Complainant

Respondent

Anonymised Parties

A Teacher

Board of Management of a School

Representatives

Brother

JMB

Act

Complaint 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-00033258-001

13/12/2019

The Complainant is a secondary school teacher, she started her employment with the Respondent in August 2006.

The Complainant referred her complaint to the Director General of the WRC alleging that she was penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act, 2005.

The Complainant was represented by her brother. The Respondent was represented by the Joint Managerial Body.

The present complaint was heard in conjunction with ADJ-00026817 against the former Chair of the Board of Management, and ADJ-00026818 against the Principal of the School.

At the outset of the hearing, the Respondent raised a preliminary issue in relation to the correct respondent. The Respondent asserted that the cases are identical and that the appropriate respondent in a complaint of penalisation under the Act is the employer or former employer of the Complainant. The Respondent argued that the Board of Management of the School should be the only named respondent in the complaints before the WRC.

At the adjudication hearing the Complainant withdrew her claims bearing reference numbers ADJ-00026817 against the former Chairperson of the Board of Management and ADJ-00026818 against the Principal of the School.  The Complainant was informed that, consequently, the WRC has no further jurisdiction regarding the above matter and no further action will be taken in respect of the two claims.

The Complainant’s submits as follows:

The Complainant’s initial grievance arose when on 14th January 2019 in the office of the Principal, the Principal shouted at the Complainant and made false accusations against her. Over the following weeks, there were instances where the Principal appeared to deliberately undermine the Complainant’s role as a teacher. The Complainant claims that she was also falsely accused of not contributing adequately in her role as a guidance counsellor.

The Complainant submits that the Principal only wanted to meet the Complainant on her terms, and the Complainant was genuinely afraid of her. The Complainant then decided to go to the Chairperson of the Board of Management of the school to seek support to have her grievance investigated impartially. The Complainant submits that all she wanted was an apology and an assurance she would not be subjected to any further episodes of intimidating and undermining behaviour.

The Complainant claims that the Chairperson refused to assist her and despite disclosing to the Chairperson her fear of the Principal, the Chairperson was still insistent that the only way to resolve the Complainant’s grievance was to go back and face the Principal. Of note also is that she never allowed the Complainant to discuss the nature of her grievance.

The Complainant claims that she then submitted her grievance in writing to the Chairperson as her "contact person" expecting that an impartial investigation would follow and that was also denied. It then became clear to the Complainant that the Principal and the Chairperson were determined to suppress the matter completely by not facilitating an opportunity to investigate her grievance.

The Complainant then copied her grievance to the other members of the Board of Management and informed the Chairperson that she was doing so. The Chairperson immediately wrote to the Board members demanding that they completely ignore the grievance and instructed them not to contact the Complainant or to discuss the matter amongst themselves. On learning this from the Board members, the Complainant informed the Chairperson that she was referring her grievance to the WRC for adjudication under the Industrial Relations Act, 1969 because she completely lost the trust in the Chairperson.

At the WRC adjudication hearing into the case under the Industrial Relations Act, the Principal and the Chairperson raised the issue of the Complainant being a secondary teacher and not having locus standi under the Act. On submitting her grievance, the Complainant was not aware of the Locus Standi matter and she did not expect her case not progressing on that basis.

Whilst awaiting a recommendation from the WRC after the hearing, it came to the Complainant’s attention that the Principal and the Chairperson had set up a separate investigation into her grievance which concluded that the Principal had no case to answer. The Chairperson presented that report to the Board of Management and declared that the case was closed.

The Complainant submits that she was not aware that this alleged investigation took place until she was presented with the report, so she did not know what was investigated, because she was the person who had the grievance and she was not invited to attend the investigation.

The Complainant submits that she referred her complaint to the WRC because of the abusive behaviour of the Principal of the Respondent on 14th January 2019. In the weeks that followed the Principal blatantly subjected her to further incidents of undermining and ridiculing behaviour, in an apparent attempt to inflict as much stress as she possibly could on the Complainant.

On reporting these matters to the Chairperson of the Board of Management (BOM), with the intention of getting an apology from the Principal and a commitment from her to cease the unacceptable behaviour, it became apparent immediately that the Chairperson had colluded with the Principal to suppress an impartial investigation into these serious grievances.

The Complainant then reached out again to the WRC in an attempt to have the incident adjudicated. As the previous complaint was submitted under incorrect legislation, the Complainant re-submitted her claim under the Welfare, Health and Safety at Work Act, 2005.

The Grievance against the Principal

The Complainant submits that, historically, she has had to endure many stressful incidents with the Principal, in which she felt threatened, intimidated and undermined by her behaviour, but she never had the courage to challenge her.

On January 14th, 2019, the Complainant went to the Principal to apologise for a text message she had sent to her in error. The Principal’s response was intensely aggressive and condescending and truly frightened the Complainant. She shouted and swore at the Complainant and interrupted her when she tried to speak. She then went on a verbal assault on her contribution to the school and her alleged lack of support for the students, and on her work ethic, all of which was totally false and unsustainable and was potentially libellous.

The undermining behaviour was relentless from mid-January to mid-February, and the Complainant decided that she couldn’t ignore it any longer and she submitted an email to the Principal outlining her grievances. She was afraid to confront her about the unacceptable behaviour she had to endure because she believed she wouldn’t be listened to, and she feared being ridiculed and shouted at again.

On receipt of the written grievances, the email response from the Principal neither acknowledged nor denied the grievances.

The grievances she submitted were as follows:

A Student:

This scenario relates to an attempt by a student to take up an additional subject in her leaving certificate. The Student went through a very thorough evaluation of her situation with the Complainant, her career guidance counsellor, and then went to the Principal seeking permission to take up religious education as an additional subject.

The Principal refused to meet with her and instead castigated the Complainant and accused her of telling the student that “religion was the perfect subject for her to do”, which was totally false.

The Year Head intervened and went to the Principal to inform her of how distressed the student was at not getting a hearing from her and sought to have that redressed. The Principal refused to meet the student and did not allow her to take up the additional subject.

The Principal said to the Complainant at the outset “I will not be allowing this to happen”, obviously not caring about the concerns of a student who was trying to optimise her chances of enhancing her leaving cert result.

Commitment to her role.

When the Complainant was in the Principal’s office on 14th January 2019, some of the accusations made by the Principal were:

“that [the Complainant] didn’t care about the students”; “that she is hesitant to take things on” and “that she does not put her name forward”.

The Complainant was deeply distressed by those accusations, because they were baseless and were a complete fabrication.

Student invitation to University College Cork.

This is highly sought-after event in which schools are allocated a maximum of two students to attend and all of the necessary approval process for attendance had been completed by the Complainant. However, on the day before the event, a student came to her and handed her documentation to process in order to facilitate the student’s attendance at the event as a third person from the School. The student told the Complainant that she was advised to do so by the Principal.

On the day of departure for the event, the mother of that student spoke to the Complainant on the telephone expressing anger that the Principal hadn’t reverted to her as she said she would.

The student subsequently attended the event which led to an embarrassing situation in UCC because the Complainant had to apologise to the organiser for breaching the rules regarding attendance.

This incident was tantamount to undermining and belittling the Complainant in the eyes of the student, her mother and with the organisers of the event at UCC

Scheduling of Meetings.

In this incident, the Complainant was scheduled to attend a training session and was not told in advance that there was some homework to be done which led to a very embarrassing situation during the session and in front of her peers. This should not have happened.

Sick Leave

On returning to work following a period of sick leave the Complainant was summoned to the Principal’s office to take a phone call from Medmark who are a recognised body that monitors teachers’ sick leave.

During that call Medmark explained that they were responding to a complaint made by the Principal concerning the Complainant’s return to work from sick leave.  

On explaining her situation, the Medmark person apologised and sympathised with her situation and told her that they were satisfied for her to return to work without any further investigation.

This was the first and only occasion that the Complainant experienced empathy and support since the commencement of her ordeal with the Principal and the Chairperson.

The significance of that call constituted another form of harassment of the Complainant, who could have been denied holiday pay if the Principal’s complaint was upheld.

The Complainant submits that the issue remains unresolved for two years now.

Extension of time application

On 15th January 2020, the Complainant submitted her application for an extension of time for submission of her claim. The Complainant submitted that her grievance initially was against the school principal, and despite every effort by her to have the matter investigated internally within the school, she was prevented from doing so by the Chairperson of the Board of Management.

As the Complainant’s grievance related to bullying and intimidation, she submitted this case previously under Section 13 of the Industrial Relations Act. On learning that she does not have locus standi   the Complainant immediately sent a request to the WRC indicating that she wished to re-submit the grievance under the Safety, Health and Welfare at Work Act 2005, under penalisation.

The Complainant submitted that the inordinate delay in processing her grievance through the WRC could not have been addressed by her and therefore she is appealing for an extension to allow her grievance to be investigated.

In respect of the above time extension application, at the adjudication hearing the Complainant’s representative argued that the detriment complained of is the refusal to have the Complainant’s grievance heard it is ongoing and continued up until the day of the hearing.

The Respondent submits as follows:

Section 27 of the Safety, Health and Welfare at Work Act addressed protection against dismissal and penalisation.

In this case, it is accepted that the complaint against the Principal as set out in the Complainant’s letter to the Principal dated 8 March 2019 constitutes a protected act. The Complainant has put forward no information, however, concerning any detriment which she alleges was imposed on her or threatened to be imposed on her because of, or in retaliation for having made this complaint.    

The nature of the complaint

It would appear from the correspondence to the WRC on behalf of the Complainant that she is seeking to have her original complaint against the Principal investigated by the WRC.   In the email dated 11th December 2019 to the WRC the Complainant’s representative, on behalf of the Complainant, refers to the decision of WRC Adjudication Officer in which she had confirmed that she did not have jurisdiction to investigate the complaint. The Representative stated that “the grievance remains unresolved”. After levelling criticism at the Principal, the Board of Management and the Chairperson, for the manner in which the Complainant’s grievance had been dealt with, he concluded by stating that he “would now like to resubmit her grievance under section 27 of the Safety Health & Welfare at Work Act 2005. This section of the Act deals with Protection against Dismissal & Penalisation and [the Complainant’s] grievance of intimidation certainly falls into that category”.

The reference to intimidation in this email is not a reference to coercion or intimidation, one of the examples of penalisation set out in section 27(2)(e) of the Act. It is not a reference to any alleged retaliatory action which the complainant alleged that she was subjected to in response to her having made a complaint. Rather, the reference to a “grievance of intimidation” concerns the alleged behaviour of the Principal which prompted the initial complaint. This is confirmed by the request for an extension of time which was submitted on 15 January 2020, which appears to have the sole purpose of bringing the complainant’s original complaint from March 2019 within time.  

The jurisdiction of the Labour Court, and by extension the WRC, in complaints of penalisation under the Safety Health and Welfare at Work Act 2005 has been considered by the Court in a number of cases. In the case of Iarnrod Eireann v Nick P Neary [Determination Number HSD139], the Labour Court stated the following:

“The Court’s jurisdiction under this Act is limited and narrow in its application. It has jurisdiction to hear claims of penalisation referred under Section 27 only. The Court has no jurisdiction to hear allegations of breaches of safety, health and welfare at work under the Act and such allegations cannot in themselves form part of claims of penalisation or unfavourable treatment within the meaning of Section 27 of the Act.”

In Margaret Bailey t/a Finesse Beauty v Lisa Farrell [Determination No HSD/104], the Labour Court stated as follows:

“The Court’s jurisdiction under this Act is very limited and circumscribed. Section 27 is quite narrow in its application. The Section only applies where an employer penalises or threatens penalisation against an employee for making a complaint or representation to their employer as regards any matter relating to safety, health or welfare at work.”

In the case of St John’s National School v Jacinta Akduman [Determination No. HSD102], the Labour Court considered penalisation, stating as follows:

“This Section is intended to protect employees who exercise any of the rights referred to at Subsection (3) from retaliatory conduct by their employer. In applying the provision the Court must be careful to recognise the distinction between a detriment which may be suffered by an employee as a result of an employer’s failure to fulfil a duty under the Act and a detriment amounting to “penalisation”.

In every case in which an employer fails or neglects to fulfil its duty under the general provisions of the Act, the health and safety of workers are put at risk, but this Court has not been given the jurisdiction to investigate such transgressions. By contrast, penalisation in respect of which this Court has been given jurisdiction, involves the imposition of some separate or independent detriment on an employee which, if undeterred, could undermine the effective operation of the general provisions of the Act.

. . .

It is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by Subsection (3) and but for the protected act the employee would not have suffered the detriment complained of (see Determination No HSD095,Toni & Guy Blackrock Ltd and Paul O’Neill).”

The Complainant alleges that she was denied an opportunity to have her grievance investigated impartially because of the “obstructionism & collaboration of the School Principal, the Respondent, & the Chairperson of the Board of Management of the School, who refused to allow the Board to investigate the grievance”.  

It is apparent from the correspondence between the Complainant and the Chairperson, however, that the Chairperson took steps to have the Complainant’s complaint dealt with, concluding with an independent investigation by two independent investigators under stage 2 of the school’s Dignity at Work policy. The correspondence between the parties is summarised below.

A written grievance was submitted by the Complainant on 8th March 2019 in writing to the Chairperson “in accordance with Clause 3.3 of the ASTI/Grievance Procedure”.   In doing so, the Complainant sought to bypass stages 1 and 2 of the Grievance Procedure. The Complainant was advised by the Chairperson by email dated 12th March 2019 that the Board of Management could not deal with the grievance because the earlier stages of the procedure had not been followed.

In an email dated 13th March 2019 the Complainant referred to her “grievance concerning bullying and intimidation by the principal” and requested “a copy of the school policy on bullying and the procedure for handling it”. The Chairperson responded by email dated 13 March 2019, advising the Complainant that she had posted a copy of the school’s Dignity at Work Policy to her. In her email dated 20 March 2019, the Chairperson referred to the informal and formal stages of the procedure, confirming that a report at stage 2 could be made to the Chairperson instead of the Principal.   It is to be noted that stage 2 of the Dignity at Work Policy provides for the appointment of two independent investigators to investigate the complaint.  

Instead of invoking the formal stage of the Dignity at Work Policy, the Complainant wrote to the individual members of the Board of Management on 21st March 2019 stating that she was writing to them because she had “exhausted all attempts to resolve [her] grievance with the Principal through the Chairperson of the Board”.   The Chairperson confirmed by email dated 29th March 2019 that, in circumstances where the Complainant had indicated that she did not wish to meet with the Principal, she proposed appointing two persons to investigate her complaint under stage 2 of the Dignity at Work Policy. The Chairperson requested the Complainant to confirm her availability. In her response dated 1st April 2019 the Complainant accused the Chairperson of demonstrating nothing but contempt for her, criticising her continued efforts to suppress her grievance.   This was in circumstances where it is clear from the correspondence that the Chairperson was doing her utmost to have the Complainant’s complaint investigated impartially and in accordance with the Dignity at Work Policy.

The Complainant advised the Chairperson by email dated 11th April 2019 that she was submitting her grievance to the WRC for investigation. The Chairperson acknowledged receipt of this email on the same date and confirmed that two independent investigators were being appointed to investigate her complaint against the Principal. The Complainant responded on the same date by stating that she was progressing her grievance through the WRC and that “this was the only way [her] grievance would be handled from hereon”.

By email dated 12th April 2019 the Chairperson acknowledged receipt of the Complainant’s email, registering her disappointment that the Complainant had decided to refer the matter to the WRC for investigation in circumstances where she had been advised that two independent investigators were being appointed to investigate her complaint. The Chairperson advised the Complainant of the identity of the two investigators: a former inspector from the Department of Education and Skills and former president of the ASTI. Neither of the investigators had any connection to the Complainant, the Principal, the Chairperson, or the Board of Management. The Chairperson requested the Complainant to confirm that it was in order to pass on the Complainant’s details to the investigators.  

The Complainant responded by email dated 15th April 2019 in which she accused the Chairperson of preventing an impartial investigation into her complaint. This was in circumstances where the Complainant had been advised by the Chairperson that she was putting in place the arrangements for an independent investigation into her complaint. By email dated 16th April 2019 the Chairperson noted that the Complainant had referred a complaint to the WRC. In circumstances where the Complainant had not given permission for her contact details to be passed on to the investigators, the Chairperson advised the Complainant of the contact details of one of the investigators in order to allow the Complainant to communicate directly with her. By email dated 18 April 2019 the Complainant advised the Chairperson that the WRC would be investigating her grievance and that she would only comply with any requests made by it. The investigation proceeded without the participation of the Complainant and a report issued from the two investigators.  

It is well established that investigations into workplace grievances or allegations of bullying and harassment must be conducted in a manner that respects the rights of both the accuser and the accused. In addition, parties to a complaint are expected to comply with the relevant procedure. In this case, the Complainant sought to involve the Board of Management prematurely, when it could not be involved. She interpreted efforts by the Chairperson to afford due process to both parties and to avoid prejudicing the position of the Board of Management as being tantamount to colluding with the Principal and obstructing the investigation of her complaint.  

The Complainant may not be satisfied with how her complaint was dealt with. It is submitted, however, that the manner in which the complaint was dealt with by the Board of Management does not amount to penalisation of the Complainant as provided in section 27. The Chairperson made every effort to address the complaints of the Complainant, pointing her towards the appropriate procedure to do so. Any responsibility for obstructing the investigation of her complaints rests solely with the Complainant who made a deliberate choice not to engage in an independent investigation of her complaints, as provided for under the Dignity at Work Policy of the school.    

No detriment was imposed on the Complainant, either in response to her having submitted a complaint against the Principal or in the manner in which her complaint was dealt with. In view of the foregoing it is submitted that there has been no penalisation of the Complainant pursuant to section 27 of the Safety, Health and Welfare at Work Act 2005, as alleged or at all.  

What is in issue in this case is whether the Complainant was penalised within the meaning of Section 27 of the Safety, Health and Welfare at Work Act, 2005. This section, in relevant parts, provides:

27. Protection against dismissal and penalisation.

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

(2) Without prejudice to the generality of subsection (1), penalisation includes–

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

(b) demotion or loss of opportunity for promotion,

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

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

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for–

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

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

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

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

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

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

The requirements to establish that penalisation under Section 27 of the Act occurred was set out in Paul O’Neill v Toni & Guy Blackrock Ltd [2010] 21 ELR 1.

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

Firstly, it is necessary to establish that there has been a protected act. In the instant case, the protected act relied upon is the raising of a complaint against the Principal on the 8th March 2019. The Complainant, in her correspondence made her “submission of grievance against the principal”. This was not disputed by the Respondent.

The second requirement is that a worker must have suffered a detriment for having raised a concern protected by the Act. This requires that a Complainant must show that there was a detriment. It was unclear from the Complainant’s submission as to what does the Complainant considers to be a specific detriment in the instant case. The Complainant’s representative clarified at the adjudication hearing that the detriment complained of is the continuous refusal to have the Complainant’s case heard and investigated. Initially the Complainant’s representative argued that the refusal was ongoing until 12th April 2019, when the Complainant returned from her absence due to sick leave. However, after some consideration he asserted that it is ongoing and continued until the day of the hearing. It was unclear why the Complainant submitted an application for extension of time.

I must now decide if the Complainant was penalised during the cognisable period for having committed an act that was protected by subsection 3 of section 27 of the Act.

There was no dispute that the Complainant submitted her formal grievance against the Principal to the Chairperson of the Board of Management on 8th March 2019.

It is clear from the chronology of the correspondence that there was ongoing engagement between the parties from 8th March 2019 when the Complainant submitted her formal grievance against the Principal. While I will not address in detail each of the pieces of communication, I will briefly outline the main points.

In her correspondence of 8th March 2019, the Complainant stated that it is her “submission of Grievance with the principal in accordance with Clause 3.3 of the ASTI/JMB Grievance Procedure.“ The Complainant further noted that she is making her submission to the Board of Management. The Chairperson replied on 12th March 2019 clarifying that the, as per the Grievance Procedure, the BOM is precluded from receiving the Complainant’s submission and that the Complainant should engage with Stage 1 of the Procedure i.e. meeting with the Principal, accompanied by the ASTI School Steward or a Teaching Colleague of the Complainant’s choice at a mutually agreed date and time.

On 13th March 2019, the Complainant wrote to the Chairperson of the BOM expressing her disappointment and alleging that the Chairperson “refused to acknowledge the seriousness of [her] grievance concerning bullying and intimidation by the Principal”.

The Chairperson replied on 20th March 2019 clarifying that she did not refuse to acknowledge the seriousness of the grievance as suggested by the Complainant. She noted that the Complainant refers to a “grievance of bullying” and stated that the appropriate procedure for addressing allegations of bullying is the Respondent’s Dignity at Work policy. The Chairperson went on to say that as the complaint relates to the Principal, the report can be made to her, as the Chairperson of the BOM, at Stage 2. The Chairperson informed the Complainant that the BOM cannot deal with a teacher’s grievance until it formally goes to the BOM at Stage 3 of the Grievance Procedure. She added that the BOM cannot deal with complaints of alleged bullying against the Principal until such time as the complaint has been fully investigated.

The Complainant, on the next day wrote to the BOM alleging that she “exhausted all attempts to resolve her grievance with the Principal through the Chairperson of the Board”.

The Chairperson wrote to the Complainant on 22nd March 2019 reiterating the position in respect of the BOM involvement in complaints of alleged bullying. She restated that the complaint could be made to her at Stage 2 and requested that the Complainant confirms whether she wishes to proceed under the Grievance procedure or Dignity at Work policy.

The Complainant replied on 25th March 2019 outlining, inter alia, the Labour Relations Commission and the Health and Safety Authority guidance on how to handle bullying in the workplace.

The Chairperson replied to the Complainant on 29th March 2019 reiterating the procedure for addressing bullying and proposing appointment of to persons to investigate the complaints under Stage 2. The Complainant was asked to confirm her availability.

The Complainant wrote to the Chairperson on 1st April 2019 …”informing you now that because of your continued efforts to suppress my grievance, rather than assist me in resolving it, it will not be acceptable to me for you to play any further part in the resolution of my grievance.

This is my final email to you on this matter whilst I pursue an alternative means of getting to the truth.”

The Complainant subsequently wrote to the Chairperson on 11th April 2019 to advise that “…with immediate effect, [she is] submitting [her] grievance to the WRC for investigation”.

The Chairperson emailed the Complainant on the same day reiterating that two independent investigators will investigate the Complainant’s grievance against the Principal.

In her reply, the Complainant reminded the Chairperson that she has initiated the process of progressing her grievance through the WRC and that was the only way her grievance would be handled going forward.

The Chairperson replied on 12th April 2019 expressing her disappointment with the WRC referral after she had advised the Complainant that she was appointing two investigators. She encouraged the Complainant to engage in the investigation. She provided the details of the investigators and asked the Complainant to confirm that it was in order to pass on the Complainant’s details to the investigators so that they can contact her directly.

The Complainant wrote on 15th April 2019 saying that her doubts about the Chairperson’s impartiality and confidentiality have been confirmed and that the Complainant will not be withdrawing her WRC referral. The Chairperson in return wished the Complainant well with the WRC and expressed her sadness by the false allegations. The Chairperson wrote again to the Complainant on 16th April 2019 once more providing the details of the investigators appointed by the Respondent. She stated in her email: “I note that you have referred a complaint to the WRC. If you intend to participate in the investigation of your complaint, however, please confirm your intention to [name of the investigator] at [email address of the investigator]…”.

The Complainant reverted saying that “…the WRC will be investigating my grievance and I don’t understand your insistence that I comply with your instructions”. She concluded “If you have made arrangements with other investigators, then it is your responsibility to clarify the situation for them. I will only be complying with any requests made by the WRC.”

The Complainant also wrote to one of the investigators as follows: ”I wish to inform you that my decision was made on 11th April to have my grievance investigated externally by the WRC because I was being dictated by the chairperson who was clearly in collaboration with the Principal with whom my grievance was against. Accordingly, the WRC investigation was initiated in the 11th April as noted above. The principal and chairperson were aware of that decision and chose to ignore it. It was subsequent to that, that I was notified about your involvement which I declined for reasons as stated, because it was already referred to the WRC.”

The Complainant also commented on the written report she received on 30th May 2019 pointing out that she was never invited to or aware of any meeting in the named hotel.

Having regard to written and oral submissions of the parties, I find that the Complainant made a complaint against the Principal which related to an alleged risk to her health and safety in her workplace. I note that the allegations were investigated by two external investigators appointed by the Respondent. In the absence of the Complainant’s permission to pass on her details to the investigators, the Complainant was provided with contact details of one of the investigators and asked to contact her, if she intended to participate in the investigation of her complaint. The Complainant did not do so. The investigation was carried out by two independent investigators, albeit without the Complainant’s input. I find that the Complainant’s complaint against the Principal was investigated by the Respondent. As the Complainant chose not to participate in the investigation carried out, she cannot claim that her case was not heard or investigated by the Respondent in circumstances where she declined to participate in the investigation.

It appears that the Complainant misinterpreted the role of the WRC in the process. The role of an Adjudication Officer is not to investigate or re-investigate the Complainant’s grievance against the Principal. Rather, my role is to establish whether the Complainant was penalised within the meaning of Section 27 of the Safety, Health and Welfare at Work Act, 2005.

Having considered the matter in its totality I find that the Complainant did undertake a protected act but that she has failed to establish a set of facts from which it could be concluded that she has been penalised within the meaning of the Act.

Having regard to the totality of the evidence adduced, I find that this complaint is not well founded.

Penalisation- grievance