Complainant

Respondent

Parties

Noel  Toner

Go-ahead Transport Services (Dublin) Limited Go-ahead Ireland

Representatives

Thomas O'Connor National Bus & Rail Union, Paul Rowsome (NBRU)

 Brendan McCarthy (Stratis Consulting)

Ciara Gallagher (Head of People)

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-00036566-001

08/06/2020

Mr Noel Toner the Complainant commenced employment on 15 July 2019 and ended employment on 8 April 2020. The Complainant was employed as a Bus Driver.

The Complainant had serious concerns about his own health & safety and alleged that was working under duress since the Covid government restrictions announcement on 28 March 2020. He did not think it was safe to have customers board via the front door of the bus as it breached the 2-metre social distancing instruction and dealing with fare transactions to maintain social distancing for his own safety.

The Complainant posted his concerns via video on social media and was dismissed for doing this.  He stated he thought his actions were reasonable at the time to protect his health and safety.

On 28 March 2020, the day after Taoiseach Leo Varadkar announced further lockdown measures to stop the spread of Coronavirus, the Complainant had serious concerns about his own health & safety and was working under duress. He did not think it was safe to have customers board via the front door of the buss as it breached the 2-metre social distancing instruction and dealing with fare transactions to maintain social distancing for his own safety and to comply with all measures required by the Government.

Mr Noel Toner the Complainant was employed as a driver and started with the company on 15 July 2019. On Friday 27 March the then Taoiseach made an announcement for a stay-at-home order until 12 April 2020 due to rising case numbers. On Saturday 28 March 2020, the Complainant posted a video on social media outlining his concerns pertaining to social distancing signage, the Governmental 2-metre rule, and his worry regarding passengers using the front doors in close proximity to him. In the video he raised health & safety concerns due to Covid and the working practice of same and saying he wouldn’t let people in via the front door to collect the fare.

He called for political and regulatory intervention. As a consequence of that 1 post, the Complainant was summarily dismissed on 8 April 2020.  

The Complainant stated his summarily dismissal was penalisation that he experienced as a result of his posting of the video on social media. He alleged that his was a genuine response to his concerns for health & safety.

The Complainant highlighted that after this time a number of additional health & safety measures were introduced subsequent to lobbying by the Union. He stated these were genuine concerns and it was legitimate. The disciplinary process resulted in his dismissal. The appeal concluded in May upholding his dismissal.

Mr Thomas O’Connor, the Complainant representative stated it was their contention that the Complainant was expressing genuine real concerns at the beginning of a global pandemic that had to date seen approximately 250 million cases and tragically, nearly 4.5 million deaths.

The Complainant alleged that the fears expressed in the post were still relevant today, although Vaccines and enhanced safety measures were in place but with variants still driving case numbers upward.

The Complainant’s representative stated the Complainant’s summary dismissal was the ultimate penalisation for raising genuine, real concerns for his safety, and the welfare of his family, colleagues, and customers at the beginning of the biggest global pandemic in 100 years.

The Complainant’s representative stated that the Respondent is a private multi-national transport company that provided Public Transport services under contract from the National Transport Authority. It operated from bases in Ballymount and Naas depots. The Complainant was attached to the Ballymount depot.

The Complainant shared Transcript from the post was as follows: -

“Guys how is it going I am totally on board a company bus, I operate an 18 and 76 bus on a daily basis. 

Today we are after the announcement last night we are a-part of the essential services public transport, and our job is to make sure that essential workers as well as the elderly and vulnerable get to where they need to go.

We love doing our job we love the fact that we are a-part of this, and we are helping people get to their jobs and elderly get to the shops and get home safe.

However we are doing it under a bit of duress, as you can see the company has not put in any restrictions for social distancing, they have put up a couple of posters on the bus, they have a voiceover telling people to sit apart but there is no safety for the driver; they still expect people to get on the front doors put their cash or tap their leap card which is less than 2 metres the distance required by the government for all employers to put in place for employees for their own safety.

This is also a Company that has told us and has a note up in the office stating that we are only allowed to take 2 pairs of gloves per day to do a 12-hour shift, we also have only been issued with a 100ml of hand sanitiser that has to last a month before we get a new one.

Guys this is serious you know hard times, my family as well as other driver’s families do not want them to go to work. Drivers are afraid to come to work, which is understandable at these times, some partners are crying begging with drivers not to go to work, this is really bad, but we are here.  All we are asking for is the protection that we need, we want us to be blocked off.

The Company are just worried about getting their fares, so today we will not be letting anybody on the front doors, everybody will access through the middle and depart through the middle doors.  We won’t be asking anybody to come up and pay their fare as its less than 2 metres apart.

So today we are asking everybody to share this and get this out as far as possible, we are not doing this for popularity, we are not doing it for thumbs up, we are not doing it for likes, we are not doing it for the comments. We are doing it because we need to get it to the likes of Mary Lou McDonald, the likes of Leo Varadkar , the NTA the Public Transport Authority we need to get it out to them that the Company are not following all measures required by the government.

Thanks guys”

The Complainant confirmed that Public Transport had put in a number of measures since his post. Measures included; personal safety packs with facemasks, wipes and gel were issued to employees across all Public Transport.

The Complainant confirmed the NTA paid for intermediate cleaning on buses, middle doors were to be used for alighting from the bus. Extra disinfecting of bus hard surfaces at night, windows signage to keep bus windows open, capacity signage was put on all seats reducing numbers to 10%, increased to 25%, 50% and currently that number remains at 75% of pre-Covid capacity. In July 2020, face masks were made compulsory on Public Transport. Holes in protective screens on drivers’ cabs were filled in.

Mr Thomas O’Connor, the Complainant representative confirmed that the legal position for the employee obligations came under section 8 of the Health and Safety Act, was that employers have, inter alia, under the Common Law, a duty of care to provide a safe place of work, provide a safe system of work and the provision of proper equipment.

The Complainant representative stated Public Transport were deemed an essential service during the pandemic and all vehicles continued to operate.

The Complainant representative confirmed the concerns expressed by the Complainant were reasonable and ones that any officious bystander would raise, and they include the following complaints which he alleged.

• The Company had not put in any restrictions for social distancing: Capacity was subsequently reduced to 10% with identical signage provided by the NTA to all operators so seats could be blocked off.

• There was no safety for the driver: Masks were subsequently made compulsory on Public Transport, no disembarking through the middle doors was also introduced, and driver screens were infilled.

• They still expected people to get on the front doors put their cash or tap their leap card which was less than 2 metres the distance required by the government: enhanced cleaning regimes put in place with special emphasis on hard surfaces like ticket machines. Hand gel dispensers were installed on buses.

The Complainant confirmed a disciplinary hearing was held on 3 April. The outcome was delivered via correspondence dated 8 April 2020.

The Complainant was charged with posting an inappropriate and factually misleading video on social media: It was never detailed prior to or during the process what was misleading about the comments and what parts were deemed inappropriate.

Go Ahead Transport, the Respondent confirmed the letter went on to state that “It was evident that you brought the company into disrepute”.  The complainant alleges that no evidence of this was actually presented. It was alleged that customers contacted the company following the video being posted on Facebook to state they would not be using the services again. The complainant said that this evidence was not presented as per the disciplinary process and the principles of natural justice and fair procedure. Also, regarding the allegation of failure to adhere to the company’s rules regarding the accounting of Revenue. Again, no evidence was presented to back this statement up.

The Respondent stated that the letter spoke about all transport operators working closely together but at the time of the post, but most, if not all the subsequent measures that were eventually introduced for the safety of bus drivers and the wider public. These were not in place on the morning of the 28 March 2020.

On 15 April, NBRU lodged an appeal on 8 ground including severity, failure to explain what was inappropriate, no evidence about bringing the Company into disrepute was provided, no evidence regarding revenue impropriety, and the fact that the Respondent was expressing fears regarding his safety in the midst of a global pandemic and the Government rules on social distancing while no visible safety measures were actually in place on the morning of 28 March 2020.

Mr Thomas O’Connor, the Complainant representative confirmed that the appeal hearing was held on 28 April 2020 and that outcome of the appeal was delivered in correspondence on the 4 May 2020 upholding the sanction of summary dismissal.

In summary the Complainant’s representative stated it was clear throughout both content and tone of company correspondence that no regard was given to the serious nature of the pandemic and real fears expressed by the Complainant for his safety and that of his family.

Although stated in the correspondence that a lesser sanction was considered, it was not credible given the total lack of evidence to support the Company’s claims.

The Complainant’s representative stated prior to this incident, the Complainant had been wrongly suspended for 10 weeks and received an apology from a very senior manager for that treatment.

The Complainant’s representative stated they believed that was the motivation behind the summary dismissal, and not a short video expressing concerns over health and safety during a global pandemic. The Complainant stated that not only had to contend with insufficient safety measures at that time but also the mental anguish that he and his family had to endure regarding catching a lethal virus and working in an environment where every practical step to protect him had not yet been implemented.

Mr Noel Toner, the Complainant took an affirmation and gave evidence.  He stated he did not raise a grievance by Covid concerns he was only back on Tuesday before the Friday and he asked the Supervisor on the Saturday, but no Managers were in the office.

Mr Paul Rowsome, the Union Representative took an affirmation and gave evidence to state that they requested during the video for clarity of exactly how the company was brought into disrepute. He also clarified he received no answers to any of his concerns and appeal grounds.

The Representative stated that if the grievance was raised it would likely have taken some time to address and it was directly in response to the Taoiseach’s address that he posted the video.

Go-Ahead Transport Services, the Respondent confirmed the dismissal was due to posting in full uniform on social media and he was then invited to disciplinary and the allegations were outlined.

Mr Brendan McCarthy, the Respondent’s representative stated that it was the company’s contention that the dismissal of the claimant was fully justified and was not wholly or mainly concerned with the provisions of this legislation. The dismissal related to the posting of material on a Social Media platform by an employee in full company uniform. A distinction must be made between the posting and the content.

Protection against dismissal and penalisation.

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 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.

(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.

Go-Ahead Transport Services, the Respondent confirmed in a letter to the Mr Toner, the Complainant, dated the 30 March, 2020, the company clearly set out the specifics of the charges.

The Respondent submitted extracts from the letter dated 30 March 2020 setting out the case against the claimant.

Posting an inappropriate and factually misleading video on social media, which is liable to bring the company into disrepute without first raising your concerns with the company

Incitement to ignore company rules/procedures without first raising your concerns with the company

Failing to adhere to company rules relating to the accounting of revenue

The hearing is your opportunity to state your defence and explain why you may believe there is no case or lesser case to answer. Within the hearing I will ensure that both you and your workplace colleague or Trade Union representative are able to raise all the points which are relevant for further consideration by myself.

The hearing will focus on the evidence available and it is therefore important you make me aware or supply me with all copies of documentation I need to take into account, otherwise I cannot consider them as part of my decision making. Therefore, if there is anything further you wish me to consider please send to me in advance or supply to me during the hearing.

Before concluding the hearing, I will provide both yourself and your workplace colleague and/or Trade Union Representation an opportunity to raise any other issues you feel need to be considered to help me reach a conclusion. At the end of the hearing, I will adjourn to consider all the points raised and to determine a conclusion. After I have made a final adjournment there will be no further opportunity to raise additional points and therefore you must ensure all issues have been raised before the final adjournment.

I need to remind you that due to the potentially seriousness of this case and given your stated desire to ignore company rules/procedures you will remain suspended from duty until this matter is concluded. During this period, we shall continue to pay your salary in the normal way. You are also entitled to your normal contractual benefits. You remain bound by your contract of employment and are also not permitted to attend any company premises unless invited to do so by a company official.

Go-Ahead Transport, the Respondent submitted extracts from the notes of the disciplinary hearing.

Respondent - Do you think it was acceptable to post this video when several the comments are incorrect or misleading? Especially around the hand gel issue.

Complainant - Yes. Would I do it again? No. It was not the company I was angry at it was the government as they were not telling people and passengers.

Respondent – Why did you say for everyone to share this and get it out there?

Complainant – I wanted to go public side but not to do with the company.

Respondent - But how do you think that looks, you were in full uniform showing the company logos and on a company vehicle, the perception of this was this is an employee is not happy with the company and from this made customers who relied on our services uneasy. In my opinion our colleagues who are out there with no issues and see a colleague posting untrue statements. How do you think this makes them feel?

Respondent – But why did you post the video without talking to anyone, this is what I don’t understand.

Complainant – To get the message to the NTA and the Government.

Respondent – Did you think it was acceptable to do this?

Complainant – I did what I did, should I have done it, no.

Respondent – Why did you do it then?

Complainant - Out of public safety to get the message to the NTA. The Company just didn’t seem to take it seriously, like there are anti-social behaviour meetings with Tallaght guards, all operators go, and the company don’t attend these, if they did, they would be in a better position to see what other operators are going.

Respondent - Ok. I think we are now able to adjourn. I have everything I need. I will not be able to provide an outcome today, as you have given me a lot of information that I want to read through. Also, you both advised you have additional documentation you want me to consider, if I could have that by 5pm today for me to have everything that would be great.

Complainant - OK, I have 2 points pending the outcome of this, I will go legal and go down the H&S Act 2005, whistleblowing.

The Respondent confirmed the disciplinary outcome took place on 8th April.

The Respondent confirmed following consideration of all the charges and the points raised during the disciplinary hearing the company decided it had no option but to terminate the employment of the Complainant. The outcome was confirmed on the 8th April and was best summarised by the following extracts from the letter confirming the outcome as follows.

“After careful consideration of the points raised at the hearing and considering all the evidence available to me, I have determined this conclusion from the three points that were taken into account during the hearing.

Posting an inappropriate and factually misleading video on social media, which is liable to bring the company into disrepute without first raising your concerns with the company.

Incitement to ignore company rules/procedures without first raising your concerns with the company.

Failing to adhere to company rules relating to the accounting of revenue.

Following your decision to post a video on social media on Saturday 28 March 2020, it is evident that you brought the company into disrepute with an intent to cause operational issues at an extremely difficult time for the company and country as a whole.

From your posting you indicated the company was not following any recommended guidelines nor taking the health and safety of colleagues and/or passengers into consideration. This is not the case and I can confirm the company has been working closely with the National Transport Authority regarding all measures in order to provide a safe working environment and to ensure we are following National Government, Health Authorities, and the NTA Guidelines. The company has also been actively communicating all measures to colleagues, to ensure everyone understands the measures in place and what measures are due to come into place.

There are a number of transport operators all of which are working closely together and with the NTA to ensure consistency across the network as well as having our colleagues and passenger’s health and safety as priority. In addition to this we have been in continuous contact with our recognised union SIPTU to ensure we are all working together and to help identify areas in which we as one can support all colleagues.

As discussed, you advised at the hearing that your posting was not aimed at the company and was instead to try and get a message to the NTA and the local government. However, it is apparent that a lot of the content is being directly critical of the company in a public posting, with you being clearly identifiable as a company employee.

You took no steps to clarify or check any of items you discussed in the video, and as such made comments about the company, and its practices, on social media without having any foundation to know if your comments were veracious.

Whilst I appreciate you have stated you would not repeat the action of posting on social media and have upon reflection decided it was the wrong decision, the actions cannot simply be reversed. Subsequent to your video, customers contacted us via social media after believing the misinformation you posted and have stated they will not be using our services again. In this regard you have clearly brought the company into disrepute without having a genuine or justifiable reason to do so

To date the company has received no email from you, outlining or highlighting any concerns you may have had, nor have you approached a manager to have a conversation in person, or over phone, about your concerns.

Additionally, an update was posted on the 25 March that advised colleagues on the current social distancing procedure and the measures that were being put in place by the NTA, which all operators would be required to implement, the extract of the notice is as below.

You were aware of this notice and again you raised no concerns to anyone in the company regarding social distancing or any other measures you had concerns about. I am therefore confident that you took no step to follow any internal process or did anything to raise your concerns and that you simply decided to post your apparent frustrations/concerns on social media in a manner designed to bring the company into disrepute, whilst also at the same time failing to follow the company’s Social Media Policy. The company has processes in place to allow for colleagues to raise concerns, or grievances if required, and you failed to exercise any of these processes.

Any revenue taken, or due to be taken, from customers is paid to the NTA who are ultimately responsible for fare revenue taken on vehicles. Only the NTA can decide whether customers are charged for journeys and the company is contracted to account correctly for fare revenue and ensure tickets are issued correctly.

Drivers in the company, and all other bus companies, are required to continue to account for revenue correctly. No individual employee within the company is authorised to make any decisions relating to the taking of fare revenue.

Your actions here show a complete disregard for operating practices. Whilst the company would be happy to follow any advice or guidance issued by the NTA it is simply not acceptable for any colleague to undertake their own actions which could undermine the company’s contractual requirements, particularly when they have not made any efforts to first formally raise their concerns to the company.

All colleagues are required to work in line with our vision and values and to provide the best standard of performance and conduct, especially where such performance and conduct is likely to impact the trust our customers place in us. Equally upon your own volition you decided to simply ignore company rules, procedures and agreements applicable to your employment. Considering all of this I do not consider that any other course of action other than dismissal is appropriate. The decision to dismiss is therefore based on the actions and manner with which you decided to raise your concerns. It was wholly disproportionate when you could have reasonably discussed your concerns with the company as many other colleagues have been during this difficult time.

Go-Ahead Transport, the Respondent confirmed the appeal against the dismissal. Following receipt of the letter confirming the outcome of the disciplinary hearing, the Complainant appealed the outcome and set out the grounds of his appeal in writing. There were 8 grounds put forward on appeal and only one, number 6, related to this claim under the Safety, Health and Welfare at Work Act.

“The Complainant expressed fear, and angst about personal safety at work during a global pandemic and following Government orders on social distancing, yet he has been dismissed contrary to section 27 of the 2005 Safety, Health and Welfare at Work Act.”

The Respondent confirmed the details of the outcome of appeal. The appeal was heard and a letter was written to confirm the outcome of the appeal process and the reasoning behind the conclusions and also stated the following: -

“Before the appeal a letter was submitted, outlining 8 points to be considered as part of your appeal, each of which required careful consideration to ensure you were given a correct and unbiased hearing. They used these points, and the wider documentation available to them from the disciplinary hearing, to make their decision. To ensure they could take time to consider these points, they confirmed an outcome would not be provided on the day and would be provided by no later than Monday 4 May.”

The Respondent confirmed that specifically in respect of point 6 the appeal stated that: -

“We actively encourage colleagues to come forward with their concerns. It is important at a time like this that we all work together, and if someone has any fears or concerns, then it is important that they raise this directly with a manager so that we can work together to alleviate the concern and come to a resolution.

Your termination was in no way related to you having or raising concerns over your safety at work. It is understandable that colleagues are apprehensive and concerned, particularly in these times. However, you made no efforts to raise any concerns with the Company in relation to safety, health or welfare in any manner, whether verbally, in writing or via email. Instead, you posted a video on social media, which was a breach of the Company’s Social Media Policy.

You mentioned in the appeal that you did not raise your concern with a manager as there was no manager in the depot at the time you signed on for your duty on the morning of Saturday 28 March. However, you had been driving in service in the days leading up to Saturday 28 March, and on each of these days a manager was present in the depot, and again at no time did you raise any concerns.

In addition to this, following your duty on Thursday 26 March you had a meeting with one of the Assistant Operations Managers and at no time throughout this meeting did you raise any concerns about health and safety at work, or in relation to the measures that the Company were carrying out to protect both our colleagues and our customers

Your dismissal was based on several points, which are outlined in both your disciplinary hearing outcome letter and below, which when considered together warrant the sanction awarded. As noted in the appeal hearing, this is the last stage of the Company’s formal disciplinary process and there is no further right to appeal.

In the appeal, the Complainant’s representative noted that everyone has the right to freedom of speech and that your employment should not be terminated due to you having or raising concerns in relation to health and safety at work. However, it is important to note that your employment was not terminated due to you having concerns about your safety at work, we willingly encourage employees to raise these concerns with us, it was terminated due to the following:

Posting an inappropriate and factually misleading video on social media, which is liable to bring the company into disrepute, without first raising your concerns with the company.

Incitement to ignore company rules/procedures without first raising your concerns with the company.

Failing to adhere to company rules relating to the accounting of revenue.

I would like to make it clear that as a Company we continually ask colleagues to come to us with any concerns they may have, particularly when it comes to Health & Safety, and at no time did you communicate to a manager any of these concerns.”

Go-Ahead Transport, the Respondent confirmed there was a pandemic in Ireland which had, and continued to have, a significant impact on public transport. The HSE and the NTA were responsible for setting the standards and operators, like the Company, are obliged to follow all such guidelines.

The Respondent stated that many people would agree that this was a period of anxiety and confusion and while some might agree or disagree with the guidance provided, nevertheless, all public transport service providers were obliged to follow them.

The Respondent stated it would appear that the Complainant was one who had opinions on how things were being done at the time. However, he did not raise any such concerns internally within the company. Instead, in full uniform, he posted views on social media, contrary to the company social media policy. This breach was compounded by the fact that the information was inaccurate and he was inciting others to break company rules and procedures which would result in the company breaching its contractual obligations with the NTA.

The Respondent stated the dismissal was not wholly or mainly related to genuine health and safety concerns raised by one individual. It should be noted that many people raised concerns which were processed internally, none of these were dismissed.

The Respondent asked the Adjudicator to confirm that the dismissal of the Complainant was not, wholly or mainly, the result of the raising of health and safety concerns. The Complainant had not raised such concerns, at any time, internally. The reasons for dismissal were wholly and mainly concerned with the reasons stated, which were;

Posting an inappropriate and factually misleading video on social media, which is liable to bring the company into disrepute, without first raising your concerns with the company.

Incitement to ignore company rules/procedures without first raising your concerns with the company.

Failing to adhere to company rules relating to the accounting of revenue.

CA-00036566 is a complaint of Penalisation, under Section 28 of the Safety, Health & Welfare at Work Act, 2005.

I am required to establish if the respondent has breached section 27(3) of the Act of 2005 which prohibits penalisation where an employee has made a representation to an employer on a health and safety matter based on the oral and written evidence presented and the legislation.

Section 27 (1) defines penalisation as:

“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”

Section 27 (3) of the Act of 2005 sets out the protected acts which a complainant must exercise or invoke in order to make out a complaint of penalisation.

The Labour court held in St John’s National School v Ms Jacinta Akduman, HSD102, that

“employees will only be successful in a penalisation claim under the 2005 Act if they can prove that they: a) made a complaint to their employer in respect of a health and safety matter; and b) suffered a detriment as a result of the actions of their employer; and c) It can be proven that they would not have suffered this detriment had a complaint not been made in the first place”. 

Section 41 of the Workplace Relations Act specifies the powers of an adjudication officer in relation to a complaint of concerning a contravention of section 27 of the Act and therefore in accordance, with section 41 of the Act of 2015, and having considered all the evidence presented to me I do not find this complaint to be well founded as the Complainant did not follow correct procedures in raising his grievances and it was also in exceptional circumstances of the start of the pandemic and posting on social media a video while wearing his uniform and saying what he said resulted in the disciplinary process being invoked.   I find that the company dismissed the employee as a result of him posting a video on social media in full uniform. Without engaging with the company to address his concerns in any way this is not acceptable or appropriate for an employee to do.   The Complainant did not raise health & safety penalisation concern until the appeal stage of the disciplinary process along with the other 7 other appeal grounds.   Ultimately the Complainant did not raise these grievances or concerns internally instead of posting on social media.  He stated his aim was to get information to NTA and government.

I find based on the evidence presented that Mr Noel Toner, the Complainant was dismissed fairly and was not penalised therefore his claim fails.