ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00029255

Parties:

Complaint(s):

Date of Adjudication Hearing:  24/08/2021

Workplace Relations Commission Adjudication Officer:  Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the hearing as well as any written submissions disclosed in advance of the hearing.

The Complainant herein has submitted a complaint under Section 20 of the Industrial Relations (Amendment) Act 2015 which protects employees form being penalised for having invoked certain rights set out on Chapter 3 of the said 2015 Act or for making a complaint to the WRC concerning a contravention.

“Penalisation” in the context of s. 20 (1) of the Industrial Relations (Amendment) Act of 2015 would include (but is not limited to) suspension, lay-off, demotion, transfer of duty, imposition of discipline or penalty and coercion or intimidation. The penalisation will usually be an identifiable act or omission on the part of the employer which affects, to his or her detriment, the employee. The word “detriment” is given it's ordinary and natural meaning of causing harm or damage (Per Hyland J. in the case of Conway  -v-  Department of Agriculture 2020 IEHC665)

It is noted that Section 20(4) of the Actprovides that penalisation may include Dismissal and further specifies that if the penalisation constitutes dismissal the employee may institute proceedings under the Unfair Dismissals legislation.

Section 23  of the Industrial Relations Amendment Act 2015 confirms that a decision of an adjudication officer under section 41 of the Workplace Relations Act in relation to a complaint of a contravention of Section 20 of the IR (A) Act shall do one or more of the following –

Declare the complaint was well founded (or not as the case may be);

Require the Employer to take a specific course of Action;

Require the Employer to pay to the Employee compensation of such an amount that the Adjudicator considers just and equitable in the circumstances.

The initial burden of proof is on the complainant to establish the existence a protected act and a detriment. If and only if the complainant establishes a protected act and a detriment does the burden shift to the respondent to put forward evidence that the detriment suffered was not due to the protected act being the operative cause.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the  Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up by an appointed member of the WRC administrative staff.

I am satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

Background:

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Dated:   26th August 2021

Workplace Relations Commission Adjudication Officer:  Penelope McGrath

Key Words: