FULL RECOMMENDATION
PARTIES : HYDE AND SEEK GLASNEVIN DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s). ADJ-00023794 CA-00030455-006. This is a cross appeal by Ms. Byrne-Hoey, ‘the Complainant’ and Hyde and Seek Glasnevin Ltd., ‘the Respondent’, of a Decision by an Adjudication Officer, ‘AO’, under the Safety, Health and Welfare at Work Act 2005, ‘the Act’. The Complainant was employed by the Respondent as a Childcare Assistant from April 2019 to June 2019. The Complainant lodged a complaint under the Act with the Workplace Relations Commission, ‘WRC’, that she had been penalised for raising a health and safety concern. An Adjudication Officer, ‘AO’, decided that the claim was well founded and awarded compensation of €2000. The Respondent appealed the Decision. The Complainant appealed the quantum awarded. Summary of Complainant arguments. The Adjudication Officer was correct in the Decision made but erred in the scale of quantum awarded. On 11 June 2019, the Complainant was at work when a colleague, ‘M’, attempted to open a door while she had a child in her arms. M pulled the door in an aggressive manner so as to remove chairs. Having forced the door open, M left the room and returned without the child. She then began to stack chairs in an aggressive fashion and was quite disruptive. The Complainant asked M in a calm manner to calm down as she was frightening the children. M approached the Complainant in a crazed manner, shouting at her and threatening to kill her. The Complainant told M that she was frightening the children. Despite the fact that the Complainant had a child in her arms, M pushed her arm when the Complainant was pointing, and M shouted at her. The Complainant feared that she would be assaulted. M was close to her and the child when she was shouting at the Complainant. When Ms. Teo Frentiu, the Complainant’s manager, arrived, M was still screaming and pointing at the Complainant. The Complainant left the child in another room and returned to her work. Later that day, the Creche Manager, Ms. Siobhan Davy, asked the Complainant about what had happened, and the Complainant gave an account and raised her concerns for herself and the children about what had occurred. Ms. Davy had no regard for the issues being brought to her attention and told the Complainant not to say anything to M in future but to go and get a manager because M had gone home upset and Ms. Davy did not want anybody to be upset. On the following day, despite what had happened, the Complainant was called to a meeting with Ms. Frentiu and Ms. Davy where she was given a warning for what was described as ‘Failure to follow a reasonable management instruction on 11 June 2019. Unprofessional behaviour in the workplace.’ and she was told that her ‘behaviour in the office was unacceptable and unprofessional’. The Complainant had raised a health and safety matter arising from the behaviour of M. In response to this protected act, she was penalised by the Respondent. M had shown no regard for the health and safety of the child in the Complainant’s arms and the Complainant brought the incident to the attention of her employer. Despite the fact that the Complainant had been attacked while holding a child in her arms, she was singled out to be given a warning. This is as a direct result of having raised health and safety concerns and but for having raised those concerns, the Complainant would not have received this warning. The employer is in breach of s. 27(3) of the Act. The protected act was when the Complainant spoke to Ms. Frentiu during and after the attack and when she spoke to Ms. Davy later that day. In both conversations, there were clear complaints related to the safety, health and welfare of herself, her colleagues and the children. There is no requirement under the Act for a complaint to follow any formal structure, seeStobart Ireland Driver Services Ltd. v. Keith Carroll, (2013) 24 E.L.R. 77.In that case, it was noted that the purpose of the protection against penalisation is to ensure the health and safety of employees and those that they encounter in the course of their work. The ’but for’ test applied inToni and Guy Blackrock Ltd v Paul O’ Neill (2010) ELR 21when the attitude of an employer changed towards an employee once they made a complaintis applicable to this case. This warning is a direct result of the Complainant having raised serious issues. But for bringing this protected act to the attention of Ms. Davy, the Complainant would not have received the warning. Without prejudice to the foregoing submission that penalisation occurred by the imposition of a penalty issued on 12 June 2019, it is open to the Court to hold that the penalisation continued up to the Complainant’s dismissal on 19 June 2019. As a result of l reporting the incident on 11 June 2019 and related matters, the Complainant was told on 17 June 2019, at 6.35am, to go to work that day in a different premises. This amounts to blatant penalisation. This reaction brought on anxiety for the Complainant. She was unable to attend work due to this illness. Later that day, the Complainant was invited to a disciplinary hearing. On 18 June 2019, the Complainant secured an appointment with her doctor and received medical certification that she was unfit for work for two weeks due to ‘work related stress’. On 19 June 2019, the Complainant received notice that she had been summarily dismissed due to having, allegedly, failed to carry out her duty to the standard required. This occurred after an email of grievance was sent by the Complainant on 16 June 2019 in which she outlined that an employee M was acting aggressively, while holding a child in her arms; that employee M had made threats to kill a colleague; that employee M verbally attacked a colleague who had a child in her arms; that employee M caused a colleague to be afraid of an assault; management had failed/refused to take appropriate action to protect staff and children. Within hours of having raised these matters, the Complainant was spoken to in a hostile manner and her place of work was changed. It is open to the Court to determine if the penalisation suffered by the Complainant extends to her dismissal. Summary of Respondent arguments On 11 June 2019, there were two incidents involving the Complainant. Sometime between mid-morning and 1 pm, the Complainant went to see Ms. Maura Boyce in the office. Ms.Boyce is a member of the administration staff. The Complainant sought documentation relating to her employment. Ms. Boyce told the Complainant that she did not have access to it but that she would follow up with two managers, Ms. Frentiu and Ms. Davy. The Complainant did not accept this and she raised her voice, refused to leave the office and would not accept what she was told. Ms. Boyce was very upset. She telephoned Ms. Davy. They met off-site. Ms. Boyce was crying and very upset. Ms. Davy said that she would speak to the Respondent’s HR advisors. Ms. Davy returned to the Tolka Road creche where she was working that day and Ms. Boyce returned to Glasnevin. Shortly after 4pm, Ms. Davy received a call from M, who was very upset over a number of matters, including an incident that occurred with the Complainant in the ECCE room or winter garden area of the creche. It was a short conversation. M was stressed. Ms. Davy then rang Ms. Boyce to enquire about the incident as Ms. Frentiu had not mentioned it prior to her finishing work for the day. Ms. Boyce replied by text, stating that all was calm now and that Ms. Davy should talk to both parties the following day. Ms. Davy decided to go to the Glasnevin creche. It is unlikely that she arrived there until after 5pm. She did not have a conversation with the Complainant. She may have seen her, but she did not engage in the conversation alleged by the Complainant. The record shows that the Complainant left work at 5.05pm. Ms. Davy could not have said that M went home upset as the attendance book shows that M remained in work until 6.15pm. Ms. Davy wanted to speak to Ms. Frentiu before doing anything further. When Ms. Davy spoke to Ms. Frentiu the following day, she got a very different account of the incident than that described by the Complainant. It is acknowledged that an incident occurred, but it is denied by the Respondent that M cursed or used the words described by the Complainant. There were about 20 after schoolers present and if the incident was as described, it would be expected that there would have been complaints. There were none. The location was close to where Ms. Frentiu was yet she did not hear what is alleged to have happened. No complaint regarding the incident between M and the Complainant was ever received by the Respondent. During the morning of 12 June 2019, Ms. Davy had an interaction with the Complainant regarding the Complainant refusing to care for Montessori children who were not graduating that day. The Complainant wanted to be part of the graduation, but she was needed elsewhere. There was no mention of the incident with M the previous day. Around 3.30pm, Ms. Davy received advice from the HR advisors. She called Ms. Frentiu and the Complainant into the office and handed her an informal warning regarding the incident with Ms. Boyce the previous day. Ms. Davy sought separate advice regarding the Winter Garden incident. She was advised to give both parties the opportunity to raise a grievance. The Complainant never raised this matter as an issue with Ms. Davy. The Complainant’s own initiating complaint form to the WRC suggests that the incident in the Winter Garden was brought to the Respondent’s attention by email on 16 June 2019, which is denied. This is after the alleged penalisation. It is well established that for penalisation to occur, there must be a causal connection between a complaint and a detriment. The letter given to the Complainant on 12 June 2019 refers to a different incident to that relied upon by the Complainant. Even if the Court was to accept that a complaint had been made regarding the incident in the Winter Garden, the Respondent did not understand that to be the case at the time and believed the matter to be resolved. As theToni and Guycase makes clear, the Court must consider the motive of an employer in imposing a detriment. The claim of penalisation up to and including dismissal is denied. The Complainant was dismissed for failing to attend for work for two days and for not notifying her employer for two days. The Respondent can find no record of the email allegedly sent by the Complainant on 16 June 2019. The Complainant has declined to allow access to her telephone in order that the Respondent’s experts could establish if the email had ever been sent. It is not credible to suggest that the Respondent would have ignored such an email, if it had been received. Witness evidence Ms. Jade Byrne Hoey Ms. Byrne-Hoey is the Complainant. The witness outlined, as per the submission above, how an incident arose between M and herself on 11 June 2019. She described how she was verbally abused by M, how she was frightened and concerned for the children in the room and the child in her arms, in particular. She described how M pushed her arm in the course of the incident. The witness described how the incident arose after she asked M to ‘calm down’, when she was stacking chairs in an obvious temper. The witness said that Ms. Frentiu entered the room and asked about what had happened. At this time M was still shouting at the Complainant. The witness said that the incident occurred after 4pm on that day. The witness left work at 5.05pm. On her way out, the witness said that she met Ms. Davy and had a conversation with her about the incident, in which Ms. Davy told her that, in future, she should avoid confrontation with M, who had gone home upset and that Ms. Davy had said that she did not want anybody to be upset, so the witness should call a manager rather than have future confrontations with M. The witness denied that she had any confrontation with Ms. Boyce on 11 June 2019. She said that she approached Ms. Boyce for her contract on 12 June 2019 after the incident with M. The witness said that she was disappointed not to be given the chance to attend the Montessori graduation. The witness said that there was no argument with Ms. Boyce. The witness said that she was called to a meeting on 12 June 2019 with Ms. Frentiu and Ms. Davy and she was handed a written warning. She could not understand references to her professional standards. She felt that she was being punished for the incident with M in which she had been the victim. The witness said that she enquired about what was to happen regarding the incident and she was told to look at the company handbook. There was no sanction against M. She was told M’s version of events. The witness said that she had raised issues regarding the way that a fellow employee treated her in front of the children. The witness said that she waited from 11 June 2019 to 16 June 2019 to put her grievance in writing as she was nervous and wanted to be careful and thorough. She said that there were no difficulties regarding the Respondent’s email address. The witness said that she believed she was sent to Tolka Road because she had raised concerns about what had happened on 11 June 2019. The witness said that, apart from the first two days of her employment when she had attended there for training, she had never worked in Tolka Road. She said that this caused anxiety and panic attacks and she could not go to work. The witness said that she handed in her medical certificate personally on the morning of 19 June 2019 but that, later that day, her employment was terminated. Under cross examination, the witness denied ever shouting at Ms. Boyce. She said that she was upset that she could not get a copy of her contract but that she was not upset with Ms. Boyce. The witness refuted a claim that the conversation which she had described with Ms. Davy had not occurred and she repeated the details. It was put to the witness that the only incident discussed at the meeting on 12 June 2019 was that which occurred between Ms. Boyce and herself and that she was not given any warning regarding the incident with M. The witness denied this. It was put to the witness that the warning refers to an incident in ‘the office’, so it is clear that this refers to the incident with Ms. Boyce in the office whereas the incident with M occurred elsewhere. It was put to her also that the warning referred to a refusal to follow an instruction, that M had never given her an instruction, but Ms. Boyce had by telling her to approach the two managers. The witness denied ever shouting at Ms. Boyce and reiterated that she was punished for the incident with M and that she had not spoken to Ms. Boyce on 11 June 2019. The witness accepted that the protected disclosure being claimed by her was the behaviour of M, about which she complained, and that this also formed the basis for complaints under the Employment Equality Acts and the alleged penalisation under the Safety, Health and Welfare Act. She denied that she was seeking to increase compensation and said that she was victimised contrary to all three pieces of legislation. This had caused her anxiety and stress. The witness accepted that the mail of 16 June 2019 was the only formal mail from her that mentioned M. She insisted that the mail had been sent. In response to a question regarding the fact that her contract permitted her re-location to Tolka Road, the witness stated that she had never received her contract. It was put to the witness that it was not reasonable for a probationer to refuse to go to work. The witness stated that the instruction to report to Tolka Road had made her ill. She stated that, when a need in Tolka Road arose, the usual practice was to find somebody who was willing to go there. The witness denied refusing to do her job. She said that if she was sick, she was entitled not to go to work. She said that she had telephoned to notify the Respondent that she was ill and had followed that up with a medical appointment and then had supplied a medical certificate. She said that when she was making her medical appointment, her doctor could tell that she was distraught and advised her not to go to work. The witness denied that she submitted her medical certificate after she received her letter of dismissal. Ms. Siobhan Davy Ms. Davy is the Creche Manager for the Respondent. The witness said that she was 30 years old at the time of the events before the Court. M was 26. The witness said that, typically, people in the industry tended to be in the 18 to 30 age bracket. The witness said that age was never an issue in the business. She denied having a less positive view of a 19-year-old compared to a 26-year-old. The witness described, as per submission above, how she came to meet Ms. Boyce on 11 June 2019 off-site and how Ms. Boyce was upset because the Complainant had shouted at her when Ms. Boyce could not provide the Complainant with her contract and had advised the Complainant to approach Ms. Frentiu or the witness. The witness said that she went back to Tolka Road after this and contacted the Respondent’s HR advisors. At about 4.30pm, the witness received a call from M who referred to a disagreement with the Complainant. It was a brief conversation. After contact with Ms. Boyce, the witness went to the Glasnevin creche. She left at about 4.45pm and arrived about 5.05pm. She denied that she spoke to the Complainant then. She could not be sure, but she may have seen her, but they did not speak. She noted that M had not gone home upset and was recorded as remaining in the creche until 6.15pm. On 12 June 2019, the witness said that she spoke to Ms. Frentiu about the incident between the Complainant and M. It did not seem like a big incident at the time. She stated that the meeting with the Complainant had nothing to do with this incident. She said that she followed the advice of the Respondent’s HR advisors on how to deal with the incident between the Complainant and Ms. Boyce and that the warning had related to this. Under cross examination, the witness said that Ms. Boyce was a woman in her 40s. She was not a manager. When asked why she believed Ms. Boyce but not the Complainant, the witness said that the Complainant had not disputed Ms. Boyce’s account. The witness said that Ms. Boyce had only worked for the Respondent for about 10 months at that time. The witness said that M had worked for about 5 or 6 years for the Respondent at that time. When it was put to her that her account of arriving at Glasnevin and not speaking to the Complainant was not credible, the witness repeated that she had not spoken to her at the time. The witness confirmed that no action had been taken against Ms. Boyce. The witness described the letter given to the Complainant as a letter of concern rather than as a warning. Under questioning from the Court, the witness said that the meeting was the opportunity for the Complainant to explain her actions. When it was then put to her that she had the letter ready before the meeting, the witness said that if the Complainant had disputed Ms. Boyce’s version of events, she would have considered her points. She denied that there was any element of age discrimination in her consideration of the matter and noted that the Complainant had not disputed or disagreed with the version of events given by Ms. Boyce. The witness said The witness said that on 17 June 2019 she had texted the Complainant at about 6.35 am to tell her that she was needed at the Tolka Road creche that morning. This creche opened at 7.30am. The Complainant had said that she did not want to go there. The witness was under pressure to cover the staff/children ratios. She had telephone conversations with the Complainant, the Complainant’s mother and boyfriend. They were complaining about her need to have the Complainant work in Tolka Road. About 20 minutes before she was due to report for work, the Complainant texted to say that she could not come in as she was ill. There was no reference to an email sent the previous evening. She never heard from the Complainant again. Later that day, she sent a request to the Complainant to attend a disciplinary hearing because of her failure to attend for work and a possible breach of contract. The Complainant did not attend. Due to the issues concerned, the witness dismissed the Complainant on 19 June 2019. The witness said that she could plan ahead if she knew whether or not a staff member was ill and unable to work but that she needed advance notice, the usual convention was to advise before 4.30pm the day before, when possible. The witness said that she was mindful of the Complainant’s short service. The witness said that the decision was unrelated to any incident with M or Ms. Boyce. She said that she did not receive a sick note for the Complainant until 20 June 2019. The witness said that the Complainant’s telephone was not handed to her at the WRC hearing. It was shown to her. The witness noted that it was difficult to get suitable child-care staff. Under cross examination, the witness said that she did not have access to her e-mails on Sundays without logging on to the creche system. She did not receive e-mails related to work on her telephone. She did not receive the e-mail allegedly sent on 16 June 2019, (a Sunday). When the Complainant’s representative drew attention to e-mails from her that appeared to have been sent from her telephone, the witness clarified that she could access e-mails, but this required her to log on to the creche’s system. The witness said that it was her decision to allocate the Complainant to the Tolka Road creche on Monday, 17 June 2019. The Complainant was not an assigned key carer allocated to a room and she needed somebody to cover a gap in Tolka Road. The witness was referred to a text from the Complainant at 07.36am on 17 June 2019, which referred to the incident not being dealt with, about which she was asked if this did not refer to the matters raised in the e-mail of the previous night. The witness said that she thought it referred to the discussions prior to this about the Complainant going to Tolka Road and she denied that this was unlikely. Under questioning from the Court, the witness clarified that she had texted the Complainant before lunch on 17 June 2019 about a disciplinary meeting and had sought a response by 4.30pm. When asked why was this done in such a rush, the witness said that she needed to be able to rely on staff to be available or to let her know in advance if they were not. The witness reiterated that she had not received the medical certificate until 20 June 2019. She said that she had no concerns that the Complainant had been dismissed without knowing what had happened.
Mr. Mark Monahan Mr. Monahan is a Director of Digital Forensics with Grant Thornton and a lecturer in the subject. A report prepared by the witness had been sent to the Court by the Respondent. The witness explained that to be certain that an email had been sent would, ideally, require an examination of the Complainant’s device. Alternatively, it was possible to use technology that, when applied to an email, could confirm whether or not it had been sent. Upon questioning from the Court, the witness stated that this technology would require technical assistance. This would best be offered in person by somebody accessing the device with the Complainant, while it might be possible to offer a ‘step by step’ guide in writing. The witness gave details of the searches of the Respondent’s email system that he had undertaken. He had found no evidence that it had been received and no evidence that it had been forwarded and/or deleted. He felt that it was unlikely that it had gone to the ‘Junk Folder’. The witness said that it was impossible to be 100% definitive, in the circumstances. He had got a colleague to verify his searches also. The witness said that he found no subsequent evidence that the mail had generated other mails. In response to a question from the Court, the witness said that he could not say with certainty, without access to the device or an original native copy if the mail had been sent but he could find no trace of it from his search. On re-direct examination, the witness noted that with the access to the device or copy mentioned, it would be relatively easy to say definitively if the mail was sent. The applicable law Protected Disclosures Act 2014 Protected disclosures Section 2 of the 2014 Act provides that: “‘penalisation’ means any act or omission that affects a worker to the worker’s detriment, and in particular includes— (a) 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) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty), (e) unfair treatment, (f) coercion, intimidation or harassment, (g) discrimination, disadvantage or unfair treatment, (h) injury, damage or loss, and (i) threat of reprisal;” 5. (1) For the purposes of this Act “protected disclosure” means, subject tosubsections (6)and(7A)andsections 17and18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified insection 6,7,8,9or10. (2) For the purposes of this Act information is “relevant information” if— (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in connection with the worker’s employment. (3) The following matters are relevant wrongdoings for the purposes of this Act— (a) that an offence has been, is being or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, (f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur, (g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or (h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed. (4) For the purposes ofsubsection (3)it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory Disclosure to employer or other responsible person 6. (1) A disclosure is made in the manner specified in this section if the worker makes it— (a) to the worker’s employer, or (b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly— (i) to the conduct of a person other than the worker’s employer, or (ii) to something for which a person other than the worker’s employer has legal responsibility, to that other person. Other protection of employees from penalisation for having made protected disclosure 12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure. 12. (6) In any other case, the Court shall order the employer to pay the employee such compensation as the Court considers just and equitable in all the circumstances having regard to any loss suffered by the employee in consequence of the non- compliance. Section 12(1) of the Act provides: “12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.” It follows that a Complainant under the Act must demonstrate (a) that they made one or more protected disclosures; (iii) that they suffered a detriment; and (iii) that there is a causal connection between (i) and (ii). This Court has previously considered the test which a Complainant under the Act must satisfy in order to establish that he or she has suffered penalisation within the meaning of section 12(1) as a consequence of having made a protected disclosure i.e. in order to establish a causal connection between their protected disclosure and the detriment complained of. InAidan & Henrietta McGrath Partnership v Anna Monaghan(PDD162) the Court stated: “… the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant 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 Complainant 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.” There were two potential protected disclosures, the first on the 11 June and the second on the 16 June. The Complainant alleges that the protected disclosure relating to the incident on the 11 June was made when she spoke to Ms. Frentiu during and after the altercation with employee M and later that same day when she spoke to Ms. Davy about M’s behaviour and her concern about the safety, health and welfare of herself, her colleagues, and the children. The Complainant’s evidence was that sometime after 4pm on the 11 June she was verbally abused by M when she asked M to ‘calm down’ after she witnessed M stacking chairs in an obvious temper in the Winter Garden such that she was frightened and concerned for the children in the room and the child in M’s arms at the time. She described how M pushed her arm in the course of the incident. During the altercation her manager Ms. Frentiu entered the room, witnessed part of the altercation and asked the Complainant what had happened The Complainant left work at 5.05pm. On her way out, the Complainant said that she met Ms. Davy and had a conversation with her about the incident and expressed her concern for herself and the children. On 12 June 2019 the Complainant was called to a meeting with Ms. Frentiu and Ms. Davy and handed a written warning. She said that she was being punished for the incident with M in which she had been the victim. Ms. Davy’s evidence was that on the 11 June she received a call from Ms. Boyce who was very upset. Ms Boyce told her about an altercation that she had with the Complainant. They met off-site. Ms. Boyce was crying and very upset. Ms. Davy said that she would speak to the Respondent’s HR advisors before acting. At about 4.30pm on the 11 June Ms Davy received a call from M who referred to a disagreement with the Complainant. It was a brief conversation. Following this Ms Davy went over to the Glasnevin creche where the Complainant worked. She left at about 4.45pm and arrived about 5.05pm. She denied speaking to the Complainant on her arrival at the Glasnevin creche. She may have seen her, but they did not speak. She noted that M had not gone home upset and was recorded as remaining in the creche until 6.15pm. On 12 June 2019, Ms Davy said that she spoke to Ms. Frentiu about the incident between the Complainant and M. It did not seem like a big incident at the time. The letter given to the Complainant on 12 June related to the incident with the Complainant and Ms Boyce. The Complainant denied any incident with Ms Boyce and said any interaction with Ms Boyce occurred on the 12 June and not on the 11 June. Court’s findings on the 11 June incident The Court was presented with conflicting evidence and in those circumstances must try to weigh the probative value of the conflicting evidence. The Court notes the absence of any documentary evidence from the Respondent to support its assertion as to the reasoning behind the warning letter issued to the Complainant on the 12 June. The Court notes also that witnesses who could have helped substantiate the Respondent’s version of events, Ms. Frentiu and Ms. Boyce in particular and perhaps M also, did not give evidence. The text of the warning does not assist in providing clarity. Having heard evidence from both parties that is in direct conflict,, the Court prefers the evidence of the Complainant on this matter. She gave first hand evidence that the Court found credible and no first hand evidence of either the incident with M or the alleged incident with Ms. Boyce was given to the Court on behalf of the Respondent. The Court accepts that the confrontation that she described with M. occurred in the fashion described by her and that she brought this to the Respondent’s attention. Given the alleged behaviour of M., as described by the Complainant, in a childcare facility and in a situation where the Complainant was holding a child, the Court is satisfied that the Complainant drew attention to a potential safety hazard and that, in so doing, she carried out a protected act within the meaning of section 15(3)(d). While the burden of proof rests with the Complainant, in the absence of any supportive evidence, where the Court prefers the evidence given by the Complainant, it follows that the Court is not satisfied that the warning was related to any alleged incident between Ms. Boyce and the Complainant. Did the giving of an informal warning to the Complainant amount to penalisation within the meaning of section 5(d)? The Respondent’s representative sought to argue to the Court that the Complainant had not met the requirement to show detriment. However, a letter itself refers to it amounting to an informal warning and goes on to say:“Although not a formal warning, should there be any repeat of this conduct, or indeed any misconduct in general you may be subject to formal disciplinary action.” The letter clearly amounted to a disciplinary penalty within the meaning of the Act. It was an informal warning that had the consequence of ensuring that any form of misconduct, no matter however minor, would henceforth be dealt with through the formal disciplinary process. The Court is satisfied that this penalty was imposed on the Complainant having carried out a protected act and “but for” the protected act no action would have been taken against the Complainant. 16 June grievance The Complainant’s evidence was that as a result of her sending an email on 16 June 2019 to Ms Davy outlining her safety concerns about the actions of M. and the subsequent reaction of the Respondent – the giving of an informal warning to the Complainant, she was told to transfer to a different premises on the 17 June and that this amounted to further penalisation. Her evidence under cross-examination was that when a need in Tolka Road arose, the usual practice was to find somebody who was willing to go there. The Respondent’s evidence was that she never received this email, and that the reason she asked the Complainant to transfer was purely for the purposes of maintaining cover on a temporary basis, that this was in accordance with the Complainant’s contractual requirements. and that, to avoid inconvenience, an offer was made to drive the Complainant to and from the other premises. Court’s finding on the 16 June incident The Complaint’s evidence was she sent the email to Ms Davy at 8.51 on Sunday the 16 June. This was sent to Ms Davy’s work email address. Ms Davy’s evidence was that she had not seen the email when she called the Complainant on Monday at 6.35 a.m. to ask her to work at the Tolka creche. She denied ever having received this email. The Respondent called an expert witness Mr. Monaghan who said under oath that he could not say with certainty without access to the Complainant’s device or an original native copy, if the mail had been sent but he could find no trace of it from his searches. The Respondent made application to the Court for access to the Complainant’s device or, an ‘original, native’ copy of the alleged e-mail to ascertain with certainty if the email of 16 June 2019 had been sent. The Court declined to order access to the Complainant’s device on grounds that it had no authority to do so to do so but said that it would have regard to the Complainant’s refusal to comply with such a request when evaluating the evidence in relation to the email. The next issue for the Court is whether Ms Davy asked the Complainant to temporarily transfer to the Tolka creche because of a protected act on the part of the Complainant on or for some other reason. The Complainant’s contract of employment contains a clause entitled Job Flexibility and reads as follows: It is an express condition of appointment that you are prepared whenever necessary to transfer to alternative branches… This flexibility is essential …. The contract was signed by the Complainant on the 22 May 2019 and so the assumption must be that she was aware of its contents and this clause in particular. Having heard the evidence, the Court believes that the Complainant may have issued the email that is in dispute but, equally, the Court is not satisfied that the Complainant has established that she suffered a detriment for doing so in being asked to transfer temporarily to another creche, to which she was offered transport to minimise any inconvenience, and which was a condition provided for in her contract. The Respondent was down a staff member at the Tolka creche and, because other members of staff at the Glasnevin staff had provided cover at the Tolka creche the previous week, the Complainant was selected to do it. The request to do so was in accordance with the Complainant’s contract of employment. The refusal by the Complainant to go to the Tolka creche and her non-attendance resulted in her ultimate dismissal. This was unrelated to a protected act. The Court is not satisfied that the enforcement of a reasonable and clearly necessary term of the Complainant’s contract of employment, whatever the motivation, could be said to amount to an act by an employer that affected the Complainant to her detriment, with respect to any term or condition of her employment, in circumstances where the Complainant’s contract expressly provided for transfer to alternative branches, whenever necessary. While the finding of the Court is that there was a direct causal link between the protected act of the 11 June and the informal written warning there was no causal link between a protected act of and the temporary transfer of the Complainant to the Tolka case and her ultimate dismissal. However, the informal warning had the effect of fatally undermining the relationship of trust between the Complainant and the Respondent such that the mind of the employer was closed to according the Complainant any latitude when it came to future infractions. Issue of compensation This was a case where the Complainant brought separate sets of proceedings under both the Safety Health and Welfare at Work Act 2005 and the Protected Disclosures Act 2014. The Court having determined the claim under the Safety and Welfare at Work Act 2005 found that there had been penalisation and awarded compensation in the sum of €4,000. The Respondent submitted that in circumstances where the Court found penalisation on the same facts under both the Safety, Health and Welfare at Work 2005 and the Protected Disclosures Act 2014 it could only award compensation under one or other Act. To do otherwise would amount to double recovery for the same loss. In support of the position the Complainant submitted that there was no bar in law in making an award of compensation under both Acts in such circumstances. It was submitted that the principle of double recovery does not arise as the claims made are separate and distinct claims that are not based on losses. It was submitted further that the purpose behind both Acts is different. The proofs needed are different. In the 2005 Act, what constitutes a protected act is extremely broad, seeStobart Ireland v. Keith Carroll (2013) 24 E.L.R. 77. The two Acts are different and have wholly different purposes. The purpose of the 2005 Act is to encourage improvements in health and safety in workplaces. The 2014 Act is intended to bring ‘relevant wrongdoings’ to public attention. The Court must look at the separate and distinct pieces of legislation, the purposes of the Acts, the proofs required for each claim and then it is open to the Court to conclude that the Complainant performed a protected act under the 2005 Act and made a protected disclosure pursuant to the 2014 Act and was penalised within the meaning of both Acts. These findings of penalisation are separate, distinct and not mutually exclusive. The principle of double recovery does not arise when there are separate and distinct legal claims that do not constitute overlapping heads of loss. InDamages by Dorgan and McKenna 2nd Ed. 2021 at 1-71, 1-72the authors note that the rule of double recovery exists against ‘double recovery in that the plaintiff should not be over-compensated by awarding damages for overlapping heads of loss’. The Complainant is not making a claim with ‘overlapping heads of loss’. InWorkers’ Compensation Dust Diseases Board of NSW v. Cook 92015) NSWCA 270the New South Wales Supreme Court held that a plaintiff was not prevented from recovering from a statutory scheme because of a personal injury action as the legislator had not prevented same in the construction of the relevant legislation. The Court also referred to double recovery arising in cases of claimed ‘loss’. In the instant case, the Complainant’s claims are in respect of breaches of statutory rights and are not based on loss. Further, as noted in the case concerned, the legislature did not provide that claims under the two Acts were mutually exclusive and it is not for the Court to read into statutory provisions what is simply not there. If the Complainant is found to have been penalised under both Acts, she is entitled to be compensated under both Acts. By contrast, the Respondent submitted that the Complainant was seeking to ground claims of penalisation under the Safety, Health and Welfare at work Act 2005 and the Protected Disclosure Act 2014 on the same facts. In respect of the 2005 Act, section 28(c) permits the Court to require the employer to pay ‘compensation of such amount, (if any) as the adjudication officer considers just and equitable having regard to all the circumstances.’ It was submitted that ‘Compensation’ is defined in Murdoch and Hunt’s Encyclopaedia of Irish Law 7th ed as ‘payment to make amends for loss or injury to person or property, or to compensate for some deprivation’ as such, in considering compensation under the 2005 Act, the Court would have to base any award on loss, injury or deprivation suffered by the Complainant, (though not necessarily financial loss). The Act does not give the Court power to award aggravated or exemplary damages, seeConway v. INTO (1991) 2 IR 305.In this case also the only harmful effect alleged was ‘anxiety’. Under the 2014 Act, Schedule 2(3)(c) provides for ‘compensation of such amount, (if any), as is just and equitable having regard to all the circumstances.’ The claims before the Court seek compensation for the same alleged loss or detriment. A party cannot claim more than once in respect of the same loss or damage. Henchy J. inWaterford Harbour Commissioners v. British Railway Board, Supreme Court unreported, declined to make two separate awards for compensation in a situation where he determined that the separate claims reflected the same loss. Likewise, inStephens v Archaeological Development Services Limited (2010) IEHC 54, it was established that an employee could pursue a claim for unfair dismissal and sue in the High Court but only provided that the unfair dismissal claim was for financial loss while the High Court case was for personal injuries/mental distress. MacMenamin J emphasised that there could be no question of double recovery and allowed the unfair dismissal claim to proceed only with clear guidelines to preclude the possibility of overlap of claims. Similarly, inHickey v. Bloomfield House Hotel UD384/2014,the Employment Appeals Tribunal found that a claim for financial loss could be pursued but it could not consider the question of personal injuries where a claim for same was proceeding in the courts. The Tribunal distinguished between a claim for unfair dismissal and defamation proceedings being pursued in the courts in the case ofGemma O’ Doherty v. Independent Newspapers UD235/2014.In that case, the Tribunal referred to ‘sanitisation’ to ensure that there was no double recovery. InCulkin v. Sligo County Council (2017) IECA 104,it was held that a discrimination claim could be pursued to an Equality Tribunal in addition to a personal injuries claim being taken to the High Court because the reliefs sought in both cases were different. Hogan J. noted that a trial court might not permit a personal injuries claim to proceed if it transpired on the evidence that the losses claimed had already been decided upon in the discrimination proceedings. Accordingly, while ‘Culkin’ permits cases with the same facts to proceed in different fora, where they concern different losses, a claimant cannot recover more than once in respect of the same loss. Even if the Court decides in favour of the Complainant on more than one of the complaints, the Respondent argued that the Court should not award compensation in any more than one of the complaints. Court’s finding on the issue of compensation The 2014 Act provides that that the compensation awarded by the Court shall be such compensation as the Court considers just and equitable in all the circumstances having regard toany losssuffered by the employee in consequence of the non- compliance. The Court is prohibited by statute from compensation other than for loss suffered by the Complainant. The loss suffered by the Complainant under the 2014 Act was the same loss as that suffered under the 2005 Act. When determining what is just and equitable for the purposes of an award of compensation under the 2014 Act for the same loss and mindful that a person should not be compensated twice for the same loss the Court determines that the amount of compensation that is just and equitable in the circumstances is nil. Determination The Decision of the Adjudication Officer is so varied.
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