ADJ-00015638

Complainant

Respondent

Anonymised Parties

A Product Builder

A Medical Devices Company

Representatives

Kate Kennedy BL instructed by  Kennedy Fitzgerald Solicitors

John Brennan Ibec West

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00020381-001

06/07/2018

The Complainant commenced employment with the Respondent, a Medical Devices company, on 20 March 2000, in the role of Product Builder/Project Support. An incident took place in the workplace on 31 May 2017 in the laboratory, in which the Complainant was working at the time. The Complainant alleges that three of his colleagues acted aggressively towards him and verbally abused him on that date. The Complainant also alleged that he had experienced a hostile environment in the weeks leading up to the incident on 31 May 2017. The Complainant made an informal complaint to his supervisor (Mr A), who met with all parties involved and determined that the matter had been a “clash of personalities”. According to the Complainant, following the incident on 31 May, he limited the time he spent in the laboratory to an absolute minimum, as he became anxious and embarrassed when working in that location. In July 2017, the Product Development Manager (Mr B) requested the Complainant to provide additional support for Tech Writers in an effort to reduce any potential risk of schedule delay with a new product build. As a result, certain tasks were removed from the Complainant’s responsibility in order to create capacity for him to provide this additional support. On 17 November 2017, the Complainant’s then supervisor (Mr C), advised him that, as a result of delays which had occurred in certain product schedules, he (the Complainant) was required to spend a portion of his day assisting in the effort to alleviate the impact of the delays. This required the Complainant to spend additional time working in the laboratory. As Mr B was unaware of the May incident, the Complainant emailed him on 20 November 2017 outlining his concerns regarding the earlier incident and his reluctance to increase the time he had to spend in the laboratory. On 18 December 2017, the Complainant had a meeting with Mr C in relation to the matter. The Complainant also had a meeting with the product Business Partner (Mr D) on 20 December 2017. The Complainant had a further meeting with his supervisor, (Mr C) on 10 January 2018, at which the latter reaffirmed the requirement for the Complainant to carry out work in the laboratory. On the following day, 11 January 2018, Mr C sent an email to the Complainant setting out, inter alia, the list of tasks he was required to do and the requirement to cease all other activities. In addition, this email indicated that, with effect from 12 January 2018, there would be no more over time. Following this, the Complainant was on certified sick leave until March 2019, when he returned to work. On 6 July 2018, the Complainant submitted a complaint to the Workplace Relations Commission, alleging penalisation under the Safety, Health & Welfare at Work Act, 2005. That complaint is the subject of this adjudication.

Detailed evidence was submitted by and on behalf of the Complainant in support of his claim of penalisation. The Complainant provided significant detail in relation to the background to his complaint and, in particular, the incident of 31 May 2017, the impact it and the Respondent’s alleged failure to deal with it appropriately had on him and his career.

In summary, the Complainant submitted that:

·         He had been experiencing a hostile work environment in the weeks leading up to the incident of 31 May 2017.

·         As a result of the incident, he felt uncomfortable working in that particular laboratory thereafter.

·         He refuted the allegation, made by his supervisor (Mr A) to whom he reported the incident, that the incident was effectively his fault.

·         As a result of the incident on 31 May he avoided, unless absolutely necessary, entering or spending time in the laboratory in question.

·         Out of fear of retaliation, he felt he could not report the incident to HR.

·         In November 2017, when he was requested to carry out work which would have required him to spend more time in that laboratory, his then supervisor (Mr B) was dismissive of his protestations and his concerns in relation to his health. According to the Complainant’s evidence, as a result of his efforts to resolve his ongoing issues, his role within the company was significantly curtailed and his training, pathway to promotion and his over-time (which typically accounted for 20 – 25% of his gross annual salary) were all removed. The Complainant submitted that, by reason of the matters detailed in his complaint, he became so unwell that he was certified unfit to work and remained out of work for a period of 14 months. According to the Complainant, he was subjected to an entirely unprovoked and unwarranted verbal attack by three of his colleagues. The Complainant further stated that when he reported the incident and expected it to be investigated, he was, in fact, accused of being responsible for the incident. According to the Complainant, as a result of the incident on 31 May 2017 and the Respondent’s alleged refusal to deal with it appropriately, he became very unwell. The Complainant further submitted that the behaviour of his supervisor (Mr C) from November 2017 onwards caused him to suffer considerable upset and anxiety. In conclusion, the Complainant submitted that, when he reported the ongoing issues and the detrimental impact it was having on his health/well-being, he was penalised. According to the Complainant, his role within the company was significantly curtailed to the extent that he considered himself to have been demoted. In addition, the Complainant contends that the removal of his training significantly reduced his promotion prospects. Based on the above, the Complainant contends that, by their actions of 11 January 2018, the Respondent contravened Section 27 of the 2005 Act.

Introduction:

The Respondent disputed the Complainant’s claims that his treatment amounted to an act of penalisation under Section 27 of the Safety, Health and Welfare at Work Act, 2005. However, prior to submitting their arguments in support of the review in this regard, the Respondent raised a preliminary point.

Preliminary Point:

According to the Respondent’s submission, there is a lack of jurisdiction for this claim to be heard. The Respondent referred to the statutory time limits, (six months), and submitted that the original complaint, of 1 June 2017, which is now being passed off as the “complaint” under Section 27 (3) of the 2005 Act was already closed and dealt with by all parties. According to the Respondent, the original complaint of 1 June 2017 cannot now be raised or resurrected afresh as the Complainant is seeking to do in this case. In support of the submission in this regard, the Respondent referenced Section 28 (4) of the 2005 Act, which states that a complaint must be submitted within six months of the date of contravention. In addition, the Respondent referenced Section 41 (1) of the Workplace Relations Commission Act, 2015, wherein it states that an adjudication officer should not entertain a complaint referred after the expiration of a period of six months beginning on the date of the contravention to which the complaint relates. According to the Respondent’s submission, the alleged incident, which is the subject of the Complainant’s complaint, happened on 31 May 2017. The Respondent submitted that the Complainant made an informal complaint, to his supervisor (Mr A). According to the Respondent’s evidence, having conducted a short enquiry, in which he met with all parties involved, Mr A came to the conclusion that the matter represented a clash of personalities and spoke to all parties accordingly. The Respondent further submitted that the Complainant did not appeal the outcome of Mr A’s enquiry at the time nor did he seek to bring a more a more formal complaint or formalise the matter in any way thereafter. Consequently, the Respondent submitted that the matter was dealt with and closed as far as they were concerned and there was no further escalation by either side, until the Complainant raised the same matters afresh with his new supervisor (Mr C), in or around mid-November 2017. According to the Respondent, the Complainant raised the same matter again in a formal letter of complaint, dated 13 July 2018 which was submitted to the Respondent’s HR Business Partner (Ms E). The Respondent submitted that, notwithstanding the fact that the Complainant’s complaint of 13 July 2018 was investigated, his claim was a reiteration of the previous complaint long dealt with and closed. Consequently, the Respondent submitted that the complaint submitted to the WRC, on 6 July 2018, by the Complainant has to be seen as an attempt to resurrect an old, closed complaint, which the Adjudication Officer has no jurisdiction to hear given that it is out of time.

Substantive arguments:

Notwithstanding the preliminary point as set out above, the Respondent’s representative proceeded to make the following submission in reply to the Complainant’s substantive complaint. According to the Respondent’s submission, the Complainant is alleging that the act of supposed penalisation was demotion, loss of overtime and loss of promotional opportunities. In addition, the Respondent submitted that the causal action for this purported penalisation was his earlier complaint of 1 June 2017 and the fallout therefrom. The Respondent submitted that the Complainant failed to fulfil the appropriate and established burden of proof, which was required to entitle him to claim redress under the Safety, Health and Welfare at Work Act, 2005. In supported this element of the submission, the Respondent made reference to Sections 27 (1) and (3) of the 2005 Act. According to the Respondent, the jurisdiction of the WRC to hear the claim under this act is limited to circumstances where penalisation occurs as a consequence of an employee’s actions as set out under Section (3) of the Act. In support of the submission in this regard, the Respondent cited the cases of Patrick Kelly t/a Western Insulation v Girdzuis [HSD081] and Toni & Guy Blackrock v Paul O’Neill [(2010) 21 E.L.R 1] The Respondent further submitted that case law has established that making a complaint is considered a protected act so long as such complaints are grounded in the provision of a relevant statutory provision and relate to safety. In this regard, the Respondent submitted that the Labour Court has held that their jurisdiction, in relation to complaints under Section 27 (3) of the Act, which sets out the protected acts on which a complainant may rely, is very narrow in that complaints must strictly relate to safety and health at work. Based on this, the Respondent submitted that the Complainant’s real difficulty lay in establishing that the detriments complained of were imposed as a reaction to the commission of his alleged protected act. According to the Respondent’s submission, in order for any act or omission complained of to be found to be penalisation for the purposes of Section 27 of the Act, between that detriment and the protected act relied upon. The Respondent submitted that, in this regard, the Labour Court has stated on numerous occasions that a failure to comply with the general health and safety provisions of the 2005 Act, in and of itself, cannot constitute penalisation. In support of the submission in this regard, the Respondent cited the cases of St John’s National School v Jacinta Akduman [(2010) 21 E.L.R. 301, Electric Rewind Service (Limerick) Ltd v James Earls [HSD121 – January 2012] and the Minister for Justice v John Healy [[HSD132 – February 6, 2013]. In summary, based on the determinations in the above cases, the Respondent submitted that while a failure on the part of the employer may amount to a contravention of other provisions of the Act or give rise to liability at common law, it does not amount to an unlawful penalisation unless it was imposed for having committed protected acts or was found to be retaliatory in nature. According to the Respondent’s submission, the Complainant, in the within case, has not established that any purported detriment was imposed because of or was in retaliation for, him having acted in a manner referred to at Subsection 27 (3) of the Act. The Respondent submitted that the loss in overtime was department wide and fluctuates across time. It was further submitted that had the Complainant remained in his post, his over time would have returned as it did for his co-workers. According to the Respondent, the Complainant’s supervisor was implementing a management team decision, which was not in retaliation for his alleged health and safety complaint. The Respondent further submitted that the Complainant had difficulty carrying out work and instruction to do certain works within his grade, which he considered beneath him. In conclusion, based on the above arguments, the Respondent submitted that no jurisdiction existed for the Complainant’s claim as there was no real protected act, nor penalisation and no detriment. Consequently, the Respondent submitted that there was no case to answer and that the Complainant’s claim in this regard should be rejected.

Having reviewed all of the evidence submitted by and on behalf of the Complainant and the Respondent, I commenced my consideration of the complaint by addressing the issue raised by the Respondent as a preliminary point.

Preliminary Point:

According to the Respondent’s submission, there is a lack of jurisdiction for the hearing of the claim on the grounds that statutory time limits in this regard have been breached. On the grounds that the Complainant’s complaint arose out of an incident on 31 May 2017, the Respondent submitted that in line with the appropriate provisions of Section 28 (4) of the Safety, Health and Welfare at Work Act, 2005, and Section 41 (6), the Complainant should have submitted his complaint within six months of the date of contravention, i.e. 31 May 2017. On the basis that the Complainant did not submit his complaint until 6 July 2018, the Respondent submitted that the complaint is out of date and, as a result, no jurisdiction to hear the complaint exists. In response, it was submitted, on behalf of the Complainant, that the date on which the penalisation took place was 11 January 2018. It was further submitted that the pertinent date is not the date the issues were raised by the Respondent with his employer, but the date on which the employer responded in a negative way, thereby penalising the employee. According to the Complainant’s submission, although he had been in discussion with his supervisor and HR during November/December 2017, he had nothing to complain about prior to 11 January 2018, when he received the email which he contends contained the penalisation elements. Consequently, it was submitted that jurisdiction did exist to hear this case. Having carefully reviewed the evidence adduced in this regard, I am satisfied that the actions of his employer, which the Complainant contends represented the penalisation, were advised to him in an email, dated 11 January 2018, from his supervisor (Mr C). Consequently, on that basis, I find the Complainant’s submission of his complaint to the WRC on 6 July 2018 to comply with the provisions of the appropriate statutes in relation to time limits and, as a result, that I have jurisdiction to hear his complaint. In light of the above finding, I proceeded to consider the Complainant’s substantive complaint.

Substantive Complaint:

According to the Complainant’s complaint, he was penalised for reporting ongoing issues which were having a detrimental impact on his health and well-being. The issues in question related to an incident which occurred on 31 May 2017, the follow-on to which, the Complainant contends, was the main reason he was reluctant to accept a realignment of duties/responsibilities, in November/December 2017, as it required him spending more time in the laboratory where his colleagues, who were involved in the incidents in May, were still working. The Complainant further contends that the raising of these issues with line management, in November/December 2017, in the context of the realignment of duties, led to acts of penalisation which included demotion, removal of training/career opportunities and the elimination of overtime. Having carefully reviewed all of the evidence adduced in this case, I am satisfied that the incident of 31 May 2017 is key to any objective assessment of the Complainant’s complaint. Considerations in this regard were significantly assisted by the availability of an Independent Investigation, which was conducted on behalf of the Respondent, in response to a formal grievance raised by the Complainant on 13 July 2018. The incidents which occurred on 31 May 2017 were included in the scope of this investigation. The Report of the independent Investigator confirms that two incidents took place on 31 May 2017, which involved the Complainant and three of his colleagues. The Report finds that, following the reporting of the incidents to him by the Complainant and the other staff involved, the supervisor in charge (Mr A) interviewed all four staff involved. The Report finds that, following those interviews, Mr A concluded that “there had been some form of confrontation but that it didn’t warrant any action beyond discussing the issue with all involved and identifying the required behaviour going forward”. In addition, I note that the Independent Investigator found no evidence to suggest that the Complainant sought to appeal the outcome of this process or in any way to indicate his dissatisfaction with Mr A’s handling of the matter. From a review of the evidence presented to this Hearing, it would appear that, in the period following the incidents of 31 May 2017, the Complainant limited the amount of time he spent in the laboratory where the incidents took place. There is no evidence to suggest that this action, on the Complainant’s behalf, took place in consultation with management or that the latter were even aware of same. It also would appear that the amount of time the Complainant spent in the laboratory was as much to do with his work requirements as any issues with his colleagues. In any event, there is no evidence to suggest that any further incidents occurred for the remainder of 2017. Based on the above, I am satisfied that the altercations, which occurred on 31 May 2017, between the Complainant and a number of his work colleagues represented a once off incident, as opposed to a serious breach of the Disciplinary Code and/or Dignity at Work policy, by any of the parties involved. I am also satisfied that Mr A’s handling of the matter, when it was brought to his attention, was appropriate in the circumstances, a view which was confirmed by the independent Investigator, who found Mr A’s approach to the matter to be “completely plausible”. Consequently, taking all of the above into consideration, I am satisfied that the matters relating to the incidents of 31 May 2017 were considered as closed by all parties, including, I believe, the Complainant. In any event, I am fully satisfied that matters pertaining to the incidents of 31 May 2017 do not form a reasonable or legitimate basis for subsequent complaint. In addition, I am satisfied that the Complainant did not suffer any detriment as a result of the incidents, of 31 May 2017, either as a result of his role in the altercations which took place or his reporting of the matter to his supervisor, at the time. On the contrary, documentary evidence was submitted, which clearly shows that in July 2017, in a response to some temporary business challenges, the Complainant was required to “re-task some of his day to help us for a period of time”. As part of this initiative, the Complainant was also provided with an opportunity to train on technical writing work, in order to support a particular project team. These developments, which were welcomed by the Complainant and which also provided significant opportunity for upskilling and improving his competency base, are, in my view, a clear indication that the events of 31 May 2017 were no longer a live issue and that, from a management perspective, they had not impacted in any way on the Complainant and/or his role within the company. However, notwithstanding the above conclusion, the events of 31 May 2017 were raised again by the Complainant when, in November 2017, further changes in his roles/responsibilities were proposed by management, in response to a business need. According to the evidence submitted, the Complainant was unhappy that the proposed changes would require him spending additional time in the laboratory where the incidents of 31 May 2017 had occurred. The Complainant’s correspondence dated 20 November 2017, to his then supervisor, Mr C, stated that there had been “several incidents over the past few months” which made him uncomfortable, to the extent that he did not wish to spend additional time in the laboratory. It should be noted, that, as already stated above, the evidence adduced at this Hearing, does not support the contention that “several incidents” had occurred in the “a few months” leading up to the Complainant’s correspondence of 20 November 2017. Consequently, it can only be assumed that the Complainant was, once again, referring to the incidents of 31 May 2017. However, notwithstanding this, according to the evidence adduced, a number of discussions took place, in the November/December 2017 period, between the Complainant and Mr C, in relation to the concerns being raised by the former with regard to the proposed changes to his duties. In addition, the evidence indicates that Mr C subsequently attended a meeting with representatives of the HR Team, on 19 December 2017, to discuss these issues.

Arising from this meeting, the Senior HR Business Partner (Mr D) sent an email, dated 20 December 2017 to the Complainant. This correspondence set out, inter alia, the following:

§  There was an unavoidable requirement for the Complainant to do the work being required by his supervisor, Mr C, for a period of about six weeks.

§  The supervisor would explore alternative work locations in order to limit, as much as possible, the need for him to work within the laboratory in question.

§  A formal Occupational Health review would be organised in the event that there was an underlying health condition that may require work restrictions to be taken into account.

Further discussions took place between the Complainant and Mr C, on 10 January 2018, following which, Mr C sent an email to the Complainant, dated 11 January 2018, in which he confirmed the revised duties/responsibilities, which were to commence with immediate effect. In addition, this correspondence also advised that, commencing, 12 January 2018, there would be no more over time. The evidence indicates that the Complainant left work early on 11 January 2018 and, having submitted a sick cert the following day, did not return to work until March 2019. On 6 July 2018, the Complainant submitted his complaint of penalisation, to the WRC, the basis for which was the 11 January 2018 email from Mr C. Then, on 13 July 2018, the Complainant submitted a formal grievance to HR. This grievance appears to contain two elements. The first related to the incidents on 31 May 2017, which the Complainant set out in significant detail. Secondly, the Complainant appears aggrieved that the impact the May 2017 incidents had on him was ignored by management when implementing changes to his role in November/December 2017. In particular, the Complainant stated that “as a result of my efforts to resolve the ongoing issues at work, which were having a significant adverse effect on my health and well-being, I had my role within the company significantly curtailed. Notwithstanding the fact that the events of 31 May 2017 took place over 12 months previously and had been dealt with at the time, the Respondent decided to include it as part of the terms of reference of the Independent Investigation which took place into the Complainant’s grievance as submitted on 13 July 2018. The specific findings of the independent Investigation with regard to the incidents of 31 May 2017, have already been referred to above. With regards to the second element of the Complainant’s grievance, the Independent Investigator found, inter alia, as follows:

§  It is clear that Mr C did take on board the Complainant’s stated concerns about working in the lab and while they continued to have discussions about the work involved, there is no evidence to indicate that the Complainant was actually sent to work in the laboratory.

§  It is highly improbable that the decision, that the Complainant would cease technical writing work, was taken by Mr C in isolation or without consultation with other members of management. Therefore, the suggestion that this was an intentional action to penalise the Complainant is not plausible.

§  The Complainant’s technical writing activity was never established for the purpose of his future career prospects but rather was put in place to need (sic) to meet a specific business need, at a point in time.

§  The reassignment of the Complainant’s work activity would have been primarily driven by the needs of the business and the relevant work activities at that point in time.

§  There is no evidence that the Complainant was effectively demoted.

§  It is clear there had been a management level decision to reduce overtime levels during Q1 2018. While acknowledging that this (the reduction in overtime) possibly would have led to a significant reduction in the Complainant’s earnings, it was wholly inaccurate to suggest that this was the fault of Mr C. The investigation of the Complainant’s grievance was undertaken by an independent, external Investigator. Having carefully reviewed the Report of that investigation, I am satisfied that the Investigator appears to have conducted a fair/balanced process and that, based on the evidence available to him, has reached what appear to be reasoned and reasonable findings in the circumstances. However, notwithstanding the fact that the Complainant’s complaint to the WRC is based on the same set of facts, his complaint is one of penalisation and, therefore, its consideration requires more specific assessment and the application of the relevant statutory provisions pertaining to penalisation. In this case, the relevant statutory provisions are those contained in Section 27 of the Safety, Health and Welfare at Work Act, 2005. The following sections are particularly relevant:

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

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

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

(b) demotion or loss of opportunity for promotion,

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

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

(e) coercion or intimidation”.

 and

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

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

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

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

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

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

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger”. Based on the evidence submitted, I am satisfied that, in the within case, the specific claim of penalisation is based on the application of subsection 27(3)(e) of the Act, as it relates to the making of a complaint or representation regarding safety, health and welfare at work matter. The Labour Court made specific reference to the application of Section 27(3) in the case of Patrick Kelly t/a Western Installation v Girdzius [HSD081], when they set out the burden of proof required in such circumstances as follows: “It is clear from a plain reading of subsection (3a) of this section that penalisation is rendered unlawful under the Act when it is perpetrated on an employee for having performed or committed one or more of the acts referred to in the succeeding paragraphs of this section. Thus it is perfectly plain that in order to succeed in the cause of action grounded on the Section a claimant must establish not only that he/she suffered a detriment of the type referred to at (1) but that the detriment was imposed because of, or was in retaliation for, the employee having acted in a manner referred to at subsection (3a).” The standards pertaining to burden of proof, as set out in the above case, are also reflected in a number of other Labour Court cases. From these cases, it is clear that a Complainant is, therefore, required to establish that the detriments complained of were imposed “because of or in retaliation for” him having raised concerns in relation to the health and safety matters. This gives rise to what is commonly referred to as the “but for” test. Therefore, for the Complainant in the within case to be successful in his claim, he is required to establish that the alleged detriments of demotion, removal of training and promotional opportunities and the reduction in overtime, occurred because he made a complaint with regard to the incidents of 31 May 2017 and their ongoing impact . The evidence clearly shows that the Complainant did not, in the 5/6 months following the incidents of 31 May 2017, appeal the outcome of Mr A’s enquiries into the matter nor did he (the Complainant) escalate his concerns to more senior management or to HR. In addition, there is no evidence to suggest that there were any further incidents involving the Complainant and his colleagues between May and November 2017 when Mr C met with the Complainant to advise him of the changes in his duties/responsibilities. In his direct evidence to the Hearing, Mr C confirmed that when he met with the Complainant, on 17 November 2017, to discuss the possible changes to his work requirements due to business needs, he was unaware of the incidents of 31 May 2017 and/or any fallout from those incidents. Mr C also stated, in evidence, that, when they met on 17 November 2017, there was initial negativity from the Complainant with regard to the proposed changes. According to Mr C’s evidence, the Complainant maintained this resistance for the first 10 minutes of the meeting before he (the Complainant) referred to the incident at 31 May 2017. Based on this evidence, there can be no basis or logic to the Complainant’s claim that the changes being introduced in November 2017 were motivated or influenced by the events of 31 May 2017 and any subsequent impact that may have resulted therefrom. In his evidence, the Complainant placed specific emphasis on the contention that, when he brought his concerns, arising from the impact of the events of 31 May, to Mr C’s attention in November 2017, he was dismissive of his (the Complainant’s) pleadings in this regard. However, if the Complainant is basing his claim on Mr C’s reaction once the matter was brought to his attention, then this clearly undermines the penalisation aspect of the claim, which would require him proving that the changes being proposed to his role were motivated in some way by the events of 31 May. If, as the evidence demonstrates, Mr C was unaware of these events, or the issues that they give rise to for the Complainant, at the time he proposed the changes to the latter’s role, then it follows that those proposals could not have been in retaliation for what had gone before. Taking all of the above into consideration, I find that the Complainant has failed to establish the required burden of proof. While the above finding provides sufficient grounds, on its own, to warrant dismissal of the Complainant’s claim of penalisation, it should be noted, for the record that, having carefully considered all of the evidence adduced, I am also strongly of the view that the detriments presented by the Complainant in support of his claim are not well-founded either. I am satisfied that the proposed changes to the Complainant’s duties/responsibilities in November/December 2017 could, in any way, be considered as a demotion. The evidence contained in an email dated 20 July 2017 from a Senior Programme Manager confirms my view that the duties/responsibilities assigned to the Complainant at that point in time were clearly temporary in nature and were in response to a business need at that point in time. Consequently, a change in these duties/responsibilities, which were occasioned by another business need in November 2017, could not be construed as a demotion for the Complainant. In addition, I am further satisfied that the allocation of new duties/responsibilities to the Complainant, in November 2017, did not represent a block on or diminution of his opportunities for advancement or promotion within the organisation. Finally, with regard to the issue of the ban on overtime, I am fully satisfied, based on the evidence presented in this regard, that the decision to ban or reduce overtime in the first quarter of 2018 was a broad management decision, made at a level/grade above that of Mr C and, therefore, could not be construed as a unilateral decision taken by Mr C against the Complainant specifically. Therefore, taking all of the above into consideration, I conclude that (a) the Complainant failed to establish a link between the incidents of 31 May 2017 and the changes to his duties proposed in November 2017 and (b) the evidence did not support his contention that he suffered any detriment in this regard.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s claim of penalisation under Section 28 of the Safety, Health and Welfare at Work Act, 2005, is not well founded and is, therefore, rejected.

Health, Safety and Welfare at Work Act 2005

Penalisation