Complainant

Respondent

Parties

Martin O'Riordan

Abbott Ireland Limited

Representatives

 Mr. Sean Ormonde, Sean Ormonde & Co. Solicitors

Mr. Mark Rodgers BL, instructed Matheson

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00024194-001

17/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00024194-002

17/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00030817-001

10/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00030817-002

10/09/2019

The Complainant was employed as a general operative with the Respondent. The Complainant commenced employment on 6th January 2006. On 6th July 2020, the Complainant was dismissed by the Respondent on the grounds of gross misconduct.   

On 17th December 2018, the Complainant referred the present set of complaint to the Commission. Herein, he alleged that he had suffered a disciplinary sanction for raising health and safety issues in accordance with the Respondent’s own internal procedures. In denying this complaint, the Respondent submitted that the Complainant was entitled, if not encouraged, to raised health and safety issues in the course of his employment. They submitted that the disciplinary sanction imposed was done so soley as a result of the Complainant’s misconduct during an interaction with a manager and had nothing to so with any health and safety issues.

On 10th September 2019, the Complainant raised a further set of complaints. Herein, he alleged that he had again been penalised, on this occasion by the imposition of a period of suspension, as a consequence of raising health and safety issues. In defending this allegation, the Respondent again submitted that the suspension of the Complainant arose due to a separate issue.

Whilst this matter was in progress, the Complainant referred several other complaints, heard under Adjudication References ADJ-00028283 & ADJ-00029045. Evidence in relation to all three sets of complaints were heard over the same two day session, and this decision should be read in conjunction with the above-mentioned.

Hearings in relation to these matters were convened for numerous dates across 2019, 2020 and into 2021. Unfortunately, the progress of the matter was initially delayed by the restrictions arising from the Covid-19 pandemic and the difficulty in convening a hearing on foot of the same. Thereafter, following the Judgement of the Supreme Court in the matter of Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24, the matter was further adjourned to permit evidence to be taken on oath. Following the Judgement of the High Court in the matter of Burke -v- An Adjudication Officer [2021] IEHC 667, the Adjudication Officer initially designated to hear the matter recused herself from any further involvement in circumstances whereby unsworn testimony had been heard in advance of sworn evidence.

As a consequence of the foregoing, the hearing was designated to the present Adjudication Officer to commence anew. Following a case management session, conducted by means of the remote platform, the substantive matter was listed to be heard over three days, falling on 3rd, 4th & 5th October 2022. In advance of the hearing, the parties agreed to exchange a single set of composite submissions. Therein the various issues were summarised into three distinct complaints, an allegation of penaliasation in 2018 (dealt with under this file reference), a further allegation of penalisation in 2019 (also dealt with under under this file reference) and finally an allegation relating to the dismissal of the Complainant, which is discussed under file reference ADJ-00029045. The parties are to be commended for the manner in which they summarised and narrowed the issues in advance of the hearing, resulting in the relevant evidence being presented and opposed within two of the three days assigned.

The Complainant gave evidence in support of his complaint. In addition to the same, the Complainant called three other witnesses, to be descried as “General Operative One”,“General Operative Two” and “General Operative Three”. The Respondent called three witnesses in defense of the Complainant. These witnesses are described as follows; “an Operations Manager”, this being the person that imposed the initial disciplinary sanction on the Complainant, “an R&D Supervisor” this being the one of the Complainant’s direct line managers and a “Senior Operations Manager” this being the person that suspended the Complainant from duty. All evidence was given under affirmation and was opened to cross-examination by the opposing side.  

Preliminary issues as to double recovery were raised at that outset of the hearing. In circumstances whereby these are not determinative of the entire proceedings, they will be discussed following a consideration of the substantive matter.

The Complainant’s employment commenced on 30th January 2006. In or around April 2006, the Complainant’s previous employer was acquired by the Respondent, with the Complainant’s employment transferring to the Respondent on 6th August 2006.

The facility at which the Complainant worked produces medical devices, in particular those designed to improve treatment options for those suffering with cardiac issues. The Complainant stated that he took this role very seriously and was at all times conscious of the necessity for adherence to the strictest health and safety standards. The Respondent’s procedures in this regard are contained in a document known as “Manufacturing Process Instructions”. The Complainant was trained in the application of these instructions, with frequent refresher and updating training taking place.

As part of these procedures, employees were instructed to become familiar with the “Safety Standard Operating Procedures”. The training in relation to the same dictated that employees who noticed potentially unsafe acts must report the same via means of a “Life Cycle”, a computerised method of reporting. The Complainant dutifully followed this process, identifying numerous health and safety issues he observed in the course of his employment. The Complainant’s performance reviews in 2008, 2009 & 2010 all reflected this commitment to health and safety, with the 2010 review stating that that Complainant was “very safety focused and highlights potential safety issues on an ongoing basis”.

The Complainant stated that he noticed a waning in the Respondent’s commitment to adhering to health and safety standards in the final years of his employment. In October 2017, the Complainant’s supervisor began to empathise the importance of meeting increased production targets. The Complainant stated that this was a specific example of what he believed to be a company-wide focus on reaching increased production targets. The Complainant was of the view that such increased production came at the expense of adherence to health and safety protocols.

Following some work-related health issues, the Complainant was rotated to various stations within his area. In October 2017, the Complainant queried as to why he was not being assigned to final inspection stations. One of the responses received was that the Complainant could not reach his assigned production targets. In a conversation with his supervisor, the Complainant was given the impression that he could not reach his production target due to his insistence to strict adherence to production protocol. On 3rd November 2017, the Complainant met with HR to advise of the adverse effect the Respondent’s insistence on production quotas was having on him, in addition to bullying by colleagues on foot of his adherence to the Respondent’s policies.

The issues described by the Complainant began to have a further adverse effect of his health. On foot of the same, the Complainant was signed off work from November 2017 to the first week of January 2018. On his return to work, the Complainant continued to follow strict health and safety protocol and entered “life cycle” referrals any time he viewed a matter that could constitute a potential health and safety violation.

On 5th April 2008, the Complainant entered four individual life cycles in respect of issues he observed whilst undertaking his normal duties.  On that date, an R&D Supervisor asked the Complainant to stop raising life cycles as the matter was being addressed. By response, the Complainant advised that the raising of life cycles was in the interests of health and safety and would create a record in the event of an accident. Following this conversation, the Complainant spoke with a senior health and safety manager within the organisation, during this conversation this person confirmed that the Complainant was to raise life cycles when he observed any potential health and safety issue.

On 10th April 2008, a second supervisor approached the Complainant and again asked that he stop raising life cycles. Towards the end of his shift, the supervisor again approached the Complainant and again asked him to stop raising life cycles. The supervisor in question followed the Complainant repeating this request, at which point the Complainant asked him to stop following him. While the Complainant felt intimidated by this interaction, he did not wish to make a complaint and potentially suffer another bout of ill health. Nonetheless, the supervisor took it upon himself to make a complaint regarding the Complainant’s conduct to management.  An investigation meeting in respect of the same was arranged for 21st May 2018.

As part of this investigation, the Complainant queried as to why he was the subject of an investigation when he simply sought to follow the Respondent own internal health and safety procedures. Two witness statements corroborating the Complainant’s version of events were also taken as part of the process.

During an informal meeting of 31 May 2018, the investigator raised his voice and physically intimidated the Complainant when he sought to amend the minutes of the meeting to include his statement that the supervisor pushed him during the exchange. The Complainant’s version of events in relation to this incident was again corroborated by a third party. Despite the same, the Complainant was informed that his conduct on this date would be the subject of a disciplinary procedure.

These events began to have a severe impact on the health of the Complainant, who was signed off as unfit to work for a number of weeks. The Complainant eventually returned to work on 13th August 2018. Three days later, on 16th August, the Complainant was informed that there was no evidence of misconduct on the part of the investigator during the initial meeting of 31st May 2018. Thereafter, on 23rd August 2018, the Complainant attended a formal disciplinary meeting in respect of an allegation that he “raised his voice and walked off during a discussion with his supervisor”. On 6th September 2018, the Complainant received a verbal warning in respect of this allegation, which he duly elected to appeal on 13th September 2018. Unfortunately, the Respondent elected not to allow this appeal and the sanction stood until its natural expiration.

By submission, the Complainant stated that he had been subject to an unfair and unwarranted disciplinary sanction of foot of his raising health and safety issues in the manner proscribed by the Respondent. He stated that the raising of these life-cycles constituted both a protected disclosure and complaint within the definition of the Safety, Health and Welfare at Work Act. As a direct result of the same, the Complainant was subjected to an unfair process leading to an unwarranted outcome. In essence his submission was that “but for” making the health and safety referral, he would not have been subjected to the process or the imposition of a significant disciplinary sanction.

The second complaint referred by the Complainant under this file reference related to a further allegation of penalisation arising from the referral of health and safety concerns.

On 23rd April 2019, the Respondent distributed a document entitled “Code of Business Conduct”. This document required that all employees sign a statement to the effect that they would “prioritise the health and safety of patients and customers” and “ask questions whenever choices or actions related to (their) work are unclear or do not seem right”, amongst others. While the Complainant had no objections to the commitments required by the code, he had concerns regarding the manner by which he was expected to comply with the same.

On 5th May the Complainant was approached by an R&D Supervisor who advised him that he must sign the document or potentially face suspension from his employment. Ultimately, on 19th June 2019, the Complainant signed the code under protest. In doing so, he stated that his view remained that his employer did not abide by the terms of the code. On 1st July 2019, the Complainant was informed that the manner of his signing was to be investigated by the Respondent. On 4th July 2019, the Complainant received correspondence from the Respondent advising that he would be suspended on an indefinite basis from 1st July 2019 pending an investigation into the manner by which the Complainant signed the code.  Under threat of the foregoing, the Complainant agreed to sign the code unconditionally and returned to work on 15th July 2019.

Upon his return to work the Complainant raised a number of life cycle referrals in accordance with the Respondent’s internal policies. On 17th July 2019, the Complainant supervisor verbally reprimanded the Complainant for raising such referrals in this manner.

On 22nd July, the Complainant met with a Senior Operations Manager to seek some form of closure in relation to this issue. During this meeting, the Complainant notified the Senior Operations Manager that some of his colleagues were bullying him as a result of his adherence to Health and Safety protocols. Despite raising these issues directly with the Respondent, the adverse treatment experienced by the Complainant continued. In particular, one colleague of the Complainant appeared to have direct knowledge of the life cycles raised in the course of his employment. As these issues should only be within the knowledge of management, the Complainant concluded that management were informing colleagues that he was the author of the life cycles. As a direct result of the foregoing, the Complainant commenced a period of certified sick leave on 31st July 2019.    

By submission, the Complainant reiterated that the raising of life cycles constituted a protected disclosure for the purposes of the 2014 Act. In such circumstances, he submitted that the Respondent had both threatened to suspend and then actually suspended him as a direct consequence of such activity. He further submitted that the disclosure of his raising life cycles to other employees constituted a further example of said penalisation in circumstances whereby said disclosure led to adverse behaviour on the part of his colleagues.

In evidence, the Complainant outlined the narrative of events as set out above. At the outset of his evidence he stated that he previously enjoyed and was proud of his job. He stated that he was particularly conscious of the utility of the products being manufactured by the premises. He further stated that he was deeply concerned for the well-being and safety of his fellow employees. As a result of these concerns, the Complainant strictly adhered to safety standards and reported any issue he observed in the workplace. He stated that he received extensive training on the reporting of such issues and simply sought to report same in the manner prescribed by the Respondent. He stated that he was concerned that the local management Respondent was seeking to artificially reduce the amount of referrals for the site and consequently instructed him to breach company procedures. Following his reluctance to deviate from health and safety procedure, the local management of the Respondent sought to undermine and generally make his working like more difficult. These matters cumulated in the penalisation described above. The Complainant outlined that these events had an adverse impact of his health and general well-being.

In cross-examination, the Complainant accepted that he raised numerous life cycles in relation to certain individual issues. He accepted that the Respondent must undergo a process each time such a referral is made. The Complainant did not accept that the Respondent request simply required him to raise issues that could be discussed immediately with the relevant line manager. He stated that the process was that by which he was trained and received confirmation in respect of. In answer to a question, the Complainant accepted that he did not raise a formal complaint regarding the alleged bullying behaviour during the relevant period for the purposes of this complaint.

In evidence the first general operative called by the Complainant stated that on 10th April, the Complainant’s supervisor was looking for the Complainant and appeared quite agitated. He stated that, in his view, the Complainant was not an aggressive person in his dealings with management. She further stated that one of the health and safety issues commonly raised by the Complainant could have quite serious consequences for the operator in question.

The second witness called by the Complainant gave direct evidence as to the events of 31st May. They stated that the investigator appeared to act in an aggressive manner, in particular speaking in a loud, high-pitched tone during the meeting.

The final witness called by the Complainant gave evidence in relation to management’s sometimes aggressive and dismissive reaction to the Complainant’s raising of health and safety concerns.

At the outset, the Respondent denied that the Complainant had been the subject of any adverse treatment within the relevant period for the purposes of the impleaded legislation.

The Respondent operates a “life-cycle” system for the recording and process of potential health and safety issues. Employees are trained in the use of the same, and encouraged to raise such life cycles whenever appropriate. In this regard, it was accepted that the Complainant frequently engaged in this process and was commended for doing so in the past.

On 9th & 10th April 2018, the Complainant raised eight individual life cycles in relation to the activities of the others on his team. These followed on from essentially identical issues raised previously. These entries were recorded and responded to by the Respondent. On foot of the same, the Complainant’s supervisor requested that should he notice any such issues going forward that he should inform him directly so that they could be resolved immediately. When the Complainant raised such matters by means of a life cycle, the observed issue would have long finished and the supervisor would not have an opportunity to speak with the colleague involved and potentially rectify the issue. This instruction itself was recorded as within the lifecycle system and, in the eyes of the Respondent, represented a perfectly reasonable accommodation.

On 10th April 2018, another of the Complainant’s supervisors approached him and requested that he desist from raising life cycles regarding immediate concerns and that these be entered into an excel spreadsheet designed for this purpose. Following this request, the supervisor raised an issue in relation to the Complainant’s conduct. In particular, he alleged that the Complainant raised his voice in response and walked away during the conversation. On foot of the same, an investigation commenced in accordance with the Respondent’s internal disciplinary policy. When this investigation had commenced, the Complainant added the allegation that his supervisor pushed him during the exchange. Following the investigation meeting, the Complainant alleged that this investigator acted in an intimidatory manner when he sought to contest the recorded minutes. On foot of the same, this matter became its own investigation, and the investigator in question stood aside from the investigation in progress.

In the course of the initial investigation, statements were taken from the Complainant, the supervisor and three other colleagues that were in the vicinity of the incident. In a report dated 19th June 2018, the investigator concluded that sufficient evidence existed to allow the matter to proceed to disciplinary hearing. In addition to the foregoing, the investigator concluded that there was insufficient evidence existed to allow the allegation that the supervisor pushed the Complainant to proceed to disciplinary.

Regarding the second investigation, in relation to the initial investigator’s alleged intimidating behaviour, statements were taken from the Complainant, the investigator and three other witnesses that were in the vicinity at the relevant time. On consideration of the same, the investigator concluded that insufficient evidence existed so as to allow this matter to proceed to disciplinary hearing.

A disciplinary meeting in relation to the initial issue was held on 23rd August 2018. Following from the same, it was concluded that the Complainant was guilty of allegation of raising his voice to his supervisor and walking off during a conversation with him. On foot of the same, the Complainant was issued with a verbal warning in respect of his misconduct on the date in question. While the Complainant did indicate an intention to appeal this sanction, this was received outside of the time limit prescribed on the correspondence. As a consequence of the same, the verbal warning stood on the Complainant’s file until its natural expiration.

By submission, the Respondent denied that they imposed any form of disciplinary sanction on the Complainant for raising health and safety issues. They submitted that the sole allegation raised against the Complainant related to his conduct during an informal meeting with his supervisor. This matter was the subject of a thorough internal investigation, during which multiple statements were taken and reviewed. It was only after a full consideration of these matters that the Complainant was issued with a verbal warning. The Respondent further denied that the Complainant was in any way dissuaded from raising health and safety issues, rather they submitted that he was requested to raise the same directly with the supervisor present. Regarding the alleged poor treatment by colleagues and management outlined by the Complainant, the Respondent observed that he never raised any formal grievance in line with their internal grievance procedures at the relevant time.

In addition to the foregoing, the Respondent submitted that the allegations raised by the Complainant did not constitute a protected disclosure within the meaning of the 2014 Act. In particular, they submitted that the issues in question are matters which it was the function of the Complainant to “detect, investigate or prosecute” and consequently cannot constitute a “relevant wrong-doing” for the purposes of Section 5(2)(A) of the Act.

Regarding the second complaint, the Respondent again submitted that the Complainant was not subjected any adverse treatment for raising health and safety concerns.

The Respondent submitted that they operate a code of practice regarding the conduct of all employees within the group. Every employee is expected to sign and abide by the principles enumerated therein. This code is updated and issued annualy to all employees within the group on a worldwide basis. The Respondent’s position in this regard is that any employee that does not sign the code cannot continue to work for the Respondent. Under the disciplinary policy operated by the Respondent, failure to carry out legitimate instructions and violations of the code both constitute examples of serious misconduct. Throughout his employment, the Complainant demonstrated no difficulty in signing multiple copies of this code.

On 5th May 2019, the Complainant advised that he would not sign the code. By response the R&D Supervisor advised that all employees must sign the code and that a failure to do so would need to be discussed with management. On 30th May 2019, the Complainant attended a meeting with management in relation to these issues. During this meeting, the Complainant confirmed that he was not in position to sign the code and would have to seek external legal assistance in relation to these matters. At this meeting, the Complainant asked if he would be suspended as a consequence of this issue. By response, the Operations Manager advised that the document did not need to be completed until 30th June 2019, giving the parties some time to explore the matter further. 

When the Complainant signed the document on 19th June 2020, it was noted that he expressly stated that he did so “under protest”. In such circumstances, the Respondent required an explanation as to the nature of this protest. During a meeting of 1st July 2019, the Complainant stated that he would not, and could not, comply with the code. Having regard to the same, the Complainant was placed on suspension. By correspondence dated 4th July, the Respondent confirmed that the Complainant could sign the document under protest in the event that he agreed to be bound by the terms of the same. On 11th July 2019, the Complainant advised that he was willing to sign the code and he duly returned to work. 

On his return to work, the Complainant continued to raise life cycles in respect of relatively minor issues in contravention of an express request from management. On 17th July 2019, the R&D Supervisor again requested that the Complainant raise such issues with him directly so that he could deal with them immediately. The Complainant was invited to a meeting on 22nd July 2019 in respect of the status of these lifecycles. During this meeting, the Operations Manager noted that the Complainant referred 14 separate life cycles in respect of similar issues the previous week. On foot of the same, he advised the Complainant that he would undertake a “safety standdown” whereby the issue commonly raised by the Complainant would be raised by the operations manager before his unit. In this regard, the Operations Manager intended to resolved these ongoing issues and confirm the Respondent’s commitment to adhering to strict health and safety standards. While it was accepted that the Complainant stated that he felt uncomfortable working on the line in circumstances whereby he had given the names of the individuals he suspected of breaching health and safety best practice. In this regard, the Operations Manager advised that the Complainant would have to engage the formal investigation process in relation to the same. Shortly thereafter the Complainant commenced a period of certified sick leave without raising any formal complaint of bullying or harassment.

By submission, the Respondent denied that the Complainant had been penalised for raising a health and safety issue. They repeated their submission in respect of the application Section 5(5) of the Act. In addition to the same, the Respondent submitted that the Complainant could not establish any form of causal connection between the alleged protected disclosure and the alleged penalisation.  

In evidence, the Operations Manager gave evidence as to the circumstances surrounding the imposition of the verbal warning in May 2018. He stated that this sanction was imposed as a consequence of the Complainant’s misconduct during the earlier conversation with his supervisor. He absolutely denied that this sanction was imposed for raising health and safety concerns and stated that employees should be encouraged to raise such issues. He stated that on reviewing the documentation collected during the investigation stage, he was satisfied that the Complainant misconducted himself as alleged. Regarding the sanction imposed, he stated that he selected a verbal warning as the Complainant had no prior disciplinary sanctions on file.

In evidence, the R&D Supervisor confirmed that he was the Complainant’s primary supervisor for approximately one year. He stated the he gave the Complainant a verbal instruction to approach him directly with relatively minor issues that could be resolved immediately. As an example, the R&D Supervisor referred to a enquiry being raised in respect of the a colleague wearing incorrect or incomplete PPE. If this observation was recorded as a life-cycle, the event in question would be long finalised before the supervisor had an opportunity to examine the same.  If the matter was raised directly with the R&D Supervisor, he would have an opportunity to resolve the same immediately. He stated that this instruction was given with the knowledge and consent of management.

In evidence, the Senior Operations Manager outlined the narrative of events in respect of issue that arose in relation to the signing of the code of conduct. This witness stated that the Respondent takes this code extremely seriously, and any employees that would not be bound by the principles enumerated therein simply could not continue to work for the Respondent. He stated that in the overwhelmingly vast majority of case, the document is signed without question or query. He stated that the purpose of the safety stand down was to ensure that the Complainant’s concerns were being addressed. He stated that both the Respondent an organisation, and himself personally, took compliance with health and safety standards extremely seriously. In cross-examination, the relevant training materials in respect of the raising of life cycles was opened to the witness. In answer to a question the witness accepted that the actions of the Complainant in opening said life cycles were in accordance with the training he had previously received in respect of the same.  

CA-00024194-001 – Complaint under the Protected Disclosures Act

In the present case, the Complainant has alleged that he was penalised for raising health and safety issues in the course of his employment. He has submitted that the same constitutes penalisation prohibited by the terms of the Protected Disclosures Act

In this regard, it is common case that the Complainant raised numerous health and safety issues in the course of his employment. Nonetheless, the Respondent has disputed that the same constitute a protected disclosure within the meaning of the impleaded Act.

In this regard, Section 5(1) of the Protected Disclosures Act defines a “protected disclosure” as a “disclosure of relevant information made by a worker in the manner specified”.

Section 5(2) defines “relevant information” as that which, “in the reasonable belief of the worker…tends to show one or more relevant wrongdoing”.

Section 5(3)(d) enumerates fact that “the health or safety of any individual has been, is being or is likely to be endangered” as an example of a “relevant wrongdoing” cited above.

In the matter of Baranya v Rosderra Meats Group Limited [2021] IESC 77, the Supreme Court held that, per Hogan J., an Adjudicating body must examine,

“…did those words expressly or by necessary implication amount to an allegation tending to show that workplace health and safety was or would be endangered, even if that complaint was personal to him. The allegation must, of course, contain such information – however basic, pithy or concise – which, to use the language of S.5(2) of the 2014 Act, “tends to show one or more relevant wrongdoings” on the part of the employer”.

In the matter of Celtic Working Platforms -v- Cian Carlin, the Labour quoted with approval the following passage from Babula v Waltham Forest College [2007] ICR 1026t,

“Provided (the Complainant’s) belief (which is inevitably subjective) is held by the Tribunal to be objectively reasonable, neither (1) the fact that the belief turns out to be wrong – nor, (2) the fact that the information which the claimant believed to be true (and may indeed be true) does not in law amount to a criminal offence - is, in my judgment, sufficient, of itself, to render the belief unreasonable and thus deprive the whistle blower of the protection afforded by the statute.”

In this regard, much of the factual matrix in relation to the disclosure is agreed. It is agreed that the Complainant made numerous referrals into the Respondent’s system for the reporting of potential health and safety violations. It is further agreed that these referrals did, in fact, relates to potential health and safety violations. A typical example of the same (from many), is an allegation that the Complainant’s colleagues were not wearing sufficient or was wearing deficient personal protective equipment.

The Respondent’s position in this regard is that these matters cannot constitute a “relevant wrong-doing” in consideration of Section 5(5) of the Act. In this regard Section 5(5) provides that,

“A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.”

They submitted that the Complainant received extensive training in relation to health and safety matters and that the same falls within his function as a worker.

Having regard to the same, the Respondent opened the Labour Court matter of Carr -v- Donegal Council PD/15/5. Here, the Labour Court held that,

“There can be no doubt that the complaints made by the Appellant to his managers within the Service were made by him pursuant to the discharge of his duties as a Station Officer. All of the complaints alleged to be protected disclosures were made by him to the management of the service.”

In the High Court matter of John Clarke v CGI Food Services Limited and CGI Holding Limited [2021] 32 E.L.R.25, Humphreys J. held that with regards to Section 5(5),

“…there are two requirements (an investigative function and misconduct other than by the employer), which must both be present to exclude something from the definition of relevant wrongdoing, and which are joined by the word “and”. In Carr the Labour Court not only addressed the duty to investigate, but also dealt with the second requirement as to whose wrongdoing was at issue, as noted above. Merely finding that the complaint was made pursuant to the discharge of the employee’s duties…would not be sufficient in itself to exclude it from the definition of a protected disclosure.”

In the present case, the Complainant made numerous observations regarding potential health and safety breaches in the course of his employment. In this regard, the Complainant was engaged as a “general operative” for the Respondent. Given the nature of the Respondent’s activities, such a person would naturally be expected to observe strict health and safety standards in relation to their own work. However, it cannot be said that general operatives are charged with the investigation of health and safety breaches of all other employees in their area. As a consequence of the same, said activity cannot be said to fall under the Complainant’s duty to detect, investigate or prosecute. As the same is not part of the investigative function set out in Section 5(5), I find that the exemption set out therein does not apply.

In so finding, I am guided by the following finding of Phelan J in the High Court matter of Tom Nolan -v- Fingal County Council [2022] IEHC 335,

“It seems to me that the Labour Court fell into error in construing the words “to detect, to investigate or to prosecute” widely as embracing general duties on an employer pursuant to an obligation to provide a safe place or safe system of work. While the words may have a disjunctive application, the manner in which they are associated with each other in s. 5(5) also informs their proper interpretation. The Respondent in this case has no role in the prosecution of health and safety omissions as described. In contrast both the Health and Safety Authority and An Garda Síochána may have. It seems to me that the language of “function to detect, to investigate or to prosecute” connotes either a public law role or at least an official role pursuant to a particular contractual obligation in detecting, investigating or prosecuting rather than a role which might be implied as arising from the general duties of an employer.”

Having regard to the totality of the foregoing points, I find that the raising of lifecycles as described by the Complainant constitutes a protected disclosure for the purposes of Section 5(1) of the Act.

Section 12(1) of the 2014 Act provides that,

“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.”

Section 3(1) defines “penalisation” in the following terms,

“…any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty”

In the present matter it is again common case that the disciplinary sanction of a verbal warning was imposed on the Complainant within the relevant period.

The final aspect of the complaint that must be proven by the Complainant is a causal connection between the protected disclosure and the detriment suffered. In the matter of Aiden & Henrietta McGrath Partnership -v- Ann Monaghan [2017] 28 ELR 8, the Labour Court held that,

“Thus, 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 determined. This involves the consideration of the motive or reason which influenced the decision maker in imposing the impugned detriment.”

It is the position of the Complainant that the disciplinary sanction was imposed as direct result of his referring health and safety concerns. In the alternative, the Respondent submitted that the Complainant was issued with a verbal warning as a result of his interaction with his supervisor on the date in question.

In this regard, I note that the on 5th April the Complainant was requested raise issues regarding relatively minor incidents directly with his line manager, rather than raise a life cycle in respect of the issue. The evidence in this regard was that such relatively minor issues could be addressed directly by the supervisor and the colleague in question that caused the incident could be spoken to directly. In such a manner it is apparent that the Respondent was not seeking to prevent the Complainant from raising health and safety issues but sought to amend the manner by which they were reported and investigated. Having considered the same, it is apparent that this represents a reasonable instruction on the part of management. Notwithstanding the same, the Complainant sought further re-assurance from a senior health and safety manager who advised that the Complainant was correct in raising life cycles in the prior manner. This, understandably, caused some confusion regarding the issue and the manner in which these issues are to be recorded thereafter.

This issue apparently came to a head on 10th April when the Complainant refused to record such matters on an excel spreadsheet created for this specific purpose and insisted on raising life cycles in accordance with his instructions from senior management. At this point, the Complainant may have formed the view that his local management were operating independently from senior management. While the evidence of the Respondent’s witnesses was that this was not the case, the Complainant’s contemporary suspicions in this regard were not unreasonable. Notwithstanding the same, the Respondent retained multiple formal channels and processes whereby the Complainant could have raised this matter and received comfort that he was not assisting local management in artificially reducing health and safety concerns. Rather than doing so, it appears that the Complainant became involved in a disagreement with his supervisor, leading to the referral of a complaint that was investigated under the disciplinary policy and subsequently resulted in the Complainant receiving a verbal warning.

In the case of In the case of John Clarke v CGI Food Services Limited and CGI Holding Limited [2021] 32 E.L.R.25 Humphrey’s J. held as follows,

“Decision- makers have to look beyond the mere face value of either side’s arguments in a dismissal dispute given the ease in which a position can be contrived and manipulated Royal mail Group Ltd v Jhuti [2019] UKSC 55 considered.”

Humphreys J. went on to state that,

 “…the evidence here establishes substantial grounds for contending that the performance issues were an attempt, as put in the submission by the employee “to dress up the dismissal as a performance- related dismissal” As put by Lord Wilson in Royal Mail Group Ltd v Jhuti [2019] UKSC 55 at para.60,

“If a person in the hierarchy of responsibility above the employee……determines that, for reason A (here the making of a protected disclosure), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here inadequate performance), it is the Court’s duty to penetrate through the invention rather than to allow it also to infect its own determination”

Whilst the present matter relates to the imposition of a verbal warning as opposed to the dismissal of the Complainant, the principle remains the same. In this regard, the Complainant has submitted that while the ostensible reason for the imposition of the disciplinary sanction was his allege misconduct, the actual rationale for the same was his continued raising of health and safety issues. Having reviewed the relevant minutes and correspondence, and heard from the Respondent’s witnesses in this regard, I cannot find that this is the case. Upon receiving notification of the issue from the Complainant’s line manager, the Respondent commenced a through investigatory process, interviewing all parties and witnesses relevant to the matter. When the Complainant raised issue with the first investigatory, this person recused themselves in order to protect the fidelity of the process. It is apparent that the disciplinary sanction was based upon the matters uncovered during this process, as opposed to any other reason. While the Complainant clearly does not agree with the same, and in this regard the Respondent should be criticised for failing to progress the Complainant’s appeal, the sanction was not imposed as a direct consequence of his raising health and safety issues. In addition to the foregoing, I note the matter was first discussed with management on 5th April, with no adverse implications for the Complainant.

Having regard to the foregoing, I find that while the Complainant did raise a protected disclosure within the meaning of the Act, and did suffer a detriment thereafter, he has not demonstrated a sufficiently strong causal link between to two to success in his complaint of penalisation. As a consequence of the foregoing, I find that the complaint is not well-founded.

CA-00024194-002 – Complaint under the Safety Health and Welfare at Work Act

In relation to the complaint under the Safety, Health and Welfare at Work Act. Both the Complainant and the Respondent accepted that there no statutory prohibition in maintaining such complaint in parallel. Notwithstanding the same, the Complainant accepted that would not be entitled to recover under both sets of impleaded legislation.

Section 27(1) of the Act 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.”

Section 27(2) D expressly lists the “imposition of any discipline, reprimand or other penalty” as an example of said penalisation.

Section 27(3) of the Act provides that,

“An employer shall not penalise or threaten penalisation against an employee for—

(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”.

In the matter of Toni and Guy Blackrock v Paul O’Neill [2010] 21 E.L.R., the Labour Court set out the following test to determine penalisation under the terms of the 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.”

In relation to this specific complaint, again the Complainant must also prove the communication of a health and safety concern, a detriment suffered and a causal link between the two. Having regard to the finding above, I find that the disciplinary sanction imposed arose by virtue of the Respondent’s concerns regarding the Complainant’s conduct, as opposed to the Complainant referral of health and safety concerns. In such circumstances I find that the Complainant has also failed to establish a causal link and the complaint is duly deemed to be not well-founded.  

CA-00030817-001 – Complaint under the Protected Disclosures Act

The Complainant has alleged that he suffered further acts of penalisation on foot of making protected disclosures in June and July 2019. He submitted that this penalisation took the form of suspension from work and the disclosure of personal information to third parties.

As per the findings in set out above, I find that the referral of the life cycle enquiries constituted a protected disclosure within the meaning of the 2014 Act.

Regarding the alleged detriment suffered by the Complainant, Section 3(1)(A) expressly enumerates “suspension” as an example of a detriment that might be give rise to an allegation of penalisation. Regarding the second matter, the allegation that an employee of the Respondent in informed the Complainant’s colleagues that he was the author of the life-cycles, in the event that the Complainant successfully proves the same this may fall under subsection E, “coercion, intimidation, harassment or ostracism” or F, “discrimination, disadvantage or unfair treatment”.

As set out above, the Complainant must demonstrate that he made a protected disclosure as defined by the Act, that he suffered a detriment following the same and, finally, a causal connection between the two. Regarding the first incident, it is accepted that the Complainant referred a series of life cycles during the relevant period for the purposes of the present complaint. It is further accepted that he was suspended from work thereafter, a matter that is expressly listed as an example of a detriment in the Act. In this regard, the operative question for the purposes of this complaint again relates to the causal connection between the two. 

The position Respondent’s witnesses in relation to the same is that the Complainant was suspended for his failure to sign a code of practice without caveat. In this regard they referred to their internal disciplinary procedures, which directly refers to a failure to comply with the code as a potential disciplinary issue. They evidence of the various witnesses for the Respondent was that the Complainant simply had to sign the code, agree to be bound by the terms of the same, and no further action would be considered thereafter. This position was set out the Complainant during multiple meetings, minutes of which were opened during the hearing, and supported by evidence from the Respondent’s witnesses. Following from the same, I cannot find a causal connection between the raising of the life cycles and the imposition of the suspension. It is clear that the suspension was imposed as a result of the Complainant failure to unconditionally sign the code of conduct and nothing else. This is evidence by the fact that the suspension was lifted, and no further disciplinary action taken when the Complainant signed the document as requested.

Regarding the second matter, the disclosure of the Complainant’s identity as the author of the life cycles to his colleagues, I note the evidence of the witnesses for the Respondent denying this allegation. Having considered the Complainant’s evidence in this regard, it apparent that he is basing this allegation on a supposition without independent sworn evidence or documentary proof to verify the same. Having regard to the foregoing, I find that the Complainant has not demonstrated the imposition of a detriment in relation to this allegation.

CA-00030817-002 – Complaint under the Safety, Health and Welfare at Work Act

Whilst it is apparent that the Complainant made a complaint to the Respondent regarding a health and safety matter, and suffer a detriment thereafter as defined by Section 27 of the Act, I find that he has not established causal connection between the two for the reasons outlined above. In such circumstances I find that this complaint is not well-founded.

CA-00024194-001

I find that this complaint is not well-founded.

CA-00024194-002

I find that this complaint is not well-founded.

CA-00030817-001

I find that this complaint is not well-founded.

CA-00030817-002

I find that this complaint is not well-founded.

Protected Disclosure, Section 5(5), Duty to Detect, Causal Link, Suspension