  

Both parties provided written submissions and supporting documentation.   

Preliminary Objection

The Complainant representative submits this is the same subject matter in different jurisdictions and the rule in Henderson v Henderson does not apply. 

Substantive Case

Complainant opening submissions

The Respondent took no proactive steps and the Complainant had to endure working in an unsafe environment.  The protected disclosure is the communication of the incident and penalisation is the omission by the Respondent.  The Complainant cites section 8 of the Safety Health and Welfare at Work Act setting out the general duties of an employer which is opened in full to the hearing and it is submitted that none occurred during before or after the incident by way of compliance. 

Overview of Complainant’s written submission

The Complainant commenced employment as a Counter Teller on 15 August 2023.  The Complainant was present during an incident in the workplace on 19 July 2024 to which the Gardai were called to attend.  The Complainant was signed off work the following week with work-related anxiety.  The Complainant submits the post office was left without a screen for two and a half months after the incident.  After the incident Ms Hetherington advised the Complainant and Ms Gore that they would not be required to work alone if they did not feel comfortable.

 On 3 August 2024 the Complainant was rostered alone and she messaged Ms Hetherington requesting that she be accompanied by a colleague and was advised there was no colleague available.  The Complainant emailed Ms Hetherington on 26 September 2024 querying when a protective screen would be installed and she did not get a response. 

On 15 January 2025 the Complainant filed her complaint with the WRC. 

On 29 January 2025 the Complainant’s solicitor wrote to the Respondent to advise that a second unsafe event had occurred during which the Complainant and her colleague were threatened and shouted at and had to retreat to the back office for refuge.  The Respondent failed to provide any occupational health assessment or counselling services to persons who were subject to an aggravated crime in the workplace. 

On 10 February 2025 the Complainant’s solicitor wrote to the Respondent to advise that the Complainant was constructively dismissed effective 14 February 2025 due to the Respondent’s inaction in respect of the protected disclosures the Complainant raised which compromised the safety of all staff in the post office. 

On 20 May 2025 the Complainant filed a claim for constructive dismissal with the WRC.

Protected Disclosures

The Complainant has made the above protected disclosures under the PDA and is relying on the leading decision on the meaning of protected disclosures in Baranya v Rosderra Irish Meats Group Ltd. [2022] 2 I.R. 97 whereby a unanimous Supreme Court has clarified the extremely low threshold for a disclosure to be protected and confirmed that the question is whether the:

“words expressly or by necessary implication amount to an allegation tending to show” the relevant wrongdoing and the allegation must “contain such information – however basic, pithy or concise – which, to use the language of s. 5(2) of the 2014 Act, “tends to show one or more relevant wrongdoings” on the part of the employer: to adopt the words of Sales LJ regarding a parallel provision in the corresponding UK legislation, the disclosure must have “sufficient factual content and specificity for this purpose: see Kilraine v. Wandsworth LBC [2018] ICR 1850 at 1861, even if it does merely by necessary implication.”

In Clarke v CGI Food Services Ltd [2021] the High Court was satisfied (in the context of an application for interim relief) that the disclosures made by the company’s financial controller of alleged financial irregularities and food safety “were sufficiently informational in nature and not merely allegations unharnessed from any factual point.” 

Other law relied upon by the Complainant includes Barrett v Commissioner of An Garda Siochana and Minister for Justice [2023] 34E.L.R. 165; Nagarajan v London Regional Transport [2000] 1 A.C. 501; Murray v UBS Securities LLC; Conway v Dep of Agriculture Food and the Marine [2021] 32 E.L.R. 142; O’Sullivan v the Health Service Executive [2023] IESC 11.

On the presumed connection between penalisation and protected disclosures, as set in the written submission, the Complainant invokes convention rights and places reliance on Irish, UK and EU authorities including but not limited to Jesudason v. Alder Hey Children’s NHS Foundation Trust [2020] I.C.R. 1226; Chief Constable of West Yorkshire v Kahn I.C.R. 1065; Monaghan v Aidan & Henrietta McGrath Partnership [2017] 28 E.L.R. 8; Dougan & Clarke v Lifeline Ambulances Ltd [2018] 29 E.L.R. 210. 

Penalisation: Safety Health & Welfare at Work Act 2005

It is submitted a protected act or disclosure under the 2005 Act operates in a distinct and discrete manner and for a different purpose than that of the 2014 Act.  Under the 2005 Act it concerns the issue of safety and welfare simpliciter.  In contrast the 2014 Act concerns alleged wrongdoing.  This distinction is important. 

The Complainant made a report to the Respondent as regards a matter relating to safety, health and welfare at work and it is therefore a protected act stipulated by section 27(3) (per either a,b, and/or c) of the 2005 Act.  Penalisation is defined broadly and non-exhaustively as follows:

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

(emphasis added)

Section 13(i) (h) of the Act imposes mandatory duties on the Complainant to include the reporting of unsafe working conditions which she duly fulfilled.  This places the penalisation of the Complainant by the Respondent in a far more egregious classification for her having fulfilled her statutory obligations. 

13.—(1) An employee shall, while at work—

(h) report to his or her employer or to any other appropriate person, as soon as practicable—

(i) any work being carried on, or likely to be carried on, in a manner which may endanger the safety, health or welfare at work of the employee or that of any other person,

(ii) any defect in the place of work, the systems of work, any article or substance which might endanger the safety, health or welfare at work of the employee or that of any other person, or

(iii) any contravention of the relevant statutory provisions which may endanger the safety, health and welfare at work of the employee or that of any other person,

of which he or she isaware. 

It is also well established that an employee does not have to use the employer’s grievance procedure for their act to amount to a protected act. 

Law relied upon by the Complainant includes Stobart (Ireland) Driver Services Ltd v Carroll [2013] 24 E.L.R. 77; St John National School v Jacinta Akduman [2010] 21 E.L.R. 301; HSE v Jennins [HIS 222].

Summary of direct evidence of Complainant on affirmation

The Complainant submits she had no interview for the job just a phone call with DH the manager and her mother was also employed by same Respondent.  When she goes in to work in the morning she gets her stuff out of the safe and opens the till.  The Covid screens have always been there since she started.  She had on the job training about the panic button. 

The incident happened on a Friday and she pressed the panic button and used a bystander’s phone and the Gardai came in 6/7 minutes.  DH couldn’t come AG had her number and she phoned her.  Nobody attended on the day of the incident from An Post or from her employer.  The shop closed for the rest of the day; she stayed off for the week and she thinks they reopened on the following Wednesday. 

DH contacted her over that weekend and she met her for lunch on Monday and she (the Complainant) told her she wouldn’t be coming back that week.  There were people from An Post there too in the shop on the Monday.   

An Post provides counselling and she was given a card with details but she never heard back from them.  The Complainant submits she wasn’t referred to occupational health; there was no incident report undertaken and they did not contact her doctor. 

The Complainant submits she gave both her medical certificates to DH on the Monday.  The Complainant submits she was hysterical and so anxious and she was on edge for the whole week. 

They were told by DH that they wouldn’t have to work in the shop on their own and then she was rostered on a Saturday on her own and she said she wasn’t comfortable with that. 

The Complainant submits they were told by DH on 22 July that somebody would be coming in to measure up for the protective screens.  The second incident was on 29 January 2025 when a customer came in looking for money but he didn’t have his ID.   DH was contacted and she said to just give him the money. 

He was shouting and threatening and they called the Gardai and nobody attended.  There was no incident report form completed and there was no referral to occupational health.  The Complainant submits they didn’t care about the safety of staff all they cared about was opening the post office.  Going in there was causing her stress people were shouting and nothing was being done about it.  There were no updates from anybody about the screens. 

They were surprised when she resigned and asked if she could stay longer as she was leaving them stuck.  The Complainant submits she got a new job 6 weeks later on a salary of 28k.

Summary of cross-examination of Complainant

The Complainant agrees she had been on a salary of 15k with the Respondent.  It is put to the Complainant that the Respondent will give evidence that, as it is a flagship store, An Post is responsible for the fit up of the post office.  The Complainant is asked if she accepts the Respondent had little responsibility for the screens and that An Post were adamant that no screens could be put up as it was safer without the screens because there was a TAU to which only employees had access. 

The Complainant is asked if she accepts 6 weeks after the incident that a Perspex screen went up that covered the entire length of the counter to which she replies that was the next day after the text that was not responded to.  The Complainant does not accept there was no need to respond to the text as the screen went up the next day.  It is put to the Complainant that the Respondent will give evidence that he wanted a screen but he could not alter the premises without authorisation from An Post. 

The Complainant is asked why she had two medical certs and she submits she needed the second one to explain why she was off.  The Complainant is asked if it is common practice that she would get two certs and she submits this is the first time she got two.  It is put to the Complainant that she did not submit the second cert and she does not accept this and maintains she hadn’t noticed that the second one wasn’t uploaded to the HR portal.  The Complainant confirms she was paid for the week. 

The Complainant is asked about the card she received from the An Post crime prevention unit staff member and she submits that when she handed her the card she said she would be in touch.  It is put to the Complainant that she was given the card as a means for her (the Complainant) to get in touch.  The Complainant confirms that DH had been in contact a number of times.  The Complainant does not remember being offered to work in Ballinteer temporarily.  It is put to the Complainant that she (the Complainant) texted about the screens on the 26 and that DH phoned the post office to notify them the screens would be going in the following day. 

The Complainant submits she didn’t know until she went in to work that the screens were going in. 

The Complainant confirms that at all times she had access to the policies and procedures and to the handbook and that the policies and procedures were referred to in her contract.  The Complainant does not accept that she did not raise a grievance and she submits that she said multiple times after the incident that she didn’t feel safe and she was asking questions about the screen. 

It is put to the Complainant that asking questions about the screens isn’t a grievance.  The Complainant is asked what is the protected disclosure she made to which she replies it was unsafe to work there and asking the questions the week she worked with DH.  The Complainant submits her anxiety was still so bad after the screens.  It is put to the Complainant that she had never communicated that to her employer and there was nothing communicated to her employer since the screens went in on 27 September until 29 January when her solicitor wrote to the Respondent after the second incident even though she had filed her complaint to the WRC on 15 January. 

It is put to the Complainant that nothing changed – there was no penalisation no adverse treatment to which the Complainant replies it was not a safe work environment.  It is put to the Complainant that there was no detriment and that positive action was taken when the screens were put up which she accepts was positive action.     

The Complainant accepts she never raised a grievance and confirms she did see the employee handbook.  The Complainant maintains she still didn’t feel safe at work. 

Complainant closing submissions

It is common fact there was a security incident and it was an upsetting and jarring ordeal.  AH did not attend on the day.  It was a protected disclosure and a company with more than fifty employees is obliged to have a robust procedure and policy in place.  There is no compliant policy in place and a number of obligations arise also under the Safety Health and Welfare at Work Act – safe place by act or omission. 

The meat of this case is the constructive dismissal.  It is acknowledged the Complainant’s manager was an advocate on her behalf at all times.   The penalisation is harm and omission.  There was no referral to Occupational Health.  An Post procedures have nothing to do with the employees.  The Respondent was on notice since July of a serious workplace incident and did nothing.  Nothing changed; it remained unsafe and there is no evidence to suggest that the screens were in any way adequate or effective. 

The sacrifice that was made was the Complainant’s safety.  The response to the letter from the Complainant’s solicitor two days after the second incident was silence.  It was not incumbent on the Complainant to lodge a grievance – that was her grievance.  There were no security protocols and a laissez faire attitude.  The response to the resignation letter was nothing.  It was psychological torture for the Complainant.  It was unsafe and they never interrogated this at any time and they should concede liability and allow the Complainant to be made whole.

Preliminary Objection

The Complainant has a personal injuries claim in respect of the incident in July 2024.  In the circumstances, the Complainant is seeking compensation arising out of substantially the same allegations as form the subject of these proceedings.

In seeking damages in this action arising out of substantially the same matters as form the subject of the Personal Injuries Proceedings, the Complainant is guilty of an abuse of process and/or is in breach of the rule in Henderson v. Henderson(1843) 3 Hare 100 and/or is in breach of the rule against double recovery. The Respondent reserves the right to seek the dismissal of the complaints on the foregoing basis.

In the circumstances, it is respectfully submitted that the complaints be dismissed by the Adjudication Officer.

Respondent opening submissions

The Respondent representative submits the complaints lack particulars and queries what is the protected disclosure?  There is no clarity on the date or to whom the protected disclosure was made.  It is submitted there cannot have been penalisation as there was no protected disclosure.  It is submitted the constructive dismissal claim is unclear. 

Substantive Case

Overview of Respondent’s written submission

It is entirely unclear what is the protected disclosure or complaint under the Safety, Health and Welfare at Work Act that the Complainant has purportedly made.  It is further unclear what is the alleged act of penalisation arising from such a purported protected disclosure or complaint. 

The constructive dismissal complaint is entirely unclear and lacking in particulars. The Complainant at no time raised a grievance and it is not clear what is the conduct of the employer which she alleges caused her to resign. The Complainant has provided no detail in respect of her alleged losses and mitigation of loss in respect of her complaint of constructive dismissal.

The Respondent, as a matter of fair procedures and constitutional and natural justice, is entitled to know the claim it has to meet. The WRC complaint forms and the submissions of the Complainant are vague, repetitive, lacking in particulars, generic and seem to be based on a precedent in an entirely unrelated case. 

The Respondent is the postmaster of the Post Office at Merrion Row.  Each post office effectively operates as an independent franchise under An Post.  In respect of the Merrion Row premises all fit out, security arrangements etc. were completed by An Post.

The Complainant worked approximately 20 hours a week. The employment contract refers to the Respondent’s policies and procedures and specifically reference the grievance procedure on page 3, which states the following: “It is important that if you feel dissatisfied with any matter relating to your work you should have an immediate means by which such grievance can be aired and resolved. If you feel aggrieved at any such matter during the course of your employment you should raise the grievance with the Owner or a nominated independent person either verbally are in writing. Further information can be found in the policies and procedures.”

In the week following the incident on 19 July 2024, the Respondent and his general manager, Ms Deirdre Hetherington, spoke with the two staff members on numerous occasions to ask how they were coping and whether they felt able to return to work.

When the Merrion Row office first re-opened, the Respondent arranged for the Complainant and Ms Gore to work full shifts together. This was outside An Post’s staffing model and not financially sustainable long-term.  The Respondent also offered the Complainant and Ms Gore the option to work in alternative offices if they felt uncomfortable returning to the Merrion Row office.

[REDACTED] from An Post crime prevention attended on the 19th July, 2024 following the incident and spoke with the Complainant and Ms Gore leaving a card for both staff members advising that if support was needed they could call and it would be arranged. 

Following the incident of 19 July 2024, on 22 July 2024, [REDACTED] a contractor for the Respondent visited the Merrion Row office with a view to assessing what could be done to improve the security situation at the office and he thereafter emailed the Respondent on 23 July 2024 including a quote for Perspex screens.

An Post made clear initially to the Respondent that screens were not permitted and that the model was ‘safer’ without them.  Ultimately after much back and forth with An Post, which caused a six-week delay, the Respondent commissioned Perspex screen privately and personally paid €790.00 + VAT for same.

The sole reason for the delay in the insertion of the Perspex screens was An Post’s failure to approve same.  On or about the 27th September, 2024 the Perspex screens were installed in the Merrion Row office.

On 29th July, 2024, the Complainant returned to work in the Merrion Row office.  There was no reduction in her hours, changes to her duties, disciplinary proceedings, complaints, grievances and/or protected disclosures raised by the Complainant.  On 10 February 2025 the Complaint, through her solicitors resigned.

The Complainant’s resignation on 10 February 2025 came as a complete surprise to the Respondent as she never raised any complaints, grievances, protected disclosures or issue such that she felt that she was forced to resign or unable to work.

Respondent’s Policies and Procedures

The Respondent has detailed policies and procedures which are referred to in the Complainant’s employment contract and which the Complainant had access to at all times on the Bright HR App.

As can be seen the policies and procedures contain, inter alia, a clear safeguards policy on page 3, grievance procedure at page 20, equal opportunities policy on page 21, and a protected disclosures policy on page 28.  The Complainant entirely failed to follow the policies and procedures in respect of the matters now complained of.

Protected Disclosure

Section 5(1) – (3) of the Protected Disclosures Act 2014 (the “2014 Act”) provides a definition of protected disclosure (set out hereunder in Findings and Conclusions). 

There has been no protected disclosure within the meaning of the 2014 Act in the present case. There is no disclosure of information, there is no disclosure of a relevant wrongdoing.

The disclosure must be a disclosure of ‘information’ and not merely a bare allegation or an expression of concern.  In the UK decision, Everett Financial Management Limited v Murrell, (EAT/552/02), (EAT/ 553/02), (EAT/952/02), the respondent was employed as an equities dealer by the appellant.  He claimed that he had been constructively dismissed by reason of his having made a protected disclosure.  He asserted that he had made a protected disclosure in 2000 when he and 18 of his colleagues became concerned about a particular practice that they were required to carry out and signed a petition seeking assurances from the appellant’s directors that they were not engaged in an activity that was unlawful or that could be construed as unlawful.

The Employment Tribunal (ET) concluded, by majority, that the signing of the petition was a protected disclosure within s 43B of the 1996 Act.  The minority member’s view had been that the petition was not a protected disclosure because it did not specifically name or identify a practice which could be identified as making a disclosure for the purposes of the 1996 Act.  The Employment Appeal Tribunal (EAT) agreed with the minority view in the ET and held that the petition did not disclose any information. It concluded that simply expressing concerns and seeking assurances that there has not been a breach of a legal obligation did not amount to a protected disclosure under s 43B of the 1996 Act.

Law relied upon by the Respondent includes Cavendish Munro Professional Risks Management Limited v Geduld,[2010] ICR 325; Section 3(1) of the 2014 Act defines penalisation (set out hereunder in Findings and Conclusions). 

Safety, Health & Welfare at Work Act, 2005 (the “2005 Act”)

The Complainant has not made “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” pursuant to s.27 of the 2005 Act or at all.

Without prejudice to the Respondent’s position that there has been no complaint or representation pursuant to the 2005 Act or at all, it is further submitted that there has been no penalisation in the present case within the meaning of the 2005 Act or otherwise.  Penalisation is defined at section 27(1) and (2) of the 2005 Act.

In the case of Patrick Kelly t/a Western Insulation v GirdsiusHSD081 (8 January 2008), the employee’s claim for penalisation failed as he was unable to show that the detriment that he suffered was a result of, or was in retaliation for, his having made a complaint under the 2005 Act. He was a Lithuanian employee who was injured when he fell off a ladder at work that was not properly secured.  He claimed that he had limited English and that he did not receive any health and 12 safety training at work in a language that he could understand.  He took a penalisation claim against his employer on the basis that this failure operated to his detriment.  The Labour Court dismissed his claim due to the complete absence of a causal connection between the alleged shortcoming on the part of the employer and any act on the part of the employee.

In the present case, the position for the Complainant is even more stark, in that there is no allegation of a shortcoming, let alone a causal connection between a shortcoming and a complaint/representation.

Law relied upon by the Respondent includes Margaret Bailey t/a Finesse Beauty Salon v Farrell, HSD104 (11 August 2010). 

Summary of direct evidence of Respondent witness Ms Deirdre Hetherington (hereafter DH) on oath

DH submits she is the general manager and there are 18 post offices with approximately 60 staff.  On the day of the incident she was working in a one person post office when she got the call from AG.  She contacted An Post and the Gardai came.  They weren’t allowed back in until Monday 22 July.  She contacted the Complainant and AG and said she would be there on Monday if they fancied coming in and the three of them would go for lunch which they did. 

[REDACTD] from An Post advised on the supports available and said they should contact her if they wished to avail of any of those supports.  The only medical certificate she received was the generic cert and that is what she sent to HR.  The screens were put in on the 27 September after lots of back and forth with An Post. 

In the other 17 post offices the Respondent can do what he wants but the post office in Merrion Row is their model it’s their design and everything had to go through them (An Post).  Any information she had she shared with the girls (Complainant and AG).  DH submits she wanted the screens for the girls and nothing was being fabricated or hidden form them they weren’t being fobbed off. 

DH submits the Complainant wasn’t treated any differently after the incident and that An Post were the cause of the delay.  There are between 6 and 8 TAU offices in the whole country and they are cashless offices.  DH submits she did not see the resignation letter as it was with the solicitor’s stuff and that was all sent to HR.  She submits she didn’t know the Complainant was leaving until the day before and she was in a panic.  DH submits she didn’t think the Complainant was leaving for anything bad.

Summary of cross-examination of DH

DH confirms that she is the general manager and that all the HR stuff is done by [REDACTED].  The witness is referred to the policies and procedures and it is put to her that the protected disclosures policy has not been updated since January 2020 which she accepts. 

DH confirms she was on site on the Monday after the incident.   When asked if any training was provided to staff on the grievance procedure or the protected disclosures policy she replies there wasn’t and that it’s all in the handbook.  The witness submits there was no mention of a risk assessment. 

DH submits they discussed with An Post what type of screen would be best and they had to get clearance and they weren’t allowed to get glass screen.  The girls were very happy with the screen when it went in. 

The Complainant representative makes reference to the second incident and asked why did the girls hide in the back office to which she replies they thought if they hid he would leave – there are panic buttons and a secure swipe for the door. 

When asked why there was no incident report DH replies this event was not unordinary and they get shouted at by the public quite a lot. 

When asked what the threshold that has to be met for an incident to be reported to HR she responds that if the staff request it an incident will be reported. 

DH submits that she is between 18 locations at all times and she is wherever she is required to be.  She might be in the Merrion Row office a few times a month and there is a very capable manager running things there.  She meets with [REDACTED] from HR for coffee now and again.  When asked if there is a formal structure for dealing with instances DH replies that [REDACTED] in HR is told of everything that is going on. 

Summary of direct evidence of Respondent witness Ms Aisling Gore (hereafter AG) on oath

AG is the post office manager and she was there on the day of the incident.  The Complainant was her colleague and they were close.  Her mobile phone was stolen on the day of the incident and it was replaced straight away.  The office was closed for a number of days and they were both paid. 

On the Monday after the incident [REDACTED] from An Post offered counselling services and she gave her her card and said to contact her.  She gave her card to the Complainant too.  AG submits after the incident she was upset and in shock and she was told they would be getting a screen but it wouldn’t be put in straight away and that it would take a bit of time. 

AG submits she just wanted something put in so there would be no gaps that someone could get through and the Complainant was also requesting screens.  AG submits she was happy with the screens when they were put in and that the Respondent’s treatment of her hasn’t changed since she requested the screens.  AG confirms that on the day of the second incident she called DH as she just wanted advice from her as to what to do.  

Summary of cross-examination of AG

AG submits she did not have to write anything down apart from making statement to the Gardai.  She confirms she has worked for the Respondent for four years. 

Summary of direct evidence of Respondent Mr Derek Merrins (hereafter DM) on affirmation

DM is the owner operator of 18 franchises for which there is a 7 year contract with an almost automatic renewal.  The post office is open plan; there are zero screens and it has a TAU machine.    An Post is the landlord in this particular post office and in the other locations DM is the landlord. 

He has had no say in the fit out of this post office from day 1.  DM submits they were in regular contact after the incident on 29 July and they undertook their own internal review.  The girls were ok but clearly they were insisting something needed to be done and he sent an email to An Post to say needed screens to be fitted.  DM submits An Post were adamant and they point blank refused as they had conducted their research prior to the introduction of the TAU model post office which indicated screens are not needed. 

DM submits DH was pushing him to find a solution but if he had installed screens himself he would have been in breach of his contract with An Post and he continued to seek to find some ground of compromise with them.  An Post allowed the reintroduction of 2 more of the Covid screens.  They also had to think operationally for the facilitating of taking in parcels over the counter etc. and they wanted to get to the point where the girls would be comfortable coming in to work. 

DW submits he had got a price for the installation of screens in the first couple of days.  The post office had been closed for a few days to make an assessment and to consider also their contractual obligations with the DSP. 

DM submits he immediately tried to find a solution as his staff were clearly not comfortable and in this he was fully behind them and there was no action taken against them.  DM submits An Post has a huge level of control.

DM submits they met with the girls on the Monday after and there were also three An Post people on site and that was the escalation but they had already undertaken their own level of risk assessment but it is an An Post standard that is required and not his. 

Summary of cross examination of DM

DW is asked if he has a general understanding of the Safety Health and Welfare at Work Act or the Protected Disclosures Act and is asked about the designated person.  DH is responsible on the ground and she will link in with HR as necessary.  DW is not aware some policies have not been updated in line with changes in the legislation.  DW is asked when he saw the communications from the Complainant’s solicitor to which he responds their instructions were to send everything to their insurers. 

DW confirms it was DH who informed him about the incident in July and the area manager phoned him and there were numerous telephone conversations and they approved the reintroduction of the Covid screens and this was a significant upgrade which he insisted be fixed to both sides of the wall.  He does not know the security specifications of those screens. 

Closing submission of Respondent

The letter from the Complainant’s solicitor of 10 January 2025 was passed on to the insurers.  There has been a scatter gun approach to breaches of the Protected Disclosures Act and to the Safety, Health and Welfare at Work Act.   The Protected Disclosures Act is very clear – there must be a protected disclosure as defined in the Act. 

There is no relevant wrongdoing.  There is no relevant information.  There was no penalisation.  Nothing changed and the screens went up.  Unclear what the complaint under Safety, Health and Welfare Act is.   There has been a complete scattergun approach. 

Regard the constructive dismissal claim – the Complainant got a new job with 6 weeks and her loss is 2192.31.  The Complainant failed to adopt the grievance procedure.  The Complainant herself did not report the incident.  There was no repudiatory breach.  The Respondent went above and beyond in fitting the screens.  This is bound to fail. 

Ruling on Preliminary Objection

I note correspondence of 10 January 2025 to the Respondent from the Complainant’s solicitor sets out details in respect of a personal injuries claim arising out of the incident that took place in the Complainant’s workplace on 19 July 2024.  The Complainant is seeking damages for personal injury,  loss, and damage sustained by the Complainant on the date in question and occasioned by the negligence and/or breach of statutory duty of either the Respondent or An Post. 

I note in Henderson v Henderson (1843) 3 Hare 100 the rule was developed which prevented duplication of proceedings and which provided there should be finality to litigation (subject to appeal) and that a party should not be twice vexed in the same manner. 

It is well established this rule is frequently argued by a party seeking to avoid having to defend multiple separately brought claims based on the same set of facts.    I note the Respondent argues the current proceedings before the WRC should be dismissed relying on Henderson v Henderson. 

I note the Complainant’s argument that Henderson v Henderson does not apply.

I am guided in my ruling on the preliminary issue by the Court of Appeal judgment in Culkin v. Sligo County Council [2017] 2 IR 326 where Hogan J held as follows:  see 2630

"Nevertheless, as I have already stated, the focus of Henderson v. Henderson (7843) 3 Hare 700 is on the relief which might have been obtained in the first proceedings. This is why the rule is not automatically applicable in the special case of separate claims which are required to be made under a statutory scheme on the one hand (such as in the present case) and regular personal injuries claims on the other, even if both claims arise from the same set of underlying facts. To repeat once again, the rule in Henderson v. Henderson requires that the plaintiff must have been able to have brought forward the claim in the second proceedings in the first proceedings….

Even if he had wanted to, the plaintiff could not have combined a common law claim for personal injuries along with the statutory claim for discrimination in the one set of proceedings. Just as the Equality Tribunal had no jurisdiction to entertain the common law claim, the High Court had no first instance jurisdiction to adjudicate upon the statutory claim for discrimination or harassment under the 1998 Act. The discrimination and harassment claim before the Equality Tribunal must, in any event, be linked to one or more of the nine specific grounds identified in s. 6(2) of the 1998 Act, namely, gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. The corollary of this is that the Equality Tribunal has no jurisdiction under the 1998 Act to deal with a claim for free standing claim for discrimination or harassment which is independent of these specific statutory grounds. Putting this another way, while the Equality Tribunal has jurisdiction to deal with a harassment claim which was linked with the gender of the complainant, it would, for example, have no such jurisdiction where the claim simply was that the victim had been harassed by a fellow employee who just happened to dislike him or her.

It follows, therefore, that the discrimination claim and the personal injuries claim are different claims, with different time limits and different rules as to both liability and quantum…… In that sense, therefore, it was simply not possible for the plaintiff to have brought forward his "whole case" before the Equality Tribunal in the sense envisaged by Wigram V.C. in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 simply because that statutory body would have had no jurisdiction to entertain a workplace personal injuries claim."

The Court of Appeal noted that the rule in Henderson v Henderson is not absolute but is to be applied using a “merits based approach.” 

Accordingly, while ‘Culkin’ permits cases with the same facts to proceed in different fora, where they concern different losses, a claimant cannot recover more than once in respect of the same loss.

In the within complaints before the WRC I am not adjudicating on the liability of the Respondent in relation to any potential personal injury caused to the Complainant.  I have no jurisdiction to entertain a personal injuries claim.    My deliberations are confined a complaint pursuant to Schedule 2 of the Protected Disclosures Act, 2014 and a complaint pursuant to section 28 of the Safety, Health & Welfare at Work Act, 2005 respectively. 

Therefore, I do not accept the preliminary argument of the Respondent and I now turn to the substantive case as I am satisfied I have jurisdiction to adjudicate on same. 

For the avoidance of any possible doubt and in the interests of clarity, I will be making no finding whatsoever on any personal injury claim or on any matter outside of the specific complaints before me as set out above.   

Substantive Case

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I have carefully considered the caselaw to which I have been directed by the parties.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

Having carefully considered at length all the evidence presented to me I find the within complaint is characterised by significant disparity in the perception of the parties as to the manner in which events unfolded.  The timeline of the relevant events is not in dispute albeit each party sought to interpret events in accordance with their respective positions.  

Notwithstanding, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing.   

CA-00068624-001 complaint pursuant to Schedule 2 of the Protected Disclosures Act, 2014

The Relevant Law

The Protected Disclosures Act 2014 came into force (by way of S.I. No. 327 of 2014) on the 15th of July 2014. It was amended by the Protected Disclosures (Amendment) Act 2022 which came into operation (by way of S.I. No. 510 of 2022) on the 1st of January 2023 and further by S.I. No. 375 of 2023 which came into operation on 22 July 2023.  All of those amendments were in force when the events the subject matter of this claim arose.  In this decision the Act along with the amending legislation will collectively be referred to as “the PDA”. 

The definition of “protected disclosure" is set out at section 5(1) of the PDA:  

For the purposes of this Act “protected disclosure” means, subject to subsections (6) and (7A) and sections 17 and 18, a disclosure of relevant information … made by a worker in the manner specified in section 6, 7, 8, 9 or 10.

Sections (6) and (7A) respectively address the disclosure of trade secrets and legally privileged information and these are not relevant for this complaint.  Sections 17 and 18 refer to law enforcement and international relations and are also not relevant here.  Sections 6 to 10 set out a tiered disclosure process and provides that information related to wrongdoings may be provided to a prescribed person, an employer, a government minister, a legal advisor or to another person.

A “protected disclosure” therefore, is the disclosure by an employee to his or her employer, or another person, of relevant information. Section 5(2) of the Act provides that,

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 connection with the worker’s employment.

In Barrett v Commissioner of An Garda Síochána [2023] IECA 112, the Court of Appeal emphasised that in order for something to amount to a protected disclosure, the worker must have a ”reasonable belief” that it tends to show relevant wrongdoing; this introduces an objective standard, requiring that “a reasonable person would have held the belief if he or she had the same information as the worker”.

Section 5(3) of the PDA provides that the following are relevant wrongdoings for the purposes of the 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, or

(h) 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.

Section 5(5) of the PDA provides that “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”.

Section 5(5A) of the Act provides that “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.

Section 5(7) of the PDA provides that “the motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure”.

Section 5(8) of the PDA provides “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”.  The effect of this provision is to place the burden of proof in relation to a protected disclosure on the Respondent.

Section 6 of the PDA sets out the way a disclosure is to be made in order to come within the ambit of the Act:

6. (1) A disclosure is made in the manner specified in this section if the worker makes it—

(a) to the worker’s employer, or

(b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly—

(i) to the conduct of a person other than the worker’s employer, or

(ii) to something for which a person other than the worker’s employer has legal responsibility,

to that other person.

(2) A worker who, in accordance with a procedure the use of which by the worker is authorised by the worker’s employer, makes a disclosure to a person other than the employer is to be treated for the purposes of this Act as making the disclosure to the employer.

Section 3(1) of the 2014 Act defines penalisation as follows:

“penalisation" means 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 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;”

The Relevant Facts

The Complainant submits the protected disclosure is the communication of the incident that occurred in the workplace on 19 July 2024.   

I must first determine, as a matter of fact and law, whether the communication relied upon by the Complainant constitutes a protected disclosure within the meaning of the Protected Disclosures Act 2014, (“PDA”), applying the statutory definitions and presumptions.  If that threshold is met, I must then consider whether the Complainant was penalised for making that disclosure.     

I am guided by a helpful summary of the law on Protected Disclosures as provided for by the Court of Appeal in the case of Barrett V. The Commissioner of An Garda Siochana [2023] IECA 112, Ni Raifeartaigh J at paragraph 114 provides as follows:

1. The communication must disclose some wrongdoing on the part of the employer; (s. 5 of the 2014 Act); [emphasis added]
2. The complainant must have had a reasonable belief that the employer was engaged in wrongdoing (s. 5 of the Act): as always, the term “reasonable” connotes an objective standard;
3. The communication must have some informational content; (s. 5, Baranya; CGI)
4. Even if the employer is already aware of the information in question, the communication may still be considered a protected disclosure if it is drawing the employer’s attention to the information; (s. 3(1) of the Act)
5. The fact that a communication concerns the treatment of the employee who is making the complaint (and not, for example, another employee) does not prevent the communication being a protected disclosure; (Baranya)
6. The fact that the 2014 Act was not expressly invoked at the time of the making of the communication is not an absolute bar to the communication being deemed a protected disclosure after the event; (CGI)
7. What is prohibited by the Act is the penalisation of an employee as a result of having made a protected disclosure; (s. 5 of the Act)
8. Penalisation means any act or omission that affects a worker to the worker’s detriment and includes disciplining the worker; (s. 5 of the Act)
9. There must be a connection between the communication and the event or treatment said to constitute the penalisation (implicit in s. 5 of the Act; discussed in CGI decision); the precise formulation of a test in this regard remains to be definitively determined by an Irish court following full legal argument on the point;
10. A court should be alive both to the possibility that actions by the employer which ostensibly appear legitimate on their face may in reality be connected to a protected disclosure, and the possibility that an employer is taking bona fide steps in respect of an employee who is making unfounded allegations of a connection between the two events.

It is well settled that in order for a communication to constitute a protected disclosure, it must be a disclosure of relevant information.  It is fundamental that the relevant information, in the reasonable belief of the Complainant, tends to show one or more of the relevant wrongdoings, as set out in section 5 of the PDA. 

I am satisfied on application of the law set out above to the facts and, in particular to the first principle as highlighted, that the communication referred to by the Complainant i.e., the notification of the incident that took place on 19 July 2024 is not a communication that disclosed some wrongdoing on the part of the employer for the purposes of the PDA. 

I am satisfied, that even by imputing the most expansive meaning possible to that which is claimed to be a protected disclosure, it falls at the very first hurdle set out above in Barrett namely that there is no disclosure of wrongdoing on the part of the employer and it does not amount to a protected disclosure within the meaning of the PDA.  [emphasis added]

As there was no protected disclosure the question of penalisation does not arise for my consideration.

For the reasons set out above I find this complaint to be not well-founded.   

CA-00068624-002 complaint pursuant to section 28 of the Safety, Health & Welfare at Work Act, 2005

The Complainant submits that the Respondent failed to provide a safe place to work following the incident on 19 July 2024.   The Complainant submits she made a report to the Respondent as regards a matter relating to safety, health and welfare at work and it is therefore a protected act stipulated by section 27(3) (per either a,b and/or c) of the 2005 Act and she was penalised by the omission of the Respondent.    

It is well settled employers are statutorily required under the Safety, Health and Welfare at Work Act 2005 to take the necessary steps to protect the safety, health and welfare of employees. 

The Relevant Law

Safety, Health and Welfare at Work Act, 2005 (the “SHWWA”) states:

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

28.—(1) Without prejudice to section 27 (4), an employee may present a complaint to a rights commissioner that his or her employer has contravened section 27.

(2) Where a complaint under subsection (1) is made, the rights commissioner shall—

(a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint,

(b) give a decision in writing in relation to it, and

(c) communicate the decision to the parties.

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded;

(b) require the employer to take a specific course of action;

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances.

(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of the contravention to which the complaint relates or such further period not exceeding 6 months as the rights commissioner considers reasonable.

The jurisdiction of the WRC under section 27 of the SHWWA is narrow.  Section 27 of the SHWWA only applies where an employer penalises or threatens penalisation against an employee for making a complaint or representation to their employer regarding a matter relating to safety, health, or welfare at work.  Jurisdiction here is confined to determining whether, within the meaning of section 27, the actions of the Respondent amounted to penalisation.  Jurisdiction does not extend to investigating whether or not an employer breached health and safety obligations. 

In order to succeed in a claim under section 27 of the SHWWA a complainant must demonstrate that he/she has:-

(a) committed a protected act within the meaning of subsection (3) of section 27 of the SHWWA;

(b) suffered a detriment within the meaning of subsection (1) of section 27 of the SHWWA; and

(c) can show a causal connection between (a) and (b).

Detriment

In An Garda Siochana v. Hazel Delahunt, HSD1311, the Labour Court considered the word “detriment”. Here the Labour Court relied on Shamoon v Chief Constable of the Royal Ulster Constabulary, [2003] UKHL 11. This case held that the test for what constitutes a detriment is an objective test and that a court should consider whether a reasonable worker would or might take the view that they had been disadvantaged in the circumstances in which they had thereafter to work.

In HSE v. Jennings, HSD222, the Labour Court found that the complainant suffered a detriment when he was relocated, resulting in a disruption to his established working pattern and a delay in investigating the complaint against him which inter alia resulted in his mental health suffering.

Penalisation

The requirements to establish that penalisation under section 27 of the SHWWA has occurred were set out most clearly in Paul O’ Neill v. Toni and Guy Blackrock Ltd (2010) 21 ELR 1.

The test for this is set out in Toni & Guy Blackrock Ltdin which the Labour Court determined that the employee must prove on the balance of probabilities that he/she made complaints regarding health and safety in the workplace and such complaints resulted in him/her being penalised in the workplace.

Once these two proofs have been satisfied, it is for the employer to satisfy the court that the health and safety complaints did not influence the treatment of the employee. The Court stated:

“Thus the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.”

The Labour Court also gave consideration to what was required in order to discharge this burden of proof stating:

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

In the instant case the Complainant must establish: (a) on the balance of probabilities, that she committed a protected act, (b) that she suffered a detriment (c) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed.

I am required to establish if the respondent has breached section 27(3) of the Act of 2005 which prohibits penalisation where an employee has made a representation to an employer on a health and safety matter.

Section 27 (3) of the Act of 2005 sets out the protected acts which a complainant must exercise or invoke in order to make out a complaint of penalisation.

The Labour Court in St John’s National School v Ms Jacinta Akduman [HSD102] held as follows: 

“ employees will only be successful in a penalisation claim under the 2005 Act if they can prove that they: a) made a complaint to their employer in respect of a health and safety matter; and b) suffered a detriment as a result of the actions of their employer; and c) It can be proven that they would not have suffered this detriment had a complaint not been made in the first place”. 

The Relevant Facts

I note the Complainant in her written submission sets out she “made a report to the Respondent regards a matter relating to safety, health and welfare at work.” 

To this end from I note a text from the Complainant to the Respondent on 26 September 2024 seeking an update on the screens.  I note a text from the Complainant on the 2 August 2024: “hey Deirdre, are you able to get someone to cover tomorrow, I actually just don’t feel comfortable being there on my own on a Saturday right now.”  

I am satisfied the aforesaid texts to the Respondent constitute a complaint or representation to the Respondent pursuant to section 27(3)(c) and can be considered a protected act.    

I am satisfied the Complainant has asserted her rights under section 27(3) of the SHWWA when she sought one update on the screens and when she notified her employer she did not “feel comfortable being there on her own on a Saturday right now.” 

The Complainant submits penalisation under the legislation includes “any act or omission” by an employer that affects an employee to his or detriment in their terms or conditions of employment and it is submitted by the Complainant it is the omission or the failure to act by the employer that is the penalisation in the within case.  

Section 27 (1) of the SHWWA set out above defines penalisation in broad terms and can include a failure to act which results in a detriment to an employee in terms of their conditions of employment.  However, what is rendered unlawful by section 27(3) is acts or omissions of the type referred to at subsection (2) directed at an employee for having committed an act protected by that subsection. 

The Complainant argues that the retaliatory conduct or the adverse treatment / penalisation was the Respondent’s failure to install protective screens thereby rendering the workplace unsafe.      

Notwithstanding, in my deliberations on this matter and being mindful of the narrow jurisdiction conferred on the WRC under section 27, I am bound to recognise the distinction between a failure of duty on the part of an employer vis a vis penalisation.  I note penalisation is any detrimental action affecting terms, conditions or the circumstances of employment. 

There must be a dismissal, a sanction or other adverse detrimental impact on the employee’s terms and conditions of employment which arises as a consequence of raising a complaint.   I am satisfied the failure to comply with statutory duty does not necessarily constitute penalisation pursuant to the SHWWA.    

I have not been presented with any evidence that the Complainant has suffered any such detriment and if the Complainant is alleging a general failure on the part of the Respondent to adhere to the SHWWA due to the lack of protective screens in the workplace then her remedy rests elsewhere, outside terms of section 27 of the SHWWA.

For completeness, I note protective screens were fitted albeit it took in excess of two months for this to happen which I accept took place against a backdrop of discussions between franchisor and franchisee.    

For the reasons set out above, I do not find that the Complainant was penalised within the meaning of the SHWWA. 

CA-00068624-001

For the reasons outlined above I decide this complaint is not well-founded. 

CA-00068624-002

For the reasons set out above I decide this complaint is not well-founded.