Complainant

Respondent

Parties

Donal  Herlihy

Solvar Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Jadel Naidoo B.L. instructed by Eoghan O'Reilly FH O'Reilly & Co Solicitors

Adrian Twomey Jacob & Twomey Solicitors LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045403-001

28/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045403-002

28/07/2021

The Complainant commenced employment with the Respondent on 9 June 2004 in the role of a Graphic Designer and Photographer.  The Complainant filed complaints under section 7 of the Terms of Employment (Information) Act 1994 and separately under section 13 of the Industrial Relations Act 1969 on 28 July 2021 after receiving a first written warning.    

The complainant received the warning following his refusal to carry out work which he deemed to be outside of his remit.  The situation continued with a final written warning being issued in November 2021 and the complainant was dismissed in February 2022 for his continued refusal to carry out this work.   This is the subject of a separate complaint under the Unfair Dismissals Act submitted in February 2022.   All matters were heard together, and a separate decision has issued in relation to the Industrial relations claim and the Unfair dismissal claim.

The claim was submitted on the 28th of July 2021 thus the cognizable 6-month period of the complaint’s date from 29th of January 2021.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045403-001

28/07/2021

The complainant submits that he was not notified in writing of a change to his terms of employment.

The complainant submits that the employer is Solvar, a limited company, and this is the named employer as listed on his contract of employment.    At some date unknown to the complainant, Solvar was purchased by another company Solvar Holdings Limited. Solvar Holdings also purchased another company, NJO Limited.   The complainant was told he was now to work for both Solvar & NJO as they are one company. The complainant submits that he received no written change to his contract terms regarding NJO or Solvar Holdings.

The complainant submits that he was not contracted to work for NJO as there is no mention of them in his contract or employee handbook and that he was given a written warning for refusing to carry out work for NJO (this is the subject to a separate claim of penalisation CA-00045403-003) .

The complainant submits that he received correspondence during the COVID lockdown period stating that if he was to return to work, he would need to be flexible and was required to work for both Solvar Limited and NGO Limited to get the business back functioning.  The complainant submits that he agreed to this short-term arrangement.

 In February, the complainant spoke to Mr. O'Donoghue about the NGO work who stated that NGO and Solver were all one company now.   Mr. O'Donoghue told the complainant that if he did not want to do the extra work for NGO, he did not have to do it and it would be outsourced, however, he advised the complainant that he would not be returning to a 35-hour week unless he agreed to do this work as Mr. O’Donoghue was unsure of the amount of future design/photography work there would be for Solver limited.    The complainant told him he would think about it and let him know. When he was back in the office the following week the complainant was advised by his line manager Ms. Spencer that all design and photography work for NGO Limited was to be added to his workload.   The complainant submits that he was told that if he did not wish to take on this extra work, it would be outsourced.    He was later told that he had no choice but to do this and must comply or else disciplinary procedures would be commenced.

The complainant submits that he was told by the CEO Geoff O'Donoghue that we they are all one company now and it was part of his duties to take on this work., that it would not involve any “extra work” and that he would not receive any additional remuneration.    The complainant submits that he argued that as he had completed this work for NGO Limited previously on a freelance basis that it was indeed extra work and that this is additional work and amounted to a change in the complainant’s terms of his contract.

The complainant submits that when he raised the question of terms of employment, he was warned that if he refused to do the work, he would be disciplined. The complainant refused to carry out this work on grounds that he believed it was not covered under his current terms of employment and he informed Mr. O’Donoghue of this.     The complainant submits that he was informed that he would be disciplined, and he was then invited to a disciplinary hearing where he explained his case.

The complainant was called to a disciplinary meeting on Monday 31st of May and explained his case. A few days later the complainant was informed that he was being given a formal written warning and if he wanted to appeal, he was to contact Orla O ‘Dwyer.

The complainant’s appeal was heard on the 21st of June and was rejected by Ms. O’ Dwyer but she suggested a new job description be written up to incorporate the NJO work. The complainant asked if that now meant that the company was wrong to issue him with a written warning and asked for it to be expunged.   His request was not acceded to.

The Complainant commenced employment with the Respondent on 9 June 2004 in the role of a Graphic Designer and Photographer normally working 30 hours per week.

The Respondent is a family-owned Irish jewellery company established in 1941 by the Obernik family. It is based in Dublin and designs and creates handmade Irish jewellery. Much of the jewellery in question is inspired by Celtic designs and patterns and/or the claddagh emblem. It has particular appeal to the tourist market and was significantly impacted by the decline in tourism occasioned by the COVID-19 pandemic.

Up to 2017, the Respondent was one of three companies owned by the ANG Group, which was in turn owned by the Obernik family. The other companies owned by the ANG Group were Fields Jewellers and Fraser Hart (a retail jewellers chain based in the UK).   In 2017 the Group was restructured following a decision by the Obernik Brothers to each run their own businesses separately.

The Respondent company was disposed of by the ANG Group and acquired by Solvar Holdings Limited. These changes were made by means of a share transfer and, there was no transfer of an undertaking within the meaning of the Acquired Rights Directive and the associated Irish 2003 Regulations

 On 1 January 2019 Solvar Holdings Limited acquired another family-owned jewellery business, NJO Designs Limited. As a result, NJO Designs Limited and the Respondent became associated companies owned by the one parent, Solvar Holdings.

 The Complainant and other employees were reasonably required during 2021 to undertake some work in order to promote and sell new products that became part of the Solvar Group’s wider portfolio as a result of the acquisition of NJO Designs. They had previously undertaken similar work in relation to Fields Jewellers’ products prior to the 2017 restructuring.

 The Complainant, however, repeatedly, and consistently refused to undertake work assigned to him in relation to NJO Designs jewellery. He insisted that he was employed by Solvar Limited and that he could only be required to undertake work relating to Celtic jewellery sold by the Respondent.   It led to his being issued with a written warning on 3 June 2021

The Complainant’s contract of employment specified that he was “employed as a Design Dept Operator/Graphic Designer” and was “required to perform such other duties outside the normal scope of [his] job title as may be reasonably required … from time to time.”

The Employee Handbook specifies (in the section relating to “Standards of Performance”) that: “Your job title does not limit your duties and in that regard, you are expected to be flexible in the execution of your duties and perform whatever duties may be required of you from time-to-time in the interest of the successful achievement of the Company’s overall objectives.

During the course of your employment, it may be necessary to expand your duties, within the general scope of your position or change your job function. The Company reserves the right to assign other duties to you at any time, it being understood that you will not be assigned duties that you cannot reasonably perform.”

The CEO of Solvar, Mr. Geoff O’Donoghue, had a meeting with the Complainant on 8 February 2021 At that meeting, Mr. O’Donoghue explained that certain retail work had dried up (due to a drop in tourist retail sales arising from the COVID-19 pandemic) and that the outlook for such sales was particularly uncertain for 2021. Mr. O’Donoghue explained that the focus going forward was going to be on providing retailers with digital resources to help drive on-line sales of both Solvar and NJO products.

The Complainant confirmed that he understood that the situation had changed, and he raised no objections to the company’s plans.  On 14 April 2021, however, the Complainant emailed Ms Fiona Spencer, Marketing Manager, and informed her that he was unwilling to “take on additional workload which is outside of my terms of employment which is with Solvar Ltd.”

His email made it clear that he was, at that stage, unwilling to undertake new work assigned to him unless he received additional remuneration. He was, of course, free to ask for a pay increase at any time. Likewise, he was entitled to undertake work assigned to him under protest pending the resolution of any grievance that he might have chosen to submit.

He did not, however, choose to take such a course of action. Rather, he simply refused to undertake work that was lawfully and reasonably assigned to him.    On 29 April 2021, Mr. O’Donoghue emailed the Complainant directing him to undertake work that was assigned to him by his line manager and noted that refusal to carry out a “legitimate and reasonable request” might lead to disciplinary action being taken.   On 13 May 2021, the Complainant emailed Mr. O’Donoghue, effectively repeating his refusal to undertake work assigned to him. 

His email claimed that when a staff member at Fields left in 2006 or 2007 his duties were increased by the addition of design/photography work for Fields. He complained that this involved a change to his employment contract and that he was not notified in writing at the time. As it happens, the Complainant had performed work that was ultimately to the benefit of Fields Jewellers for years up to the group restructuring in 2017.

 Thereafter, the Complainant consistently refused to undertake work that was assigned to him where that work related to NJO products. On 26 May 2021, Mr. O’Donoghue wrote to the complainant inviting him to attend at a disciplinary hearing arising from his “failure to co-operate with and complete a reasonable request” from his line manager.  

The disciplinary hearing took place on 31 May 2021. At the disciplinary hearing, the Complainant maintained that he was entitled to refuse to undertake work that was related to NJO products.    A formal written warning was issued to the Complainant by Mr. O’Donoghue on 3 June 2021 by reason of the complainant’s refusal to comply with a reasonable request from his line manager.

On 16 June 2021, the Complainant emailed, Orla O’ Dwyer, Finance Director, indicating that he wished to appeal the formal written warning.  The appeal hearing took place on 21 June 2021, Ms O’ Dwyer upheld the written warning.   She also asked him to undertake the NJO work for a trial period through to the end of October 2021 with a new job description being put in place. On 21 July 2021, the Marketing Manager, Ms. Spencer, met with the Complainant and furnished him with an updated job description at around that time.  He refused, however, to undertake the work being assigned to him even on a trial basis.    

Mr. O’Donoghue wrote to the Complainant on 23 July 2021 formally instructing him to undertake the work being assigned.   He noted that any refusal to do so could lead to further disciplinary action. The Complainant responded to Mr. O’Donoghue by email on 26 July.  He stated that any trial period would be “pointless” but said nothing to indicate that he would comply with Mr. O’Donoghue’s instruction. Mr. O’Donoghue replied by email on 27 July 2021 assigning work to the Complainant and formally instructing him to undertake it.  

 On 28 July 2021, the Complaint emailed Mr. O’Donoghue stating that he would carry out work for Solvar Limited but adding that “NJO are not covered under my contract of employment”.  He also asserted that “the company failed in their obligation to provide me with an updated Job description prior to … issuing me with a warning”.

Mr. O’Donoghue emailed the Complainant on that same date clearly stating that he was required to undertake the NJO work and that it was reasonable for the company to schedule work for him relating to any entity or brand within the corporate structure. On that same date (28 July 2021) the Complainant submitted his first complaint to the WRC.    That complaint sought (under the Industrial Relations Acts) to have the written warning expunged from his record and (under the Terms of Employment (Information) Act 1994) sought redress for a supposed failure to notify him of a change to his terms and conditions of employment and for alleged penalisation for giving notice of an intention to exercise a right under the 1994 Act.

 Notification of changes

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than–

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute [other than a registered employment agreement or employment regulation order] or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

The complainant in this regard sought to assert that being assigned the same work i.e., photographing Jewellery but in respect of a different type of Jewellery i.e., NJO products instead of Celtic Jewellery amounts to a change in his contract and one which he was not notified of contrary to Section 5.

Both parties at the hearing agreed that the complainants work had not changed but that the type of Jewellery he was being requested to photograph was different.  The complainant sought to assert that he was not employed by NJO and so should not be requested to photograph NJO jewellery products.  The respondent advised the hearing that Solvar Holdings Limited had in January 2019 acquired another family-owned jewellery business, NJO Designs Limited. As a result, NJO Designs Limited and the Respondent became associated companies owned by the one parent, Solvar Holdings.

 The respondent advised the hearing that the Complainant and other employees were reasonably required during 2021 to undertake some work in order to promote and sell new products that became part of the Solvar Group’s wider portfolio as a result of the acquisition of NJO Designs. They had previously undertaken similar work in relation to Fields Jewellers’ products prior to the 2017 restructuring

The respondent advised the hearing that there was no change to the complainant’s contract or to the type of work he was engaged to carry out.  Both parties agree that the complainants job entailed photographing jewellery against different backgrounds and that the only change following the acquisition of NJO was that he was requested to photograph different jewellery against different backgrounds.

The fundamental issue here is that there was no change in the complainants Terms of Employment therefore I find that there was no requirement to notify the Complainant in writing of an alteration of those terms.   I therefore find that there was no breach of section 5 of the Terms of Employment (Information) Act, 1994 and the complaint fails.

I declare this claim to be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045403-002

28/07/2021

The complainant submit that he was penalised or threatened with penalisation for invoking or having given notice of an intention to exercise any rights under the Terms of Employment (Information) Act, 1994.

The complainant submits that his contract of employment is with Solvar Limited.   Solvar Holdings Limited acquired both Solver Limited and NJO Limited at a date unknown to the complainant. 

The complainant submits that he received correspondence during the COVID lockdown period stating that if he was to return to work, he would need to be flexible and was required to work for both Solvar Limited and NGO Limited to get the business back functioning.

The complainant submits that he agreed to this short-term arrangement.   In February, the complainant spoke to Mr. O'Donoghue about the NGO work who stated that NGO and Solver were all one company now.   Mr. O'Donoghue told the complainant that if he did not want to do the extra work for NGO, he did not have to do it and it would be outsourced, however, he advised the complainant that he would not be returning to a 35-hour week unless he agreed to do this work as Mr. O’Donoghue was unsure of the amount of future design/photography work there would be for Solver limited.    The complainant told him he would think about it and let him know. When he was back in the office the following week the complainant was advised by his line manager Ms. Spencer that all design and photography work for NGO Limited was to be added to his workload.

The complainant submits s that he informed his employer that he felt his Terms of Employment had not been updated and if he was now to work for 2 companies, both Solvar Ltd. & NJO Ltd he felt this should be stated in his terms of employment as a core term.   The complainant submits that he mentioned this several times when asked to complete work for NJO Ltd and several times his employer threatened disciplinary action if he did not comply.  The complainant subsequently received a written warning.

The complainant submits that he was told that if he did not wish to take on this extra work, it would be outsourced.    He was later told that he had no choice but to do this and must comply or else disciplinary procedures would be commenced.

The complainant submits that he was told by the CEO Geoff O'Donoghue that we they are all one company now and it was part of his duties to take on this work., that it would not involve any “extra work” and that he would not receive any additional remuneration.    The complainant submits that he argued that as he had completed this work for NGO Limited previously on a freelance basis that it was indeed extra work and that this is additional work and amounted to a change in the complainant’s terms of his contract.

The complainant submits that when he raised the question of terms of employment, he was warned that if he refused to do the work, he would be disciplined. The complainant refused to carry out this work on grounds that he believed it was not covered under his current terms of employment and he informed Mr. O’Donoghue of this.     The complainant submits that he was informed that he would be disciplined, and he was then invited to a disciplinary hearing where he explained his case.

The complainant attended the meeting on Monday 31st of May and explained his case. A few days later the complainant was informed that he was being given a formal written warning and if he wanted to appeal, he was to contact Orla O ‘Dwyer.

The complainant’s appeal was heard on the 21st of June and was rejected by Ms. O’ Dwyer but she suggested a new job description be written up to incorporate the NJO work. The complainant asked if that now meant that the company was wrong to issue him with a written warning and asked for it to be expunged.   His request was not acceded to.

The complainant submits that following this he was certified as unfit to work (which he states was due to stress) from August to October 2021.   Following his return to work he continued to refuse to do NJO photography and the respondent proceeded with disciplinary action in November 2021 following which the complainant received a final written warning.

The situation continued and further disciplinary action took place in February 2022 and resulted in the complainant being dismissed from his employment on 17 February 2022.   This is the subject of a separate complaint under the Unfair Dismissals Act and a separate decision has issued in relation to this.

The Complainant commenced employment with the Respondent on 9 June 2004 in the role of a Graphic Designer and Photographer normally working 30 hours per week.

The Respondent is a family-owned Irish jewellery company established in 1941 by the Obernik family. It is based in Dublin and designs and creates handmade Irish jewellery. Much of the jewellery in question is inspired by Celtic designs and patterns and/or the claddagh emblem. It has particular appeal to the tourist market and was significantly impacted by the decline in tourism occasioned by the COVID-19 pandemic.

Up to 2017, the Respondent was one of three companies owned by the ANG Group, which was in turn owned by the Obernik family. The other companies owned by the ANG Group were Fields Jewellers and Fraser Hart (a retail jewellers chain based in the UK).   In 2017 the Group was restructured following a decision by the Obernik Brothers to each run their own businesses separately.

The Respondent company was disposed of by the ANG Group and acquired by Solvar Holdings Limited. These changes were made by means of a share transfer and, there was no transfer of an undertaking within the meaning of the Acquired Rights Directive and the associated Irish 2003 Regulations

 On 1 January 2019 Solvar Holdings Limited acquired another family-owned jewellery business, NJO Designs Limited. As a result, NJO Designs Limited and the Respondent became associated companies owned by the one parent, Solvar Holdings.

 The Complainant and other employees were reasonably required during 2021 to undertake some work in order to promote and sell new products that became part of the Solvar Group’s wider portfolio as a result of the acquisition of NJO Designs. They had previously undertaken similar work in relation to Fields Jewellers’ products prior to the 2017 restructuring.

 The Complainant, however, repeatedly, and consistently refused to undertake work assigned to him in relation to NJO Designs jewellery. He insisted that he was employed by Solvar Limited and that he could only be required to undertake work relating to Celtic jewellery sold by the Respondent.

The Complainant’s obstinate and enduring refusal to undertake work that was being reasonably assigned to him was, as a matter of law, a fundamental breach and repudiation of his contract of employment.   It led to his being issued with a written warning on 3 June 2021.

The Complainant’s contract of employment specified that he was “employed as a Design Dept Operator/Graphic Designer” and was “required to perform such other duties outside the normal scope of [his] job title as may be reasonably required … from time to time.”

The Employee Handbook specifies (in the section relating to “Standards of Performance”) that: “Your job title does not limit your duties and in that regard, you are expected to be flexible in the execution of your duties and perform whatever duties may be required of you from time-to-time in the interest of the successful achievement of the Company’s overall objectives.

During the course of your employment, it may be necessary to expand your duties, within the general scope of your position or change your job function. The Company reserves the right to assign other duties to you at any time, it being understood that you will not be assigned duties that you cannot reasonably perform.”

The CEO of Solvar, Mr. Geoff O’Donoghue, had a meeting with the Complainant on 8 February 2021 At that meeting, Mr. O’Donoghue explained that certain retail work had dried up (due to a drop in tourist retail sales arising from the COVID-19 pandemic) and that the outlook for such sales was particularly uncertain for 2021. Mr. O’Donoghue explained that the focus going forward was going to be on providing retailers with digital resources to help drive on-line sales of both Solvar and NJO products.

The Complainant confirmed that he understood that the situation had changed, and he raised no objections to the company’s plans.  On 14 April 2021, however, the Complainant emailed Ms Fiona Spencer, Marketing Manager, and informed her that he was unwilling to “take on additional workload which is outside of my terms of employment which is with Solvar Ltd.”

His email made it clear that he was, at that stage, unwilling to undertake new work assigned to him unless he received additional remuneration. He was, of course, free to ask for a pay increase at any time. Likewise, he was entitled to undertake work assigned to him under protest pending the resolution of any grievance that he might have chosen to submit.

He did not, however, choose to take such a course of action. Rather, he simply refused to undertake work that was lawfully and reasonably assigned to him.   In so doing, he was repudiating his contact of employment.

 On 29 April 2021, Mr. O’Donoghue emailed the Complainant directing him to undertake work that was assigned to him by his line manager and noted that refusal to carry out a “legitimate and reasonable request” might lead to disciplinary action being taken.   On 13 May 2021, the Complainant emailed Mr. O’Donoghue, effectively repeating his refusal to undertake work assigned to him. 

His email claimed that when a staff member at Fields left in 2006 or 2007 his duties were increased by the addition of design/photography work for Fields. He complained that this involved a change to his employment contract and that he was not notified in writing at the time. As it happens, the Complainant had performed work that was ultimately to the benefit of Fields Jewellers for years up to the group restructuring in 2017.

 Thereafter, the Complainant consistently refused to undertake work that was assigned to him where that work related to NJO products. On 26 May 2021, Mr. O’Donoghue wrote to the complainant inviting him to attend at a disciplinary hearing arising from his “failure to co-operate with and complete a reasonable request” from his line manager.  

The disciplinary hearing took place on 31 May 2021. At the disciplinary hearing, the Complainant maintained that he was entitled to refuse to undertake work that was related to NJO.    A formal written warning was issued to the Complainant by Mr. O’Donoghue on 3 June 2021 by reason of the complainant’s refusal to comply with a reasonable request from his line manager.

On 16 June 2021, the Complainant emailed, Orla O’ Dwyer, Finance Director, indicating that he wished to appeal the formal written warning.  The appeal hearing took place on 21 June 2021, Ms O’ Dwyer upheld the written warning.   She also asked him to undertake the NJO work for a trial period through to the end of October 2021 with a new job description being put in place. On 21 July 2021, the Marketing Manager, Fiona Spencer, met with the Complainant and furnished him with an updated job description at around that time.  He refused, however, to undertake the work being assigned to him even on a trial basis.    

Mr. O’Donoghue wrote to the Complainant on 23 July 2021 formally instructing him to undertake the work being assigned.   He noted that any refusal to do so could lead to further disciplinary action. The Complainant responded to Mr. O’Donoghue by email on 26 July.  He stated that any trial period would be “pointless” but said nothing to indicate that he would comply with Mr. O’Donoghue’s instruction. Mr. O’Donoghue replied by email on 27 July 2021 assigning work to the Complainant and formally instructing him to undertake it.  

 On 28 July 2021, the Complaint emailed Mr. O’Donoghue stating that he would carry out work for Solvar Limited but adding that “NJO are not covered under my contract of employment”.  He also asserted that “the company failed in their obligation to provide me with an updated Job description prior to … issuing me with a warning”.

Mr. O’Donoghue emailed the Complainant on that same date clearly stating that he was required to undertake the NJO work and that it was reasonable for the company to schedule work for him relating to any entity or brand within the corporate structure. On that same date (28 July 2021) the Complainant submitted his first complaint to the WRC. 

That complaint sought (under the Industrial Relations Acts) to have the written warning expunged from his record and (under the Terms of Employment (Information) Act 1994) sought redress for a supposed failure to notify him of a change to his terms and conditions of employment and for alleged penalisation for giving notice of an intention to exercise a right under the 1994 Act.

Section 6(c) of the Terms of Employment (Information) Act, 1994 prohibits penalisation and states.

6C. (1) An employer shall not penalise or threaten penalisation of an employee for—

 (a) invoking any right conferred on him or her by this Act,

Penalisation is defined in the Act and includes in Section 6(c) 5 (d)

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

 In O’Neill v Toni and Blackrock, Ltd (2010)  ERL 21 the Labour Court found in relation to the question of penalisation as follows:

It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the 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. The act is silent on the question of how the burden of proof should be allocated as between the parties. This question was considered by this Court in Department of Justice Equality and Law Reform v Kirwan (Determination HSD082 (June 1), 2007). Here the Court 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”

The complainant therefore must show that ‘but for’ the fact that he sought to assert his rights under the Terms of Employment Information Act 1994 he would not have been subjected to a disciplinary hearing which is the penalisation claimed. 

 It is clear from the evidence given that the disciplinary procedure was invoked due to the complainant having refused to carry out an instruction from his employer.   Both parties agree that the complainant in this case refused to photograph NJO jewellery products. 

The complainant was warned that refusal would lead to disciplinary action, and I am satisfied that this was the primary motivation of the respondent in instigating the disciplinary procedures.

 I therefore conclude that the complainant has not established a case of penalisation and that the complaint is not well-founded.

 I conclude that the complainant has not established a case of penalisation and that the complaint is not well-founded.