ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00043809

Parties:

	Complainant	Respondent
Parties	Sarah Bartley	William Hayes K9 Security Ireland/International Asset Protection

Representatives

Valerie Morrison Peninsula Business Services Ireland

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00054072-001	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00054072-002	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00054072-003	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00054072-004	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00054072-005	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00054072-006	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00054072-007	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014	CA-00054072-008	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00054072-012	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00054072-013	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014	CA-00054072-014	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00054072-015	26/04/2023

Date of Adjudication Hearing: 23/06/2023

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The Respondent requested at the outset that the name of the client on whose site the Complainant worked be anonymised, and I have acceded to this request in my decision.

The Complainant as well as one witness, Ms Gabriela Rafter, on behalf of the Respondent gave evidence on oath and the opportunity for cross examination was afforded to the parties.

Although the hearing was lengthy, having started at 9 30 am and concluded at 6 10 pm, both parties indicated on numerous occasions throughout the day when questioned by me that they were happy to continue, and neither one sought an adjournment at any stage.

I heard a considerable amount of evidence during the hearing and was provided with substantial submissions. Much of this evidence was in conflict between the parties. While I have taken time to review all of the evidence both written and oral, I have not provided, as it is not required, a point-by -point rebuttal of the evidence and submissions that I rejected or found superfluous to the main findings.

Background:

The Complainant was employed by the Respondent as a Dog Handler with a scent detection dog from 7 May 2019 to 31 January 2023 and was paid €14 per hour. She worked on a client site on which the Respondent had been engaged by the main safety contractor.

The Complainant made twelve separate complaints to the WRC under various pieces of legislation. Following a case management session at the outset of the hearing, two of the complaints were withdrawn.

Summary of Complainant’s Case:

CA-00054072-001:

The Complainant stated that she was not paid her wages for the period from 4 October 2022 to 7 December 2022, the date of the referral of this complaint, because she refused to attend work due to the Respondent's failure to address health and safety breaches that she raised. She stated that she would have attended work if these issues had been addressed and was therefore entitled to be paid for the period.

CA-00054072-002:

The Complainant stated that she was not paid for 2.5 hours of work that she performed on 17 June 2022.

CA-00054072-003:

The Complainant stated that she was not paid for six days holidays which she accrued in the period from June 2022 to 24 October 2022.

CA-00054072-004:

The Complainant accepted that no change had been made to the written terms and conditions of employment that had been furnished to her by the Respondent. Accordingly, this complaint was withdrawn.

CA-00054072-005:

The Complainant accepted that she received a written statement of her terms and conditions of employment from the Respondent in November 2021. Accordingly, this complaint was withdrawn.

CA-00054072-006:

The Complainant stated that the written statement of her terms and conditions of employment furnished to her by the Respondent in November 2021 contained false information which had not been agreed between the parties.

CA-00054072-007:

The Complainant stated that on 9 June 2022, a package had been identified by her scent detection dog in the Respondent’s client’s mail room as suspicious leading her to believe that it might contain explosive material. Further to the identification of the package by the dog, the Complainant stated that she left the mail room but that the Respondent, through its employee Ms. Rafter, subsequently penalised her by coercing and intimidating her to return there to identify the suspicious package as it could not be located. Specifically, the Complainant stated that Ms. Rafter verbally and in writing instructed her, at the Complainant's request, to return to the mail room and follow the guidance of the lead safety contractor who was present on-site.

CA-00054072-008:

The Complainant stated that she made a complaint to the Respondent on 5 May 2022 regarding errors in her wages and highlighted that she was not the only employee who was being impacted by such mistakes. She stated that further to having made this allegation, she was subjected to penalisation on 9 June 2022 when the Respondent threatened to move her off site.

CA-00054072-012:

The Complainant stated she was given a new scent detection dog, X, on 3 August 2022 because the dog she normally worked with, Y, was injured. She stated that she received no training on how to work with X prior to him having been assigned to her and was left with no alternative by the Respondent other than to work with him because she was informed by Ms Rafter that she would be breaching the terms and conditions of her contract of employment if she refused to do so. The Complainant stated that Ms Rafter’s conduct in this regard constituted coercion and intimidation.

CA-00054072-013:

The Complainant stated that she was penalised because the Respondent refused to pay her after she sent an email on 4 October 2022 complaining about the failure to train her in how to safely patrol the buildings where she worked with the sniffer dog and also that no safety policies and procedures or risk assessments had been provided to her.

In cross-examination, the Complainant accepted that she went out on sick leave on 28 August 2022 which she stated was stress related. She also accepted both that she had not been paid in the period from when she was out on sick leave from 28 August 2022 until she made the complaint on 4 October 2022 and in the period after she made her complaint.

CA-00054072-014:

The Complainant stated that she sent a WhatsApp message to the Respondent on 1 August 2022 complaining that employees were being sent out to client sites without having been trained properly.

She stated that she was subsequently subjected to penalisation by the Respondent on 2 August 2022, when Ms Rafter made a joke at her expense in front of a new colleague, told the Complainant that she was stupid for raising the issue about the lack of training and that she (Ms Rafter) found it funny.

CA-00054072-015:

The Complainant stated that the Respondent breached the contract test because they refused to pay her wages pending an investigation being carried out into the health and safety complaints that she made on 4 October 2022.

Although an outside HR consultancy was appointed to investigate the Complainant’s grievances, she stated that she refused to engage with the process because, in her view, the appointed HR consultancy was not qualified to be deciding on the validity of complaints regarding a lack of training around canine explosive detection and she was left with no alternative but to resign from her position as a result.

Summary of Respondent’s Case:

CA-00054072-001:

The Respondent stated that in accordance with the Complainant’s contract of employment she was only entitled to be paid for the hours she worked. Given she did not work during the period from 24 October 2022 to 7 December 2022, she was not entitled to be paid for any of the hours in this period.

CA-00054072-002:

The Respondent conceded that the Complainant was not paid for 2.5 hours of work that she performed on 17 June 2022.

CA-00054072-003:

The Respondent conceded that the Complainant was not paid for the holidays that she stated she was due in the period from June 2022 to 24 October 2022.

CA-00054072-004:

The Respondent disputed that the terms and conditions of employment issued to the Complainant contained any false information.

CA-00054072-007:

Ms. Rafter in her evidence admitted to instructing the Complainant to return to the mail room but stated that she did not threaten or intimidate the Complainant in doing so. She stated that she instructed her to return there to identify the suspicious package because she was not present on site and was of the view that the lead safety contractor was in the best position to provide instructions to the Complainant.

CA-00054072-008:

Ms Rafter in her evidence disputed that the Respondent’s employees were being treated unfairly and stated that all were paid their proper wages and that no-one apart from the Complainant ever raised concerns about their wage payments. She further stated that she was asked to take over the issues the Complainant had raised as relations had broken down between her and the Managing Director over alleged discrepancies in the Complainant’s wages. She also asserted that the Managing Director had given the Complainant the accountant’s number to call to discuss any discrepancies in her wages.

Regarding the allegation of penalization, Ms. Rafter stated that the Respondent received a communication from the main safety contractor on the client site. This communication informed them about the appropriate line of communication, as the Complainant had been talking to employees of the client who were based in the USA. Ms. Rafter relayed this information to the Complainant and informed her that the safety contractor would remove her from the site if she did not follow their instructions. The Respondent expressed their desire to prevent such an outcome from occurring.

CA-00054072-012:

Ms. Rafter confirmed that besides the new scent detection dog X there was no alternative dog available to work with the Complainant as dog Y was sick. She denied that she coerced or intimidated the Complainant to work with dog X and emphasised that the dog was appropriately trained. She further asserted that the Complainant had developed a strong bond with dog Y, which explained her reluctance to work with a different dog.

CA-00054072-013:

Ms Rafter stated that the Respondent told the Complainant in February 2022 that they would be creating a training programme for her which had not been possible prior to then because of the covid restrictions in place at the time. She stated that the first training session was provided at the end of May 2022. She also highlighted that the risk assessments and safety statements were completed by a third party and were provided as required to the main safety contractor as well as the client.

Ms Rafter also highlighted that she asked the Complainant in August 2022, prior to her going on sick leave, to provide her with a framework schedule of her working day because she was complaining about her workload but stated that the Complainant never got back to her with the schedule.

In addition, Ms Rafter stated that employees of the Respondent are only paid when they turn up for work and do not receive any payments when they fail to do so.

CA-00054072-014:

Ms Rafter in her evidence disputed that the Respondent’s employees were not trained properly and stated that the issue had not been raised by any other employee apart from the Complainant. She further stated that she had also told the Complainant to be careful of her comments in front of a new colleague because the new colleague was one of the people that the Complainant had previously referred to as a child.

CA-00054072-015:

Ms Rafter stated that the Complainant requested that the complaint she made on 4 October 2022, be conducted by an external party. Ms Rafter further stated that the Respondent was reluctant to do so initially because of the costs involved but ultimately agreed because the Complainant objected to it being dealt with in house. Ms. Rafter informed the Complainant that, considering the time of year, it might take some time for the grievance to be investigated. She stated that the Complainant expressed her willingness to wait and was satisfied with that arrangement.

Ms Rafter subsequently informed the Complainant on 18 January 2023 that a named external party had been appointed and sent her draft terms of reference to review and agree upom. She stated that she sent the draft terms of reference to the Complainant for a second time on 7 February 2023 but once again got no response. On 9 February 2023, she sent the official terms of reference to the Complainant and the Complainant responded on 12 February 2023 stating that she no longer considered herself to be an employee of the Respondent as of the end of January 2023.

Findings and Conclusions:

CA-00054072-001:

Section 1(i) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as:

“…any sums payable to the employee by the employer in connection with his employment, including- (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise”

Section 5(1) of the Payment of Wages Act 1991 provides:

“An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.”

The remainder of the Section 5 provides for other circumstances in which an employer can make a lawful deduction from an employee’s wages which are not applicable to the instant case.

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991. While each case will turn on its own particular facts, it will be necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

In relation to the instant complaint, the Complainant stated that she was not paid her wages for the period from 24 October 2022 to 7 December 2022 because she refused to attend work due to the Respondent's failure to address health and safety breaches. I find however, based on her contract of employment, that the wages properly payable to her were only for the hours she worked for the Respondent and that since she did not work during the period from 24 October 2022 to 7 December 2022, she was not entitled to any payment for it. Therefore, this complaint is not well-founded.

CA-00054072-002:

Section 1(i) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as:

Section 5(1) of the Payment of Wages Act 1991 provides:

The remainder of the Section 5 provides for other circumstances in which an employer can make a lawful deduction from an employee’s wages which are not applicable to the instant case.

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991. While each case will turn on its own particular facts, it will be necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

In relation to the instant complaint, the Complainant stated that she was not paid for 2.5 hours of work that she performed on 17 June 2022. As the Respondent conceded that she was not paid for these hours, I find that this complaint is well founded.

CA-00054072-003:

Section 1(i) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as:

Section 5(1) of the Payment of Wages Act 1991 provides:

The remainder of the Section 5 provides for other circumstances in which an employer can make a lawful deduction from an employee’s wages which are not applicable to the instant case.

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991. While each case will turn on its own particular facts, it will be necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

In relation to the instant complaint, the Complainant stated that she was not paid for six days holidays which she accrued in the period from June 2022 to 24 October 2022. As the Respondent conceded that she was not paid for these holidays, I find that this complaint is well founded.

CA-00054072-004:

The Complainant accepted that no change had been made to the written terms and conditions of employment that had been furnished to her by the Respondent. Accordingly, this complaint was withdrawn.

CA-00054072-005:

The Complainant accepted that she received a written statement of her terms and conditions of employment from the Respondent in November 2021. Accordingly, this complaint was withdrawn.

CA-00054072-006:

The Law

Section 41 of the Workplace Relations Act 2015 states: -

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

and

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Findings:

As this complaint was referred to the WRC on 7 December 2022 however, more than 12 months after the alleged contravention, I do not have jurisdiction to hear the matter in accordance with section 41 of the Act above.

CA-00054072-007:

The applicable law

Health Safety and Welfare at Work Act 2005:

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.

Preliminary point:

Prior to deciding on this complaint, I must establish in the first instance if the Respondent, through its employee Ms Rafter, subjected the Complainant to coercion or intimidation when she was told to return to the mail room to identify the suspicious package that the dog had identified.

In deciding whether the Complainant was subjected to coercion, I note that the definition of “coercion” in the Oxford English dictionary is “the practice of persuading someone to do something by using force or threats.“ I also note that the definition of “intimidation” is defined in the same dictionary as “the action of intimidating someone, or the state of being intimidated” and further note that the definition of “intimidating” is “having a frightening, overawing, or threatening effect”.

Having considered the evidence presented to me, I am satisfied that, although Ms Rafter admitted to instructing the Complainant to return to the mail room, there was no evidence to suggest that she threatened or intimidated her to do so. I also find Ms. Rafter's evidence to be credible that she instructed the Complainant to return to the mail room because she was not present on site and believed that the lead safety contractor, who had also requested the Complainant to return there, was in the best position to provide instructions and guidance.

As neither the question of coercion nor intimidation therefore arises, I find that this complaint is not well founded.

CA-00054072-008:

The Law:

The Protected Disclosures Act 2014 states at section 3(1) 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;

And further at section 5:

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsections (6) and (7A) and sections 17 and 18, 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 in section 6, 7, 8, 9 or 10.

(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.

In making a decision in respect of this complaint, I must establish if there was a protected act and if there was a detriment and, if both are established, if there is a causal link between the two.

As can be seen from the Act cited above, the definition of a protected disclosure is extremely broad. Specifically, s. 5 (1) defines it as the disclosure of information that in the reasonable belief of the employee shows one or more relevant wrongdoings.

While the Complainant was unable to present any direct evidence in relation to her assertion that the Respondent failed to pay her colleagues their proper wages, it is not necessary for the Complainant to prove that the information is correct. Specifically, she is required only to have a reasonable belief that she disclosed information that shows wrongdoing and I find that in highlighting this matter, which she believed to be wrong, that she committed an act that falls within the protections offered by the Act.

The second requirement is to determine if there was penalisation after the protected disclosure was made and if there was a causal link between the two. In making this decision, I note that the Complainant did not challenge the evidence from Ms Rafter in cross-examination that Ms Rafter informed her both that the threat to move her from site was made by the main safety contractor and not by the Respondent and that the Respondent wished to retain her on the client site. Accordingly, there was no causal link between the protected disclosure the Complainant made and the alleged intimidation she stated that she was subjected to when the Respondent communicated the threat from the main safety contractor to remove her from site. I therefore find that this complaint is not well founded.

CA-00054072-012:

The applicable law

Health Safety and Welfare at Work Act 2005:

Protection against dismissal and penalisation.

(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

Preliminary Point:

Prior to deciding on this complaint, I must establish in the first instance if the penalisation the Complainant stated she was subjected to by the Respondent when she was forced to work with dog X, namely “coercion” and “intimidation” as set out in section 27 (2) (e), meets the definition of the words.

As highlighted in CA-00054072-007 above, in deciding whether the Complainant was subjected to coercion, I note that the definition of “coercion” in the Oxford English dictionary is “the practice of persuading someone to do something by using force or threats.“ I also note that the definition of “intimidation” is defined in the same dictionary as “the action of intimidating someone, or the state of being intimidated” and further note that the definition of “intimidating” is “having a frightening, overawing, or threatening effect.

Considering these definitions, I find that the Complainant was not coerced or intimidated to work with X. Rather, she was simply required to do so because dog Y was sick, and the Respondent did not have any other available dogs. Crucially, it was not disputed during cross-examination. As neither the question of coercion nor intimidation arises, I find that this complaint is not well founded.

CA-00054072-013:

The applicable law

Health Safety and Welfare at Work act 2005:

Protection against dismissal and penalisation.

(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

Prior to making a decision on this complaint, I note that the Labour Court found in the matter of Tony & Guy v Paul O’Neill (HSD/095)

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed“for”having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

On the question of the burden of proof, the Court in the above decision also cited an earlier decision in Department of Justice Equality and Law Reform and Philip Kirwan (Determination HSD082) where it was held as follows: -

It is clear, however, that in the absence of any contrary statutory provision, the legal burden of proof lies on the person who asserts that a particular fact in issue is true (see Joseph Constantine Steamship Line v Imperial Sheltering Corporation[1942] A.C.154 where this rule of evidence was described by Maugham V.-C. as “an ancient rule founded on considerations of good sense and it should not be departed from without strong reasons

and also highlighted that this decision was subsequently qualified, in Fergal Brodigan T/A FB Groundworks and Juris Dubina (Determination HSD0810) where it was stated: -

It is, however, settled law that in civil matters there is an exception to this rule known as the peculiar knowledge principle. This is a rule of evidence which provides that where it is shown that a particular fact in issue is peculiarly within a defendant’s knowledge the onus of proving that fact rests with the defendant (see Mahoney v Waterford, Limerick and Western Railway Co.[1900] 2.IR 273, per Palles C.B.)

While I am satisfied that the complaints made by the Complainant on 4 October 2022 concerning health and safety matters were valid, in accordance with section 27 (3) of the Act above, I must find as the Labour Court did in the Tony and Guy case, cited above, that “it is apt to infer from subsequent events that [the] complaints were an operative consideration” in the penalisation of her, namely in the Respondent’s decision not to pay her as she asserts.

While the Complainant stated that the failure to pay her wages after she made the complaint on 4 October 2022 constituted penalisation, I note that she did not attend work after that and find, in accordance with the terms and conditions of her contract of employment, that she was not entitled to be paid while she was not in work in the same way she had not been paid in the period prior to making the complaint, namely in the period from 28 August 2022 to 4 October 2022, when she was on sick leave. Given that it was therefore her failure to attend work that was in my view the operative reason behind the decision not to pay her, I find that this complaint is not well founded.