Complainant

Respondent

Anonymised Parties

Nursing Manager

Health Service Executive

Representatives

Mr. Des Kavanagh, Des J. Kavanagh HR Consultancy Limited

Mr. Conor White, Comyn Kelleher Tobin

Act

Complaint Reference No.

Date of Receipt

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

CA-00065077-003

30/07/2024

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

CA-00065077-009

30/07/2024

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

CA-00065077-010

30/07/2024

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

CA-00065077-011

30/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under the Work Life Balance and Miscellaneous Provisions Act 2023

CA-00065077-012

30/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under  Part 14 Section 103(55M) of the Health Act, 2007

CA-00065077-013

30/07/2024

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

CA-00065077-014

30/07/2024

The Complainant commenced employment on 5th October 2015. At all relevant times, the Complainant’s role was described as “Clinical Nurse Manager”. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly payment of €925.  The Complainant remains in the employment of the Respondent.

On 30th July 2024, the Complainant referred the present complaints to the Commission. Herein, she alleged that the Respondent engaged in numerous forms of penalisation following her transfer to a department within the Respondent. In this regard, the Complainant submitted that the Respondent sought to erroneously classify her transfer as temporary in nature, that they unilaterally and illegally removed her from a sick pay scheme, that they demanded the repayment of wages from the Complainant, that they failed to re-integrate the Complainant to the workplace in line with the recommendations of the medical report and that they issued the Complainant with an illegal and unwarranted disciplinary sanction.  By response, the Respondent denied each of the allegations raised by the Complainant and submitted that within the cognisable period for the purposes of the present complaint, that the Complainant sought to remove herself from managerial oversight and frustrated the attempts to re-integrate her following an extended period of sick leave.

Numerous hearings were convened in relation to the legal and factual matters arising from the complaints referred. On 8th November 2024, the parties held a case management conference to discuss the nature and extent of the complaints, with the Adjudicator issuing various directions regarding the proposed content and exchange of submissions. Thereafter, a hearing was convened in respect the initial portion of the complaints on 1st August 2025. Unfortunately, the evidence of the parties did not conclude on that date and given the volume of evidence and materials to be reviewed, the matter was set down for a further two-day hearing, duly listed for 10th and 11th November 2025. While the evidentiary portion of the hearing concluded following a length session, the parties did not have an opportunity to present closing arguments in respect to the application of the legal principles to the sworn evidence. By agreement, and in an effort to avoid the scheduling of a further day of hearing, the parties agreed to exchange submissions in relation to these issues, with the final submission being received on 27th January 2026. At the request of the Complainant, all hearings were conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of her complaint, while her line manager and a business manager for the Respondent gave evidence in defence. All evidence was given under oath or examination and was opened to cross examination by the opposing side.

At various points throughout the process, the representative for the Respondent stated that the Complainant was seeking to introduce covert audio recordings and sought to exclude same from the evidence before the Adjudicator. Following a consideration of the relevant case law in this area, it was determined that transcripts of certain audio recordings could be admitted into evidence in circumstances whereby the Complainant exchanged a transcript of the same and the relevant audio file in advance of the hearing and gave sworn evidence in relation to the same during the hearing. As matters transpired, the Complainant issued various documents described as transcripts, but often containing various comments and submissions, oftentimes following the relevant portion of the hearing. In these circumstances, the decision below is based upon the sworn evidence provided at the hearing, any documents that were opened during said evidence and the relevant submissions of the parties.

In circumstances whereby there will be a necessity to examine the Complainant’s medical history as part of the investigation into the complaint, I have utilised my jurisdiction to anonymise the identity of the Complainant in the published decision. In doing so, I am conscious of the reasoning of Simons J. in the recent ruling of Adeyanju -v- Workplace Relations Commission [2026] IEHC538. At paragraph 24, Simons J holds that in considering a deviation from the requirement to administer justice in public, consideration must be had to “whether the countervailing interest could be protected by a lesser measure”. In these circumstances, and in consideration of the facts of the case, there is no requirement to anonymise the identity of the Respondent in the published decision.

The Respondent raised various issues as to jurisdiction in respect to aspects of certain complaints. Given the nature of same, these will be considered following an account of the substantive matter.

The Complainant remains a long-term employee of the Respondent, engaged as a nursing manager within the Respondent’s quality department.

In evidence, the Complainant stated that in 2016 she suffered a serious physical assault in the course of her duties with the Respondent. Following this incident, the Complainant sought a transfer to an alternative department within the Respondent organisation. Following a lengthy process, a transfer to an entirely different department was secured in 2022, with a commencement date in early 2023. Prior to transferring, the Complainant's line manager signed off on the terms and conditions applying to her transfer, with the same expressly confirming that the transfer was to be in a permanent capacity. The Complainant also received written confirmation that she would not be required to return to the former site.

Prior to commencing the role, the Complainant stated that she had received medical advice stating that she should not physically return to work at the former site. The Complainant confirmed that she remained willing to provide services to managers at the former location, albeit remotely. Given the nature of the new role, this was entirely within the normal duties of the post. Although the Complainant's line manager initially agreed that she could provide virtual services, he subsequently insisted that she must physically attend that location, in contravention of medical advice.

In evidence, the Complainant outlined various inter-personal difficulties with her line manager, describing a controlling course of conduct from the beginning of the working relationship. She stated that during routine weekly meetings, the line manager repeatedly pressured the Complainant regarding physical attendance at the former location. Despite the Complainant's insistence that her transfer was permanent, her line manager began to mischaracterise the transfer as temporary.

On 15th May 2023, the Complainant emailed the Chief Officer of the Respondent to formalise her concerns in this regard. The Chief Officer forwarded the correspondence to the relevant Human Resources department for review, and the Complainant assumed that the same would be properly investigated in due course.

Thereafter, the Complainant suffered significant medical difficulties, resulting in a seven-month period of absence. In May 2023, the Complainant engaged with Occupational Health. On 16th August 2023, an Occupational Health consultant confirmed that the Complainant was unfit for work due to medical difficulties and would remain so for a period of time. Following a further review on 1st December 2023, the Complainant was deemed fit to return to work on 16th January 2024.

During the process, the Complainant applied for coverage under the Respondent's Critical Illness Protocol, which was initially approved. However, following same, the Respondent elected to revoke this approval on 1st September 2023. The Complainant appealed against the revocation, but the Respondent provided no response either to the substantive issue of the revocation or the procedural issue regarding the appeal. Subsequently, the Respondent issued a demand seeking repayment of approximately €5,000 in alleged sick leave overpayments, a sum that later increased substantially, through proposed wage deductions. The Complainant denied any overpayment and submitted that these actions, including both the revocation of critical illness cover and the notice of purported overpayment, constituted penalisation for raising concerns at the outset of her engagement and represented a campaign on the part of the Respondent to create a working environment so intolerable so as to force her removal.

Upon returning to work, the Complainant met her line manager on 1st February 2024. The line manager stated that any working from home arrangement was merely tentative and required a risk assessment to be completed through his office. An Occupational Health report dated 28th February 2024 strongly recommended a hybrid, home-based working model and noted that the Complainant experienced significant stress due to barriers placed in the way of Occupational Health recommendations. The report also advised against direct, in-person meetings between the Complainant and her line manager.

Notwithstanding this advice, the line manager continued to insist upon face-to-face meetings and failed to sign the necessary risk assessment documentation to permit the working-from-home arrangement. Thereafter, the line manager visited the Complainant's workplace and engaged in aggressive interactions during a meeting. When instructed to attend meetings, the Complainant requested to communicate via email only, in accordance with medical guidance. On 8th March 2024, the line manager informed the Complainant that she would not be permitted to work from home until a direct meeting was held to complete the risk assessment.

On 20th March 2024, the line manager invited the Complainant to an informal meeting regarding an alleged refusal to obey reasonable instructions. On 23rd March 2024, the Complainant wrote to her line manager's superior to raise concerns regarding the management of her case and the oppressive and inappropriate actions on the part of her line manager.

On 18th June 2024, the Complainant filed formal grievances against her line manager and the Respondent regarding bullying and harassment. Despite these outstanding grievances, the Respondent proceeded with formal disciplinary action. The Respondent scheduled a disciplinary hearing for 25th June 2024, which was subsequently conducted in the Complainant's absence on 10th July 2024, resulting in a verbal warning being issued to the Complainant.

The Complainant submitted that the Respondent's actions, including the disciplinary sanction, the revocation of critical illness cover, wage deductions, the refusal to implement Occupational Health recommendations and the aggressive bullying on the part of her line manager, constituted penalisation under several statutory provisions. She further submitted that the same constituted discrimination under the Employment Equality Act.

By way of response to the Complainant, the Respondent denied each of the allegations raised on both a substantive and procedural basis. The Respondent further submitted that certain allegations were so vague and unclear as to remain essentially unanswerable in the form presented.

While the Respondent remains in factual disagreement with much of the content of the submissions presented by the Complainant, the Respondent, and in particular the Complainant's line manager, accepted that the Complainant moved from an alternative location within the Respondent organisation to her present role, and under his management, in or around the start of 2023.

In evidence, the Complainant's line manager accepted that he now understood that the transfer was permanent in nature. Notwithstanding the same, he stated that his contemporary knowledge at the relevant time was that the transfer was considered to be a trial move to allow the Complainant to engage with the department and the tasks, and to establish whether the arrangement was mutually beneficial for both parties.

In this regard, the Complainant's line manager accepted that the parties fell into disagreement around the commencement of the Complainant's engagement regarding her attendance at her former site. He stated that the Complainant's former site was an important location for the team, and that the Complainant was required to engage with services there. He further stated his contemporary understanding that it would be a far more convenient base for the Complainant, given her proximity to the same, and accepted that he advocated for her being stationed there while remaining within the department, as opposed to an alternative base some distance away.

In this regard, the managing director referred to contemporary correspondence issued to the Complainant outlining this position and stating that the Complainant's duties would include covering her former site. In evidence, the Complainant's line manager absolutely denied that he was in any way aggressive towards the Complainant and denied that he reprimanded the Complainant for contacting a more senior member of the Respondent organisation regarding the dispute that had arisen. He further denied stating that he was going to have the Complainant transferred out of the department. Rather, the Complainant's line manager accepted that, at the time of the commencement of her engagement with the department, the parties held regular meetings during which the Complainant's attendance at her former base was discussed. Moreover, he outlined the Respondent's position that the former base was an important part of the Respondent's structure, and that the Complainant was required to attend there in the course of her duties. The Respondent absolutely denied the allegation that the line manager sought create difficulties for the Complainant thereafter in an effort to force her removal from the department.

In this regard, the Respondent submitted that the Complainant raised a series of grievances in relation to these matters in mid-2023. These grievances were duly investigated by a person independent of the Complainant's line manager, and following a process conducted in accordance with the Respondent’s internal procedures, were not upheld.

Once the relevant investigation was completed, it was expressly conveyed to the Complainant that, if she had issues regarding her direct line manager, she should raise them in accordance with the relevant internal policy, being the dignity at work policy. The Respondent submitted that the Complainant failed to do so, and as such, her grievances regarding adverse behaviour on the part of her line manager were severely, if not fatally, undermined.

Shortly thereafter, the Complainant commenced an extended period of certified sick leave. On 16th August 2023, the Respondent procured an occupational health assessment, which determined that the Complainant was unfit for work for a period of time and would remain unfit for a further three months. The Complainant was subsequently reviewed again on 16th January 2024 and was on this occasion again deemed fit to return to work, subject to certain modifications, including support for a hybrid model of working and a phased return.

The Complainant's line manager sought clarification in relation to the same and subsequently met with the Complainant on 1st February 2024 and again on 9th February 2024, to discuss her return to work.

In evidence, the line manager denied that these meetings were adversarial nature and submitted that he was following normal protocol regarding the return to work of an employee following a period of long-term sick leave. He further stated that his purpose during these meetings was to facilitate the Complainant in her return to her normal duties.

Following these meetings, on 15th February 2024, the Complainant responded to her line manager advising that a formal process was underway regarding her health, safety, and welfare at work, along with various other issues. In this regard, the Respondent submitted that the Complainant had elected to disengage with her line manager regarding the practical matters regarding her return to work and in relation to her day-to-day duties.

Thereafter, a further occupational health report was issued on 28th February 2024. As part of this process, the Complainant requested that the subsequent report be issued directly to the National Director of Community Operations instead of her direct line manager. In this regard, the Respondent submitted that this was not a recommendation of the Occupational Health Specialist, but represented a further effort of her part to remove herself from the Respondent reporting structure.

The occupational health report issued thereafter, made various suggestions that the Respondent deemed unfeasible in practice. In particular, the report requested that the Complainant report to an alternative line manager, if same was practicable. In the absence of any formal work-related complaints being raised or found against the Complainant’s line manager, the Respondent deemed this to be impractical, noting that there was no scope to remove the line manager without essentially removing him from the entire department.

In an effort to implement the findings of the report, the Complainant's line manager sought to engage with her remotely via an online platform. However, this suggestion was also rejected by the Complainant, who had at point effectively removed herself from any form of managerial oversight in the course of her duties.

In this regard, the Respondent submitted that the Complainant rejected, and continued to reject, any form of line management support or the operation of her duties. The Respondent submitted that the Complainant was required to engage with her line manager regarding her return to work and other routine day to day tasks. It was submitted that, in the absence of any disciplinary or workplace findings in relation to the manager in question, the Respondent could not simply remove the manager in question and essentially remove the Complainant from the management structure of the Respondent.

By submission, the Respondent denied seeking to frustrate the implementation of the hybrid model for the Complainant. In order to establish hybrid or remote working, the Respondent was required first to engage in a risk assessment process. In accordance with the Respondent’s internal procedures, such risk assessments must be signed off by the Complainant’s line manager. As set out previously, the Complainant steadfastly refused to engage with her line manager and effectively frustrated this process.

In evidence, the line manager of the Complainant stated that he corresponded with her on 27th February 2024 to instruct her to attend a video call with himself and a member of the management team. By response, the Complainant flatly refused to attend this meeting.

Thereafter, a formal company meeting was arranged by the Complainant's line manager for 28th March 2024, pursuant to the Respondent's internal disciplinary procedure. The Complainant was formally invited to attend in accordance with the policy. The Complainant did not attend this meeting and provided no reason for her non-attendance either in advance or thereafter.

The Complainant's line manager subsequently wrote on 21st May 2024 to advise that a disciplinary hearing was to be convened pursuant to stage one of the process. Again, the Complainant flatly refused to attend this meeting without providing any reasonable basis for doing so. In these circumstances, the Respondent submitted that they gave the Complainant every chance to engage with the process, and in absence of her failure to do so, a verbal warning was issued to the Complainant.

Regarding the specific complaints, the Respondent's position was that the Complainant's terms and conditions remained the same, and that no formal contract amendment was required regarding her transfer within the Respondent organisation.

Regarding the various allegations of penalisation, the Respondent submitted that the Complainant identified no particular statement that might qualify as a protected disclosure under the relevant statutory provisions. In addition to the foregoing, the Respondent vehemently denied that the Complainant suffered any form of detriment that might be deemed penalisation on foot of the same. The Respondent submitted that while certain issues arose within the working relationship, these all stemmed from the Complainant's reluctance to deal with her line manager, to engage with the direct line management structure of the Respondent, and to engage with internal processes in a reasonable and fair manner. The Respondent submitted that the Complainant had unilaterally sought to remove herself from the management structure of the Respondent, thereby creating a situation in which she was essentially free from any form of managerial oversight.

The Respondent denied the specific allegations of penalisation and submitted that the Respondent spent an inordinate amount of time attempting to reintegrate the Complainant into the workplace. The Respondent submitted that the Complainant sought to frustrate this reintegration at every possible juncture. The Respondent denied that the issue of overpayment was an informal act of retaliation against the Complainant, submitting instead that it arose as a consequence of the Complainant's extensive periods of sick leave. The Respondent submitted that its duties in this regard were mandated by legislation and could not have formed any basis of retaliation against the Complainant. The Complainant’s line manager further submitted that as the issue of the payment of sick leave and the recovery of overpaid sick leave was not within his remit, he could not have possibly instructed the same as a form of retaliation.

Subject to the preliminary issues identified above, the Respondent submitted that it had not penalised the Complainant under any of the legislative provisions referenced.  They submitted that they had engaged in an ongoing process to facilitate the Complainant's return to work, which was frustrated by the Complainant herself at every possible juncture. Without prejudice to the foregoing, they submitted that any possible detriment suffered by the Complainant arose by virtue of her extended sick leave and failure to engage with the Respondent regarding her return to work.

Finally, the Respondent submitted that the Complainant did not raise formal complaints in accordance with internal procedures regarding the various issues raised in her submissions and evidence. The Respondent stated that internal procedures were the appropriate venue for such allegations, but the Complainant failed to raise them at the relevant time.

In conclusion, the Respondent denied each of the allegations raised by the Complainant and submitted that the claim should be deemed not well founded.

CA-00065077-011 – Complaint under the Safety, Health and Welfare at Work Act

Regarding the present set of complaints, the Complainant and the Respondent remain involved in a series of escalating disputes regarding the Complainant’s allegations of adverse and inappropriate behaviour on the part of the Respondent. The Complainant submitted that the behaviour in question commenced following her insistence that she should not return to a former site of the Respondent on the grounds of a health and safety risk to her well-being. She submitted that the Respondent subsequently engaged in a campaign of harassment in order to make her working conditions so intolerable as to force her departure. By submission and in evidence, the Complainant submitted that the same constitute penalisation under various legislative provisions.

The Respondent vehemently denied these allegations. The Respondent submitted that the Complainant's former site remained an integral part of its operations and that the Complainant could not unilaterally remove attendance at that site from her duties. The Respondent denied engaging in a campaign of harassment, submitting instead that the Complainant sought to remove herself from the management structure and refused to obey reasonable management instructions. Throughout the hearings, the parties remained in bitter dispute regarding these allegations.

Regarding the allegations of penalisation, the Complainant raised claims under various statutory provisions. At the outset of the hearing, the Complainant, via her representative, accepted that she would not be permitted to recover under all legislative provisions impleaded. By submission, and during the hearing, the Complainant primarily relied upon the protections provided by the Safety, Health and Welfare at Work Act 2005.

In this regard, Section 27(1) of the Act defines “penalisation” as,

“…any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.”

Section 27(2), parts C, D & E expressly list “transfer of duties, change of location of place of work, reduction in wages or change in working hours”, the “imposition of any discipline, reprimand or other penalty (including a financial penalty)”, and “coercion or intimidation.”as forms of detriment that might give rise to a find of penalisation.

Section 27(3) of the Act the provides that,

“An employer shall not penalise or threaten penalisation against an employee for—

(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”.

In the matter of Toni and Guy Blackrock v Paul O’Neill [2010] 21 E.L.R., the Labour Court set out the following test to determine penalisation under the terms of the Act.

“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 determent 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 detriment.”

In consideration of the foregoing, the Complainant must satisfy the following tripartite test in order to be successful in her complaint under the impleaded provision. She must firstly demonstrate that she made a complaint to the Respondent in accordance with Section 27(3). Thereafter, she must demonstrate that she suffered a detriment as defined by Section 27(2). Finally, the Complainant must demonstrate a causal link between the two, in order for the detriment to be deemed penalisation for the purposes of the Act.

In assessing the relevant evidence in relation to this complaint, regard must be had to the cognisable period permitted by the legislation. In this respect, Section 6(6) of the Workplace Relations Act 2015 provides that,

“…an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

In circumstances whereby the present complaint was referred on 30th July 2024, the cognisable period of the purposes of the present complaint runs from 30th January 2024 to the date for referral. While the parties accepted that this is the case at hearing, it is also apparent that certain factual matters prior to the cognisable period are important in providing context to the overall disputes.

In this regard, the common evidence of the parties established that following her assignment to the relevant department, the Complainant engaged in a series of routine meetings with her line manager regarding her duties and day to day tasks. During these meetings it is accepted by all parties that a dispute arose regarding her attendance at her former site. The Complainant stated that returning to the site would be detrimental to her well-being, raising explicit health and safety concerns in respect of the same. By submission and in evidence, the Respondent disputed the validity of this claim, stating that the same was not grounded in any relevant medical report. Nevertheless, the Complainant’s evidence was that at or near the outset of her engagement with the relevant department within the Respondent she raised explicit matters relating to her “safety, health or welfare at work”. While the Respondent denied the validity of these complaints, no material contradiction was raised regarding the raising of the issues themselves. In these circumstances, it is apparent that the first limb of the statutory test outlined above has been met.

Following the raising of these issues, the Complainant submitted that the Respondent commenced a campaign of harassment against her. While many of the allegations of penalisation fall outside the cognisable period for the purposes of the present complaint, the establishment of the same are important on overall evidentiary basis and should be considered.  

In this regard, the Complainant submitted that following the raising of the concerns regarding attendance at the former site, the Respondent erroneously sought to classify her transfer to the department as being temporary in nature, and expressly stated that the Complainant was to be moved from the department. 

In addressing this allegation, the relevant transfer documentation was produced by both parties. Having reviewed the same, it is apparent that the job description explicitly stated that the position was permanent in nature, with the document going so far as to render the relevant statement in bold text. In addition to the same, the Complainant referenced a document described as Change to Employer Terms and Conditions HR 102”. This document describes the Complainant’s transfer as being “permanent” and “whole time”. The document is signed by the Complainant, a member of the Respondent’s HR function and the Complainant’s line manager. It is also noted that this document was executed on 22nd March 2023, at which point the Complainant’s transfer had been finalised. At the hearing, the Respondent accepted that the transfer was, and always had been, permanent in nature and submitted that the Complainant’s line manager was in error in classifying the same as temporary. Having reviewed the documentation and in consideration of the evidence of the parties, I cannot accept that this omission is attributable to a simple mistake. In this regard, it stands to reason that the Complainant’s line manager would have been intimately aware of the tenure of one of the more senior employees within the department. In the event that he was not, he could have easily verified the correct position. In this regard, while this event occurred outside of the cognisable period for the purposes of the present set of complaints, it served to create a foundation of mistrust between the parties thereafter.

In late 2023, the Complainant commenced a period of sick and personal leave, returning to work in early 2024 until the date of the referral of the complaints. The Complainant identified four primary headings of penalisation during this period, and within the cognisable period for the purposes of the present complaint: the unlawful cessation of her critical illness pay, the subsequent demand for the recovery of alleged sick leave overpayments, the Respondent’s failure to properly re-integrate her to the workplace and the imposition of an unlawful and unfair disciplinary sanction.

Regarding the first two complaints, the Adjudicator requested specific evidence regarding the nature and calculation of the alleged overpayment and the grounds for cancelling the critical illness cover. On the resumption of the third day of hearing, a witness for the Respondent attended and gave evidence on these points. In this regard, the witness stated that in order for an employee to be entered onto the critical illness cover scheme, they must first satisfy four criteria. The criteria in question are that the party must suffer meet one of the following criteria, an “acute, life-threatening physical illness”, the illness should be a “chronic progressive illness, with well-established potential to reduce life expectancy”, the employee should suffer from “major physical trauma requiring acute operative surgical treatment” or they must be an “in patient of day hospital car of 10 consecutive days or more”. On 16th August 2023, a medical report was received regarding the Complainant’s eligibility for this scheme. The report final part of the report states that the Complainant met the first criterion listed above, and potentially met the fourth. The last line of the report states that the Complainant’s “medical difficulties meet the medical criteria for CIP in my opinion”. Notwithstanding the same, the body of the report stated that “all decisions regarding payment for extended paid sick leave are made by management”. On 31st August 2023, the Complainant received correspondence stating that she had been accepted on to the scheme, and that she would be remunerated with full pay from 24th July 2023. Thereafter, on 1st September 2023, the Complainant received correspondence to the effect that she had “reached the limits of the paid sick leave under the Critical Illness Protocol and therefore will go off pay with effect from 20th August 2023.”   In circumstances whereby the critical illness protection scheme provides for six months of full-pay, in addition to sick pay previously received, it is the position of the Complainant that the revocation of this payment constituted a further act of penalisation on the part of the Respondent. In addition to the same, it is noted that this payment would potentially have been discharged within the cognisable period of the purposes of the present complaint, and as such falls to be considered in the present complaint as a potential detriment that may be attribute to penalisaiton.

In responding to this complaint, the Respondent opened correspondence from their HR function dated 8th September 2023. Herein, the relevant HR officer explained that the Complainant had indeed been approved onto the CIP scheme and was restored to full pay on 24th July 2023. In this correspondence, it was explained that while the Complainant would ordinarily be entitled to full pay for six months, the scheme has an upper limit in relation to sick days accrued over a four-year period. The correspondence in question outlines that the Complainant exceeded the four-year limit shortly after being entered onto the scheme and consequently the full pay allowance was discontinued.

In consideration of the foregoing, it apparent that the Complainant’s application of CIP was approved by her line manager in the first instance. Thereafter, it is apparent that the while the Complainant received full pay for a brief period, she was removed from the same in accordance with the rules of the scheme. In these circumstances, I find that the purported revocation of the critical illness payment does not constitute penalisation under any of the legislative provisions impleaded.

In addition to the foregoing, the Complainant submitted that she was further penalised by the Respondent’s seeking to recover wages that had allegedly been over-paid by virtue of their sick pay scheme. In this regard, the Complainant referred to correspondence date 15th March 2024, issued by her line manager. This correspondence states that the Complainant was overpaid the sum of €5,149.31 under the Respondent’s various sick pay schemes. The correspondence further outlined that the relevant periods whereby the overpay occurred related to the 14th August 2023 to 31st December 2023. The correspondence set out a schedule of sick days and sick leave availed of by the Complainant, with a break-down of the nature of the overpayment. By submission and in evidence, the Complainant submitted that this alleged overpayment of wages represented a further act of penalisation against the Complainant for having raised various issues in the course of her employment. 

In this regard, the Respondent submitted that they have an obligation, imposed by legislation, to recover wages that have been overpaid to an employee. Regarding the rationale for the attempted recovery in this instance, a business manager for the Respondent attended to the hearing in order to give evidence in relation to the nature of the overpayment issue. In this regard, she submitted that the records maintained by the previous department within the Respondent were incomplete.  In particular, she submitted that while sick leave may well have been locally recorded in the department, it was not uploaded to the Respondent’s central recording software. In evidence, she submitted that she met with a representative of the former department in order to reconcile the records across the departments. Following the completion of this exercise, it was determined that the Complainant was overpaid by the amount outlined, and in accordance with the Respondent’s internal procedures, the correspondence is question was issued to the Complainant. In this regard, the correspondence was opened from a member of the Respondent’s finance team setting out the position for the Complainant and confirming that the calculations in question were correct.

Having regard to the foregoing, I note that while the Complainant has raised issues with the timing of this correspondence and the apparent volume of issues that were being raised following her return to work following sick leave, the genesis of the issues arose from a failure of her former department to maintain correct records regarding her sick leave. In these circumstances I find that the issue regarding the overpayment cannot be attributed to a form of penalisation against the Complainant for raising issues. In this regard, the Respondent is under an obligation, imposed by legislation, to ensure that they do not overpay their employees and that when they do so, that they seek to recover to wages in question as expeditiously as possible.

Regarding the third alleged detriment, being the Respondent’s alleged failure to re-integrate the Complainant into the workplace, the Complainant has alleged that the Respondent sought to frustrate her working from home arrangements and in particular, refused to sign off on a health and safety report that would permit the commencement Complainant’s working from home. In his regard, the Complainant submitted that the Respondent was seeking to frustrate these arrangements in an effort further penalise her under the legislation impleaded.

In this regard, the report in question is titled “Blended Working Application & Declaration”. This form contains a section to be completed by the employee, with a further section to be completed by the relevant manager.  By correspondence dated 5th March 2024, the line manager stated that he had not had sight of the most recent occupational health report discussing the requirement for such a blended working environment.  He further stated that he was not in position to sign off on the same until such a time as he was in a position to consider the report and meet with the Complainant. In these circumstances it is unsurprising that the Complainant’s line manager declined to complete the report in question, and this action cannot be attributed to any form of penalisation on the part of the Respondent.

Finally, the Complainant alleged that the Respondent issued her with an illegal and procedurally unsound disciplinary sanction following her return to work. In this regard, the Complainant submitted that the Respondent’s line manager issued a disciplinary sanction in her absence and without permitting her a right of response. In evidence and by submission, the Complainant stated that the holding of any meetings with the Complainant’s line manager was in contradiction of a medical recommendation previously issued, and that the convening of such meetings, cumulating in the imposition of a disciplinary sanction by the very person she was medically advised to disengage with, was fundamentally unfair and constituted a further form of penalisation.

Regarding this aspect of the complaint, both parties sought to reply on an Occupational Health report issued on 28th February 2024.  This report states that, regarding the reporting relationship between the Complainant and her line manager that the parties “it would be in the parties best overall health and safety interests of they do not (sic) this reporting relationship at this time”. In the same section, the report goes on to observe that, “I appreciate that this is not always possible or practical”.  The report states that the Complainant “is not currently fit to engage in direct face to face meeting with her manager.” Notwithstanding the foregoing, the report ends with a series of recommendations. These recommendations state that communications should be via email rather than telephone, that if there is a vital business need to convene face to face meetings, that advance notice and an agenda be given in respect of the same and that the same be recorded. In the “Management Referral Report Release Form”, appended to the report, the Complainant stated that this report should issue to the National Director of Community Operations, as opposed to her line manager.

While the Complainant submitted that this report dictated that an alternative manager should be assigned, the Respondent submitted instead that this was a request made by the Complainant and reflected in the report, rather than a recommendation from the occupational health specialist. 

In this regard, the occupational health specialist outlined brief observations regarding the issues raised by the Complainant regarding her line manager. While the specialist could only consider the Complainant's views within a short assessment window, the report suggested that an alternative reporting line might be in the interests of the parties. The report expressly acknowledges that such an arrangement might not be practicable in the circumstances. Regarding the recommendations of the report, the same advises that face-to-face meetings should be minimised and avoided where possible, but did not state that they should never occur. Rather, it recommended that if such meetings were necessary, advance notice should be provided, and a clear agenda should be set.

On receipt of this report, it is noted that the Respondent sought to convene meetings regarding return-to-work procedures and arranged for a representative from the Human Resources department to attend as a third party. Such meetings were almost always arranged via an online platform, with minimal face-to-face contact. The Respondent submitted that removing the Complainant from the existing reporting structure was not practicable due to the small size of the department. The Respondent denied that these meeting convened were in any way oppressive and submitted that the Complainant's continued refusal to engage constituted a failure to follow reasonable instructions. It was this this alleged refusal to engage in reasonable management instructions that duly led to the imposition of the disciplinary sanction.

Having reviewed the documentation and the occupational health report, it was evident that the Complainant improperly interpreted the report as permitting a complete cessation of meetings with her line manager. The report did not support this position; it recommended minimising face-to-face contact, while noting that complete removal from the reporting structure might be impractical. The Respondent maintained that removal was impractical and that some form of managerial oversight was required. In these circumstances, it is noted that the hybrid model of working and the proposed meeting format represented a reasonable compromise in the circumstances. While the Complainant clearly disagrees with the imposition of the disciplinary sanction, I find the same arose as a consequence of the Respondent’s sincerely held belief that the Complainant was frustrating the proposed return to work, as opposed to any form of retaliation for formerly raising concerns.

In summary in I find that the Complainant raised various health and safety concerns at or near the commencement of her engagement with the department within the Respondent organisation. Thereafter I find that the Respondent sought to mis-characterise the tenure of her engagement within the department.  This initial mischaracterisation of the Complainant’s tenure, and the ongoing repetition of the same at the relevant time, served to create an atmosphere of mistrust between the parties.

Regarding the allegations of penalisation arising within the cognisable period for the purposes of the present complaint, I find that the purported revocation of the critical illness cover and the attempted recovery of overpaid wages arose on foot of the Complainant’s exhausting the four-year maximum limit for such leave, and was processed in accordance with the standard procedure of the Respondent. In these circumstances, I find that the same cannot constitute penalisation under any of the legislative provisions impleaded.

Finally, I find that the allegations regarding the Respondent failure to re-integrate the Complainant into the workplace and the imposition of the disciplinary sanction constitute detriments that arose as a consequence of the parties competing interpretations of the recommendations containing within the occupational health report referenced above and cannot be attributed to raising various concerns in the course of her engagement.

Having regard to the accumulation of the foregoing points, I find that the complaint is not well-founded.

CA-00065077-003 – Complaint under the Term of Employment (Information) Act

Regarding this individual complaint, the Complainant alleged that the Respondent failed to provide her within updated terms on the commencement with the department. In circumstances whereby the Complainant’s core terms and conditions were unaltered following the transfer, I find that the complaint is not well founded.

CA-00065077-009 – Complaint under the Employment Equality Acts

Regarding this complaint, the Complainant alleged that the imposition of the disciplinary sanction arose as a consequence of discrimination on the grounds of disability. She further submitted that the Respondent failed to provide a reasonable accommodation for her return to employment.

In this regard, Section 6 of the Employment Equality Act prohibits discrimination any discriminatory ground.

Subsection (1)(a) of that Section provides that,

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where:

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In the matter of Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this “Mitchell Test” was comprised of the following three steps:

“It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so he or she cannot succeed.

If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent”

Regarding the present case, the Complainant has alleged that the imposition of the disciplinary sanction constituted a form of discrimination on the grounds of disability. While the Respondent submitted that the Complainant did not identify the precise nature of her disability, it is further noted that the Complainant was absent from work for an extended period of time prior to the cognisable period for the purposes of the present complaint. In this regard, it is further noted that the Complainant received numerous medical reports outlining her medical issues and, as noted above, was accepted onto the Respondent’s critical illness pay scheme. In these circumstances I find that the Complainant did suffer from a disability as defined by Section 2 of the Act.

Regarding the allegations of discrimination, the Complainant has alleged that the imposition of the disciplinary sanction arose as a consequence of her medically recommended the cessation of direct meetings with her line manager. As noted above, while the relevant medical report did make recommendations of this nature, these were qualified within the report, and the Respondent was entitled to maintain a reporting structure within the department subject to these qualifications. In these circumstances, the imposition of the disciplinary sanction arose, not as a consequence of discrimination on the grounds of disability, but as a result of the differing interpretation of the relevant medical report. In these circumstances, I find that the Complainant has not established the primary facts upon which an inference of discrimination may be drawn, and as a consequence I find that she was not discriminated within the meaning of the Act.

Regarding an employer’s duty to provide reasonable accommodation, Section 16(3)(b) of the Employment Equality Act provides that,

“For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.”

Section 16(3)(b) provides that,

“The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

i.                     to have access to employment,

       ii.            to participate or advance in employment, or

     iii.            to undergo training,

unless the measures would impose a disproportionate burden on the employer.”

In the case of Nano Nagle School -v- Daly [2019] IESC 63, the Supreme Court discussed an employer’s duty to provide such reasonable accommodation. Here the Court held as follows,

“… s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

In the matter of Cunningham v Irish Prison Service [2020] IEHC 282, Barr J held that,

“Justice requires that the person suffering from the disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them, which was not unduly burdensome to the employer and did not impair the operational capacity”

In the matter of Humphries v Westwood Fitness Club [2004] 15 E.L.R. 296, the Labour Court held that in assessing the requirements for a potential reasonable accommodation, an employer would, “normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity”.

The Court went on to state that,

“It is generally accepted that the nature and extent of the enquiries which an employer should make will depend on the circumstances of each case and the questions which the employer is considering”.

Regarding this element of the complaint, the Complainant has alleged that the Respondent failed to properly implement and actively sought to frustrate her medically advised working from home and remote working arrangements.

As set out above, the Complainant is correct in her assertion that the relevant medical report unambiguously recommended that the Complainant be permitted to work from home within a hybrid model. Notwithstanding the same, it is also the case that the Complainant did not permit this report to be released to her line manager, and he did not have sight of the recommendation contained within for some time thereafter. In these circumstances, the Complainant’s line manager initially refused to sign off on the health and safety report required to facilitate working from home until he had sight of the relevant report. The report in question expressly requires sign off from the Complainant’s line manager and it not unreasonable that he would, initially at least, refuse to do so without sight of the report in question.

In addition to the foregoing, the Complainant further submitted that the Respondent continued to insist that the Complainant have direct contact with her line manager. By the Complainant’s evidence, this was in direct contravention of the outcome of the medical report and represented a further failure on the part of the Respondent to make efforts to re-integrate her into the workplace and provide reasonable accommodation as required by Section 16.

Again, it is noted that the source of this dispute arises from the differing interpretations of the relevant medical report. From the evidence provided, it is apparent that following the line manager receiving sight of the report, meetings were convened by way of a remote platform with a third-party present for the duration of the meeting. In the circumstances, this represents a reasonable compromise as regards an effort to implement the findings of the report while maintaining the Complainant within the Respondent’s existing reporting structure.

Having regard to the accumulation of the foregoing points, I find that the Complainant was not discriminated against or victimised within the meaning of the Act. 

CA-00065077-010 – Complaint under the Parental Leave Act

This complaint was withdrawn by the Complainant during the hearing, is consequently deemed to be not well-founded.

CA-00065077-012 – Complaint under the Work Life Balance and Miscellaneous Provisions Act 2023

Regarding this particular complaint, in consideration of the findings above, I find that the Complainant did not suffer any form of penalisation, as defined by the Act, in in the course of her employment. In these circumstances, I find that the complaint is not well-founded.

CA-00065077-013 – Complaint under the Health Act

Regarding this particular complaint, in consideration of the findings above, I find that the Complainant did not suffer any form of penalisation, as defined by the Act, in the course of her employment. In these circumstances, I find that the complaint is not well-founded.

CA-00065077-014 – Complaint under the Parental Leave Act

This complaint was withdrawn by the Complainant during the hearing, is consequently deemed to be not well-founded.

CA-00065077-003 – Complaint under the Term of Employment (Information) Act

I find that the complaint is not well-founded.

CA-00065077-009 – Complaint under the Employment Equality Acts

I find that the Complainant was not discriminated against or victimised within the meaning of the Act.

CA-00065077-010 – Complaint under the Parental Leave Act

I find that the complaint is not well-founded.

CA-00065077-011 – Complaint under the Safety, Health and Welfare at Work Act

I find that the complaint is not well-founded.

CA-00065077-012 – Complaint under the Work Life Balance and Miscellaneous Provisions Act 2023

I find that the complaint is not well-founded.

CA-00065077-013 – Complaint under the Health Act

I find that the complaint is not well-founded.

CA-00065077-014 – Complaint under the Parental Leave Act

I find that the complaint is not well-founded.

Penalisation, Detriment, Cognisable Period, Recordings

Complainant

Respondent

Anonymised Parties

Nursing Manager

Health Service Executive

Representatives

Mr. Des Kavanagh, Des J. Kavanagh HR Consultancy Limited

Mr. Conor White, Comyn Kelleher Tobin

Act

Complaint Reference No.

Date of Receipt

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

CA-00065077-003

30/07/2024

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

CA-00065077-009

30/07/2024

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

CA-00065077-010

30/07/2024

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

CA-00065077-011

30/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under the Work Life Balance and Miscellaneous Provisions Act 2023

CA-00065077-012

30/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under  Part 14 Section 103(55M) of the Health Act, 2007

CA-00065077-013

30/07/2024

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

CA-00065077-014

30/07/2024

The Complainant commenced employment on 5th October 2015. At all relevant times, the Complainant’s role was described as “Clinical Nurse Manager”. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly payment of €925.  The Complainant remains in the employment of the Respondent.

On 30th July 2024, the Complainant referred the present complaints to the Commission. Herein, she alleged that the Respondent engaged in numerous forms of penalisation following her transfer to a department within the Respondent. In this regard, the Complainant submitted that the Respondent sought to erroneously classify her transfer as temporary in nature, that they unilaterally and illegally removed her from a sick pay scheme, that they demanded the repayment of wages from the Complainant, that they failed to re-integrate the Complainant to the workplace in line with the recommendations of the medical report and that they issued the Complainant with an illegal and unwarranted disciplinary sanction.  By response, the Respondent denied each of the allegations raised by the Complainant and submitted that within the cognisable period for the purposes of the present complaint, that the Complainant sought to remove herself from managerial oversight and frustrated the attempts to re-integrate her following an extended period of sick leave.

Numerous hearings were convened in relation to the legal and factual matters arising from the complaints referred. On 8th November 2024, the parties held a case management conference to discuss the nature and extent of the complaints, with the Adjudicator issuing various directions regarding the proposed content and exchange of submissions. Thereafter, a hearing was convened in respect the initial portion of the complaints on 1st August 2025. Unfortunately, the evidence of the parties did not conclude on that date and given the volume of evidence and materials to be reviewed, the matter was set down for a further two-day hearing, duly listed for 10th and 11th November 2025. While the evidentiary portion of the hearing concluded following a length session, the parties did not have an opportunity to present closing arguments in respect to the application of the legal principles to the sworn evidence. By agreement, and in an effort to avoid the scheduling of a further day of hearing, the parties agreed to exchange submissions in relation to these issues, with the final submission being received on 27th January 2026. At the request of the Complainant, all hearings were conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of her complaint, while her line manager and a business manager for the Respondent gave evidence in defence. All evidence was given under oath or examination and was opened to cross examination by the opposing side.

At various points throughout the process, the representative for the Respondent stated that the Complainant was seeking to introduce covert audio recordings and sought to exclude same from the evidence before the Adjudicator. Following a consideration of the relevant case law in this area, it was determined that transcripts of certain audio recordings could be admitted into evidence in circumstances whereby the Complainant exchanged a transcript of the same and the relevant audio file in advance of the hearing and gave sworn evidence in relation to the same during the hearing. As matters transpired, the Complainant issued various documents described as transcripts, but often containing various comments and submissions, oftentimes following the relevant portion of the hearing. In these circumstances, the decision below is based upon the sworn evidence provided at the hearing, any documents that were opened during said evidence and the relevant submissions of the parties.

In circumstances whereby there will be a necessity to examine the Complainant’s medical history as part of the investigation into the complaint, I have utilised my jurisdiction to anonymise the identity of the Complainant in the published decision. In doing so, I am conscious of the reasoning of Simons J. in the recent ruling of Adeyanju -v- Workplace Relations Commission [2026] IEHC538. At paragraph 24, Simons J holds that in considering a deviation from the requirement to administer justice in public, consideration must be had to “whether the countervailing interest could be protected by a lesser measure”. In these circumstances, and in consideration of the facts of the case, there is no requirement to anonymise the identity of the Respondent in the published decision.

The Respondent raised various issues as to jurisdiction in respect to aspects of certain complaints. Given the nature of same, these will be considered following an account of the substantive matter.

The Complainant remains a long-term employee of the Respondent, engaged as a nursing manager within the Respondent’s quality department.

In evidence, the Complainant stated that in 2016 she suffered a serious physical assault in the course of her duties with the Respondent. Following this incident, the Complainant sought a transfer to an alternative department within the Respondent organisation. Following a lengthy process, a transfer to an entirely different department was secured in 2022, with a commencement date in early 2023. Prior to transferring, the Complainant's line manager signed off on the terms and conditions applying to her transfer, with the same expressly confirming that the transfer was to be in a permanent capacity. The Complainant also received written confirmation that she would not be required to return to the former site.

Prior to commencing the role, the Complainant stated that she had received medical advice stating that she should not physically return to work at the former site. The Complainant confirmed that she remained willing to provide services to managers at the former location, albeit remotely. Given the nature of the new role, this was entirely within the normal duties of the post. Although the Complainant's line manager initially agreed that she could provide virtual services, he subsequently insisted that she must physically attend that location, in contravention of medical advice.

In evidence, the Complainant outlined various inter-personal difficulties with her line manager, describing a controlling course of conduct from the beginning of the working relationship. She stated that during routine weekly meetings, the line manager repeatedly pressured the Complainant regarding physical attendance at the former location. Despite the Complainant's insistence that her transfer was permanent, her line manager began to mischaracterise the transfer as temporary.

On 15th May 2023, the Complainant emailed the Chief Officer of the Respondent to formalise her concerns in this regard. The Chief Officer forwarded the correspondence to the relevant Human Resources department for review, and the Complainant assumed that the same would be properly investigated in due course.

Thereafter, the Complainant suffered significant medical difficulties, resulting in a seven-month period of absence. In May 2023, the Complainant engaged with Occupational Health. On 16th August 2023, an Occupational Health consultant confirmed that the Complainant was unfit for work due to medical difficulties and would remain so for a period of time. Following a further review on 1st December 2023, the Complainant was deemed fit to return to work on 16th January 2024.

During the process, the Complainant applied for coverage under the Respondent's Critical Illness Protocol, which was initially approved. However, following same, the Respondent elected to revoke this approval on 1st September 2023. The Complainant appealed against the revocation, but the Respondent provided no response either to the substantive issue of the revocation or the procedural issue regarding the appeal. Subsequently, the Respondent issued a demand seeking repayment of approximately €5,000 in alleged sick leave overpayments, a sum that later increased substantially, through proposed wage deductions. The Complainant denied any overpayment and submitted that these actions, including both the revocation of critical illness cover and the notice of purported overpayment, constituted penalisation for raising concerns at the outset of her engagement and represented a campaign on the part of the Respondent to create a working environment so intolerable so as to force her removal.

Upon returning to work, the Complainant met her line manager on 1st February 2024. The line manager stated that any working from home arrangement was merely tentative and required a risk assessment to be completed through his office. An Occupational Health report dated 28th February 2024 strongly recommended a hybrid, home-based working model and noted that the Complainant experienced significant stress due to barriers placed in the way of Occupational Health recommendations. The report also advised against direct, in-person meetings between the Complainant and her line manager.

Notwithstanding this advice, the line manager continued to insist upon face-to-face meetings and failed to sign the necessary risk assessment documentation to permit the working-from-home arrangement. Thereafter, the line manager visited the Complainant's workplace and engaged in aggressive interactions during a meeting. When instructed to attend meetings, the Complainant requested to communicate via email only, in accordance with medical guidance. On 8th March 2024, the line manager informed the Complainant that she would not be permitted to work from home until a direct meeting was held to complete the risk assessment.

On 20th March 2024, the line manager invited the Complainant to an informal meeting regarding an alleged refusal to obey reasonable instructions. On 23rd March 2024, the Complainant wrote to her line manager's superior to raise concerns regarding the management of her case and the oppressive and inappropriate actions on the part of her line manager.

On 18th June 2024, the Complainant filed formal grievances against her line manager and the Respondent regarding bullying and harassment. Despite these outstanding grievances, the Respondent proceeded with formal disciplinary action. The Respondent scheduled a disciplinary hearing for 25th June 2024, which was subsequently conducted in the Complainant's absence on 10th July 2024, resulting in a verbal warning being issued to the Complainant.

The Complainant submitted that the Respondent's actions, including the disciplinary sanction, the revocation of critical illness cover, wage deductions, the refusal to implement Occupational Health recommendations and the aggressive bullying on the part of her line manager, constituted penalisation under several statutory provisions. She further submitted that the same constituted discrimination under the Employment Equality Act.

By way of response to the Complainant, the Respondent denied each of the allegations raised on both a substantive and procedural basis. The Respondent further submitted that certain allegations were so vague and unclear as to remain essentially unanswerable in the form presented.

While the Respondent remains in factual disagreement with much of the content of the submissions presented by the Complainant, the Respondent, and in particular the Complainant's line manager, accepted that the Complainant moved from an alternative location within the Respondent organisation to her present role, and under his management, in or around the start of 2023.

In evidence, the Complainant's line manager accepted that he now understood that the transfer was permanent in nature. Notwithstanding the same, he stated that his contemporary knowledge at the relevant time was that the transfer was considered to be a trial move to allow the Complainant to engage with the department and the tasks, and to establish whether the arrangement was mutually beneficial for both parties.

In this regard, the Complainant's line manager accepted that the parties fell into disagreement around the commencement of the Complainant's engagement regarding her attendance at her former site. He stated that the Complainant's former site was an important location for the team, and that the Complainant was required to engage with services there. He further stated his contemporary understanding that it would be a far more convenient base for the Complainant, given her proximity to the same, and accepted that he advocated for her being stationed there while remaining within the department, as opposed to an alternative base some distance away.

In this regard, the managing director referred to contemporary correspondence issued to the Complainant outlining this position and stating that the Complainant's duties would include covering her former site. In evidence, the Complainant's line manager absolutely denied that he was in any way aggressive towards the Complainant and denied that he reprimanded the Complainant for contacting a more senior member of the Respondent organisation regarding the dispute that had arisen. He further denied stating that he was going to have the Complainant transferred out of the department. Rather, the Complainant's line manager accepted that, at the time of the commencement of her engagement with the department, the parties held regular meetings during which the Complainant's attendance at her former base was discussed. Moreover, he outlined the Respondent's position that the former base was an important part of the Respondent's structure, and that the Complainant was required to attend there in the course of her duties. The Respondent absolutely denied the allegation that the line manager sought create difficulties for the Complainant thereafter in an effort to force her removal from the department.

In this regard, the Respondent submitted that the Complainant raised a series of grievances in relation to these matters in mid-2023. These grievances were duly investigated by a person independent of the Complainant's line manager, and following a process conducted in accordance with the Respondent’s internal procedures, were not upheld.

Once the relevant investigation was completed, it was expressly conveyed to the Complainant that, if she had issues regarding her direct line manager, she should raise them in accordance with the relevant internal policy, being the dignity at work policy. The Respondent submitted that the Complainant failed to do so, and as such, her grievances regarding adverse behaviour on the part of her line manager were severely, if not fatally, undermined.

Shortly thereafter, the Complainant commenced an extended period of certified sick leave. On 16th August 2023, the Respondent procured an occupational health assessment, which determined that the Complainant was unfit for work for a period of time and would remain unfit for a further three months. The Complainant was subsequently reviewed again on 16th January 2024 and was on this occasion again deemed fit to return to work, subject to certain modifications, including support for a hybrid model of working and a phased return.

The Complainant's line manager sought clarification in relation to the same and subsequently met with the Complainant on 1st February 2024 and again on 9th February 2024, to discuss her return to work.

In evidence, the line manager denied that these meetings were adversarial nature and submitted that he was following normal protocol regarding the return to work of an employee following a period of long-term sick leave. He further stated that his purpose during these meetings was to facilitate the Complainant in her return to her normal duties.

Following these meetings, on 15th February 2024, the Complainant responded to her line manager advising that a formal process was underway regarding her health, safety, and welfare at work, along with various other issues. In this regard, the Respondent submitted that the Complainant had elected to disengage with her line manager regarding the practical matters regarding her return to work and in relation to her day-to-day duties.

Thereafter, a further occupational health report was issued on 28th February 2024. As part of this process, the Complainant requested that the subsequent report be issued directly to the National Director of Community Operations instead of her direct line manager. In this regard, the Respondent submitted that this was not a recommendation of the Occupational Health Specialist, but represented a further effort of her part to remove herself from the Respondent reporting structure.

The occupational health report issued thereafter, made various suggestions that the Respondent deemed unfeasible in practice. In particular, the report requested that the Complainant report to an alternative line manager, if same was practicable. In the absence of any formal work-related complaints being raised or found against the Complainant’s line manager, the Respondent deemed this to be impractical, noting that there was no scope to remove the line manager without essentially removing him from the entire department.

In an effort to implement the findings of the report, the Complainant's line manager sought to engage with her remotely via an online platform. However, this suggestion was also rejected by the Complainant, who had at point effectively removed herself from any form of managerial oversight in the course of her duties.

In this regard, the Respondent submitted that the Complainant rejected, and continued to reject, any form of line management support or the operation of her duties. The Respondent submitted that the Complainant was required to engage with her line manager regarding her return to work and other routine day to day tasks. It was submitted that, in the absence of any disciplinary or workplace findings in relation to the manager in question, the Respondent could not simply remove the manager in question and essentially remove the Complainant from the management structure of the Respondent.

By submission, the Respondent denied seeking to frustrate the implementation of the hybrid model for the Complainant. In order to establish hybrid or remote working, the Respondent was required first to engage in a risk assessment process. In accordance with the Respondent’s internal procedures, such risk assessments must be signed off by the Complainant’s line manager. As set out previously, the Complainant steadfastly refused to engage with her line manager and effectively frustrated this process.

In evidence, the line manager of the Complainant stated that he corresponded with her on 27th February 2024 to instruct her to attend a video call with himself and a member of the management team. By response, the Complainant flatly refused to attend this meeting.

Thereafter, a formal company meeting was arranged by the Complainant's line manager for 28th March 2024, pursuant to the Respondent's internal disciplinary procedure. The Complainant was formally invited to attend in accordance with the policy. The Complainant did not attend this meeting and provided no reason for her non-attendance either in advance or thereafter.

The Complainant's line manager subsequently wrote on 21st May 2024 to advise that a disciplinary hearing was to be convened pursuant to stage one of the process. Again, the Complainant flatly refused to attend this meeting without providing any reasonable basis for doing so. In these circumstances, the Respondent submitted that they gave the Complainant every chance to engage with the process, and in absence of her failure to do so, a verbal warning was issued to the Complainant.

Regarding the specific complaints, the Respondent's position was that the Complainant's terms and conditions remained the same, and that no formal contract amendment was required regarding her transfer within the Respondent organisation.

Regarding the various allegations of penalisation, the Respondent submitted that the Complainant identified no particular statement that might qualify as a protected disclosure under the relevant statutory provisions. In addition to the foregoing, the Respondent vehemently denied that the Complainant suffered any form of detriment that might be deemed penalisation on foot of the same. The Respondent submitted that while certain issues arose within the working relationship, these all stemmed from the Complainant's reluctance to deal with her line manager, to engage with the direct line management structure of the Respondent, and to engage with internal processes in a reasonable and fair manner. The Respondent submitted that the Complainant had unilaterally sought to remove herself from the management structure of the Respondent, thereby creating a situation in which she was essentially free from any form of managerial oversight.

The Respondent denied the specific allegations of penalisation and submitted that the Respondent spent an inordinate amount of time attempting to reintegrate the Complainant into the workplace. The Respondent submitted that the Complainant sought to frustrate this reintegration at every possible juncture. The Respondent denied that the issue of overpayment was an informal act of retaliation against the Complainant, submitting instead that it arose as a consequence of the Complainant's extensive periods of sick leave. The Respondent submitted that its duties in this regard were mandated by legislation and could not have formed any basis of retaliation against the Complainant. The Complainant’s line manager further submitted that as the issue of the payment of sick leave and the recovery of overpaid sick leave was not within his remit, he could not have possibly instructed the same as a form of retaliation.

Subject to the preliminary issues identified above, the Respondent submitted that it had not penalised the Complainant under any of the legislative provisions referenced.  They submitted that they had engaged in an ongoing process to facilitate the Complainant's return to work, which was frustrated by the Complainant herself at every possible juncture. Without prejudice to the foregoing, they submitted that any possible detriment suffered by the Complainant arose by virtue of her extended sick leave and failure to engage with the Respondent regarding her return to work.

Finally, the Respondent submitted that the Complainant did not raise formal complaints in accordance with internal procedures regarding the various issues raised in her submissions and evidence. The Respondent stated that internal procedures were the appropriate venue for such allegations, but the Complainant failed to raise them at the relevant time.

In conclusion, the Respondent denied each of the allegations raised by the Complainant and submitted that the claim should be deemed not well founded.

CA-00065977-011 – Complaint under the Safety, Health and Welfare at Work Act

Regarding the present set of complaints, the Complainant and the Respondent remain involved in a series of escalating disputes regarding the Complainant’s allegations of adverse and inappropriate behaviour on the part of the Respondent. The Complainant submitted that the behaviour in question commenced following her insistence that she should not return to a former site of the Respondent on the grounds of a health and safety risk to her well-being. She submitted that the Respondent subsequently engaged in a campaign of harassment in order to make her working conditions so intolerable as to force her departure. By submission and in evidence, the Complainant submitted that the same constitute penalisation under various legislative provisions.

The Respondent vehemently denied these allegations. The Respondent submitted that the Complainant's former site remained an integral part of its operations and that the Complainant could not unilaterally remove attendance at that site from her duties. The Respondent denied engaging in a campaign of harassment, submitting instead that the Complainant sought to remove herself from the management structure and refused to obey reasonable management instructions. Throughout the hearings, the parties remained in bitter dispute regarding these allegations.

Regarding the allegations of penalisation, the Complainant raised claims under various statutory provisions. At the outset of the hearing, the Complainant, via her representative, accepted that she would not be permitted to recover under all legislative provisions impleaded. By submission, and during the hearing, the Complainant primarily relied upon the protections provided by the Safety, Health and Welfare at Work Act 2005.

In this regard, Section 27(1) of the Act defines “penalisation” as,

“…any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.”

Section 27(2), parts C, D & E expressly list “transfer of duties, change of location of place of work, reduction in wages or change in working hours”, the “imposition of any discipline, reprimand or other penalty (including a financial penalty)”, and “coercion or intimidation.”as forms of detriment that might give rise to a find of penalisation.

Section 27(3) of the Act the provides that,

“An employer shall not penalise or threaten penalisation against an employee for—

(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”.

In the matter of Toni and Guy Blackrock v Paul O’Neill [2010] 21 E.L.R., the Labour Court set out the following test to determine penalisation under the terms of the Act.

“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 determent 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 detriment.”

In consideration of the foregoing, the Complainant must satisfy the following tripartite test in order to be successful in her complaint under the impleaded provision. She must firstly demonstrate that she made a complaint to the Respondent in accordance with Section 27(3). Thereafter, she must demonstrate that she suffered a detriment as defined by Section 27(2). Finally, the Complainant must demonstrate a causal link between the two, in order for the detriment to be deemed penalisation for the purposes of the Act.

In assessing the relevant evidence in relation to this complaint, regard must be had to the cognisable period permitted by the legislation. In this respect, Section 6(6) of the Workplace Relations Act 2015 provides that,

“…an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

In circumstances whereby the present complaint was referred on 30th July 2024, the cognisable period of the purposes of the present complaint runs from 30th January 2024 to the date for referral. While the parties accepted that this is the case at hearing, it is also apparent that certain factual matters prior to the cognisable period are important in providing context to the overall disputes.

In this regard, the common evidence of the parties established that following her assignment to the relevant department, the Complainant engaged in a series of routine meetings with her line manager regarding her duties and day to day tasks. During these meetings it is accepted by all parties that a dispute arose regarding her attendance at her former site. The Complainant stated that returning to the site would be detrimental to her well-being, raising explicit health and safety concerns in respect of the same. By submission and in evidence, the Respondent disputed the validity of this claim, stating that the same was not grounded in any relevant medical report. Nevertheless, the Complainant’s evidence was that at or near the outset of her engagement with the relevant department within the Respondent she raised explicit matters relating to her “safety, health or welfare at work”. While the Respondent denied the validity of these complaints, no material contradiction was raised regarding the raising of the issues themselves. In these circumstances, it is apparent that the first limb of the statutory test outlined above has been met.

Following the raising of these issues, the Complainant submitted that the Respondent commenced a campaign of harassment against her. While many of the allegations of penalisation fall outside the cognisable period for the purposes of the present complaint, the establishment of the same are important on overall evidentiary basis and should be considered.  

In this regard, the Complainant submitted that following the raising of the concerns regarding attendance at the former site, the Respondent erroneously sought to classify her transfer to the department as being temporary in nature, and expressly stated that the Complainant was to be moved from the department. 

In addressing this allegation, the relevant transfer documentation was produced by both parties. Having reviewed the same, it is apparent that the job description explicitly stated that the position was permanent in nature, with the document going so far as to render the relevant statement in bold text. In addition to the same, the Complainant referenced a document described as Change to Employer Terms and Conditions HR 102”. This document describes the Complainant’s transfer as being “permanent” and “whole time”. The document is signed by the Complainant, a member of the Respondent’s HR function and the Complainant’s line manager. It is also noted that this document was executed on 22nd March 2023, at which point the Complainant’s transfer had been finalised. At the hearing, the Respondent accepted that the transfer was, and always had been, permanent in nature and submitted that the Complainant’s line manager was in error in classifying the same as temporary. Having reviewed the documentation and in consideration of the evidence of the parties, I cannot accept that this omission is attributable to a simple mistake. In this regard, it stands to reason that the Complainant’s line manager would have been intimately aware of the tenure of one of the more senior employees within the department. In the event that he was not, he could have easily verified the correct position. In this regard, while this event occurred outside of the cognisable period for the purposes of the present set of complaints, it served to create a foundation of mistrust between the parties thereafter.

In late 2023, the Complainant commenced a period of sick and personal leave, returning to work in early 2024 until the date of the referral of the complaints. The Complainant identified four primary headings of penalisation during this period, and within the cognisable period for the purposes of the present complaint: the unlawful cessation of her critical illness pay, the subsequent demand for the recovery of alleged sick leave overpayments, the Respondent’s failure to properly re-integrate her to the workplace and the imposition of an unlawful and unfair disciplinary sanction.

Regarding the first two complaints, the Adjudicator requested specific evidence regarding the nature and calculation of the alleged overpayment and the grounds for cancelling the critical illness cover. On the resumption of the third day of hearing, a witness for the Respondent attended and gave evidence on these points. In this regard, the witness stated that in order for an employee to be entered onto the critical illness cover scheme, they must first satisfy four criteria. The criteria in question are that the party must suffer meet one of the following criteria, an “acute, life-threatening physical illness”, the illness should be a “chronic progressive illness, with well-established potential to reduce life expectancy”, the employee should suffer from “major physical trauma requiring acute operative surgical treatment” or they must be an “in patient of day hospital car of 10 consecutive days or more”. On 16th August 2023, a medical report was received regarding the Complainant’s eligibility for this scheme. The report final part of the report states that the Complainant met the first criterion listed above, and potentially met the fourth. The last line of the report states that the Complainant’s “medical difficulties meet the medical criteria for CIP in my opinion”. Notwithstanding the same, the body of the report stated that “all decisions regarding payment for extended paid sick leave are made by management”. On 31st August 2023, the Complainant received correspondence stating that she had been accepted on to the scheme, and that she would be remunerated with full pay from 24th July 2023. Thereafter, on 1st September 2023, the Complainant received correspondence to the effect that she had “reached the limits of the paid sick leave under the Critical Illness Protocol and therefore will go off pay with effect from 20th August 2023.”   In circumstances whereby the critical illness protection scheme provides for six months of full-pay, in addition to sick pay previously received, it is the position of the Complainant that the revocation of this payment constituted a further act of penalisation on the part of the Respondent. In addition to the same, it is noted that this payment would potentially have been discharged within the cognisable period of the purposes of the present complaint, and as such falls to be considered in the present complaint as a potential detriment that may be attribute to penalisaiton.

In responding to this complaint, the Respondent opened correspondence from their HR function dated 8th September 2023. Herein, the relevant HR officer explained that the Complainant had indeed been approved onto the CIP scheme and was restored to full pay on 24th July 2023. In this correspondence, it was explained that while the Complainant would ordinarily be entitled to full pay for six months, the scheme has an upper limit in relation to sick days accrued over a four-year period. The correspondence in question outlines that the Complainant exceeded the four-year limit shortly after being entered onto the scheme and consequently the full pay allowance was discontinued.

In consideration of the foregoing, it apparent that the Complainant’s application of CIP was approved by her line manager in the first instance. Thereafter, it is apparent that the while the Complainant received full pay for a brief period, she was removed from the same in accordance with the rules of the scheme. In these circumstances, I find that the purported revocation of the critical illness payment does not constitute penalisation under any of the legislative provisions impleaded.

In addition to the foregoing, the Complainant submitted that she was further penalised by the Respondent’s seeking to recover wages that had allegedly been over-paid by virtue of their sick pay scheme. In this regard, the Complainant referred to correspondence date 15th March 2024, issued by her line manager. This correspondence states that the Complainant was overpaid the sum of €5,149.31 under the Respondent’s various sick pay schemes. The correspondence further outlined that the relevant periods whereby the overpay occurred related to the 14th August 2023 to 31st December 2023. The correspondence set out a schedule of sick days and sick leave availed of by the Complainant, with a break-down of the nature of the overpayment. By submission and in evidence, the Complainant submitted that this alleged overpayment of wages represented a further act of penalisation against the Complainant for having raised various issues in the course of her employment. 

In this regard, the Respondent submitted that they have an obligation, imposed by legislation, to recover wages that have been overpaid to an employee. Regarding the rationale for the attempted recovery in this instance, a business manager for the Respondent attended to the hearing in order to give evidence in relation to the nature of the overpayment issue. In this regard, she submitted that the records maintained by the previous department within the Respondent were incomplete.  In particular, she submitted that while sick leave may well have been locally recorded in the department, it was not uploaded to the Respondent’s central recording software. In evidence, she submitted that she met with a representative of the former department in order to reconcile the records across the departments. Following the completion of this exercise, it was determined that the Complainant was overpaid by the amount outlined, and in accordance with the Respondent’s internal procedures, the correspondence is question was issued to the Complainant. In this regard, the correspondence was opened from a member of the Respondent’s finance team setting out the position for the Complainant and confirming that the calculations in question were correct.

Having regard to the foregoing, I note that while the Complainant has raised issues with the timing of this correspondence and the apparent volume of issues that were being raised following her return to work following sick leave, the genesis of the issues arose from a failure of her former department to maintain correct records regarding her sick leave. In these circumstances I find that the issue regarding the overpayment cannot be attributed to a form of penalisation against the Complainant for raising issues. In this regard, the Respondent is under an obligation, imposed by legislation, to ensure that they do not overpay their employees and that when they do so, that they seek to recover to wages in question as expeditiously as possible.

Regarding the third alleged detriment, being the Respondent’s alleged failure to re-integrate the Complainant into the workplace, the Complainant has alleged that the Respondent sought to frustrate her working from home arrangements and in particular, refused to sign off on a health and safety report that would permit the commencement Complainant’s working from home. In his regard, the Complainant submitted that the Respondent was seeking to frustrate these arrangements in an effort further penalise her under the legislation impleaded.

In this regard, the report in question is titled “Blended Working Application & Declaration”. This form contains a section to be completed by the employee, with a further section to be completed by the relevant manager.  By correspondence dated 5th March 2024, the line manager stated that he had not had sight of the most recent occupational health report discussing the requirement for such a blended working environment.  He further stated that he was not in position to sign off on the same until such a time as he was in a position to consider the report and meet with the Complainant. In these circumstances it is unsurprising that the Complainant’s line manager declined to complete the report in question, and this action cannot be attributed to any form of penalisation on the part of the Respondent.

Finally, the Complainant alleged that the Respondent issued her with an illegal and procedurally unsound disciplinary sanction following her return to work. In this regard, the Complainant submitted that the Respondent’s line manager issued a disciplinary sanction in her absence and without permitting her a right of response. In evidence and by submission, the Complainant stated that the holding of any meetings with the Complainant’s line manager was in contradiction of a medical recommendation previously issued, and that the convening of such meetings, cumulating in the imposition of a disciplinary sanction by the very person she was medically advised to disengage with, was fundamentally unfair and constituted a further form of penalisation.

Regarding this aspect of the complaint, both parties sought to reply on an Occupational Health report issued on 28th February 2024.  This report states that, regarding the reporting relationship between the Complainant and her line manager that the parties “it would be in the parties best overall health and safety interests of they do not (sic) this reporting relationship at this time”. In the same section, the report goes on to observe that, “I appreciate that this is not always possible or practical”.  The report states that the Complainant “is not currently fit to engage in direct face to face meeting with her manager.” Notwithstanding the foregoing, the report ends with a series of recommendations. These recommendations state that communications should be via email rather than telephone, that if there is a vital business need to convene face to face meetings, that advance notice and an agenda be given in respect of the same and that the same be recorded. In the “Management Referral Report Release Form”, appended to the report, the Complainant stated that this report should issue to the National Director of Community Operations, as opposed to her line manager.

While the Complainant submitted that this report dictated that an alternative manager should be assigned, the Respondent submitted instead that this was a request made by the Complainant and reflected in the report, rather than a recommendation from the occupational health specialist. 

In this regard, the occupational health specialist outlined brief observations regarding the issues raised by the Complainant regarding her line manager. While the specialist could only consider the Complainant's views within a short assessment window, the report suggested that an alternative reporting line might be in the interests of the parties. The report expressly acknowledges that such an arrangement might not be practicable in the circumstances. Regarding the recommendations of the report, the same advises that face-to-face meetings should be minimised and avoided where possible, but did not state that they should never occur. Rather, it recommended that if such meetings were necessary, advance notice should be provided, and a clear agenda should be set.

On receipt of this report, it is noted that the Respondent sought to convene meetings regarding return-to-work procedures and arranged for a representative from the Human Resources department to attend as a third party. Such meetings were almost always arranged via an online platform, with minimal face-to-face contact. The Respondent submitted that removing the Complainant from the existing reporting structure was not practicable due to the small size of the department. The Respondent denied that these meeting convened were in any way oppressive and submitted that the Complainant's continued refusal to engage constituted a failure to follow reasonable instructions. It was this this alleged refusal to engage in reasonable management instructions that duly led to the imposition of the disciplinary sanction.

Having reviewed the documentation and the occupational health report, it was evident that the Complainant improperly interpreted the report as permitting a complete cessation of meetings with her line manager. The report did not support this position; it recommended minimising face-to-face contact, while noting that complete removal from the reporting structure might be impractical. The Respondent maintained that removal was impractical and that some form of managerial oversight was required. In these circumstances, it is noted that the hybrid model of working and the proposed meeting format represented a reasonable compromise in the circumstances. While the Complainant clearly disagrees with the imposition of the disciplinary sanction, I find the same arose as a consequence of the Respondent sincerely held belief that the Complainant was frustrating the proposed return to work as opposed to any form of retaliation for formerly raising concerns.

In summary in I find that the Complainant raised various health and safety concerns at or near the commencement of her engagement with the department within the Respondent organisation. Thereafter I find that the Respondent sought to mis-characterise the tenure of her engagement within the department.  This initial mischaracterisation of the Complainant’s tenure, and the ongoing repetition of the same at the relevant time, served to create an atmosphere of mistrust between the parties.

Regarding the allegations of penalisation arising within the cognisable period for the purposes of the present complaint, I find that the purported revocation of the critical illness cover and the attempted recovery of overpaid wages arose on foot of the Complainant’s exhausting the four-year maximum limit for such leave, and was processed in accordance with the standard procedure of the Respondent. In these circumstances, I find that the same cannot constitute penalisation under any of the legislative provisions impleaded.

Finally, I find that the allegations regarding the Respondent failure to re-integrate the Complainant into the workplace and the imposition of the disciplinary sanction constitute detriments that arose as a consequence of the parties competing interpretations of the recommendations containing within the occupational health report referenced above and cannot be attributed to raising various concerns in the course of her engagement.

Having regard to the accumulation of the foregoing points, I find that the complaint is not well-founded.

CA-00065977-003 – Complaint under the Term of Employment (Information) Act

Regarding this individual complaint, the Complainant alleged that the Respondent failed to provide her within updated terms on the commencement with the department. In circumstances whereby the Complainant’s core terms and conditions were unaltered following the transfer, I find that the complaint is not well founded.

CA-00065977-009 – Complaint under the Employment Equality Acts

Regarding this complaint, the Complainant alleged that the imposition of the disciplinary sanction arose as a consequence of discrimination on the grounds of disability. She further submitted that the Respondent failed to provide a reasonable accommodation for her return to employment.

In this regard, Section 6 of the Employment Equality Act prohibits discrimination any discriminatory ground.

Subsection (1)(a) of that Section provides that,

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where:

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In the matter of Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this “Mitchell Test” was comprised of the following three steps:

“It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so he or she cannot succeed.

If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent”

Regarding the present case, the Complainant has alleged that the imposition of the disciplinary sanction constituted a form of discrimination on the grounds of disability. While the Respondent submitted that the Complainant did not identify the precise nature of her disability, it is further noted that the Complainant was absent from work for an extended period of time prior to the cognisable period for the purposes of the present complaint. In this regard, it is further noted that the Complainant received numerous medical reports outlining her medical issues and, as noted above, was accepted onto the Respondent’s critical illness pay scheme. In these circumstances I find that the Complainant did suffer from a disability as defined by Section 2 of the Act.

Regarding the allegations of discrimination, the Complainant has alleged that the imposition of the disciplinary sanction arose as a consequence of her medically recommended the cessation of direct meetings with her line manager. As noted above, while the relevant medical report did make recommendations of this nature, these were qualified within the report, and the Respondent was entitled to maintain a reporting structure within the department subject to these qualifications. In these circumstances, the imposition of the disciplinary sanction arose, not as a consequence of discrimination on the grounds of disability, but as a result of the differing interpretation of the relevant medical report. In these circumstances, I find that the Complainant has not established the primary facts upon which an inference of discrimination may be drawn, and as a consequence I find that she was not discriminated within the meaning of the Act.

Regarding an employer’s duty to provide reasonable accommodation, Section 16(3)(b) of the Employment Equality Act provides that,

“For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.”

Section 16(3)(b) provides that,

“The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

i.                     to have access to employment,

       ii.            to participate or advance in employment, or

     iii.            to undergo training,

unless the measures would impose a disproportionate burden on the employer.”

In the case of Nano Nagle School -v- Daly [2019] IESC 63, the Supreme Court discussed an employer’s duty to provide such reasonable accommodation. Here the Court held as follows,

“… s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

In the matter of Cunningham v Irish Prison Service [2020] IEHC 282, Barr J held that,

“Justice requires that the person suffering from the disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them, which was not unduly burdensome to the employer and did not impair the operational capacity”

In the matter of Humphries v Westwood Fitness Club [2004] 15 E.L.R. 296, the Labour Court held that in assessing the requirements for a potential reasonable accommodation, an employer would, “normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity”.

The Court went on to state that,

“It is generally accepted that the nature and extent of the enquiries which an employer should make will depend on the circumstances of each case and the questions which the employer is considering”.

Regarding this element of the complaint, the Complainant has alleged that the Respondent failed to properly implement and actively sought to frustrate her medically advised working from home and remote working arrangements.

As set out above, the Complainant is correct in her assertion that the relevant medical report unambiguously recommended that the Complainant be permitted to work from home within a hybrid model. Notwithstanding the same, it is also the case that the Complainant did not permit this report to be released to her line manager, and he did not have sight of the recommendation contained within for some time thereafter. In these circumstances, the Complainant’s line manager initially refused to sign off on the health and safety report required to facilitate working from home until he had sight of the relevant report. The report in question expressly requires sign off from the Complainant’s line manager and it not unreasonable that he would, initially at least, refuse to do so without sight of the report in question.

In addition to the foregoing, the Complainant further submitted that the Respondent continued to insist that the Complainant have direct contact with her line manager. By the Complainant’s evidence, this was in direct contravention of the outcome of the medical report and represented a further failure on the part of the Respondent to make efforts to re-integrate her into the workplace and provide reasonable accommodation as required by Section 16.

Again, it is noted that the source of this dispute arises from the differing interpretations of the relevant medical report. From the evidence provided, it is apparent that following the line manager receiving sight of the report, meetings were convened by way of a remote platform with a third-party present for the duration of the meeting. In the circumstances, this represents a reasonable compromise as regards an effort to implement the findings of the report while maintaining the Complainant within the Respondent’s existing reporting structure.

Having regard to the accumulation of the foregoing points, I find that the Complainant was not discriminated against or victimised within the meaning of the Act. 

CA-00065977-010 – Complaint under the Parental Leave Act

This complaint was withdrawn by the Complainant during the hearing, is consequently deemed to be not well-founded.

CA-00065977-012 – Complaint under the Work Life Balance and Miscellaneous Provisions Act 2023

Regarding this particular complaint, in consideration of the findings above, I find that the Complainant did not suffer any form of penalisation, as defined by the Act, in in the course of her employment. In these circumstances, I find that the complaint is not well-founded.

CA-00065977-013 – Complaint under the Health Act

Regarding this particular complaint, in consideration of the findings above, I find that the Complainant did not suffer any form of penalisation, as defined by the Act, in the course of her employment. In these circumstances, I find that the complaint is not well-founded.

CA-00065977-014 – Complaint under the Parental Leave Act

This complaint was withdrawn by the Complainant during the hearing, is consequently deemed to be not well-founded.

CA-00065977-003 – Complaint under the Term of Employment (Information) Act

I find that the complaint is not well-founded.

CA-00065977-009 – Complaint under the Employment Equality Acts

I find that the Complainant was not discriminated against or victimised within the meaning of the Act.

CA-00065977-010 – Complaint under the Parental Leave Act

I find that the complaint is not well-founded.

CA-00065977-011 – Complaint under the Safety, Health and Welfare at Work Act

I find that the complaint is not well-founded.

CA-00065977-012 – Complaint under the Work Life Balance and Miscellaneous Provisions Act 2023

I find that the complaint is not well-founded.

CA-00065977-013 – Complaint under the Health Act

I find that the complaint is not well-founded.

CA-00065977-014 – Complaint under the Parental Leave Act

I find that the complaint is not well-founded.

Penalisation, Detriment, Cognisable Period, Recordings