Complainant

Respondent

Anonymised Parties

A Community Resource Worker

A Community Organisation

Representatives

Self-represented  

Fionnán Long BL instructed by McMahon & Williams Solicitors

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-00057996-001

11/09/2023

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

CA-00057996-003

11/09/2023

The Complainant commenced his employment with the Respondent on 22 August 2022. His employment ceased on 27 January 2023.

The Complainant was paid €400 gross and worked 21 hours per week.

The Complainant referred his complaints to the Director General of the WRC on 11 September 2023 pursuant to the Terms of Employment (Information) Act, 1994 and the Safety, Health & Welfare at Work Act, 2005. The Complainant also referred a dispute pursuant to the Industrial Relations Act, 1969. The Respondent objected to the investigation of the dispute by the Adjudication Officer pursuant to section 36(1) of the Industrial Relations Act, 1990.

The Respondent accepted liability regarding the claim under the Terms of Employment (Information) Act, 1994. The Respondent rejected the claim pursuant to the Safety, Health and Welfare at Work Act, 2005.

At the adjudication hearing, the Complainant expressed his concern about the lateness of the Respondent’s submission. The Complainant was offered a recess or an adjournment to familiarise himself with the Respondent’s submission and prepare a response. The Complainant declined the offer and requested that the hearing proceeded as scheduled.

The Respondent raised a preliminary matter of time limits.

The Respondent submits that the date of termination is the 27 January 2023. This was not in dispute between the parties. The Complainant's initial complaint was submitted on the 27 July 2023. According to the Complainant's own email to the WRC on the 27 of July 2023, he apologised for the presentation of the form and noted that he had "most relevant information".

The WRC form contains the Complainant's details on page 2 and some information on page 3. It does not however contain any substantive information. Most significantly, it does not contain any details of any complaint whatsoever. The general complaint section on page 5 is completely blank. This cannot be deemed to be a valid complaint.

Section 41 of the Workplace Relations Act 2015 imposes a time limit of six months, in the absence of an extension. No extension has been requested and it is submitted no such extension should be granted.

The Respondent relies on Cementation Skanska v Carroll DWT0338 where the Labour Court considered the principles governing the granting an extension of time. The Respondent submits that the criteria set in the Cementation Skanska case are not met.

Furthermore, it appears that the Complainant did not submit the subsequent written complaint form until 11 September 2023. The Complainant was aware that there were issues with his original submission and it still took until the 11 September for him to submit the form.

The WRC wrote to the Complainant on 27 October 2023 enclosing a copy of the form submitted on 27 July and noting that the WRC "may not entertain a complaint if it has been presented after the expiration of a period of six months beginning on the date of the contravention to which the complaint relates. It would appear from the information submitted that this complaint does not fall within the six month statutory timeline.”

The WRC then noted that an Adjudicator has the power to extend this limit to a max of 12 months if the Complainant can demonstrate that the failure to comply with the six-month time limit occurred as a result of reasonable cause.

The Respondent submits that for the reasons set out herein, the Complainant failed to present the complaint within the six-month period allowed and has not established any reasonable cause for the delay in line with well-established case law. The complaints were made outside the permitted time limit and should be dismissed.

The Complainant submitted that he struggled with his mental health following his dismissal. The Complainant exhibited a letter from his former psychotherapist confirming that on 14 February 2023 he commenced an individual psychotherapy in relation to a work-related issue and continued the therapy for a year with a named psychotherapist. The Complainant then commenced therapy with another therapist. The Complainant provided a letter confirming that he attended further sessions on 21 and 28 March 2024.

The Complainant stated that he attended therapy on a weekly basis, sometimes fortnightly. The Complainant said that he did not start a new job until November 2023.

The Complainant said that he found it difficult to deal with the complaint form. He did not realise that a blank form went in. After a while, a family member helped him.

The matter I must decide is if I have jurisdiction to hear this complaint.  In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

On 27 July 2023, the Complainant sent an email to the Post Registration Unit (PRU) of the WRC with a complaint referral form attached. The Complainant apologised for the “presentation“ of his form and explained that he experienced formatting difficulties.

The form contained the following details: the name and contact details of the Complainant, the position held, the dates of commencement, notice received and cessation of employment, the Complainant’s work address, weekly pay, the details of the Respondent.

There were no complaints identified on the form and the complaint area was left blank.

On 10 August 2023, the WRC wrote to the Complainant informing him that his complaint cannot be further processed until the following issues have been addressed/ clarified in writing.

·       the details of the actual complaint (complete the General Complaint Area);

·       the redress option;

·       whether or not the Complainant would be willing to avail of mediation services.

A manual complaint form and guidance notes were enclosed with the correspondence.

The Complainant replied to the WRC correspondence on 11 September 2023 and returned the completed complaint referral form.

It is clear that the Complainant’s initial form of 27 July 2023 did not contain any information whatsoever regarding any complaint against the Respondent. The complaints were not referred to the WRC until 11 September 2023.

The time limits for submitting claims to the Workplace Relations Commission are set out in section 41 of the Workplace Relations Act 2015 which provides that:

‘(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.’

I note that the parties were in agreement that the Complainant’s employment with the Respondent ended on 27 January 2023. Therefore, under Section 41(6) of the Workplace Relations Act 2015, the initiating complaints referral form must have been submitted to the WRC by 26 July 2023 at the latest.  In this case, the initiating complaints referral form was received by the WRC on 11 September 2023.

I find, therefore, that these complaints have been lodged outside the time limits prescribed by section 41(6) of the Workplace Relations Act 2015. 

Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

‘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.’

In summary, the general principles which apply are that something must be advanced which will both explain and excuse the delay. 

The jurisprudence in respect of the concept of ‘reasonable cause’ is summarised in Salesforce.com v Alli Leech EDA1615 wherein the Labour Court stated:

‘The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

The Labour Court also held in Cementation Skanska that the length of the delay should also be taken into account. A short delay might only require a “slight explanation” (see Quality Irish Stoves Ltd v Hughes DWT 127/2013) whereas a long delay might require “more cogent reasons”. Even where “reasonable cause” was shown, the Court determined that it should still consider if it was appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.

The test is an objective one and the onus is on the Complainant to identify the reasons for the delay and to establish that the reasons relied upon can both explain and excuse the delay which satisfies the test of “reasonable cause”.

The Complainant submitted that his mental health was affected to such an extent that he was unable to deal with the matter of his dismissal and the referral of his complaint. I note that shortly after his dismissal, the Complainant commenced regular weekly sessions with a psychotherapist. He continued with the therapy until the date of the hearing, albeit, it appears, on a less frequent basis. The letter from his psychotherapist confirmed that the therapy was in relation to work-related issue. I, therefore, accept that, on balance on probabilities, the reason put forward by the Complainant meet the threshold of “reasonable cause”. Accordingly, I find that reasonable cause was shown to empower me to extend the cognisable period in relation to the herein case.

The Complainant submits that he did not receive a written statement of his terms and conditions of employment. He did not receive the terms of probation period and grievance and disciplinary procedures.

The Complainant did not dispute that he received a copy of the job description.

The Respondent accepts that it did not furnish the Complainant with written terms contrary to the Act. The Respondent submits that there was no material prejudice accrued to the Complainant, that it was an innocent mistake and that on termination the Complainant received notice pay above his statutory entitlement.

This is a complaint pursuant to the Terms of Employment (Information) Act. The Respondent conceded that it did not comply with the provisions of the Act.

This is a subsisting breach as the statement was not provided at any time in this employment, up to and including the date of dismissal. Elsewhere in this decision, I have granted an extension of time in line with section 41(8) of the Workplace Relations Act.

I declare this complaint to be well founded. I direct the Respondent to pay the Complainant compensation of €1,200 (being the equivalent of three weeks’ pay) which I find just and equitable having regard to all the circumstances.

The Complainant gave sworn evidence as follows.

The Complainant returned to work after the Christmas holidays on the 2 January 2023 and worked independently until Ms C, Coordinator arrived at his office for a meeting with the Complainant and his colleague on Tuesday 17 January 2023. The Coordinator started the meeting by mentioning that their jobs were only funded for one year. This was followed by a very firm request from the Coordinator to complete a work report by that Friday 20 January 2023.

The Complainant said that he had a number of appointments and meetings scheduled that week and had not expected this request. He tried to explain to the Coordinator that it may be difficult to produce this report in the timeline expected. The Coordinator said that this report was easy and advised she would edit it as needed for her final report. She did not acknowledge the Complainant’s contribution to the conversation and continued to speak about the report and meeting her deadline. The Complainant submits that he tried to explain that his diary for the remaining two days of work (Wednesday 18 and Friday 20 January) was busy and it would be challenging to meet her request given the short notice. The Complainant submits that the Coordinator appeared perplexed and agitated by his concerns about meeting her deadline, queried what was more important than the report and questioned what meetings were scheduled, which the Complainant outlined to her.

The Complainant stated that on Wednesday 18  January 2023 he was working on the report in between meeting and appointments. On Friday 20  January 2023, as 6-page report was submitted. The Complainant offered to work on Monday 23 January 2023 but this offer was declined.

The Complainant submits that on Tuesday 24 January 2023, the Coordinator arrived in the office and immediately expressed her dissatisfaction in a very emotionally charged manner saying she was annoyed and disappointed in relation to the report that had been requested the previous week. She said: "I asked for one thing" and  "Do you know what a report is?".

The Complainant tried to explain the reason for the delay but was dismissed each time. The Complainant started to feel overwhelmed due to the tone and aggressive nature of the Coordinator’s behaviour towards him. He asked the Coordinator if she could lower her voice when speaking to him. This made the situation worse as the Coordinator became more agitated and said "this is how I speak" and "If you want me to start shouting, I will".

The Complainant submits that he asked the Coordinator again if she could lower her voice and she replied "I am very annoyed and I won't make any excuse for that".

The Complainant submits that he tried explaining that he didn't have time to proofread and edit his work colleague’s part of the report. The Coordinator asked if he was aware "what a priority is"? and said that he shouldn't be attending meetings and "wasting time".

The Coordinator mentioned "this is a good job" and that the Complainant was "well paid to fulfil [his] work". The Complainant asked for a quick break and this was initially refused and the Coordinator proceeded in the same manner. The Complainant asked a second time for a break and he was advised not to leave the room until the Coordinator reluctantly agreed to a short break.

On the resumption of the meeting the Coordinator's tone became louder and more adversarial at which point the Complainant asked her if she could lower her voice when speaking to him. This made the situation worse as she got more agitated and then asked the Complainant’s work colleague to leave the room. The Coordinator proceeded to raise her voice on several occasions in a very emotionally charged manner.

The Complainant submits that he was accused of unacceptable behaviour towards her and she questioned as to why he was not apologising and not taking responsibility for his actions. On the few occasions the Complainant tried to explain himself, the Coordinator became more agitated, swaying her hands and staring intensely at him. The Complainant found this very uncomfortable as she said, "look at me when I'm talking to you". The Complainant explained that he was listening but finding it difficult to make eye contact to which she replied, "don't be so disrespectful and look at me when I'm talking to you".

The Complainant submits that he became very distressed and upset and tried taking deep breaths and each time the Coordinator quickly said "don't interrupt me". On the third breath the Complainant explained "I am taking deep breaths and not interrupting you".

The Coordinator eventually stopped and asked the Complainant if he had anything to say in regards to the noncompletion of the report.

The Complainant felt totally overwhelmed and he started crying.

The Coordinator immediately responded to his distress by saying that if he had personal problems and needed counselling, she could offer advice on the names of therapists before concluding the meeting and saying she would come back tomorrow at 2pm to finish this conversation. The Complainant submits that he did not intimate that he had personal problems.

The Complainant submits that he had submitted the report on the date requested (Friday 20 January). He also volunteered to work on his day off to complete the report which was declined by the Coordinator. The report was not fully completed due to time constraints and not having sufficient time to proofread and edit the work colleague's part of the report. The Complainant felt that the Coordinator's response to the incomplete report was highly inappropriate and unprofessional. He experienced significant distress and shock during the meeting and in the aftermath as a consequence of how she engaged with him.

The follow-up meeting that the Coordinator referred to was cancelled later that afternoon. On foot of what happened in the meeting, the Complainant emailed the Coordinator the following day (Wednesday 25 January 2023) and requested supervision. The Complainant thought this would have been an effective next step in light of what had happened. This request was not responded to.

The Complainant received an email two hours after his email request for supervision to attend another meeting with the Coordinator on Friday 27 January 2023.

The Coordinator started the meeting by stating that the Complainant’s behaviour during the previous meeting (Tuesday 24 January 2023) would not be accepted and that his employment with the Respondent was being terminated on the following grounds:

1.       Non-completion of work to meet an important deadline at the instruction of the Coordinator, while also not informing Coordinator until the deadline had passed.

2.       Not taking responsibility for non-completion of this work.

3.       When questioned on all the above, you displayed a level of aggression which included baring of teeth, speaking through clenched teeth and sitting with clenched fists, all of which is hostile and unacceptable behaviour.

4.       All of the above conduct does not fit with the ethos of the Respondent.

The Complainant submits that, before he left the meeting, he stated that he was not aggressive and this was not a fair reflection of the meeting. He was extremely upset and distressed by this sudden termination of his employment and by the content of the letter and specifically reference to unfounded, defamatory allegations.

The Complainant submits that he contacted the Board of Management on 7 February 2023 by letter to outline the events that led to the termination of his employment. He requested to meet with them to outline what happened during his employment and also in the hope of finding a reasonable solution. The Board responded with an offer to meet as requested.

The first meeting took place on the 24 February 2023 with the Chairperson and a Board member. The Complainant was accompanied by a friend. He requested to outline his concerns about the nature of the meeting with the Coordinator, his dismissal and other points relating to his employment. On several occasion, Chairperson of the Board interrupted the Complainant by saying  "we know this already" "you don't have to repeat this". The Complainant felt the approach of the board was adversarial in nature and not open to listening to his point of view. The Complainant was informed the Board would investigate his complaint and meet with him at a later date to discuss their findings.

The second meeting convened on the 14 March 2023 with the same people in attendance. The Board agreed to some of the proposals that the Complainant had proposed in the first meeting but they refused to discuss or address the remaining issues. This was evident as the Chairperson used the line "I am not at liberty to discuss that" repeatedly in a dismissive tone to the rest of the issues pertaining to the Complainant’s dismissal. The Board member admitted that there is no HR Department and "it was unfortunate you never received a contract". During the meeting, the Chairperson disclosed that the reason for the dismissal was non-submission of a work report. The Complainant responded that the said report was submitted and reference to this had been included in the information he submitted to the Board. This was dismissed by the Chairperson.

The Complainant emailed the Board on 27 March 2023 to notify them of his acceptance to some of the proposals and seeking further clarification. On 5 April 2023 the Complainant received a letter from the Chairperson with a non-disclosure agreement. The Complainant did not sign the document.

The Complainant submits that the Board showed a lack of duty of care towards him. The manner in which the meetings were conducted were adversarial and hostile. The Board did not provide a forum for acknowledgement and impartial investigation into his concerns. The actions of the Board contributed further to the distress, anxiety and negative well-being the Complainant was already experiencing. The inappropriate and unprofessional behaviour of the Coordinator, the absence and denial of supervision, sudden dismissal, the letter of termination detailing serious defamatory allegations and their refusal to furnish the Complainant with a reference have been extremely upsetting and shocking for him. This has continued to impact the Complainant on a professional level as he has been denied a reference for this employment and due to the highly defamatory content of the termination letter he had concerns about prospective employers contacting the Coordinator or the Chairperson of the Board. The Complainant has experienced considerable hurt, stress and anxiety which continues to negatively impact his well-being physically and psychologically.

The Complainant immediately sought therapeutic support to help him deal with what happened.

The Complainant submits that the Safety, Health and Welfare at Work Act 2005 prohibits penalisation.

The Complainant submits that he was subjected to a meeting where his health and safety were acknowledged or acted upon by the Coordinator and indeed he was penalised for raising those concerns with the termination of his job. The Respondent did not show a duty of care to the Complainant as its employee.

The last time the Complainant had communication with the Coordinator was in relation to his request for supervision which was ignored. The response to the request for supervision was an invitation to a 1-1 meeting that resulted in his dismissal.

The Complainant submits that he was penalised for complying with the Safety, Health and Welfare at Work Act 2005 (employer retaliated when issue was raised). He would not have suffered the detriment of dismissal if he didn't request supervision.

The Complainant submits that he experienced a sudden loss of earnings as a consequence of the actions taken by the Respondent. The loss of employment and the Respondent’s refusal to furnish him with a reference left him in a very difficult position both financially and employment wise. The community sector in the area is very small and this left the Complainant unable to gain employment due to the unnecessary actions and false allegations of both the Coordinator and the Board. The Complainant feels that he has missed out on numerous opportunities to gain employment in the community sector.

The absence of a reference has had far reaching negative consequences. The Complainant stopped applying for jobs in the community sector due to the concerns that perspective employers may have contacted the Coordinator for a reference and that she would not provide a fair representation of his ability and character as evidenced in the termination letter. The Complainant cannot highlight enough the damaging and defamatory nature of this letter. It speaks volumes to the highly inappropriate treatment he endured.

The impact of these events is a continuous issue and worry for the Complainant both in a professional and voluntary capacity. The Complainant invested a lot of time and effort into his studies over the last three years to pursue his ambitions of working in the community sector to secure long-term employment security. It's an area that he has a personal and professional interest in through different voluntary roles and organisations that he has volunteered in over the last twenty years.

The Complainant’s mental health and general wellbeing suffered greatly as a result. The Complainant needed to engage in therapy immediately as his anxiety, distress and overall stress levels were significantly impacted.

The Complainant said that he asked for supervision to help him deal with this challenging situation, it was important for his wellbeing and in professional capacity. He said that he worked with traumatised people and needed support. The Complainants said that he asked for supervision on Wednesday 25 January 2023 and was dismissed as a result on Friday 27 January 2023.

In cross-examination the Complainant confirmed that he received the job description, he knew his job, working hours, responsibilities and salary. It was put to the Complainant that the absence of contractual grievance and disciplinary procedures was irrelevant as he was dismissed for performance issues while on probation. The Complainant said that he had no issue with a probationary period, he acknowledged that in most job there is one.

The Complainant said that it was his understanding that due to the nature of his work, he was entitled to supervision. He said that his work colleague did get it. The Complainant acknowledged that his work colleague had more in-depth relationship with traumatised Ukrainian people. However, he said, he dealt with them every day as well. It was put to the Complainant that supervision is not counselling, it does not entail any mental health support. He replied that he did not know but therapists and psychologists regularly get supervision, a space where they are supported and assisted with their work.

The Complainant said that he was traumatised by the meeting with the Coordinator, he wanted supervision to help him deal with that.

It was put to the Complainant that text messages exhibited suggested that he had a good relationship with the Coordinator.

It was further put to him that he did not meet the requirements of the job as per the job description e.g. excellent communication skills, organisational skills, time management.

It was put to the Complainant that he was very defensive at the meeting with the Coordinator. He disagreed. It was put to the Complainant that the reason the Coordinator wanted his work colleague to leave the room was because she knew it was a serious disciplinary issue to deal with. The Complainant said that there was no witness, no representative, no procedure followed.

The Complainant confirmed that he had never requested supervision before. He said that he wanted it after what happened at the meeting with the Coordinator, he needed support but he could not tell the Coordinator what was the reason for his request.

It was put to the Complainant that at the without prejudice conversation with the Board supervision was not mentioned.

Background

The Respondent is a registered charity, it is a community led organisation, governed by a voluntary Board, with limited resources. It receives basic core funding through Tusla and Pobal. It is dependent on submitting funding applications to various sources, both state and philanthropic for funding programmes and activities. All funding has to be spent on the purpose it was applied for.

The Respondent’s resources to meet the complaints against it are extremely limited. All monies allocated to the centre are for specific charitable purposes.

The Complainant commenced probationary employment with the Respondent in or around 22 August 2022, as a Community Resource Worker with the Ukrainian Integration Project. It was agreed that his employment would last for twelve months.

The Complainant was hired pursuant to a job description of the role of Community Resource Worker. The Complainant was furnished with a copy of the job description on applying for the position. Inter alia, the job description provided that the appointee has a willingness "to work outside of usual office hours when required."

During his probationary period, the Complainant's supervisor's line manager, the Coordinator directed the Complainant, together with his colleague and fellow community worker on the Ukrainian Integration Project, Ms A to prepare a draft section in a report concerning inter alia the status of his projects within the Ukrainian Integration Project. The Complainant was directed to complete the report by 1pm on 20 January 2023.

On the morning of 17 January 2023, the Coordinator met with the Complainant and Ms A to go over work priorities for the following months and also to ask for a report to be furnished by Friday, 20 January. The Coordinator outlined what was required and the format she expected the report to be in.

The report was required to meet funding conditions from a named Foundation. In 2022/2023 the Respondent was dependent on funding from various philanthropic sources for the work of the Ukraine Integration Project, with the named Foundation specifically providing funding for salaries which is very hard to get. The report, which was due by close of business on Friday 20 January 2023, was a condition of the funding by the Foundation.

On 19 January 2023 the Coordinator reminded the Complainant that the report was due, via a message on WhatsApp. The Complainant replied to the effect that the report was on schedule. On 20 January, at 14.21, the Complainant belatedly notified the Coordinator that he would not have the report completed. The Coordinator conveyed her disappointment and stated that the matter would be discussed at the Complainant's weekly meeting on 24 January. The Complainant belatedly issued a partially completed report on the evening of 20 January 2023.

During the course of the meeting on 24 January, the Coordinator stated that she was disappointed and asked the Complainant why he had not delivered the report. The Complainant became agitated and defensive. The Coordinator proposed a 10-minute break. During the break, the Coordinator learned that the Complainant had apparently attempted to conceal the work on the report completed by his colleague Ms A. A copy of an email from Ms A to the Coordinator was exhibited.

After the break, the Coordinator discussed prioritisation and taking responsibility with the Complainant and the Complainant stated that he knew how to prioritise. The Complainant became very agitated and angry to the extent that his knuckles were white and he spoke through clench teeth. The Coordinator unsuccessfully attempted to diffuse the situation. Eventually, the Complainant informed her that he had "a lot going on" and the meeting ended.

Though it was readily apparent that the Complainant had reacted inappropriately to the Coordinator’s constructive criticism, he did not apologise or offer an excuse or explanation. By contrast, he adopted a defensive approach requesting "an urgent supervision session" asserting that his colleague had received many such sessions but he had not.

On 27 January 2023 the Respondent  informed the Complainant that it had decided to terminate his employment. The Coordinator informed the Complainant in person that afternoon. The Respondent also issued a termination letter to the Complainant.

The letter identified the following reasons for termination:

·       Non-completion of work to meet an important deadline at the instruction of the Co-Ordinator, while also not informing the Co-ordinator until the deadline had passed.

·       Not taking responsibility for non-completion of this work

·       When questioned on all of the above you displayed a level of aggression which included baring of teeth, speaking through clenched teeth and sitting with clenched fists, all of which is hostile and unacceptable behaviour.

All of the above conduct does not fit with the ethos and values of [the Respondent].

It is submitted that the above reasons constitute performance reasons, which the Respondent legitimately invoked to dismiss the Complainant in the course of his probationary period.

The Complainant's allegations are denied in their entirety. However, even accepting the version of events advanced by the Complainant, it is submitted that these facts cannot give rise to a contravention of section 27(3).

In Bus Eireann v SIPTU PTD8/2004 (Unreported, Labour Court, 13 October 2004) the Labour Court held that a matter should only be dismissed on a preliminary issue where no question of fact arose:

"There are limited circumstances in which a preliminary point should be determined separately from other issues arising in a case. Normally this should only be done where it could lead to considerable savings in both time and expense. Furthermore, the Superior Courts have taken the view that an application for a preliminary determination can only apply to a question of pure law where no evidence is needed and where no further information is required. (See judgement of O’Higgins CJ in Tara Exploration & Development Company Limited v Minister for Industry & Commerce [19751 IR 242). "

It is submitted that the Complainant's complaint can be dismissed on solely legal grounds, without resolving questions of fact, for the reasons elaborated on below. It is further submitted that this would result in a saving of costs, and it is submitted this a particularly salient consideration in circumstances where the Respondent is a charity and the Complainant is representing himself and therefore not on hazard of costs.

The Respondent submits that Section 27(3) of the 2005 Act deals with penalisation by an employer.

In order to fall within the ambit of section 27(3) at least one element of subsections 27(3)(a)-(f) must be present.

It appears that the Complainant is attempting to avail of subsection 27(3)(c), "an employer shall not penalise or threaten penalisation for... making a complaint or representation to his... employer as regards any matter relating to safety, health or welfare at work."

The Complainant's complaint form states:

"l was subjected to a meeting in which my health and safety concerns were not acknowledged and acted upon by [the Coordinator] and indeed, I was penalised for raising those concerns with the termination of my job. My employer did not show a duty of care to me as their employee."

The difficulty for the Complainant is that nothing is disclosed in his detailed account of this meeting which gives rise to "a complaint or representation as regards any matter relating to safety, health or welfare at work."

In truth, the Complainant's actual grievance is that he alleges that he was overwhelmed by the tone of the meeting with the Coordinator. He describes requesting that the Coordinator lower her voice, becoming overwhelmed, and requesting a break (a request that was acceded to). After the break, and at the end of the meeting, the Complainant describes being upset, unable to speak and beginning to cry.

First, it is submitted that at no point in this interaction did the Complainant make "a complaint or representation" within the meaning of section 27(3). It amounts to a reaction as opposed to a complaint or representation. That alone is sufficient reason to dispose of the complaint.

Moreover, and more fundamentally, personal distress arising from the tone of a workplace meeting cannot — in isolation — constitute a matter "relating to safety, health or welfare at work." Therefore, even if the Complainant made a complaint or representation within the meaning of section 27(3), it cannot amount to a protected action for the purposes of section 27.

In Ruffley v Board of Management of St Anne's School [2017] 2 IR 596, the Supreme Court rejected an argument that a disciplinary process amounted to bullying. In Ruffley, Charleton J observed that employers are entitled to expect robustness from employees. Bullying is established by reference to an objective standard and not the employee's subjective standard:

"[The test for bullying] is objective. Not subjective. It cannot be right to formulate liability on the basis of how people see the conduct of their colleagues in the workplace, but instead only on the basis of how that conduct would be objectively viewed: see Glynn v. Minister for Justice [2014] E.L.R. 236 at p. 248. An employer is entitled to expect ordinary robustness from its employees: Croft v. Broadstairs and St Peter's Town Council (Unreported, Court of Appeal of England and Wales, 15 April 2003). Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit.

The Respondent submits that the same principles should apply to the within complaint. Robust conversations and lost tempers are a fact of life. If an isolated incident could engage the machinery of the Safety, Health and Welfare at Work Act 2005, workplace relations would be undermined.

Therefore, it is submitted that the Complainant's reaction to the meeting with the Coordinator on 24 January 2023 cannot constitute a safety, health and welfare issue within the meaning of the Act. It amounts to a reaction as opposed to a complaint or representation within the meaning of the legislation. Accordingly, it is appropriate that the complaint be struck out on a preliminary basis.

Without prejudice to this preliminary objection, the Complainant's account of the meeting as disclosed in his complaint form is denied in its entirety.

Even if it were accepted that the meeting between the Complainant and the Coordinator falls within the scope of section 27(3) of the 2005 Act, it is submitted that the Complainant was not dismissed for making a protected act.

The burden of proof in showing penalisation under the Safety, Health and Welfare at Work Act 2005 was considered by the Labour Court in O'Neill v Toni & Guy Blackrock (Determination No. HSD095). In that case the Labour Court held that in order to make out a complaint of penalisation, it is necessary for a complainant to establish that the detriment that he or she complains of was imposed "for" having committed one of the acts protected by subsection 3 of section 27 of the 2005 Act.

In the case of Philip Kirwan v Department of Justice, Equality and Law Reform (Determination No. HSD082), the Labour Court held:

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

It is submitted that the Complainant has not discharged the burden of proof and that the Complainant was not dismissed for 'raising health and safety issues.' The Complainant was dismissed for performance reasons and his hostile aggressive conduct.

Accordingly, the Complainant's complaint pursuant to section 28 of the Safety, Health and Welfare at Work Act 2005 should be dismissed.

Summary of direct evidence and cross-examination of the Community Development Worker, Ms B

Ms B said that she managed the Ukrainian Project and was the Complainant’s and Ms A’s manager. She would have met them and checked that they were OK.

Ms B explained that supervision is generally 1:1 support for practitioners to ensure that they maintain good ethics and professionalism, it is a place to reflect on one’s work.

Ms B said that the Complainant’s work colleague (Ms A) came from a warzone, she was living in a hotel with traumatised people, she had no background in social work and, therefore, needed support.

In cross-examination, Ms B stated that supervision is not obligatory and is very costly but some organisations provide it for benefit of a client and a worker. However, if concerns are raised regarding mental health of a worker, counselling and not supervision is needed.

Summary of direct evidence and cross-examination of the Coordinator, Ms C

Ms C stated that the Respondent closed for 2 weeks at Christmas time. She was sick afterwards and the Complainant was off on Monday 16 January 2023. For that reason she did not meet with the Complainant and his work colleague earlier.

She said that she met them on Tuesday 17 January 2023 and stayed for half an hour explaining what was required for the report. She asked for the report to be ready by Friday. She said that the Complainant and Ms A would have submitted weekly reports so the information she needed would be easy to compile.

Ms C said that the meeting on 24 January was not pre-arranged. She was there on the previous Tuesday and wanted to have a regular Tuesday meeting.

She said that she wanted to understand why the report was not submitted. Neither of the staff members said that they could not do it. She said that she was puzzled, she asked the Complainant why did he not prioritize the report as she told him to. Ms C said that the Complainant got very defensive. She suggested he take a break and go for a walk. She saw that the Complainant was getting very annoyed, he was interrupting her and was very unfocused. He would not accept responsibility.

The Complainant went for a walk and Ms A asked the Coordinator if he sent her part of the report. He did not, and the Coordinator asked Ms A to send it immediately. When the Complainant returned, the Coordinator asked him why did he not forward it. He said he wanted to format it etc.

Ms C said that at this stage she asked Ms A to leave the room. She wanted to talk to the Complainant and try to understand him. The Complainant got very agitated. He stood up, grabbed his bag and keys and wanted to leave. The Coordinator said that she asked him to stay and talk. She was taken aback by the level of defensiveness and agitation. He sat down clenching his fists, he spoke through his teeth. He said that he was angry. The Coordinator said that she was shocked but she kept talking. He started arguing. The Coordinator said that she asked him what was going on. He said that he had a lot going on, studies, etc. The Coordinator said that she offered help of a therapist she knew.

The Coordinator said that she was quite shocked and very upset. She kept working after the meeting and her reaction was delayed. She acknowledged that it could happen that work was not done but it’s important to acknowledge and deal with it. She said that in the Complainant’s case there was no accountability only excuses, defensiveness, aggression and then crying.

The Coordinator said that she spoke with the Board and recommended a warning. The following morning she contacted Ms D, a Board Member regarding the Complainant’s probation. She had an issue with the lack of accountability, inability to take responsibility for one’s own work. She could not put herself or anyone else in this position again in the context of the aggression level.  The Coordinator spoke with Ms D and told her that the Complainant’s behaviour warranted dismissal.

The Coordinator said that she did not go to the meeting on 24 January 2023 to dismiss anyone. She went to find out what happened and it escalated to something she had never experienced before.

The Coordinator said that at the meeting the Complainant made no reference to supervision. When he emailed requesting supervisions, the decision to dismiss him had been made at this stage.

In cross-examination, the Coordinator was asked why was the Complainant’s work colleague allowed to send her part of the report on Tuesday. The Coordinator clarified that the work colleague was under the impression that the Complainant sent it to her on Friday.

The Coordinator clarified that the Board meeting was scheduled on the afternoon in question. She spoke with the Board after the meeting. It was discussed that a warning would be warranted. However, at approximately 9.20am on the next morning, the Coordinator contacted the Board Member (Ms D) on the phone and recommended dismissal. Ms D undertook to contact the rest of the Board. The Board agreed to dismiss the Complainant. The decision was made prior to the Complainant’s request for supervision.

Summary of direct evidence and cross-examination of the Board member, Ms D

Ms D said that, following an early morning phone call from the Coordinator, she contacted the Board members by phone regarding the proposal to dismiss the Complainant. She then contacted the Coordinator around lunch time to relay the Board’s agreement with her recommendation to dismiss the Complainant.

In cross-examination, Ms D said that the Coordinator told the Board what had happened. She was visibly upset, distraught. She confirmed she signed the dismissal  letter.

The jurisdiction of the Labour Court and by extension of the WRC in complaints of penalisation under the Safety, Health & Welfare at Work Act 2005 (‘the Act’) has been considered in a number of cases included among which is the case of Iarnrod Eireann v. Nick P Neary HSD139 where the Labour Court held as follows:

“The Court’s jurisdiction under this Act is limited and narrow in its application.  It has jurisdiction to hear claims of penalisation referred under Section 27 only.  The Court has no jurisdiction to hear allegations of breaches of safety, health and welfare at work under the Act and such allegations cannot in themselves form part of claims of penalisation or unfavourable treatment within the meaning of Section 27 of the Act.”

What is in issue in the within case is whether the Complainant was penalised within the meaning of section 27 of the Act.

Relevant Law

Section 27 of the Safety, Health and Welfare at Work Act, 2005, provides as follows:

Protection against dismissal and penalisation.

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissal Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions, (b) performing any duty or exercising any right under the relevant statutory provisions, (c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work, (d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions, (e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or (f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

The Complainant must demonstrate that the making of a complaint within the meaning of the Act was the operative cause leading to the detriment alleged. In Oglaigh Naisiunta na hEireann v McCormack HSD115, the Labour Court stated that there is a requirement “to show a chain of causation between the impugned detriment and the protected act or omission."  In St Johns NS v Akduman HSD102 the Labour Court also determined that:

“It is therefore clear that a cause of action can only accrue to an employee under Section 27 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 (3) and but for the protected act the employee would not have suffered the detriment complained of and the respondent’s treatment of the claimant.”

In Paul O'Neill v Toni & Guy Blackrock Limited [2010] ELR 21, the Labour Court held that the detriment complained of must have been imposed “for” having made a protected act within the meaning of Section 27(3) of the Act when it found:

“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 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 Toni and Guy case firmly establishes the “but for” test as it is generally referred to in penalisation cases. 

Burden of Proof

The Act is silent on the question of who the burden of proof should be allocated to as between the parties. In the case of Toni & Guy Blackrock Limited v Paul O’Neill HSD095 the Labour Court held that: 

“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 and Philip Kirwan (Determination HSD082). 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 (see Joseph Constantine Steamship Line v Imperial Sheltering Corporation[1942] A.C.154 where this rule of evidence was described by Maugham V.-C. as “an ancient rule founded on considerations of good sense and it should not be departed from without strong reasons”)

Later, in Fergal Brodigan T/A FB Groundworks and Juris Dubina Determination (HSD0810) the Court qualified the statement made in the Kirwan case as follows: -

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

The Court went on stating:

“it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus, the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. 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 complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.”

Statutory time limits

The Workplace Relations Act, 2015 at Section 41(6) provides:

“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.”

My jurisdiction in this case is confined to assessing any complaints of penalisation that occurred within the cognisable period for the complaint. The Complainant referred his complaint to the Director General of the Workplace Relations Commission on 11 September 2023. Elsewhere in this decision, I granted an extension of the time limit in line with Section 41(8) of the Workplace Relations Act.

The Complainant alleges that he was dismissed as a result of him requesting supervision by email sent to the Coordinator on 25 January 2023 at 11:39. While at the adjudication hearing the Complainant asserted that the request was directly related to the treatment he received at the meeting with the Coordinator on 24 January 2023, it is apparent that he did not make any reference to the meeting in his email. He noted that the nature of the job “can be demanding and challenging as we are working with people who have experienced significant trauma and supervision provides a forum to address and process some of these issues.” The Complainant noted that his work colleague received a number of sessions already.

The Complainant did not elaborate, he did not make any reference as to the effect the job had on him but rather made a general statement that the role “can” be demanding and challenging.

Having considered the submissions made and the evidence before me, I am not  satisfied that the communication from the Complainant to the Respondent of 15 January 2023 constituted a protected act within the meaning of the Act at Section 27(3)(c) in that those communications amounted to a representation in relation to a matter relating to the Complainant’s safety, health, or welfare at work.

As a result, I find that the Complainant has not satisfied the first leg of the test in that the Complainant made a protected act as provided for at Section 27(3)(c) of the Act:

“making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work”.

I declare this complaint to be not well founded.

Terms of employment – health and safety - dismissal