Complainant

Respondent

Parties

Patrick  Casey

ESB

Representatives

Cillian McGovern BL instructed by  Crushell & Co Solicitors

Rachel Sweeney BL instructed by Lisa Devanny, Enterprise Legal Services

Act

Complaint 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-00061654-001

19/02/2024

The Complainant referred his claim to the Director General of the WRC on 19 February 2024 pursuant to the Terms of Employment (Information) Act, 1994 (‘the Act’). The Complainant alleged that he was penalised or threatened with penalisation for invoking or having given notice of an intention to exercise his rights under the Act.

The Respondent rejects the claim.

Mr McGovern BL, on behalf of the Complainant, submits as follows.

The Complainant is an Electrical Engineer who has worked for ESB and its subsidiary ESB International for the last 21.5 years.

The Complainant filed the WRC complaint form prior to availing of any independent legal advice. It was his position that there was a breach of Section 6(c) of the Terms of Employment (Information) Act, 1994 which provides that an employee may not be penalised for exercising or having proposed to exercise a right under that Act or having given evidence or having proposed to give evidence in any proceedings under the Act.

In summary, the Complainant raised a grievance in respect of contraventions or proposed contraventions in respect of his contractual entitlements. These related to the allowances that were payable to him. The Complainant contends that the act of penalisation for raising these concerns were threats by the Respondent, that it would implement a differing method of calculating his wages since he commenced his latest role in 2016, removing any pay increments he received since 2016, and blocking further pay increments up until 2026 or further depending on ESB national pay agreements which would have been financially detrimental to the Complainant, going forward, as well as further retaliation in seeking the recuperation of approximately €20,000 worth of base pay increments already made.

The Complainant commenced employment with the Respondent on 27 September 2002. The Complainant was employed as Assistant Shift Manager/Team Lead Moneypoint, ESB PCI band 4.

The Complainant initially joined the Respondent as an engineer in 2002. The Complainant primarily worked on windfarm construction projects, hydro overhauls and the retrofit of Moneypoint coal plant. In 2016, the Complainant was appointed as Assistant Shift Manager. In 2023, the Complainant was assessed, deemed competent and asked to work as Team Lead (formally known as Shift Manager Moneypoint). The Complainant felt it was unjust that he was now asked to work in a band 5 position without any pay rise but the only pathway to resolving this would have been raising another grievance, he hoped the active grievance would have reached a much quicker resolution. The standard minimum pay rise for being promoted from 1 band to another is an 8% pay rise on base pay.

The Complainant was a Team Lead for a team of 6 members and primarily worked with Michael Fahy (Colleague who was appointed Assistant Shift Manager in 2018), Barry O’Donoghue (Operations Manager), a named Maintenance Staff colleague and Unite local shop steward, a named colleague on shift, team member, SIPTU local shop steward, Jim Dullaghan ( ESPA Unite, Dublin based Union Official) and Gerard Talty (Industrial Relations Officer).

The Complainant enjoyed a salary of €9,531 per month. Further benefits included bonus up to 10%, typically standard 6%, pension contributions, electricity bill contribution.

Background to the Complaint

By way of background, the Complainant contends that:

On 12 October 2022, the Complainant along with his colleague, Michael Fahy raised a collective grievance based on how their allowances associated with Shift Operations were calculated.

The Complainant and his colleague’s allowances were fixed, whereas other employees’ allowances were being calculated based on their base pay and would increase with each pay increase.

On 18 October 2022, Barry O’Donoghue (Operations Manager) sent an email to the Complainant and Mr Fahy and informed them that they had to raise the grievance through shop stewards, to the line managers.

On 10 February 2023, the grievance was raised again through Unite shop steward, on behalf of the Complainant and Mr Fahy, as per the request of Mr O’Donoghue.

On 28 February 2023, a meeting was held with line manager Brendan Slattery and shop stewards to discuss the progression of the grievance. A list of questions was given to fill out to gain more information on the grievance.

On 21 April 2023, a meeting was held with Mr O’Donoghue (Operations Manager), Mr Slattery (line manager), Mr Fahy, the Complainant, SIPTU shop steward, and Unite shop steward.

The meeting on 21 April 2023 ended by Mr O’Donoghue stating that he would investigate the grievance.

On 24 May 2023, the Complainant and Mr Fahy requested an update on the progress of their grievance.

On 14 June 2023, Mr O’Donoghue met with the Complainant and Mr Fahy.

In summary, Mr O’Donoghue read two individual letters regarding overpayments he had identified.

Mr O’Donoghue gave the Complainant and his colleague two options;

·       Pursue the grievance on allowances and he would issue the overpayment letters to payroll and human resources, and deductions would commence on the next round of pay, or

·       Withdraw the grievance on allowances and the overpayment letters wouldn’t be issued to payroll and human resources.

However, the Complainant contends that this overpayment claim was manufactured to discourage the Complainant and his colleague from pursuing the grievance further. The Complainant contends that if there was a genuine overpayment of wages, the Respondent would not have hesitated to recover same.

The implications of this overpayment claim would mean that the Complainant and Mr Fahy would suffer a loss of bonus in the region of €25,000-30,000 for Mr Fahy and €10,000-12,000 for the Complainant.

The Complainant and Mr Fahy decided to continue with their grievance due to concerns over the legitimacy of these monetary threats. The Complainant contends that these monetary threats were punitive action from the Respondent in response to the raising of the grievance.

On 12 July 2023, the Complainant and Mr Fahy wrote to Mr O’Donoghue requesting a written decision on their grievance.

On 14 July 2023, the Complainant and Mr Fahy were informed that the local shop stewards had agreed to park their grievance in order to progress negotiations. This decision had been made without any input from the Complainant or Mr Fahy.

On 22 August 2023, the Complainant received an email from Jim Dullaghan, ESPA Unite, Dublin based Union official. Mr Dullaghan relayed apparent instructions from Gerard Talty, the Respondent Employee Relations Officer which read;

He (Gerard Talty) advised the following:

·       Each of you should write individually to Barry [O’Donoghue] stating that you are withdrawing your individual and collective grievances unconditionally and will be writing to your shop stewards to ask them to confirm to Barry that the collective grievances taken on your behalf by them are being withdrawn.

·       You should not mention to anybody, locally especially, about any alternative plan to pursue a GoU "claim" centrally. Barry needs to be able to claim the grievances are now dead and buried to give him cover for not pursing any retrospection or set aside issues. He apparently is very nervous about anybody at a more senior level asking why he hasn't followed up and so needs assurances that grievances are dropped unconditionally without any knowledge that it might remerge at GoU level in another way. So we also need to ensure Adrian and Mick do the same.

The Complainant kept a firm position that he wanted to continue with the grievance, despite multiple attempts from Mr Dullaghan to convince him to withdraw the grievance under the guise that by withdrawing the grievance and bringing a central case instead, would lead to a quicker resolution.

The aim of the parallel grievance and why it was so strongly recommended by the union was that it anonymised the grievance, it wasn’t associated directly with two employees, and it was expected that the two employees wouldn’t be penalised as a result. The Union fully expected the company to implement the threatened pay cuts and recover the ‘manufactured’ overpayments simply because they could and that they would have to follow through on their threats or else they would look dishonest. The Complainant and his colleague would then be forced into an extended legal battle to recover these deductions.

The Complainant stated that if the Respondent made any unlawful deductions to their wages to enforce the overpayment claim, that they would bring a case to the Workplace Relations Commission.

Mr Dullaghan stated that after reviewing legislation, the Respondent could make deductions to correct overpayment without prior agreement and it is the expectation that the company would proceed on that basis and then make its case afterwards to defend its actions in the WRC or Labour Court.

On 23 November 2023, Mr O’Donoghue emailed the shop steward with his decision that he would not be upholding the Complainant’s and Mr Fahy’s grievance.

On 29 November 2023, the Complainant received an email from the Rewards and Benefits Team of the Respondent, stating that a recent payroll audit had revealed that two personal allowances held by the Complainant had not been updated in line with the PCI agreement and should have been increasing each year that the PCI bands increased. The Complainant was informed that he would now receive a retrospective payment to resolve this issue.

The Complainant contends that the timing of this payroll audit was an unlikely coincidence. When the Complainant questioned if this audit was related to grievance raised, he was informed that it was not.

However, the Complainant contends that this correction that was identified was not the full correction that was due as this was related to salary band as opposed to his base pay, as per the original grievance.

On 29 November 2023, the Complainant expressed that he would be progressing his grievance.

On 08 December 2023, Mr O’Donoghue emailed the Complainant informing him that he would be informing HR and payroll of the overpayments he identified.

On 11 December 2023, the Complainant contacted the union representatives and asked for a formal referral to a solicitor due to a formal threat being received from Mr O’Donoghue, that the alleged overpayments would be deducted by the Respondent.

On 15 December, the union representatives emailed Mr O’Donoghue to inform him that the Complainant and Mr Fahy do not accept his decision on the grievance and that they found it disingenuous that the Respondent was now proposing punitive action against them.

Following this, the Complainant raised a complaint to the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994.

Very recently, the Complainant was informed by the Respondent that the grievance he lodged nearly eighteen months ago was not the correct procedure for his particular set of circumstances. The Complainant contends that the delay in notifying him of this potential error in protocol reflects the disingenuous nature of the Respondent in attempting to resolve this issue

The Complainant is an employee who very clearly articulated his concerns to his employer. It should not have taken over a year for the human resources department of the Respondent to identify and notify the Complainant that a grievance had potentially been raised in an incorrect format.

Nonetheless, the Complainant contends that the Respondent was put on notice of his concerns, they were detailed in writing and by way of supporting documents and the Respondent failed to adequately address those concerns. For that reason, the Complainant felt he had no other option but to seek the intervention of the WRC.

Legislative Provision

The Complainant’s representative made extensive written submissions regarding the provisions of the Protected Disclosures Act 2014 (‘2014 Act’) and the Welfare, Health and Safety at Work Act 2005 (‘2005 Act’). However, at the adjudication hearing it was confirmed by the Complainant’s representative that no protected disclosure within the meaning of the 2014 Act had been made; no protected act within the meaning of the 2005 Act had been made; and no penalisation under either of the Acts was alleged. 

The Complainant’s representative cited the following in support of the claim

Toni & Guy Blackrock Limited - And - Paul O'Neill HSD095 It is clear from the language of section 27 of the 2005 Act 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 Complainant 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 Complainant having committed the protected act he or she would not have suffered the detriment.

The Complainant contends that their raising the issue of unilateral changes to their terms and conditions of employment, having a negative impact on their pay, followed by threats to reduce overall remuneration and recoup pay already issued, satisfies this requirement.

Frances Murphy -v- Connemara Marble Industries (ADJ00006471). Ms Murphy brought a complaint against the respondent company on the grounds that she had been penalised for making a protected disclosure.  Ms Murphy was an employee of the respondent company which was operated by her family. There had been a number of ongoing disputes between the complainant and her family members in relation to the operation and management of the company. The respondent company provided a tearoom and gift shop for tourists in the Connemara region. Ms Murphy contended that she was concerned about the operation of a cash till on the premises. Her contention was that the operation of the cash till was designed to circumvent tax and VAT declarations. It was her further contention that her refusal to operate the cash till amounted to a protected disclosure.

This matter was considered by the WRC who found that no protected disclosure arose. The Labour Court later made a determination and cited the case of Baranya -v- Rosderra Irish Meat GroupsLimited, wherein it was outlined that a protected disclosure is effectively a term of art as defined by the Protected Disclosures Act. The word “disclose” has the ordinary meaning of to reveal or make known. That being the case, the Labour Court concluded that Ms Murphy had failed to reach this threshold in making a disclosure.

The Complainant contends that their raising the issue of unilateral changes to their terms and conditions of employment, having a negative impact on their pay, followed by threats to reduce overall remuneration and recoup pay already issued, satisfies this requirement.

Aidan & Henrietta McGrath Partnership v Monaghan PDD162 Observing that the 2014 Act was a new piece of legislation with relatively little case law, the Labour Court placed reliance upon the decision of the Labour Court in O’Neill v Toni and Guy Blackrock Limited [2010] 21 E.L.R. 1. Although that case was concerned with the Safety Health and Welfare Act, 2005, the Court was of the view that the provisions regarding penalisation were ‘broadly similar’ in both Acts:

“…it is clear from the language of Section 27 of the 2005 Act that in order to make out a complaint of penalisation it is necessary for a complainant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Section 27(3) of the 2005 Act. 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 detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

The Complainant contends that their raising the issue of unilateral changes to their terms and conditions of employment, having a negative impact on their pay, followed by threats to reduce overall remuneration and recoup pay already issued, satisfies this requirement.

Pascal Hosford -v- Department of Employment, Affairs and Social Protection (ADJ00019848) It was not disputed by either party that a protected disclosure had been made. That being the case, it then fell upon the WRC and later the Labour Court to consider whether or not Mr Hosford was penalised for having made such a protected disclosure.

As the Labour Court pointed out in O’Neill -v- Toni & Guy Blackrock Limited (2010ELR21), it is necessary for a complainant to show that the penalisation of which he/she complains of was imposed “for” having made a protected disclosure.

Therefore, the act or omission complained of, must have been incurred because of or in retaliation for that individual having made the protected disclosure. In this instance, Mr Hosford cited a number of employment issues which had subsequently occurred, having made his protected disclosure. The respondent department was in a position to provide an objective justification for each of the actions concerned.

The Labour Court noted that, where there is more than one causal factor in the chain of events leading to the so-called detriment complained of, the making of the protected disclosure must an operative cause in the sense that, but for the complainant having committed the protected act or made the protected disclosure, he/she would not have suffered the detriment complained. That being the case and based on the evidence submitted by the respondent department, the WRC and Labour Court found that the issues raised by Mr Hosford were wholly unrelated to his having raised a protected disclosure and therefore no detriment in line with Section 12 of the Protected Disclosure Act arose.

The Complainant contends that their raising the issue of unilateral changes to their terms and conditions of employment, having a negative impact on their pay, followed by threats to reduce overall remuneration and recoup pay already issued, has no justification. The Complainant contends that their raising the issue of unilateral changes to their terms and conditions of employment, having a negative impact on their pay, followed by threats to reduce overall remuneration and recoup pay already issued, has no justification.

Preliminary matter – time limits

At the adjudication hearing, in response to the Respondent raising the preliminary matter of time limit, Mr McGovern BL said that the threat of penalisation remains live. Until the threat is removed, the Respondent continues to penalise the Complainant. It was also submitted that correspondence of 22 August 2023 was within the time limits. 

With regards to the matter of collective agreement, Mr McGovern asserted that the Complainant was threatened and had to step out of the collective matter.

Summary of direct evidence and cross-examination of the Complainant

The Complainant outlined his career with the Respondent. He said that he commenced his employment in 2002 and was made permanent in 2004. In 2016 he was successful in applying for a role of Assistant Shift Manager. In 2023, he was asked to work as Shift Team Lead (Shift Manager). The Complainant said that he was not awarded the 8% standard base pay increment even though this position was a band higher than his previous role. He said that he should have taken a grievance at that time.

The Complainant clarified that as per the PCI national pay agreement, each role within the Respondent organisation was associated with a specific band.

The Complainant said that in 2016 his allowances were fixed; he did not question that. He said that he had no understanding of PCI. His terms of employment were itemised in the 2002 and 2004 contracts and updated in 2016. He said that he assumed that the Respondent would apply the PCI correctly.

The Complainant said that he and Mr Fahy were the only employees affected by the issue.

The Complainant outlined the sequence of meetings that took place with the management.

The Complainant said that the trade union advised him to anonymise the grievance and maybe avoid the deductions but he would have to compromise any future claims.

The Complainant referred to emails from the Respondent of 19 December 2023 and 19 January 2024. The Complainant said that it was despicable to issue the December 2023 email just before Christmas. It had a very serious impact on him and his family.

The Complainant said that he spoke with Mr O’Donoghue, he read the legislation and he knew that he had to take an action. He knew he had 6 months to take an action. He told Mr O’Donoghue that his action was unlawful and if the threat was not removed, he would make a claim to the WRC. The Complainant said that Mr O’Donoghue had no concept of what effect it had on the Complainant.

The Complainant said that Mr O’Donoghue did not comply with his request regarding the threat that was there since April 2023.

In cross-examination, the Complainant agreed that his claim is one of penalisation. He accepted that his grievance was about an allowance calculation. He accepted that he received his terms of employment in 2002 and 2004.

The Complainant confirmed that in April 2016 when the PCI Agreement came in, he was a member of the trade union. He confirmed that briefings occurred through the Respondent and the trade unions regarding the PCI Agreement.

The Complainant confirmed that he received the letter entitled Appointment to Assistant Shift Manager, Moneypoint which outlined the allowances applicable. He confirmed that he accepted the role but said that he assumed that the Respondent applied the PCI agreement correctly.

It was put to the Complainant that the letter stated that: “As per the PCI agreement the PACT 3% lump sum will no longer be paid as a lump sum but will instead be added to your basic salary and paid on an ongoing basis. in addition to the above you will receive the following allowances associated with the Assistant Shift Manager Role…”

The Complainant agreed that he was provided with the agreement and briefed on it. He accepted that he made a mistake not to have analysed the PCI agreement.

The Complainant agreed that Moneypoint is going through a survival plan which was put in place in 2019. He agreed that he was one of the 80 staff members kept on in employment.

It was put to the Complainant that in his grievance he never mentioned that he was not told what his terms of employment were. The Complainant agreed that it was never disputed.

It was put to the Complainant that Mr O’Donoghue wrote to him, he told the Complainant that it was a collective matter, not only applicable to the Complainant and Mr Fahy. The shop steward did not raise a grievance until February 2023. The Complainant said that he followed a grievance procedure, he thought that there was nothing that had to go through the shop steward.

It was put to the Complainant that his grievance said nothing about him not receiving terms of employment or that he was not notified of changes. The Complainant confirmed that the nature of his grievance was that the allowances were not applied correctly.

The Complainant accepted that due to the fact that he raised an issue of the calculation of an allowance, his payments would have to be reviewed.  He accepted that, if a historical overpayment was discovered, it would be withdrawn. The Complainant said that the overpayment was manufactured as a threat to withdraw his grievance.

It was put to the Complainant that while he said there were threats, Mr O’Donoghue would say that he met with the Complainant to flag the issues to the Complainant. The Complainant said that he did not believe that the Respondent would pursue the threat. He said that he told Mr O’Donoghue that he did not believe that the threat would stand up to scrutiny. Mr O’Donoghue told him to take 24 hours and suggested that he talked to his trade unions.

It was put to the Complainant that after later communication from Mr O’Donoghue he had no doubt that the Respondent would pursue the threat. He wrote to the Respondent to reconsider, to consult its legal department, etc.

The Complainant said that he met with Mr Talty in 2021/2022 but it was in relation to his parental leave. It was put to the Complainant that Mr Talty, having been asked by Mr O’Donoghue outlined that correct process in the context of a collective grievance. It was far from being a threat. The Complainant disagreed. He said that the email on 22 August 2023 from Mr Dullaghan said that he was to withdraw the grievance unconditionally.

It was put to the Complainant that at his stage everyone was telling him to pursue the issue in another way. The Complainant said that the trade union asked him to pursue the issue through a collective grievance to protect him from the threat. It was put to the Complainant that the union was telling him (email of 23 August 2023) that he could not have two separate procedures, they were telling him to follow one procedure. The Complainant said that the Respondent was trying to delay the process to have it statute barred.

It was put to the Complainant that Mr O’Donoghue informed the shop steward of the outcome of the grievance on 23 November 2023.

It was further put to the Complainant that the Team Lead, Reward & Benefits, Enterprise Services confirmed in her email that she was not aware of any grievance.

The Complainant confirmed that to date no deductions were made. The Complainant said that in the context of his email of 15 January 2024, the Respondent was trying to delay so the issue would be statute barred.

The Complainant said that trade union cannot appeal the outcome until it gets the results of Mr O’Donoghue’s investigation. It was put to the Complainant that the Respondent’s position is that the union is not pursuing the matter centrally. The Complainant said that he requested a referral to the central level. It was put to the Complainant that it was the matter for the union to refer, not for him.

Ms Sweeney BL, on behalf of the Respondent, submits as follows.

Introduction

The Complainant, Patrick Casey, is currently employed as a Shift Team Member with the Respondent in line with the agreed “Clarification of the Terms and Conditions for Staff in the Moneypoint Survival Plan August 2019”.

Prior to this agreement, he held the position of Assistant Shift Manager. In the agreed selection process associated with this agreement he was assigned a team member’s role.

The Complainant submitted a claim pursuant to section 7 of the Terms of Employment (Information) Act 1994 (as amended) (hereinafter “the Act”) on 19 February 2024, on the basis that he alleges that he was threatened with penalisation for invoking or having given notice of an intention to exercise any rights under the Act.

In the body of the Complaint Form, he alleges that he was “threatened with penalisation by my manager for raising a grievance through the ESB’s Grievance Procedure on the method used for calculating my allowances … The penalisation threat was that my manager would now use an alternative method to calculate my salary since 2016 if I didn’t drop the grievance on my allowances”.

The Respondent entirely rejects these allegations for the reasons outlined below.

In the first instance, it is the Respondent’s position that in line with the dicta of Hogan J. in Health Service Executive v. McDermott, the Complainant’s claim, as it is drafted, is statute barred.

Without prejudice to that, it is readily apparent from the Complainant’s complaint form and the variety of documents submitted in support of his complaint that he did not, at any stage, invoke or give notice of his intention to exercise any rights under the Act. In that regard, the Complainant’s complaint is entirely misconceived, and the claim must fail.

While the Complainant has filed submissions in support of his complaint, it is noted that they appear to be on the premise that the Complainant’s claim is for penalisation under the Protected Disclosures Acts. That is not the Complainant’s claim. The Adjudication Officer is limited to considering claims set out on the Complainant’s claim form and cannot consider complaints that have not actually been made by the Complainant.

Preliminary Issue – Time Limits

It is submitted that the Complainant’s claim dated 19 February 2024 is out of time in circumstances where the alleged acts or threats of penalisation occurred on 21 April 2023, 14 June 2023, July 2023, 23 November 2023 and 8 December 2023.

The Complainant’s claim falls to be adjudicated in accordance with Section 41 of the Workplace Relations Act 2015 (as amended) pursuant to Schedule 5 of that Act.

Section 41(6) of the 2015 Act provides that:

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.

Section 41(8) provides that the limitation period may be extended by an Adjudication Officer by a further period of up to six months if they are “satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” No evidence of such “reasonable cause” is before the Workplace Relations Commission and it is submitted that the Complainant should not be permitted to belatedly submit same at the hearing of this action.

As a starting point, therefore, an Adjudication Officer can only consider the alleged wrongful acts which occurred in the six months preceding the date of his complaint form. Therefore, any event that occurred prior to 19 August 2023 is out of time and cannot be considered by an Adjudication Officer as part of any hearing of the within complaint.

It is, however, the Respondent’s position that as a matter of law, the Complainant’s complaint in its entirety is out of time, due to the framing of the submitted complaint. In Health Service Executive v. McDermott [2014] IEHC 331, Hogan J. considered the issue of statutory time limits in the context of Section 6 of the Payment of Wages Act 1991, which is in the same terms as Section 41 of the 2015 Act. From paragraph 14 onwards, Hogan J. held the following:

…the key question is the "date of the contravention to which the complaint relates." In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention "to which the complaint relates."

For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning "on the date of the contravention to which the complaint relates", the complaint will nonetheless be in time.

It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.

It is submitted that McDermott demonstrates a statutory provision which creates a “rolling time limit”. Each breach of the Act is a separate contravention. A claimant has six months within which to make a complaint. If the complaint is not made within time, it is time barred. A complaint regarding a later contravention of the same kind will not be time barred simply because the earlier contravention was not challenged. However, nor will the later contravention of the same kind allow a claimant to refer a complaint regarding the earlier contravention. The earlier contravention is time barred and the later contravention is not.

The Complainant’s complaint, while submitted on 19 February 2024, is framed such that it relates to the period in June 2023 onwards. It is framed in precisely the same manner envisioned by Hogan J. as drafted in such a manner that it renders the complaint out of time. The contravention to which the Complaint relates clearly refers back to June 2023, long outside of the six-month time limit.

It is the Respondent’s submission that on the basis of McDermott, the earlier alleged contraventions are time barred.

Accordingly, for the purposes of this claim, which was commenced on 19 February 2024, the WRC only has jurisdiction to consider any act of penalisation alleged to have occurred from 19 August 2023 to 19 February 2024.

Strictly without prejudice to that preliminary objection, the Respondent makes the following written submissions:

Relevant Background

The Complainant commenced employment with the Respondent on a two-year fixed term contract of employment in September 2002. The Complainant was offered a permanent contract of employment with the Respondent in September 2004 (contracts were exhibited at the hearing).

In or about December 2004, the Respondent entered a Collective Agreement with the Unions in respect of terms and conditions (exhibited at the adjudication hearing). The Agreement provides for a Set-Aside mechanism for staff assigned to shift roles where there is a salary differential. This element of this agreement has not been renegotiated nor has it been altered by any subsequent agreement or contract.

In or about April 2016, the Respondent together with the relevant Trade Unions reached an agreement in respect of pay and conditions of all staff (hereinafter “the PC&I Agreement”). There were a number of companywide briefings delivered by the various management teams to which all staff were invited. The Respondent also facilitated numerous Union briefings to allow staff representatives and officials consult with their members on the details of the Agreement. The Complainant, as a trade union member, would have had an opportunity to vote on this Agreement prior to its adoption. On acceptance, the agreement was uploaded to the ESB internal web page and staff notified of its location. The PC&I Agreement is still located on the ESB internal web page.

The Complainant applied for, and was appointed to, the position of Assistant Shift Manager in 2016. The Assistant Shift Managers role was a Band 4 position. Prior to accepting the role, the Complainant was briefed on the reward structure for this role and the details of his allowances, and the method of calculation thereof, were set out in his letter of appointment. A copy of the Complainant’s Appointment Letter was exhibited at the hearing. The method for calculating the Complainant’s allowances is clearly set out therein, as being calculated using the max of the Band 4 Scale. While it is beyond the scope of this complaint, the Complainant was expressly notified of these terms and agreed to same. The Complainant did not raise any issues with the contents of this Letter of Appointment and the terms of employment contained therein, prior to signing and agreeing same.

Thereafter, the Respondent experienced significant commercial difficulties and there was the prospective closure of the Moneypoint Plant. Following protracted negotiations with representatives and Union officials, a survival plan was voted on by all staff in the station and the Respondent notified of its acceptance by the group of Unions in October 2019. The survival plan (“Clarification of the Terms and Conditions for Staff in the Moneypoint Survival Plan August 2019”, exhibited) agreed a reduction in staffing from 186 to 86 and an agreed selection process to identify the 86 required to run the plant. As part of that selection process each staff member, if selected, had the option to opt out of their selection and look to be considered for relocation, retraining, redeployment or take an enhanced voluntary severance package.

The Complainant was selected for a position in the restructured Moneypoint, through agreed selection criteria. A copy of the Complainant’s Appointment Letter dated 6 October 2019 was exhibited at the hearing.

In or about February 2023, the Complainant’s Union raised a collective grievance in respect of the method of calculation of shift allowances. This grievance was raised by the Unions, through the collective grievance procedure. It was not personal to the Complainant. That grievance had nothing whatsoever to do with the Complainant’s statutory rights pursuant to the Act. At all material times, the Complainant possessed terms of employment and where these terms had changed over the years, he was notified of same in writing. The Complainant has never, at any stage, alleged that he did not have a statement in writing of his terms of employment. He manifestly did not invoke (or indeed give notice of an intention to invoke) his rights under the 1994 Act, whether expressly or otherwise.

As part of the investigation of the collective grievance raised by the Unions in relation to the method of calculation of allowances, which necessarily involved an examination of all elements of remuneration and the calculation of same, it came to the attention of the Complainant’s Senior Manager, Barry O’Donoghue, that the “Set-aside” policy had been applied incorrectly to certain staff and that there were anomalies in the calculation of the Complainant’s remuneration.

The Set-aside policy is one which was first introduced in March 2002, in order to align substantive rates of pay across the organisation. A copy of the HR Specialist’s letter to the Unions concerning the policy was exhibited at the hearing. While the Unions were first formally notified of this policy on 11 March 2002, it has in any event become an established policy of the Respondent. As previously noted, same was also provided for in collective agreements, including under the Moneypoint Station Agreement. At least 7 members of Moneypoint Shift Staff were part of the aforementioned Set-aside mechanism in recent years. As an Assistant Shift Manager at the time, the Complainant would have been aware of this. The Unions, including the Complainant’s Union, were well versed in the Set-aside policy and it was a normal payroll treatment within the company. Any suggestion that the Complainant was not aware of Set-aside, through his Union representatives or otherwise, is entirely rejected by the Respondent.

The Unions’ grievance was not upheld by Mr O’Donoghue, this was communicated to the Unions by email dated 23 November 2023. As part of the investigation of the collective grievance, as previously noted and which it is accepted the Complainant had been advised of, it had come to Mr O’Donoghue’s attention that there were payment anomalies in respect of the application of the Set-aside procedure to the named individuals in the Unions’ grievance. Mr O’Donoghue advised those affected, including the Complainant, by email in December 2023 and noted that the issue would be referred on to HR/Payroll. Thereafter, in January 2024, Mr O’Donoghue confirmed to the Complainant that no further steps would be taken in the matter, until the conclusion of the grievance process which would include any appeal from the Unions. To date, no further steps have been taken by the Respondent to further investigate these anomalies identified by Mr O’Donoghue.

Relevant Legislative Provisions

The Respondent relies on section 6C of the Act and asserts that, in order to be successfully prove penalisation, the Complainant would have to satisfy a tripartite test (ADJ-00025389 A Warehouse Operative v. A Regional Distribution Centre). Firstly, the Complainant must prove that he sought to invoke his rights under the present Act. Secondly, the Complainant has to demonstrate unfair treatment as envisaged by section 6C(5). Finally, the Complainant will have to demonstrate a causal link between the invocation of his rights and the unfair treatment suffered, and more specifically that the actions covered by section 6C were an operative consideration leading to his detriment or penalisation. At each stage of the test, the burden of proof is on the Complainant

No protected act has taken place for the purposes of the Act.

It is submitted that the Complainant falls at the first limb of the tripartite test in circumstances where he simply did not seek to invoke rights under the Act.

The Complainant has expressly linked the alleged penalisation to the raising of a grievance. It is the contents of the grievance that the Complainant has repeatedly stated amount to a protected act. In his complaint form, he has stated that “The overpayment claim I believe was manufactured to discourage me from pursuing my grievance” and that he was “threatened with penalization…for raising a grievance”. This suggests that the alleged penalisation (i.e. “the overpayment claim”) arose (in the Complainant’s opinion) as a result of a grievance brought by the Complainant and not as a result of the Complainant invoking his rights under the Act.

The Complainant, by his own admission, raised a grievance regarding the manner of calculation of his allowances. On no reading of the grievance could it be understood to refer to a failure by the Respondent to provide the Complainant with a statement in writing of the terms of his employment or to notify him in writing of a change thereto.

The first mention of the Act was in an email from the Complainant to Mr O’Donoghue (and others) dated 15 January 2024. The Complainant has, however, adduced no evidence or pointed to any aspect of his original grievance that could reasonably be understood to be invoking a right provided under the Act. A copy of the email from the Complainant to Barry O’Donoghue (and others) dated 15 January 2024 was exhibited.

The Complainant belatedly refers to section3(1)(m) of the Act in his email to Barry O’Donoghue on 15 January 2024.

 Section 3(1)(m) provides that:

(1) An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

 (m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

This is not the issue the Complainant raised, in the grievance or otherwise. By his own account, from the document entitled “Statement of Collective Grievance”:

“Statement of Grievance: Incorrect application of the PC&I Agreement to Legacy Staff taking up Shift Roles in Moneypoint relating to Base Pay Allowances….We wish to have Shift Allowance and Purchase Hours calculated on base pay as per PC&I Agreement…”

In his email of 12 October 2022:

“…regarding the incorrect application of the PC&I Agreement to legacy staff taking up shift roles in Moneypoint.”

In Union representatives’ summation of “the case in full detail” in their email dated 28 February 2023:

“…there has been an incorrect application of the PC&I Agreement to existing staff…relating to base pay allowance, for shift and purchase hours. Shift allowance and purchase hours are not being calculated on base pay…but at the band at which the role was mapped to.”

In his email of 15 January 2024:

“The grievance that was raised, was a request for the correct application of the PCI agreement in relation to our allowances, we are not looking to change the PCI agreement.”

Moreover, the Complainant has stated in his complaint form that “the penalisation threat was that my manager would now use an alternative method to calculate my salary since 2016 if I didn’t drop the grievance on my allowances”. By the Complainant’s own admission, the penalisation that he alleges arose as a result of a grievance brought by the Complainant in relation to his pay/allowances, rather than a result of the Complainant invoking his any right provided for under the Act.

The Complainant’s grievance did not invoke his rights under the Act, under section (3)(1)(m), or otherwise. It is clear from the Complainant’s own words, at the time, that he was raising an issue in relation to the method of calculation of his allowances not in relation to the provision (or not) of a written statement of the terms of his employment.

At no point did the Complainant suggest he did not have a statement of the terms of his employment, or indeed that the Respondent had not notified him of the PC&I Agreement, an Agreement which was negotiated while he was in the employment of the Respondent, which the Respondent and the Unions held briefings on, and which he would have had an opportunity to vote on as a Trade Union member.

Insofar as the Complainant appears to be of the view that any complaint in relation to a term and condition of his employment falls within the remit of the 1994 Act, this is not accepted by the Respondent. The Complainant’s grievance, at its height, related to dissatisfaction with the existence of a term of his appointment to the Assistant Shift Manager role in 2016. This term was clearly communicated to him in writing in his letter of offer and was a term with which he raised no issue until some six years thereafter.

The 1994 Act provides for distinct statutory rights, which relate exclusively to the obligation to provide a written statement of terms of employment and the obligation to notify an employee of any changes to those terms. The Complainant’s grievance plainly does not involve these issues.

The Complainant has not provided any evidence in his complaint form or in his submissions which would suggest otherwise. That being the case, the Respondent submits that the Complainant’s complaint simply cannot succeed on this basis and is bound to fail.

It is submitted that the within claim should be dismissed in circumstances where the Complainant did not, expressly or impliedly, invoke his rights under the 1994 Act. The Complainant therefore has failed to meet the first limb of the test under section 7, his claim is bound to fail and should be dismissed.

Alleged Acts of Penalisation

Strictly without prejudice to the foregoing, the Respondent does not accept the suggestion that the Complainant was penalised or threatened with penalisation in the manner alleged or at all.

The Complainant bears the burden of proof in his claim of penalisation to establish both a protected act and a detriment. The Complainant must establish a nexus between the protected act and the detriment.

In O’Neill v. Toni and Guy Blackrock Limited [2010] 21 ELR 1, the Labour Court considered in detail the matter of a causative link between the making of a complaint and the alleged detriment 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 detriment 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 determent”.

Therefore, the Complainant needs to establish not only that he suffered a detriment but that the detriment complained of was imposed because of, or was in retaliation for, having committed a protected act. It is submitted that the Complainant has failed to do so in his claim.

The Respondent reiterates its position that any event prior to 19 August 2023 is out of time. The WRC does not have jurisdiction to hear any complaint in relation to acts or omissions which pre-date 19 August 2023.

Strictly without prejudice to the foregoing, insofar as the Complainant has alleged that threats of penalisation were made on various occasions including 21 April 2023, 14 June 2023, July 2023, 23 November 2023 and 8 December 2023, this is categorically denied by the Respondent and it amounts to a complete misrepresentation of the actions and intentions of Mr O’Donoghue, Mr Talty and the Respondent more generally.

The Respondent submits that at the investigation meeting between Mr O’Donoghue, Mr Brendan Slattery, the Complainant’s Union (Unite), SIPTU, Mr Michael Fahy and the Complainant in April 2023, Mr O’Donoghue noted the Set-aside policy and the Respondent’s position in relation to same, in circumstances where it was of relevance to the issues raised by the Union.

Thereafter, during an informal meeting on 14 June 2023, Mr O’Donoghue outlined his preliminary findings in relation to the Union’s grievance, which included an identification of payment anomalies to the Complainant. He also informed the Union representatives and the Complainant of the practical implications of his preliminary findings. Insofar as the Complainant characterises Mr O’Donoghue’s provision of relevant information to him as threats, this is not accepted.

It is clear from the correspondence submitted by the Complainant himself that Mr Dullaghan, his Union representative, repeatedly advised him that the grievance which had been raised was a matter for the collective bargaining process as it was one that had the potential to affect all Unions party to the PC&I Agreement, as it related to the interpretation thereof. Moreover, it is readily apparent that Mr Dullaghan himself advised the Complainant that Set-aside would not be relevant in a broader process and that the core issue should be pursued through a group of Unions case. This is precisely the same advice provided to the Complainant by Mr O’Donoghue.

In July 2023, Mr Gerard Talty spoke with the Complainant’s Union representative, Jim Dullaghan, about the Complainant’s grievance, at the instance of Mr Dullaghan. Mr Dullaghan, as part of this conversation, asked Mr Talty how to progress the issues, with regard to the grievance and the broader consideration of whether this was a group of Unions case. Solely in response to this specific query being raised by Mr Dullaghan, Mr Talty advised Mr Dullaghan that he could not have the one case processed through two separate procedures simultaneously and that one avenue would have to be chosen.

The issues raised by the Union’s grievance, both in relation to PC&I and Set-aside, would – and indeed, do – have implications for employees across the organisation. That is precisely why the grievance was raised as a collective grievance through the Union, rather than as a grievance personal to the Complainant or Mr Fahy. The Respondent submits that both Mr O’Donoghue and Mr Talty did no more than advise the Complainant and his representative of the possible outcomes of his grievance and their view of the implications thereof, for both the Complainant, the Union and others. The actions of Mr O’Donoghue and Mr Talty do not amount to threats or acts of penalisation.

It is expected that if a manager identifies that an employee or group of employees are in a process which could result in a loss of earnings for them, that the manager highlights this to them – to do otherwise would be unreasonable and unfair.

It is clear from the Complainant’s submissions that the advice given by Mr O'Donoghue and Mr Talty to the Complainant was identical to the advice he had already received from his staff representatives and union officials.

By letter dated 23 November 2023, Mr O’Donoghue notified the Union, through the shop steward, of his decision to not uphold the relevant grievance and the appropriate appeal mechanism. He records that during the process “he found anomalies in how the PCI agreement was applied to 2 staff members”.

Thereafter, on 8 December 2023, Mr O’Donoghue notified the Complainant that during the consideration of the collective agreement regarding the application of the PC&I agreement, he found anomalies in the Complainant’s pay and identified same. This is in line with the Set-aside Agreement and arose out of Mr O’Donoghue’s, and Moneypoint’s, obligation to implement ESB’s collectively agreed method of alignment of substantive rates of pay when any overpayment is identified. The identification of these anomalies arose during the course of the investigation of the Union’s grievance but were neither a response nor reaction to same. Once the issue formally came to the attention of the Respondent’s employees, through whatever process it came to their attention, it had to be actioned.

The actions covered by section 6C of the Act were manifestly not an operative consideration leading to any penalisation, in circumstances where, crucially, no action under section 6C was taken by the Complainant.

The Complainant has not suffered any detriment.

Strictly without prejudice to the foregoing, section 6C(5) of the Act requires that penalisation involves an act or omission by an employer that effects an employee to his detriment.

It is for the Complainant to establish that there was a relevant act amounting to penalisation which affected him to his detriment.

It is submitted that the Complainant in this case has not suffered any detriment.

The word “detriment” must be given its ordinary and natural meaning of causing harm or damage as held by Hyland J. in Conway v. Department of Agriculture [2020] IEHC 665.

The Complainant has not suffered any harm or damage. He has not been subject to any deduction from his wages on foot of raising his grievance, through the Respondent’s Set-aside policy or otherwise. Mr O’Donoghue wrote to the Complainant by email dated 19 January 2024 and confirmed that “it is not intended that any further steps will be taken in relation to this matter” and it is a matter for HR/Payroll to investigate further.

The Complainant’s grievance was investigated, and a finding was reached. The Complainant has indicated that he wishes to appeal this finding. The Complainant has been informed, since October 2022, that the issues which he is raising are collective in nature in circumstances where they impact a group of ESB employees. Therefore, it is for the Union representatives to appeal the grievance outcome. Notwithstanding that it is the Respondent’s position that the Individual Grievance Procedure is not applicable in this instance, in any event the Complainant has not completed a Grievance Appeal Form, as required by the Respondent’s Grievance Procedure. It has been communicated to the Complainant that any appeal of a collective grievance, which was raised through his Union, would need to be dealt with by way of Central Level Procedure, through his Union, in circumstances where the issues raised therein have implications for other ESB employees. The Complainant has not identified whether he has progressed matters through his Union.

The Complainant has not suffered any detriment as a result of the events complained of, financial or otherwise, and has therefore not been penalised or threatened with penalisation as defined by the Act.

Conclusion

The Respondent submits that the Complainant’s claim should be dismissed.

The Terms of Employment (Information) Act 1994 (as amended) is of no application to the Complainant’s complaint, as submitted to the WRC. A number of the events referred to by the Complainant in his penalisation claim are statute barred and should not be considered by the WRC in its examination of the Complainant’s complaints.

Without prejudice to the foregoing, the Respondent did not penalise the Complainant, as alleged or at all.

The Respondent remains available to work with the Complainant and his Union representative to come to an agreed solution to his issues within the mutually agreed process and will continue to defer any potential salary adjustment which may result from this process until that process has been concluded.

The Complainant is not entitled to the reliefs claimed or any relief.

At the adjudication hearing, in reply to the Complainant’s submission, Ms Sweeney asserted that the Complainant said clearly that he has a grievance regarding calculation of his allowance. At no point that grievance related to the terms of employment. The complaint was that the Complainant was not happy with his allowance.

Summary of direct evidence and cross-examination of Mr Barry O’Donoghue, Operations Manager

Mr O’Donoghue outlined his career with the Respondent.

He said that the grievance related to correct application of allowances, it affected more than one person and  was, therefore, a collective grievance.

Mr O’Donoghue said that he completed his investigation of the grievance and wanted to highlight to the Complainant the possible implications of his grievance. He said that the payments had to be reviewed if 2016 contract was challenged.

Mr O’Donoghue said that the case was brought by a shop steward so he had to reply to the shop steward. The official outcome of his investigation was issued to the trade union on 23 November 2023. The shop steward confirmed that they were going to appeal the outcome. Mr O’Donoghue said that , as far as he was concerned it was out of his hands and he heard nothing further.

Mr O’Donoghue said that the overpayments were separate to underpayments discovered by the payroll department, they related to a different payment.

In cross-examination, Mr O’Donoghue said that he consulted HR during his investigation.

Mr O’Donoghue said that he did not give to the Complainant his letter which he read out at the meeting of 14 June 2023. He said that it was an informal letter. He said that, if the grievance was not pursued, the letters would not issue. He denied that it was threat. He said that he was trying to give the Complainant some guidance, it was not meant to be a threat.

Summary of direct evidence and cross-examination of Mr Gearard Talty, ESB Employee Relations

Mr Talty outlined his career with the Respondent.

Mr Talty said that his role was to work centrally with trade unions. Any appeals would come through him.

Mr Talty said that the issue with the Complainant’s allowances was first brought to his attention in November 2021. It was just briefly outlined to him that the two employees are not happy about their allowances. He said that at that time the main issue was the Complainant’s parental leave but the allowances were briefly discussed.

Mr Talty said that on 28 October 2022 he sent an email regarding the correct process, the procedure that was agreed by the group of unions and, by extension, shop stewards.

Mr Talty said that in August 2023 he met with two trade union official to discuss what would be the best way for their members to pursue the matter.  There were discussions but there were no differences between the Respondent and the trade union in terms of interpretation of the PC&I Agreement. 

Mr Talty, in cross-examination, said that 90% of grievances are resolved when people are referred to a correct process or an agreement.

Preliminary matter – time limits

The Respondent contended that the judgment in HSE v McDermott [2014] IEHC 331 requires that the Adjudication Officer examine the complaint as framed by the Complainant. The Respondent argued that having done so, and in line with the judgment, the Complainant’s claim should be found out of time in its entirety.

The Complainant argued that the threat of penalisation remains live. Until the threat is removed, the Respondent continues to penalise the Complainant. It was also submitted on behalf of the Complainant that correspondence of 22 August 2023 was within the time limits. 

It has to be noted that HSE v McDermott addressed cognisable period in claims under the Payment of Wages Act 1991 not the Terms of Employment (Information) Act 1994 (‘the Act’). It was a specific judgment regarding a specific piece of legislation which is different in its origin, nature, and intent to the Terms of Employment (Information) Act 1994 as amended, and the penalisation aspect in particular. There is no payment of wages complaint encompassed in this case. The question in this case is whether the Complainant has been penalised for invoking or having given notice of an intention to exercise any rights under the Act.

The time limits are prescribed by section 41 of the Workplace Relations Act, 2015 as follows:

‘(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.’

(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.

The Complainant referred his complaint to the Director General of the WRC on 19 February 2024. Therefore, the cognisable period for the purposes of this claim runs from 20 August 2023 to 19 February 2024.

There was no application made to extend the cognisable period.

Substantive matter

The complaint referred was that the Complainant 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. For the avoidance of any doubt, in light of the reliance of the Complainant’s representative on the provisions of the Protected Disclosures Act 2014 and the Welfare, Health and Safety at Work Act 2005 at the adjudication hearing it was confirmed with the Complainant’s representative that the Complainant did not allege that he made a protected disclosure within the meaning of the Protected Disclosures Act 2014, committed a protected act within the meaning of the Welfare, Health and Safety at Work Act 2005, or that his claim relates to penalisation under either of these two pieces of legislation.

The Employment (Miscellaneous Provisions) Act 2018 was introduced to address problems identified by the casualisation of work and to improve the security and predictability of working hours for employees. It inserted protection against penalisation into the Terms of Employment (Information) Act 1994 in Section 6(c). This section is broadly similar to Section 27 of the Safety, Health and Welfare at Work Act 2005. 

Section 6C of the 1994 Act provides:-

“(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,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

(2) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

(3) In proceedings under Part 4 of the Workplace Relations Act 2015 in relation to a complaint that subsection (1) has been contravened, it shall be presumed until the contrary is proved that the employee concerned has acted reasonably and in good faith in forming the opinion and making the communication concerned.

(4) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the employee in respect of that penalisation both under this Act and under those Acts.

(5) In this section “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), 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 or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.”

A cause of action can only accrue to an employee under section 6C of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by subsection (1) and but for the protected act the employee would not have suffered the detriment complained of. In that regard, I am guided by O'Neill v Toni & Guy Blackrock Ltd [2010] E.L.R. 1 in the context of the Safety, Health and Welfare at Work Act 2005.

“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 detriment 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 determent.”

The Complainant must establish, on the balance of probabilities, that he is entitled to the protection of section 6C of the Act.  It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his actions covered by section 6C were an operative consideration leading to his detriment or penalisation.

An Adjudication Officer has no power to adjudicate on terms of employment. My concern is not the entitlement to, or the correct method of the calculation of the disputed allowance.

To ground a complaint under section 6C of the 1994 Act, the Complainant must have undertaken a protected act as set out in section 6C(1) of the 1994 Act. 

The Complainant confirmed that he received his written statement of employment in 2002, 2004, and subsequent updates and amendments to his terms of employment. He did not dispute that the allowances were outlined in the documents referred to.

The evidence before me is that the Complainant raised a grievance regarding the method of calculating of his allowances. The Complainant’s communications, on which his penalisation complaint is grounded, related solely to his grievance as to the calculation of allowances which the Complainant was entitled to under his contract of employment with the Respondent. 

The Complainant asserted that he was penalised as a result of his raising the grievance by the Respondent’s communication informing him of the alleged overpayments discovered during the review process and the Respondent’s proposal to recoup same.

Having considered all the submissions and evidence before me, I do not find that there was a protected act, communication or a complaint within the scope of section 6(C) of the 1994 Act.

I must, therefore, find that this complaint is not well founded.

I declare this complaint to be not well founded.

Penalisation – terms of employment -