Complainant

Respondent

Anonymised Parties

Assistant Principal

Primary School

Representatives

David O'Sullivan Irish National Teachers Organisation

Liam Riordan Mason Hayes & Curran

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-00034571-001

11/02/2020

The Complainant is an Assistant Principal with the Respondent School, hereto after referred to as the Respondent. She commenced work for the Respondent on the 06/01/1978 and continues to be employed on a salary of €1438.50; net €902.94 for a 28-hour week. The Complainant submits that the Respondent penalised her as a result of raising a Health and Safety complaint contrary to Section 27 of the 2005 Act and is seeking compensation. The Respondent refutes the claim made by the Complainant and contends that there is no breach of the Act.

The Complainant submits that there were three acts of penalisation.

1.      That the Acting Chairperson of the Board of Management of the Respondent exerted pressure on the Complainant in an attempt to coerce her into withdrawing her complaint in and around November 2019;

2.      That following a meeting of the Board of Management of the school, on 19 November 2019, the Principal under the direction of the Board of Management, accused the Complainant of making a data protection breach and issued a letter to the same effect dated 20 November 2019;

3.      That, the Chairperson of the Board Management engaged in bullying and micromanagement of the Complainant, which has intensified since the disclosure of the Health and Safety complaint.

The Complainant has performed in the position of Primary School Teacher for the past 47 years and was promoted to Deputy Principal in September 2009, after accumulating significant qualifications and experience in the field of education.

During the Complainant’s tenure of Deputy Principal, she acted as Acting Principal due to the absences of the school’s Principals for various reasons. As part of her duties, the Complainant was the Designated Liaison Person for child protection and had responsibility for managing health and safety within the school.   

The Complainant submits that issues arose on 17 November 2017 when she raised concerns about the absences of the then principal whereby the Chairperson of the Board of Management, accused the Complainant of having animosity towards the former principal. The Complainant submits she found the behaviour of the Chairperson to be intimidating and threatening. She had to take sick leave as a result of the stress.     

The Complainant returned to work and on12 January 2018 shesent a letter of grievance to the Chairperson. The Complainant asserts that whilst this grievance does not relate to the current issue regarding the health and safety complaint,she submits thatit is important to set out the background to this matter. The Complainant’s health and safety complaint was deemed to fall within the remit of her grievance which was originally submitted in January 2018 in relation to the Chairperson’s treatment of the Complainant, with regards to the matter relating to the Former Principal.

In April 2018 Ms A, the Principal, commenced sick leave and the Complainant took up the role of Acting Principal.  

Disclosure of the Health & Safety Complaint

On 14 September 2018, the Complainant was informed by the School’s Health and Safety Officer, that on 11 September 2018, a horse from the field at the back of the school had jumped the gate and became agitated. The Complainant submits that the field was being leased by the school to the Chairperson of the Board of Management for personal use for the storing of his horses. The Complainant reported this incident to the Chairperson as he was the owner of the horses.

On 14 September 2018, the Complainant was informed of two separate incidents of children being shocked by the electric fence surrounding the field. Incident reports of the accidents were created, and the parents were informed of the incidents. The Complainant submits that she was conscious of the conflict of interest at hand as the Chairperson was the lessee of the field and she therefore reported the incident as a health and safety issue on the 14 September 2018 to Fr A, a member of the Board of Management of the school.

Subsequent to the incidents on 14 September 2018, the Complainant informed the insurer of the school, of the incident and sought advice as to whether an updated risk assessment was required. A letter dated 20 September 2018 was issued to the Complainant with the views of the insurer. In this letter a Business Executive for the insurer stated;

“I note the electric fence was erected by the Lessee. Whilst this may be suitable to keep the horses in the field it is not ideal from the school’s viewpoint where pupils may be in the vicinity.

I note one of the horses recently jumped the gate which opens onto the public road and ended up on the roadway. The gate does not appear high enough to prevent such an incident happening again. Now it is apparent such an incident can happen it must be addressed and remedied”

On the 25 September 2018 a Board of Management meeting was held, and the matter of the field and horses was disclosed to the Board by the Complainant. The Chairperson, who was the owner of the horses and lessee of the field, stated that the horses had been returned to the field and would not jump again. He also stated that the children should be taught about the dangers of an electric fence.

During the Board meeting on 25 September 2018, the Complainantsubmits that she had to request that the Chairperson refrain from shouting at her.

The day following the Board meeting on 26 September 2018, the Complainant received an email from the Chairperson stating that the Complainant was not holding weekly assemblies and that she should ensure that it was done. The Complainant responded on 27 September 2018 stating that one was organised for the next day.

On 4 December 2018, the Complainant received an email from the Chairperson requesting an appraisal of each student and teacher, and the plans that the teacher had made for each child. The Chairperson also stated that he would like a report to show that each child is on track to achieve their potential in the national assessments.  The Complainant, in reply, stated that there were no such thing as national assessments and enquired as to what the Chairperson was looking for.

Micromanagement Incidences:

On 5 December 2018, the Chairperson emailed the Complainant stating that he was referring to the SIGMA(Testing system) and standardised reading tests undertaken by the school in May of each year. The Chairperson requested that the Complainant provide a report as he could be asked at any time by the Department of Education about the academic progress of the school. The Complainant replied on 6 December 2018 stating that as the Acting Principal she was satisfied that the class teachers were complying in accordance with Department of Education Circulars and that the children have made progress in accordance with their ability.

On the 17 December 2018 a Board of Management meeting was held, at the meeting the Complainantsubmits that she handed the standardised tests to the Chairperson. The Complainant alleges that the Chairperson, upon receiving the documents threw them at the Complainant, and told her to read them aloud to the Board.

On 19 December 2018, the Chairperson emailed the Complainant and stated that he was deeply concerned and disappointed about the academic monitoring. The Chairperson further stated that;

”as chairperson of the B.O.M of XX National School and as your employer I view this matter very seriously”

On 7 January 2019, the Complainantsubmits that she attended her GP and was referredto a specialistmental health unit due to Post Traumatic Stress because of the culmination of emails in December 2018. The Complainantsubmits she was unfit to return to work for the period 8 January to 14 January 2019.

The Complainant submits that the disclosure of the Health and Safety incident to the Board of Management on the 25 September 2018 initiated the bullying and micromanagement of the Complainant when she was carrying out the role of Acting Principal.

Pressure to withdraw the Complainant’s grievance

On 15 January 2019, the Complainant met withthe Acting Chairperson, Fr A, to discuss her recent referral to a mental health unit and in order for the Complaint to seek assistance from him in relation to the treatment she had been receiving from the Chairperson. By letter dated 22 January, the Acting Chairperson wrote to the Complainant, noting her concerns and stating that the Board are committed to working toward resolving the matter. The Acting Chairperson offered two options: a) to continue with the mediation that occurred in 2018; or b) to invoke Stage 3 of Grievance procedure. By letter dated 11 June 2019 from the Complainant to the Acting Chairperson, the Complainant elected to proceed with Stage 3 of the Grievance procedure.

Although the Acting Chairperson stated in the letter dated 22 January 2019 that the “concerns expressed by you (the Complainant) are a continuation of your (the Complainant’s) grievance in the last school year”, it is submitted by the Complainant that the incidents of bullying and micromanagement by the Chairperson intensified as a result of the Complainant submitting a health and safety complaint to the Board of Management on 25 September 2018.

On the 26 August 2019 the Complainant made her submission for Stage 3 of the Grievance Procedure. The Complainant specifically cited in her submission the health and safety concerns that she had raised. She also states that she believes that she has been subject to bullying by the Chairperson because she had raised her concerns: “My belief is that what followed is retaliatory to me personally because of the issue of the horses and electric fence”

On the 19 November 2019, the Stage 3 Grievance Procedure was heard. A note was taken by the Complainant’s witness, Ms D. The Complainant asserts that the hearing was conducted in an unsatisfactory manner. The Complainant submits that the Acting Chairperson was unfamiliar with how to conduct such a hearing and there were instances of the Chairperson being uncooperative with the process.

Towards the end of the unsuccessful hearing, it was stated that the Complainant would be in touch with her union and that she would likely proceed to the next stage. On hearing that,the Complainant submits that the Acting Chairperson stated:

“that a tribunal would be very difficult for a small country school, it would divide the parish and witnesses named in the report.”

On the 25 November 2019, the Complainant received the outcome of the Stage 3 Grievance procedure. The majority of the grievances were not upheld. The Board of Management acknowledged:

“that (the Complainant) acted with the best interest of Health and Safety with regard to the electric fence”

The Complainant submits that the Respondent acknowledged that the incident with the field and electric fence was a protected act by bringing the matter to the Respondent’s attention. She further submits that the grievance procedure was not conducted in a professional manner and there were incidents of poor behaviour by the Chairperson throughout the hearing. The Complainant submits that during the grievances procedure the Acting Chairperson tried to convince the Complainant not to progress the grievance any further by saying:

“Would you not go for mediation; a tribunal would divide the parish”

The Complainant submits that the pressure from the Acting Chairperson to withdraw the grievance and not to proceed to stage 4 of the grievance procedure (referral to a third party), due to the effect it would have on the local community, and the lack of a professional hearing, were further acts of penalisation against her. The Complainant submits that this was an attempt to coerce her into withdrawing her complaint.  The Complainant contends that had the Complainant not raised a health and safety concern, she may not have been subjected to the further incidences of bullying and micromanagement by the Chairperson, and therefore she would not have re-engaged in the grievance procedure. Therefore, the Complainant argues, the pressure put on her by the Acting Chairperson would not have occurred but for the Complainant making a health and safety complaint regarding the horses and the electric fence.

Complainant being accused of making a serious data breach:

The Complainant submits that during the stage 3 grievance hearing on 19 November 2019, the Principal, Ms B, (the “Principal”) addressed the Complainant to inform her that her submission contained original incident reports and the inclusion of them would be considered a data breach.

On 20 November 2019 the Complainant received a letter from the Principal, stating that the Complainant had removed an original document from the school to include in her submission to the Board of Management. The letter included the following questions:

“(1) Who gave you the Authority to remove and use this and on what date?

 (2) Furthermore, on the evening you stated you had made copies of it. Did you take any advice on GDPR in relation to this?

Please note I view this as a serious data breach and I am taking advice on it”

By letter, dated 28 November 2019, the Complainant replied to the Principal, stating that as she was Acting Principal at the time, she was not only authorised to access the incident reports, but she was also obliged to ensure that incidents were correctly recorded when they occurred. The Complainant also noted that the incident reports did not contain any of the children’s names and they were only referred to by their registration number. The children were therefore not identifiable from the incident report forms. The Complainant informed the Principal that the children could only be identified by reference to the register, which significantly reduces the risk of the children being identified. There is a limited number of individuals with access to the register. The Complainant also stated:

“These forms were submitted to my employer, the Board of Management, as they are relevant to the grievance I have raised, in which I expressed the health and safety concerns I have with regards to the electric fence. The Board of Management is entitled and authorised to access this information, whether or not it contains personal data of children. This cannot amount to a breach of data protection rights.

Your letter is yet another attempt by the school to penalise me after raising a Health and Safety grievance in good faith, which I am entitled to do”

The Principal replied by letter, dated 10 December 2019, and made a further allegation that the Complainant removed the original school files from the school without authorisation. The Complainant replied by letter dated 24 January 2020, again stating that she did not commit any data protection breach. The Complaint further advised the Principal that she did not remove the original incident report forms from the school’s premises for the purpose of her health and safety grievance.

The Complainant wishes the Adjudicator to note that in her letter to her dated 10 December 2019 the Principal states that the Complainant is “a highly competent teacher and Deputy Principal, as well as having served for a significant period of time as Acting Principal, doing so in an effective and competent manner”. The Complainant asserts that this comment by the Principal further underlines the fact that the treatment of the Complainant by the Chairperson was unjust, unreasonable and unsubstantiated.  

The Complainant submits that no such data breach has occurred. In the Complainant’s role as Acting Principal, she not only had authorisation to access the incident report forms, but it was her duty to distribute such forms to the relevant teachers and to receive and file the forms when completed. In addition, no children were named in the incident report forms as they were only referred to by their registration number. Furthermore, the grievance containing the incident report forms was sent to the Board of Management, who have authorisation to receive such information.

The Complainantsubmitsthat the incident report forms did not contain personal data, as the relevant children were not identified. The Complainant submits that without prejudice to this position, in the event that it is deemed that the incident report forms did contain personal data, the Complainant submits that such data was lawfully processed in accordance with Article 6 of the General Date Protection Regulation:

“6. Processing shall be lawful only if and to the extent that at least one of the following applies: ……

processing is necessary for compliance with a legal obligation to which the controller is subject;”

The Complainant submitsthat but for her raising of the Health and Safety complaint, she would not have been subjected to penalisation from the Principal in relation to the alleged data breach. 

Legal Position: 

The Complainant submitsthat she was penalised for complying with the statutory provisions as set out in Section 13 of the 2005 Act, by bringing to the attention of her employer, the safety, health and welfare risk that existed as a result of the horses being kept in the field and in respect of the electric fence surrounding the field contrary to Section 27 of the 2005 Act.

Section 13 of the 2005 Act, outlines the duties of employees and states;

“(1) An employee shall, while at work—

(a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work, …

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

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

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

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

The Complainant submits that she fully complied with her obligations under Section 13 of the 2005 Act by reporting the incidents with the electric fence and the horses to a member of the Board of Management on 14 September 2018 and furthermore made a disclosure to a Board of Management meeting on the 25 September 2018.

Section 27(1) of the 2005 Act states that “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”.

Section 27 of the 2005 Act further states as follows:

"(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."

Section 27(3) prohibits penalisation or the threat of 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 Complainant submits   that the acts of bullying and micromanagement by the Chairperson amount to penalisation as defined under Section 27(1) of the 2005 Act and occurred as a result of her raising a Health and Safety complaint. The Complainant submits that the pressure exerted on her by the Acting Chairperson amounts to penalisation under Section 27(2)(e), as the Acting Chairperson tried to coerce the Complainant into withdrawing the complaint, stating that it would not be good for the local community/the parish if matters were progressed. The Complainant argues further that the allegations by the Principal that she committed a data protection breach in raising her Health and Safety complaint, amounts to penalisation under Section 27(2)(e), in the form of intimidation. The Complainant contends that the allegation that she committed a serious data breach is a very grave matter to be accused of and has serious potential consequences for both the school and the Complainant under the EU General Data Protection Regulation 2016 and under the Data Protection Acts 1988-2018. The Complainant submits that such an allegation has serious consequences in terms of the reputational damage caused to her. The Complainant was very concerned in relation to these allegations and how she was being treated by the school. The Complainant argues that these are all examples of the detriment suffered by the Complainant as a result of the acts of penalisation.

The Complainant submits that the burden of proof for showing penalisation under the 2005 Act was considered by the Labour Court in O’Neill v Toni & Guy Blackrock (Determination No. HSD095). In that case, the Labour court held that in order to make out a complaint of penalisation, it is necessary for a complainant to establish that the detriment that he or she complains of was imposed “for” having committed one of the acts protected by subsection 3 of Section 27 of the 2005 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.”

The Complainant submits that for disclosing the Health and Safety issue to the Board of Management, in compliance with section 13 of the 2005 Act, she suffered acts of penalisation. She was subjected to acts of bullying and micromanagement by the Chairperson, which led to a hostile work environment. When the Complainant initiated a grievance procedure, she was pressurised by the Acting Chairperson to not progress any further stages of the grievance procedure, and to withdraw her grievance, as it would affect the local community. The Complainant also submits she was subjected to an accusation that she was responsible for an alleged data breach, by compiling her submission for the grievance procedure in respect of her health and safety concerns. This was communicated to the Complainant during the hearing and by way of a letter the following day on 20 November 2019.

Evidence of the Complainant:

The Complainant gave evidence of how traumatised she became after the last email in a sequence of emails from the Chairperson questioning her performance. She said she had never encountered such mental distress in her 42 years teaching as when she received the email of 19 December 2018 from the Chairperson. She felt her livelihood was threatened. She believes it broke her and she spent the Christmas holidays under medication and medical supervision. She felt life was not worth living.

She gave detailed evidence of the incident of September 2018 with the Chairperson’s horses in the adjoining field which was leased to the Chairperson by the owners of the school buildings and lands. She gave further evidence of the electric shocks that two children had suffered when they touched the fence. She said that it is a known fact that if children are holding hands in a line and the fence is touched, the last child could potentially receive a fatal shock even though the fence had low voltage. She said she emailed the insurers and the insurers response was exhibited which was that the situation had to be remedied as there was a risk.   She gave evidence that Fr A agreed with her that the horses were dangerous. She said that at the Board meeting of 25 September 2018 where she reported the incidents with the horses and the fence, the Chairperson shouted at her and she asked him to refrain.  She found his demeanour to be very threatening at this meeting.  The Complainant said that the emails questioning her performance as Acting Principal began in earnest the day after she reported the incidents to the Board, at the meeting, and finished with the email of December 17 which she referred to earlier in her evidence. She said she considered the tone and the timing of the emails to be intimidating as the emails dealt with inconsequential petty matters and she believed that the emails were a consequence of having raised the Health and Safety complaint about the Chairperson’s horses.

She said that she found the tone and behaviour of Fr. A to be unacceptable. She had asked him to try and stop as she was suffering from the actions of the Chairperson. She said that Fr A had offered an option of mediation. She found the Stage 3 Grievance Procedure to be totally flawed, unprofessional and ineffective. She said that she was accompanied by Ms D, who came as her witness. The Complainant said that the Chairperson was shouting and pounding on the table. She stated that Fr A, who acted as Chairperson took no control. She said that Fr A said, witnessed by Mr D, that he knew nothing about chairing meetings.  She found the whole experience to be extremely flawed.  She said that near the end of the meeting she intimated that she was taking the matter to stage 4 of the procedure which would be to take it to the Workplace Relations Commission. She stated that Fr A said to her “Would you not take it to mediation. Witnesses will be called. It will split the parish.”

In cross examination the Complainant accepted that she was ill for 6 work days only after receipt of the last email from the Chairperson and that she had been declared medically fit for work on 14 January 2019. She also accepted that she was not admitted to residential care as a result of her mental health issues. It was put to the Complainant that the alleged events did not really have an effect on her ability to carry out her duties as she was still carrying them out efficiently and professionally. The Complainant stated that she still requires medication to help her cope. It was also put to the Complainant that the offer of returning to mediation was a reasonable request from Fr A because she had already engaged in such a process on previous issues in 2017. The Complainant accepted that they had had engaged in previous mediation but that it did not work. The Complainant was cross examined further on the emails and it was put to her that any perceived threat to her employment from the Chairperson was fanciful because he had not the power to discipline her. The Complainant responded, “I wouldn’t have been able to keep teaching if he didn’t leave me alone.” When questioned on why the Complainant did not utilise the bullying procedures, the Complainant asserted that bullying procedures in the workplace do not allow complaints against members of a board of management.

Evidence of Ms D.

Ms D introduced herself as a retired teacher and social worker. She attended the Grievance procedure meeting at Stage 3 on 19 November 2019 as a witness for the Complainant. Ms D said that Fr A was acting Chairperson but that the meeting commenced with the Chairperson of the Board, Mr C explaining his role and what he was doing. She said that he was in effect the person who was chairing the meeting. She said that Fr A asked her if she had ideas on how he could chair a meeting. She said that the tone of Mr C presented throughout was extremely aggressive and that he kept banging the table. She said that she found it to be an extraordinary meeting. She alluded to the fact that she was very experienced in the field of conflict resolution from her social worker days but never experienced happenings like she encountered at this meeting.  She said that the first request put to the Complainant was not to take minutes at the meeting.  She gave an account on how an allegation of a serious data breach in her submission   was declared as a matter fact and put to the Complainant at the meeting by the Principal, Ms B.  She found the tone of the accusation of Ms B to the Complainant, in front of the Board, to be unacceptable. 

The Respondent refutes the claim made by the Complainant and contends that there is no breach of the Act. The Respondent’s position is outlined below.

The Respondent submits that the field referred to in the Complainant’s complaint form, refers to lands owned by the Respondent, which were purchased in 2003 on the agreement that the Respondent would erect a permanent boundary fence. The field is used by a local farmer who has permission from the Respondent to graze the field. As part of this arrangement, the local farmer erected an electric fence in 2013 to ensure that farm animals would remain in the field and not enter school grounds.

Notwithstanding the fact that no complaints had been made in relation to the fence erected by the local farmer either by the Complainant herself or by any other person, in March 2018 a decision was taken by the Respondent to erect a superior boundary fence in circumstances where the Respondent felt that the original electric fence was no longer fit for purpose. The Chairperson of the Board of Management offered to erect a replacement fence. The replacement fence is considerably higher than the previous fence making it a lot safer for the students of the school. The fence was erected by a commercial entity which specialised in fencing.

Despite the electric fence having very low wattage, students of the school are aware that they are not to approach the electric fence surrounding the school. A large sign with ‘Electric Fence’ is displayed on the fence. Parents of the students have also been made aware that students are not to touch the electric fence to avoid getting an electric shock. There have never been any complaints from parents in relation to the electric fence at the school. The Respondent further submits that the school and the community it serves are in a rural setting. Many of the families in the school are farming families who are very familiar with electric fences.

In September 2018, two students at the school received electric shocks from the electric fence; one when retrieving a ball from the field, and the other as a result of a ‘dare’. On foot of these incidents, the students’ parents were advised of what had happened and the necessary incident report forms were completed. The students’ parents advised that there were no adverse effects suffered by the students as a result of their children receiving an electric shock. No complaints were received under the school’s complaints procedures from either of the parents.

The Complainant contacted the school’s insurer on foot of the above incidents.  Having visited the school and inspected the fence were satisfied that it did not pose an unacceptable risk to the health and safety of staff or students.

On 26 August 2019 the Complainant submitted a grievance to the Respondent in line with stage 3 of the attached Grievance Procedure. The Complainant raised a number of issues in her grievance, one being health and safety concerns around the electric fence. These concerns were addressed at a Board of Management meeting in November 2019 specifically arranged to deal with Complainants grievances.

The Complainant was given the opportunity to raise a number of concerns. The Board of Management attempted to reconcile the Complainant’s grievances at this meeting but were unsuccessful. 

Data Breach Issue:

At the meeting on 19 November 2019, it emerged that the Complainant had removed the incident reports from the school. Following on from this, the Principal of the school wrote to the Complainant querying if she had been given authority to remove these forms from the school and whether or not any copies had been made. The Respondent takes any data protection concerns extremely seriously. The Respondent is the data controller for the purpose of the Data Protection Acts. It has legal responsibility for the safe storage of student data. The Principal never received a response to the questions raised in her letter.  The Respondent denies that this correspondence is threatening.

Alleged Bullying and Micromanagement:

The Complainant alleges that she was bullied by the Chairperson of the Board of Management dating back to June 2017. The first time in which allegations of bullying were brought to the attention of the Board of Management was in the Complainant’s grievance letter in August 2019. At the commencement of the Stage 3 hearing into the Complainant’s grievance she was asked by the Chairperson if she was proceeding with her allegations of bullying. The Complainant was told that if she was the hearing would be deferred as the allegations of bullying would have to be addressed via another procedure. The Complainant specifically and at her own volition withdrew the allegations of bullying from the allegations she was making as part of her grievance.

The Respondent denies that the Complainant was bullied. The Complainant was given the opportunity to have her bullying allegations addressed under the agreed procedures but did not elect to do so. 

The Respondent denies that the Complainant was micromanaged as alleged or at all. As the Complainant does not provide any particulars in relation to how she was allegedly micromanaged by the Chairperson it is difficult for the Respondent to respond to this very vague allegation. It is true that the Chairperson did look for the results of standardised testing of students in the school. He did so in compliance with the Board’s overall responsibility for teaching and learning in the school. The Chairperson of the Board of Management is entitled to request results of standardised testing. Further to Section 7, Circular 0056/2011 it is a reporting obligation of the school to report information from standardised tests to the Board of Management. The Respondent denies that requesting this information from the Complainant in her capacity as acting Principal could be regarded as micromanagement and/or could be considered as penalisation for the purposes of the Act.

Alleged pressure to withdraw the complaint:

The Complainant alleges that the acting Chairperson, Fr A, exerted pressure on her in November 2019 to withdraw her grievance and that this amounted to penalisation. It is denied that the Respondent exerted pressure on the Complainant to withdraw her grievance. The Complainant has provided no evidence to this effect. It is denied that the Complainant was ever asked to withdraw her grievance.

The Respondent understands that solving issues locally is always preferable and are disappointed that this was not the case despite continued efforts.

Respondents Legal Argument:

Section 27 of the Act provides a definition of penalisation in the following terms:

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

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

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

(b) demotion or loss of opportunity for promotion,

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

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

(e) coercion or intimidation.

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

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

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

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

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

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

(f) subject to subs.(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.”

In order for the Complainant  to succeed in her claim under Section 28, she must be able to demonstrate three things: firstly, that she suffered a detriment within the meaning of Section 27(1) or Section 27(2), secondly, that she has acted in accordance with one of the protected acts set out in Section 27(3) and thirdly, that the reason why the employer imposed the detriment on her was because of, or in retaliation for, the action taken by her in Section 27(3).  In other words, a clear causal link must be established between the action taken by the employee and the alleged act or omission of the employer, such act or omission of the employer having resulted directly in the employee suffering a detriment. It is submitted that the Complainant has failed to establish this link.

This has been very clearly stated in a number of recent decisions of the Labour Court.  In Microsemi Ireland Trading Ltd t/a Microsemi Ireland-v-Dominik Andrezekcak Determination No. HSD1313, in referring to Section 27, the Court restated the “but for” test enunciated by the Labour Court in its determination in Paul O’Neill –v- Toni & Guy Blackrock Limited Determination No HSD095 as follows:

“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 detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the determent (sic) 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 detriment.”

In Kelly T/A Western Insulation and Al Girdzius Determination No. HSD081, the Court held as follows:

“It is clear from a plain reading of subsection (3) 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 that subsection. Thus, it is perfectly plain that in order to succeed in a cause of action grounded on the Section a claimant must establish not only that he/she suffered a detriment of a type referred to at subsection (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 (2).”

Penalisation of an employee must, therefore, involve an intentional act or omission on the part of the employer, either because of, or in retaliation for one of the protected actions of an employee under Section 27(3).  The Respondent submits  that, although the Act clearly imposes duties and legal obligations on an employer to ensure so far as is reasonably practicable, the safety, health and welfare at work of his or her employees, in particular under Section 8 of that Act, where an employee alleges that an employer has failed or neglected to fulfil its duty under the general provisions of the Act, the Workplace Relations Commission does not have jurisdiction to investigate any alleged transgression. This has been explicitly stated by the Labour Court in St. John’s National School v Ms. Jacinta Akdumen Determination No. HSD102 in which the Court held:

“The failure to investigate or otherwise deal with the Complainant’s complaint and the other actions complained of, may or may not amount to an infringement of other provisions of the Act, but are matters outside of this Court’s jurisdiction.”

The Respondent submits that it has attempted to address all specific concerns which have been raised by the Complainant in the course of her employment. The Respondent further submits that the Complainant has not established that she committed a protected act for the purposes of Section 27(3) of the Act and, in addition, has failed to identify any action or omission by the Respondent which could constitute penalisation for the purposes of the Act.

The Respondent submits that, for all the reasons set out above, the complaint of penalisation under Section 28 of the Safety, Health and Welfare at Work Act 2005 is misconceived.

Evidence of the Principal, Ms. B

Ms B gave evidence on the data breach which she brought to the attention of the Complainant where original incident report forms were used by the Complainant in the submission of her complaint.  She stated how she received advice from the external managerial body with regard to data breaches and that she wrote to the Complainant on 20 November 2020 seeking further information on what she considered a serious data breach. She gave evidence of further correspondence on the issue but said that a decision was made not to proceed with the matter further. She accepted that she had challenged the Complainant on this matter at the grievance meeting of 19 November 2019. Upon further questioning, she accepted that the names of the children were not identified in the incident forms but pointed out that the names of the members of staff were recorded on the forms.

Evidence of Father A:

Father A identified himself as a member of the Board of Management and also as the Acting Chairperson at the stage 3 grievance hearing on November 19, 2019. He said he acknowledged that the Complainant was under pressure and was receiving medical attention at the beginning of the year. He said he would not tolerate any bullying, intimidation or coercion of any kind. He denied that he had said to the Complainant, or Ms D, anything about his ability to chair the meeting. He said that he had extensive experience of meeting protocol both in his everyday work with organisations and right throughout his role as a clergyman. He said that he saw his duty at the grievance hearing as being one of seeking a resolution and did not deny that he had said that he thought that if the Complainant would proceed to an external adjudication body it would be a hurtful experience for his parishioners. He said that he had a pastoral duty to resolve the matter both for the good of the local area, the school and also for the benefit of the welfare of the Complainant. He stated that he knew Mr C as an honourable and decent man who always had the interests of the school at heart.    

Evidence of Mr C, Chairperson of the Board of Management:

Mr C gave evidence that he had taken over the role of Chairperson of the Board of Management in 2014. He believed he did a good job and one of the first things he did was to bring the Parents’ Council on board. He completely denies that he ever bullied the Complainant and as far as he was aware there were no outstanding bullying allegations being made against him. He stated that the Complainant had withdrawn previous complaints against him and that they had shook hands. He says he bears the Complainant no ill-will. He accepted in evidence that he owned the horses which were on land he was leasing adjacent to the school, but that such land belonged  to an overseeing body who owned both the lands and the school buildings.  

He said that the series of emails that the Complainant referred to were totally within his responsibility as a Chairperson. He said that an inspector had spoken to him in the past after a Whole School Evaluation (WSE) and felt that he had to ensure that proper standards were maintained. He said that principals in the past had always had these reports ready for him and that there was no need to send out emails. He denied that he was in anyway aggressive at the grievance meeting of 19 November. He said he had a habit of drumming his fingers on the table which could never be construed as pounding his fist on the table, which he never did.

In cross-examination and in reference to his email of 26 September 2018 to the Complainant, Mr C was asked as to why he did not raise the issue of the lack of morning assembly on the previous night of 25 September 2018 at the Board meeting, when the Complainant raised the Health and Safety issue regarding his horses. He said that parents were concerned about morning assembly and had approached him with the intention of approaching the Complainant on the matter. He gave evidence that he was not in a position to identify the parents or give details of when he was approached.

In cross examination, the Complainant’s representative put it to Mr C that he had checked the date of the last WSE at the school and it was shown to be May 2014.  (The Respondent’s representative submitted an amendment of the record after the hearing to show that the correct date was May 2016. The Complainant’s representative accepted that it was an erroneous proposition to put to Mr C therefore and I am accepting May 2016 as being the correct date.)

The Applicable Law:

Section 13 of the Safety, Health and Welfare at Work Act 2005 defines the duties of an employee in the relevant provisions, as follows at section 13: 

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

(a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work,

(b) ensure that he or she is not under the influence of an intoxicant to the extent that he or she is in such a state as to endanger his or her own safety, health or welfare at work or that of any other person,

(c) if reasonably required by his or her employer, submit to any appropriate, reasonable and proportionate tests for intoxicants by, or under the supervision of, a registered medical practitioner who is a competent person, as may be prescribed,

(d) co-operate with his or her employer or any other person so far as is necessary to enable his or her employer or the other person to comply with the relevant statutory provisions, as appropriate,

(e) not engage in improper conduct or other behaviour that is likely to endanger his or her own safety, health and welfare at work or that of any other person,

(f) attend such training and, as appropriate, undergo such assessment as may reasonably be required by his or her employer or as may be prescribed relating to safety, health and welfare at work or relating to the work carried out by the employee,

(g) having regard to his or her training and the instructions given by his or her employer, make correct use of any article or substance provided for use by the employee at work or for the protection of his or her safety, health and welfare at work, including protective clothing or equipment,

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

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

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

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

Section 27 of the Act deals with penalisation and protection for employees as follows:

(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 11or appointed under section 18to 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.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

The recognised seminal case in relation to the interpretation of the Act is Toni and Guy Blackrock v Paul O’Neill [2010] 21 E.L.R. where the Labour Court set out the test to be applied in determining whether a complainant has made out the necessary causal link between the detriment complained of and the reporting of the protected 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.”

A more precise description of the burden of proof was further given by the Court in Toni & Guy

“….it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus, the claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the claimant's dismissal.”

In this instant case the Complainant must establish: (a) on the balance of probabilities, that she committed a protected act, (b) that she suffered a detriment (c) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed. If both limbs are satisfied, the burden shifts to the Respondent to show, on credible evidence and to the normal civil standard, that the protected act did not influence the detriment imposed.

Protected Act:

Section 13 of the Act sets out the duties of an employee clearly at section 1(a) where it states.

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

(a)   comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work,

The reporting of the incident involving the horses and electric fence to the Board of Management clearly shows that the Complainant was acting in accordance with her duties under the Act. I note also that the in the Respondent’s letter to the Complainant on 25 November, stated that “… (the Complainant) acted with the best interest of Health and Safety with regard to the electric fence” Having considered the evidence on this I conclude that the reporting of the incidents by the Complainant constituted a protected act under section 27 of the Act.

Detriment:

The Complainant submitted that the acts of micromanagement by the Chairperson, which she claimed had led to a serious deterioration in her mental health, the actions of the Acting Chairperson in pressurising her to drop her complaint and the accusation of committing a serious data breach comprised, singularly, and in in their totality a penalisation both to her reputation and well-being. She submits that this penalisation was in retaliation for committing a protected act.  

Detriment is not defined under the statute but the Labour Court in An Garda Siochana v Hazel Delahunt [2014] 25 E.L.R. 130 in a case taken under the Act referred to its meaning and cited the House of Lords, per Lord Hofmann in Khan v Chief Constable of West Yorkshire Police [2001] UKHL 48; [2001] 4 All E.R. 834; [2001] 1 W.L.R. 1947,, who, when  drawing on earlier said:  

“A person may be treated less favourably and yet suffer no detriment. But, bearing in mind that the employment tribunal has jurisdiction to award compensation to injury to feelings, the courts have given the term ‘detriment’ a wide meaning. In Ministry of Defence v Jeremiah [1979] 3 All E.R. 833 at 841; [1980] Q.B. 87 at 104 Brightman L.J. said that ‘a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment’.”

Further in An Garda Siochana   the Labour Court stated:

“… It is generally accepted that every contract of employment contains a term implied by law placing the parties under an obligation of mutual trust and confidence. This implied term was described by Arnold J. in the U.K. case of Courtaulds Northern Textiles Limited v Andrews [1979] I.R.L.R. 84 as follows:

“… the employers will not, without proper reason and cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties.”

Alleged Pressure by Fr A to withdraw grievance:

Fr A gave evidence that he saw his role as one of conciliator at the Stage 3 Grievance Meeting. He did not deny he had asked the Complainant to withdraw her grievance and not to proceed to an external forum where the parish would be split and where witnesses would be identified. The Complainant submits that she felt coerced by Fr A.

The Labour Court examined the meaning of “coercion” as it applied to the Act in An Garda Siochana.  The Court said:

 “the word ‘coercion’ connotes some form of action, without lawful authority, which is directed at compelling a person to do or to abstain from doing, any act that the person has a right to do or abstain from doing (see, for example, s.9 Non-Fatal Offences Against the Person Act 1997).

I do not find that Fr A ‘coerced’ the Complainant in a way as the above definition applies, but I do believe he tried to exert undue pressure on the Complainant to withdraw her claim. The context of his request must be examined. This was a small rural parish and the Complainant was seen as a respected and professional figure playing a vital role in that community. The decision of the Complainant to exercise her employment right and seek vindication, was unacceptably pitted against the good of the community by a person of obvious considerable influence and authority, both on the Board of Management and in the local area.  I do not doubt that Fr A had important pastoral considerations to contend with when seeking to resolve the Complainant’s grievance, but these were not factors he should have prioritised in his role as the objective chairperson of a staff grievance meeting. The settlement he sought to impose was clearly at the expense of the Complainant foregoing her employment right, which was detrimental to the Complainant.  

Alleged Data Breach.

Ms B, the Principal, gave evidence that the original school incident forms relating to the horses and electric fence were used by the Complainant for the purposes of assisting her grievance. She accepted that she put this alleged data breach to the Complainant at the stage 3 grievance procedure meeting on 19 November 2019. Ms D, the Complainant’s witness at the meeting, gave very convincing evidence that the said meeting was extraordinary and uncontrolled. Ms D gave further evidence that Ms B had declared to the Complainant at the meeting that she had committed a serious data breach. Ms B in evidence said that she was receiving advise from an overseeing body on the data breach and that her letter to the Complainant on the day following the meeting was by way of seeking further enquiry.

The Labour Court in Toni & Guy advise that there must be a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment. Ms D gave very convincing evidence that there was a clear declaration by Ms B that the Complainant had declared that the Complainant had committed a serious data breach. This assertion conflicts with Ms B’s further evidence that her letter of the following day was merely making enquiry of the Complainant. However, I refer to the following segment of that letter which states: 

“(1) Who gave you the Authority to remove and use this and on what date?

 (2) Furthermore, on the evening you stated you had made copies of it. Did you take any advice on GDPR in relation to this?

Please note I view this as a serious data breach and I am taking advice on it”

It is clear from this letter that Ms B considered that the Complainant had committed a serious data breach. This was obviously declared without proper investigation. The Complainants position is that there was no data breach in that children were referred to as numbers (Ms B asserted that staff members were named).  The Complainant submitted that even if it was a data breach that such data was lawfully processed in accordance with Article 6 of the General Date Protection Regulation where the processing of the data by the Complainant was necessary for compliance with her legal obligation to report the incidents under the Act.

It is not my role to investigate whether there was a data breach but to determine instead whether the declaration of the data breach was in itself a detriment and to examine the motivation of the Respondent in doing so. I am taking into consideration the fact that the Respondent took no further action, neither disciplinary nor submission to the Data Protection Commissioner, even though it purported in all circumstances to consider the matter a serious breach. I am satisfied, after the reviewing the evidence, that the introduction by the Respondent of the alleged data breach at the grievance meeting was inappropriate. I conclude, on the balance of probabilities, that such an action was motivated to undermine the Complainant’s grievance. I also find that a further detriment was imposed on the Complainant in that the Respondent abrogated its responsibility to ensure a fair and objective hearing for the Complaint to submit her grievance at the Stage 3 meeting of 19 November 2019.

Alleged Micromanagement

Mr C, the Chairperson of the Board, gave evidence that his series of emails to the Complainant were in line with his responsibilities for ensuring accountability under the Department of Education guidelines.  He gave evidence that an inspector had spoken to him after a Whole School Examination (WSE) emphasising the need to ensure that educational standards are maintained. Mr C could not recall the date of the conversation nor the date of the last WSE at the school. (It has since been established that this was May 2016). Mr C accepted that the horses referred to in the incidents were his horses and the electric fence was on land which he leases from the school lands, but which were owned, like the school buildings, by an overseeing body.  He accepted that the Complainant brought her report of the incidents to the school board meeting on 25 September 2018 and that his emails to the Complainant started the following day 26 September 2018. He rejected any notion that the emails were in retaliation for the Complainant bringing a complaint to the previous night’s board meeting regarding his horses and the electric fence. He also stated that he had no problem with the previous Principal, nor the present Principal, as both communicated to him on a regular basis without the need to engage in an email exchange.  

I did not find Mr C’s evidence to be plausible. Firstly, the last WSE happened in 2016, over two years since his initiation of the email but Mr C’s initial account suggested that the interactions with an inspector were current. Secondly, Mr C’s first email to the Complainant on 26 September concerned a query about morning assembly. It was put to Mr C that he could have brought this up at the board meeting on the previous night but could give no convincing reason why he failed to do so. Furthermore, he stated that he had been approached by some parents who were concerned about the lack of morning assembly but chose not to give further details or identify those parents. Thirdly, the questioning of the Complainant’s performance of her duties as acting Principal in the emails are clearly rebutted by the Respondent in its letter of 10 December 2019 from the Principal to the Complainant.  The Principal states in the letter that the Complainant is “a highly competent teacher and Deputy Principal, as well as having served for a significant period of time as Acting Principal, doing so in an effective and competent manner”.  

The Complainant alleges that she was bullied by the Chairperson in the manner and frequency of the emails which constituted micromanagement and an unfair attack on her reputation and professional ability. Similar to the data breach above, I am not in a position to investigate bullying complaints. However, I will examine the circumstances surrounding the sending of the emails and whether such were justified.  The remarkable overarching factor that cannot be ignored was that the protected act involved the horses of the chairman of the board. It is not credible to accept as co-incidental that the day after the incidents were reported by the Complainant to the board which he chaired, also happened to be the day the chairman began to send unprecedented emails to the Complainant reminding her of her duties as acting principal. The Respondent gave no evidence other than the Complainant performed her duties professionally at all times. I am satisfied, based on the balance of probabilities, that the emails were in retaliation for the Complainant committing a protected act.  I find that the effect of Mr C’s actions seriously and unilaterally damaged the relationship of trust and confidence, an implied term in the Complainant’s contract of employment, between the Complainant and the Respondent, without proper reason or cause.

Section 27 (1) of the Act provides:

(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.

I conclude that the Complainant has discharged the burden of proof imposed upon her as advised by the Labour Court in Toni v Guy in that she committed a protected act and also, having regard to the circumstances, it is apt for me to infer from subsequent events that the protected act was an operative consideration in the detriment imposed. I am satisfied the detriment imposed on the Complainant  fulfilled the test relied on  above by the Labour Court in An Garda Siochana  quoting   Arnold J. in Courtaulds Northern Textiles Limited  when he stated: “ …a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all circumstances to his detriment” The three strands of incidents - undue pressure, alleged data breach and unacceptable micromanagement – though singularly serious, combined to show that the Respondent conducted itself in a manner calculated or likely to destroy, or seriously damage, the relationship of confidence and trust between the parties. The Respondent’s conduct, at the very least, unilaterally breached the implied term in the Complainant’s contract of employment of mutual trust and confidence. Furthermore, she was denied the opportunity by the Respondent to process her grievance in a fair and transparent manner at local level.  

I find that both limbs of the burden of proof were satisfied by the Complainant. The burden shifts to the Respondent to show, on credible evidence and to the normal civil standard, that the protected act did not influence the detriment imposed.

 No convincing evidence was proffered other than the Complainant performed her duties professionally at all times. I am satisfied that the Chairperson’s emails were an unacceptable response to the protected act of the Complainant. Likewise, the raising of a serious data breach near the conclusion of a meeting where the Complainant signalled her intention to bring her penalisation claim further, could have no other probable function but that of impeding such a referral. This purported breach was never followed up. Significantly, the original incidents forms referred to in the data breach accusation were those relied upon by the Complainant in committing the protected act. Fr A’s intervention, though not as serious an imposition of detriment as the former happenings, was nevertheless an attempt to deflect the penalisation claim away from going to an external third party. I find that all three happenings, together with an unfair internal grievance procedure, were organically linked to the protected act and the Complainant would not have been penalised ‘but for’ having committed a protected act.  I am satisfied that the Respondent did not discharge the burden of proof that the protected act did not influence the detriment imposed

Redress:

Section 28 of the Act provides the redress provision for contravention of section 27 as follows:

 A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 27 shall do one or more of the following, namely —

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

(b) require the employer to take a specified course of action, or

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

I declare that the complaint was well founded. I note that the Complainant still remains in employment and has suffered no financial loss with regard to her terms and conditions of employment. However, the Complainant gave very cogent evidence of the considerable distress she suffered as a result of the effect of the detriment imposed upon her, both with regard to her reputation and self-esteem.  Having considered all the circumstances in this case, I order the Respondent to pay the Complainant compensation of €6400, which is equivalent to approximately one month’s salary.  

I find that under section 28 of the Safety, Health and Welfare at Work Act 2005 the complaint was well founded, and I direct the Respondent to pay the Complainant compensation of €6400.

Section 27 Safety Health and Welfare at Work Act, Penalisation.