Anonymised Parties

A Psychologist

A Healthcare Provider

Representatives

Self-represented

Ciara Ruane, Byrne Wallace LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00040918-001

11/11/2020

The complainant joined the respondent in January 2003.  He works as a senior clinical psychologist in in a regional network team.  Arising from the respondent’s handling of a complaint regarding his assessment of a child for autism spectrum disorder (ASD), the complainant claimed that his place of work was unsafe and, from January 2019 until September 2020, he was absent due to depression and anxiety.  He believes that correspondence he sent to the former head of employee relations on May 26th 2020 constitutes a protected act.  He claims that, contrary to section 27 of the Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”), he was penalised when the head of employee relations responded and “advanced opinions and conclusions to coerce and intimidate me to not continue with my health and safety complaints.” 

Chronology Leading to this Complaint

The chronology of events that ended with the submission of this complaint to the WRC on November 11th 2020 was set out in a detailed submission provided by the complainant in advance of the hearing of this matter on May 2nd 2023, and in a follow-up outline of chronological events on June 20th 2023.  Below is a summary of that timeline:

In August 2013, the complainant assessed a child, who I will refer to as “AB,” for ASD and he concluded that the child did not meet the criteria for such a diagnosis.  The complainant said that AB’s mother concurred with his assessment and that a plan of care was developed and agreed with her, involving support from the primary care psychology service and access to a group that helps young people to build emotional resilience.  However, in July 2014, AB’s parents had him assessed privately, and this resulted in a diagnosis of ASD and other conditions. 

2015

In January 2015, AB’s parents made a complaint using the respondent’s feedback form in which they alleged that the complainant had wrongly assessed their child.  In their complaint, AB’s parents alleged that the complainant was arrogant, condescending and unprofessional.  They claimed that he was part of “a boy’s club” which conspired against them and their child and that he refused to do a school visit because, they claimed, their child did not warrant any more of his time.  The complaint was signed by both parents, although the complainant had only met AB’s mother.

The complainant’s line manager told him that a complaint had been submitted regarding the service provided to AB and that the complaint was about delays in services.  The complainant said that, when she told him about the complaint, his line manager had not seen the report and neither she or he were asked to respond to the allegations.

In May 2015, the complainant attended a multi-agency meeting with representatives from Primary Care, Disability Services and the Child and Adolescent Mental Health Services (CAMHS).  The meeting was chaired by the person with responsibility for handling the complaint submitted by AB’s parents.  Also in attendance was a consultant psychiatrist, principal psychologist, senior psychologist, staff grade psychologist, an occupational therapist, a senior speech and language therapist and the child’s disability team co-ordinator.  The minutes of this meeting show that the only person with a different opinion regarding the child’s needs was the private practitioner. 

2016

On July 14th 2016, the complaint officer issued a report.  The complainant did not receive a copy of this report until November 2017.  When they received the report in July 2016, AB’s parents requested a review of their complaint.  The complainant and his line manager were not informed about their request.  In August, AB’s parents made further allegations, claiming that the complainant conducted assessments that fail children, that he conspired against children, that he was narcissistic and that he got irate when he was asked to do a home or school visit.  The complainant said that he became aware of these additional complaints at various points during 2019.

2017

The request for a review of the report of July 2016 was undertaken by a review team.  On March 3rd 2017, they advised the complaint officer that they would make several adverse findings regarding AB’s treatment by the respondent.  The complainant and his line manager were not informed about this conclusion and the review report was issued on March 20th 2017.  The complainant claims that the report contains several unsubstantiated allegations including that he failed the child in his care and that he was arrogant, condescending and unprofessional.  He asserts that he was not exonerated from any of the wrongdoing he was accused of by name in the respondent’s formal response which was issued publicly.  The complainant claims that the procedures for the handing of complaints under the feedback facility were ignored by the reviewers, that they made findings about complaints that were never made and that they reached conclusions that are unsustainable.

At this point, in March 2017, the complainant was not issued with a copy of the review report and it was June 12th before his line managers became aware that it had been issued.  They wrote to the complaint officer stating their view that it was unacceptable that the report had been issued without giving the complainant an opportunity to respond to the criticisms made about him.

On June 29th 2017, the complainant discovered that the review report containing adverse remarks about his treatment of AB had been issued.  He wrote to the chief officer of the region here he is based alleging that there are serious defects with how consumer complaints are investigated, denying staff the right of reply.  He alleged that the delay of more than two years to respond to the complaint of AB’s parents was an attempt to quell the complaint, which he claimed, caused a serious workplace hazard for staff by exposing them to avoidable stress.

On August 8th 2017, the complainant said that the review team sent the chief officer a draft of their response to the complainant’s letter of June 29th, inviting him to comment.  On October 2nd, the team issued a formal response to the chief officer.  By sending him a draft before they issued their formal response, the complainant claims that, rather than acting independently, the reviewers were “in cahoots” with the chief officer and that the chief officer and the review team acted with malice against him and conspired to conceal records that supported his complaints.

On October 4th 2017, the chief officer sent the complainant the response of the review team to the complaints he set out in his letter of June 29th.  The complainant claims that his concerns were dismissed by the reviewers and that the reviewers attempted to deny objective facts and deliberately suppressed information that supported his position.  The complainant argues that, deliberately suppressing evidence that supports his position, while at the same time, dismissing his grievances to advance a course of action that perpetuates false claims against him is, by its nature, malicious.

The complainant’s line managers wrote to the reviewers on November 11th 2017.  They said that, contrary to the principles of natural justice, they had not been asked to respond to the initial complaint and they had not been advised to ask the complainant for a written response.  They said that they were concerned that information in the review report could be wrongly construed as fact.  They said that they believed that this contributed to the complainant’s view that his good name and professional reputation were damaged in the report.

Also on November 11th, the complainant wrote to the chief officer requesting copies of all records related to the complaint.  When he got no reply, on March 13th 2018, he submitted a formal grievance.

2018

A grievance hearing took place on May 10th 2018 and the chief officer and the head of HR attended for the respondent.  The complainant states that the chief officer reported that he could see significant issues with the report and he recommended an independent review of the issues raised by the complainant in his grievance.  The complainant said that the process to agree terms of reference for an independent review became “exhausting, protracted and unreasonable.”  Terms proposed by the complainant were not acceptable to the head of HR, who, on August 30th 2018, advised the complainant that the chief officer would proceed with a formal investigation into his grievance. 

The complainant’s position is that his grievance was heard on May 10th 2018 and, on October 30th, he submitted a second formal grievance about the conduct of the chief officer and the head of HR regarding their handling of his original grievance and his concerns that the respondent’s policy of open disclosure was being compromised.

On November 16th 2018, the chief officer issued his determination which is described by the complainant in his submission to the WRC as “a sham.”  Despite conceding that there were significant issues with the review report of March 20th 2017, the chief officer did not uphold any aspect of the complainant’s grievances.  The complainant’s view is that the review team attempted to quell the complaint because it had remained unresolved for over two years.  He claims that this practice is a significant psychosocial workplace hazard as it denies an employee the right to respond to allegations made against them.  The complainant wrote to the chief officer advising him that he did not accept his findings as, in his view, they were not consistent with the respondent’s grievance policy or statutory requirements.

2019

On January 3rd 2019, the complainant commenced a period of sick leave due to work-related stress.  He was unable to return to work until September 28th 2020.

On March 1st 2019, the national director of employee relations chaired a meeting to investigate the complainant’s second grievance, which he submitted on October 30th 2018.  At the meeting, the complainant set out his concerns about what he considered to be the quelling of the complaint of AB’s parents and the effect of this on him and the potential workplace hazard this could present for other employees in the same situation.  He also complained about how his grievance of March 2018 was handled, claiming that the compromising of the respondent’s Open Disclosure policy exposed employees to psychosocial risks.  He said that he was worried about the possibility that he would soon be on half pay, as he continued to be absent due to illness.  On March 28th 2019, he submitted a grievance to the WRC under section 13 of the Industrial Relations Act 1969.

On April 4th 2019, the respondent’s occupational health department issued a report attributing the complainant’s illness to the distress caused by the respondent issuing their report of March 2017.  The consultant advised that a risk assessment should be carried out before the complainant returned to work.  No such assessment was carried out.  This is the subject of a separate complaint of penalisation, under ADJ-00039216.

The complainant continued to be unwell and in mid-May 2019, he was diagnosed with moderate depression and anxiety, also referred to in his submission as “adjustment disorder.”  On May 25th, a consultant psychiatrist who assessed him for income continuance concluded that he was suffering from “a psychiatric illness that is temporarily preventing him from performing the material and substantial duties of his normal occupation.”  The consultant said that a significant work-related issue had to be addressed and that the respondent’s “management should be aware of the duty to provide a safe working environment for the complainant which includes safety from the perspective of mental health.”

The complainant submitted a request for information under the Freedom of Information Act 2014.  In the paperwork provided to him in June 2019 was a document submitted by the parents of AB on August 19th 2016.  The complainant discovered that his line managers were not aware of this document and that they were not provided with a copy of the original complaint, were not asked for a written response to that complaint and were not requested to ask the complainant for his response.

On December 3rd 2019, a hearing took place in the WRC, under section 13 of the Industrial Relations Act.  The hearing concluded with the adjudicator advising the parties to engage in discussions to resolve the complainant’s grievance.  A few days later, with his union representative, the complainant met the national head of employee relations (“head of ER”).  At the meeting, the head of ER conceded that there were significant issues with the report of the review team of March 20th 2017, including the fact that the complainant was not aware of the review investigation and that he had not had an opportunity to respond to the allegations made about him.  Some discussion took place about what could resolve the complainant’s grievance.  The complainant said that the head of ER advised that he would recommend that the review report would be withdrawn and that a formal apology would be issued to the complainant.  There was also a discussion about compensation, and the complainant said that he would seek advice from his solicitor on that matter.

2020

The complainant was contemplating a personal injury claim against the respondent and, early in 2020, his solicitor wrote to the head of ER regarding terms to settle his grievance and his personal injury claim.  On February 10th 2020, the head of ER replied to the complainant’s solicitor advising him that his case had been referred to the State Claims Agency.

Having been absent for 17 months, on May 26th 2020, the complainant wrote to the head of ER to advise him that he wanted to return to work.  In his letter, he expressed his fear that if he returned to the same workplace practices, he was at risk of becoming unwell again.  The complainant believes that this correspondence constitutes a protected act in accordance with section 27 of the Safety Health and Welfare at Work Act 2005.  

In his submission to the WRC, the complainant states that, in his letter of June 5th 2020, the head of ER dismissed his concerns and put him on notice of his contractual obligation to be at work.  In the absence of a risk assessment or a medical opinion, the head of ER advised the complainant to return to work.  The complainant’s position is that his employer’s response to his concerns represent a deliberate attempt to deceive and to conceal the significant failings of the review team and of senior management, and that his employer acted with malice.  The complainant claims that, in the manner in which the head of ER responded to his concerns, he was subjected to penalisation, in the form of threats, intimidation and coercion.   

“With significant trepidation, as the respondent’s response (05/06/2020) to my protected act made me fearful of my employment and my career,” the complainant said that he returned to work on September 28th 2020 “to the same working environment (without a risk assessment) that previously caused my illness.”

On October 19th, the complainant was informed by the new disability network manager that AB’s mother continued to seek support for AB and for another child.  The network manager informed the complainant that the child’s mother indicated that she didn’t want him involved in her children’s care.  The complainant said that he was humiliated and embarrassed by this and he expressed his view that his professional reputation, competence and ability to do his job were being undermined by the child’s mother, who, he said, “was emboldened and enabled” to continue to criticise him, “safe in the knowledge that she is in possession of a formal response issued by the respondent vindicating her complaints, which simultaneously fails to exonerate me from any of the wrongdoing I was accused of…”   He said that it is inevitable that his distress “from the (parents’) foreseeable undermining of my ability to do my job, will continue with each criticism the (child’s mother) makes about me to any member of the team recommending Psychology input.” 

On November 9th 2020, the complainant discovered that AB had been referred to a junior colleague who he was supervising.  He said that this caused him significant distress and his inability to speak to his colleague about the case undermined his duty of care to him as a supervisor.  Another colleague agreed to provide supervision regarding AB’s care, and the complainant accepts that his exclusion from the case is for his safety, but he claims that this is not sufficient to prevent his humiliation and mortification.  He claims that the suggestion that the validation of the review report by the respondent does not contribute to an unsafe working environment and does not impact on his ability to do his job is perverse and abusive.

On November 11th 2020, the complainant submitted this complaint of penalisation for raising a concern about health and safety to the WRC.

In his submission, the complainant summarised what he considered to be the workplace hazard faced by him in November 2018 when he received a copy of the report of the chief officer into the investigation of his grievance of March 13th 2018:

“I believe any reasonable employee would experience significant distress if unbeknown to them their employer endorsed a workplace practice to place into the public domain, formal responses to consumer complaints that adversely name an employee without telling them anything about it and denying the employee any opportunity to respond to what was said about them in the issued report.”

The complainant had been absent from work since January 2019 and, on May 26th 2020, he wrote to the then head of ER.  In this letter, in which he advised that he wanted to return to work, the complainant set out his concerns about what he perceived as risks and hazards in his workplace.  His concerns may be summarised as follows:

§  From the perspective if his mental health, the complainant did not feel safe in his working environment.

§  The respondent had not carried out the risk assessment recommended by their occupational health consultant and the complainant claimed that this was a further impediment to his recovery and his return to work.

§  The complainant said that he was concerned about the stress that he would suffer if another complaint was made about him or if he raised a grievance in the future. 

In this letter, the complainant claims that he made a protected act.  He claims that he was then penalised, when on June 5th 2020, the head of ER replied and advised him to return to work.  He claims that penalisation is evident from the following aspects of the letter from the head of ER:

§  Rather than addressing his concerns about health and safety, the complainant claims that the head of ER attempted to deter him from pursuing them and that this was motivated by fear of a backlash from the parents of AB.

§  He claims that, in his letter, the head of ER dismisses his diagnosis of depression and his medically assessed needs and replaced them with his own opinion that there was no impediment to his return to work.

§  The complainant alleges that the head of ER used false and inaccurate rebuttals to dismiss his complaints and dismissed, without justification, his complaints about senior management.

§  The complainant alleges that the head of ER was motivated to avoid any scrutiny or criticism of the senior management of his region in what he alleged was a concerted effort to conceal significant failings regarding how consumer complaints and employee grievances were handled.

§  He alleges that the head of ER was motivated to avoid scrutiny or criticism of corporate “Respondent” personnel who failed to act when he informed them about his concerns.

§  He alleges that the head of ER was concerned to help the respondent to avoid any liability in a potential personal injury claim.

§  He argues that “such self-serving conduct,” if undeterred, would undermine the effective operation of the general provisions of the Safety, Health and Welfare at Work Act 2005.

Evidence of the Complainant at the Hearing on May 2nd 2023

Commencing his direct evidence, the complainant read from the beginning of his formal submission concerning his complaint of penalisation.  He said that the failure of the respondent to deal with the complaints of AB’s parents made it impossible for him to do his job and damaged his reputation.  When he wrote to the respondent on May 26th 2020, he had been absent on certified leave for one and a half years.  He said that, not only was the respondent on notice that his GP and the respondent’s occupational health consultant identified his condition as work-related stress, he was subsequently diagnosed by a consultant psychiatrist with adjustment disorder.  The respondent was also aware that he had raised a second grievance regarding the conduct of senior management and the impact this had on his mental health, but this grievance was never investigated.  At the time of his protected act, his letter to the respondent of May 26th 2020, the respondent was aware of the medical opinion that attributed the cause of his illness to them.  The respondent was advised of its duty to provide him with a safe working environment. 

The complainant claims that, in his letter of May 26th 2020, he advised the respondent “in the clearest of language” of the following:

That he wanted to return to work but that the risks and hazards that he had identified in his working environment remained.

He said that he advised the respondent that the protraction of the grievance process was difficult and degrading and that, in his view, they were acting with malice regarding his concerns. 

He advised the respondent that their continued validation of the review report of March 2017 undermined his ability to do his job.

He advised that the respondent’s refusal to observe the recommendation of the health and safety consultant and the higher duty of care owed to him to complete a risk assessment before he returned to work was stymieing his recovery and his return to work.

In summary, the complainant claims that he advised the respondent that his working environment was unsafe. 

A copy of the complainant’s letter to the head of ER dated June 26th 2020 and The head of ER’s response of June 5th were submitted in evidence by the complainant.  The complainant submitted that “It is only logical to conclude that my protected act was the operative cause for the respondent’s response; and but for me making my complaints about my safety, I would not have been subjected to such retaliation.”

During his evidence, the complainant presented two pages from the letter sent by the child’s parents in 2015 in which they criticised the quality of the service provided to their son.  In their letter, they allege that they had to resort to a private assessment of their child which they may not have done “if the assessment was done right or the delays and miss management (sic) or bullying that we encountered.”  In his evidence, the complainant highlighted the sections of the letter where he believes he is identified as failing the child.

The complainant referred to his meeting with the head of ER on December 16th 2019.  He said that the head of ER agreed to meet his solicitor to agree a full and final settlement.  The complainant said that he declined an offer to rebut the parts of the review report that he disagreed that the head of ER’s agreed to keep a record of what was discussed.  He wanted the review report withdrawn.

Concerning the detriment he suffered as a result of the head of ER’s letter of June 5th 2020, The complainant said that, “if you tell me one thing at a certain period of time and then tell me something else, that is a detriment.  A detriment consists of damage to trust and confidence.”  He claimed that the head of ER’s efforts were intended to prevent him from raising complaints, which, he said, amount to intimidation.  He also said that the head of ER’s letter is not consistent with the record of events.

Referring to a diagram he provided to set out what he considers to be the detriments he suffered arising from the head of ER’s letter of June 5th 2020, the complainant described unfair procedures:

“15 months after my hearing (01/03/19) arising from a formal grievance (30/10/18) complaint about the conduct of the Chief Officer and HHR, I am now advised by the first time by the respondent on 05/06/2020 (and in direct retaliation to my protected act) that my grievance in effect is not upheld.  No investigation or determination was ever completed but instead I am advised (06/06/20) the CO/HHR dealt with my concerns ‘competently.’”

The complainant said that when he raised complaints in 2017, the impact was such that he was off work for one and a half years.  He said that he was unable to carry out his job and he was undermined in his confidence to make a decision.  He said that his employer has not shown that he would not be treated in the same way again.  Having been diagnosed by a consultant psychiatrist as suffering from adjustment disorder, the respondent did not seek a second opinion.  The complainant asked, “What employee would tell their employer that they had a psychiatric disorder if they were to be penalised?”

The complainant referred to an email from the head of ER to his representative in Fórsa on December 17th 2019.  The purpose of the email is to provide a record of a meeting on December 16th.  The head of ER wrote:

“Barry

Note of our meeting yesterday evening.  We did not get to what might resolve the claim at Adjudication.  We did cover the report withdrawal and apology.  I did say the losses under sick leave would not be addressed as the record is clear that (the complainant) was on sick leave.  Would be helpful if the compensation figure was explored further obviously in line with what is normal compensation in WRC terms.  If the PI can be dealt with in tandem then we might have an opportunity to reach a final settlement.  I accept that you will not want to involve yourself in the PI claim but you will appreciate I cannot settle the WRC claim in isolation.  Can you follow up with the complainant.

Regards …”

The complainant referred to a diagrammatic presentation he included in his book of documents which comprehensively sets out his argument that his protected act is the letter of May 26th 2020 to the head of ER and that the retaliatory response was in the head of ER’s letter of June 5th.  He listed his arguments under the heading of the “but for” test, set out in the decision of the Labour Court in Toni & Guy Blackrock Limited and Paul O’Neill[1] as follows:

Diagnosis

Before he made his protected act, no concerns were expressed by the respondent regarding his medical diagnosis.

Despite the fact that his medical certs were accepted by the respondent, the head of ER, in his letter, advised The complainant that his diagnosis is dismissed.

Risk

The respondent did not express any concern about the genuine nature of the complainant’s declared vulnerability or workplace risks and hazards.

In his letter, the head of ER dismissed the complainant’s concerns about safety at work, without completing a risk assessment.

Independence

The report reviewers are independent in their functions and under the regulations.

In his letter, the head of ER nullified the reviewers’ opinions to advance a false subjective narrative unsupported by the records.

Findings

The reviewers state that they made adverse findings of fact.  On December 16th 2019, the respondent advised that the report would be withdrawn.

In his letter, the head of ER advised that no adverse findings were made against anyone in the report and that it would not be withdrawn.

Determination

The complainant’s complaint that the chief officer issued a sham determination on November 16th 2018, dismissing his complaints in their entirety, is not contested.

In his letter, the head of ER suggested that the complainant should have been satisfied with the report of November 2018, when, he claims, it didn’t even satisfy the respondent.

Line Manager

The complainant referred to correspondence he included in the documents he submitted to the respondent in which he claims that his line manager’s concerns were not contested.

The head of ER dismissed the complainant’s line manager’s concerns without discussing them.

Redress

The complainant claims that, at a meeting on December 17th 2019, the head of ER confirmed that the review report would be withdrawn, an apology would be issued and compensation would be agreed.

In his letter, the head of ER states that his offer was an offer of rebuttal to the report and that he advised the complainant and his union representative that the report would not be withdrawn.

Claims

When he was advised in writing of the outcome of the meeting of December 16th 2019, the complainant reserved the right to pursue a grievance at the WRC and a personal injury claim.

The head of ER advised the complainant that the respondent could not deal with a grievance at the WRC while a personal injury claim was also being pursued.

Second Grievance

The grievance submitted by the complainant on October 30th 2018 was never investigated.  He was never advised that his grievance was not upheld.

In his letter, the head of ER advised the complainant that the chief officer and the head of HR dealt with his concerns “competently,” effectively, dismissing his grievance without justification.

Statutory Regulations

At the meeting on December 16th 2019, the respondent accepted that the report reviewers failed to observe statutory regulations, for example exclusions criteria, and recommended that the report was withdrawn. 

In his letter, the head of ER advised that there were “some shortcomings” in the report and, in effect, that no further action was required.  The report will not now be withdrawn.

Sick Leave

At no point in the 18 months before he wrote to the head of ER on June 26th 2020, did the respondent advise the complainant of any concerns they had regarding his medical reports or sick leave.

The complainant suggests that, in his letter, the head of ER dismissed his medical diagnosis and his concerns about his safety.  He was asked to return to work “soonest.”

Damage to Reputation

The complainant said that the review report contains significant criticisms and adverse findings which were issued in the public domain.  By this, I understand that he is referring to the fact that the report was issued to the parents of the child he assessed.

In his letter, the complainant alleges that the head of ER circulated a number of inaccurate rebuttals, giving validity to the complaints of the child’s parents and causing damage to his reputation.

In his evidence at the hearing, the complainant said that it is not appropriate for the respondent to dismiss a complaint without investigating or seeking a second opinion.

Concluding his evidence, the complainant referred to articles published in the Dundalk Independent and in the Argus newspaper in February 2021 referring to long waiting lists for psychological assessments in the respondent region where he works.  He said that, in the articles, the respondent confirmed that post of senior clinical psychologist had become vacant due to a resignation and that another psychologist was on unplanned leave.  The complainant claims that he is the psychologist referred to in the articles.

The complainant referred to the remarks of a local TD who described the waiting times for a psychological assessment as “atrocious” and referring to a period of time during 2020 when there was no psychologist at all.  The complainant said that his post was not covered in his absence, with the result that the waiting time for an assessment increased from an average of 7.7 months in 2018 to 36 months when he returned from sick leave in September 2020.

Based on these articles, the complainant claims that “the substantive issue that the service delivery had been significantly impacted by my absence was clearly a consideration on the respondent’s mind when they wrote to me.”  When the head of ER wrote to the complainant on June 5th 2020, the complainant had been absent for a year and a half and the substantive negative impact on the service had already been caused.  The complainant claims that the respondent must have realised this, as is shown by the head of ER’s statement, “All staff in particular front line staff are extremely valuable to the respondent to ensure we can deliver a quality service to the public.”

The complainant claims that the head of ER’s reference to his contractual obligation to be at work indicates the respondent’s awareness of the impact of his absence on service delivery.  He submits that the respondent’s reference to the withdrawal of the review report, an apology and compensation implies that there was an understanding of what was required to get him back to work.  However, he claims that the head of ER’s letter supports a position of the respondent to justify taking no action.   He argues that these failures to act are to his detriment and must be considered to be unfair, abusive, damaging and unreasonable.

Legal Precedents Relied Upon by the Complainant

The complainant submitted a comprehensive list of legal precedents in support of his claim that he was penalised and suffered detriments for raising a concern about his health and safety. 

Cases establishing the carrying out of a protected act:

§  An Employee v a Property Management Company, ADJ-0004397

§  MSR-FSR Ireland v Jason Quinn, HSD 202

Cases establishing that a detriment occurred for making a protected act:

§  A Garda Síochána v Hazel Delahunt, HDS 1311

§  Shamoon v Chief Constable of the Royal ulster Constabulary, [2003] UKHL 11

§  A Senior Technical Officer v A Third Level College, ADJ-00013686

Cases establishing an employer’s duty of care to their employee:

§  A Forklift Driver v A Building Materials Supplier, ADJ-00004075

§  Culkin V Sligo County Council, [2017] IECA 104

Case establishing the failure to have regard to the clinical opinion of medical assessors

§  Uren v Corporate Leisure (UK) Limited, [2011] EWCA Civ 66

Case showing how the respondent prioritised protecting itself from liability:

§  Robert Farrell v Modus Link Kildare Unlimited Company, ADJ-00032100

Case showing examples of detriments arising from inaccurate and false rebuttals:

§  Jesudason V Alder Hey Children’s NHS Foundation Trust, [2020] EWVA Civ 73

Precedent on the “but for” test:

§  An Employee v a Property Management Company, ADJ-0004397

§  Jesudason V Alder Hey Children’s NHS Foundation Trust, [2020] EWVA Civ 73

§  Toni & Guy Blackrock Limited v Paul O’Neill, HSD 095

Preliminary Issue:  Timeframe for Consideration of a Complaint of Penalisation

At the opening of her submission for the respondent, Ms Ruane raised a preliminary point regarding the statutory timeframe within which complaints of penalisation must be submitted to the WRC.  This complaint was submitted to the WRC on November 11th 2020 and the cognisable period regarding an incident or incidents of penalisation is from May 12th to November 11th 2020.  Ms Ruane submitted that I have no jurisdiction to consider a complaint of penalisation that occurred outside this timeframe.

Summary of the respondent’s Response

The respondent’s position is that the complainant did not make a protected act and that no evidence of penalisation has been provided by him.  It is denied that he was penalised in breach of s.27 of the Safety, Health and Welfare at Work Act 2005.

In her submission, Ms Ruane set out the chronology of events that led to the complainant being out sick and then the submission of his grievances and this complaint. 

On January 19th 2015, using the respondent’s feedback facility a complaint was submitted by the parents of a child who was assessed for ASD by The complainant.  The complaint primarily concerned the family’s experience with the children’s disability services, the lack of access to services and the waiting time for services for their child.  In their complaint, the family referred to the complainant by name and they referred to his involvement in the care of their child.  The complaint was managed in accordance with the feedback facility’s complaints procedure.

Complaints officers were appointed to investigate the complaint.  The complainant was made aware of it through his line manager and was given an opportunity to respond.  A report was issued on July 13th 2016.  No adverse findings were issued in relation to the complainant and a number of recommendations were made regarding the disability services.  The child’s parents appealed the report’s findings.

Review officers were appointed to determine the appropriateness of the recommendations of the complaints officers and they issued a report on March 20th 2017.  The review officers made some new recommendations.  They did not make adverse findings about the complainant.  The child’s parents did not appeal against the findings of the review officers.

The complainant raised a grievance regarding the findings of the reviewers.  The grievance was considered by the chief officer, and he issued a response on November 16th 2018.  The complainant’s grievance was not upheld.  In his outcome letter, the chief officer stated, “I, as chief officer, have no concerns about your conduct or professional practice arising out of this matter.”  On foot of this report, the complainant submitted a grievance to the WRC.  He wants the reviewer’s report to be withdrawn and for the respondent to inform the child’s parents that their complaints are not upheld.

The respondent has offered the complainant the opportunity to make a comment on the findings of the review report and for this commentary to be appended to the report.  The complainant has declined this proposal.

The Alleged Protected Act and the Alleged Penalisation

Ms Ruane referred to the “distillation” of the complainant’s case to his letter of May 26th 2020 and the response of the head of ER on June 5th, which The complainant claims was coercive and an act of intimidation. 

Ms Ruane referred to s.27(3) of the Safety, Health and Welfare at Work Act (“the Act”) which provides that,

(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.

Ms Ruane submitted that the complainant did not make a protected act pursuant to this section of the Act and that his letter of May 26th 2020 states that there are risks and hazards in his work environment.  The alleged risks and hazards related to the fact that the reviewer’s report had not been withdrawn.  It is the respondent’s position that the complainant was not making a complaint about health and safety at work, but that he was raising a grievance about the fact that his complaint about the reviewers’ report was not upheld by the chief officer and the report was not withdrawn.

Ms Ruane asserted that the complainant has failed to recognise that the feedback process is about the respondent responding to service users in relation to the services provided.  It is not about the performance of a single employee.  When he submitted this complaint of penalisation, the report had been issued three years beforehand.

Without prejudice to this position, if the complainant made a protected act, it is submitted that it was made when he submitted his grievance in 2018.  On the form he submitted to the WRC, the complainant said that he has been raising health concerns to senior management and corporate HR since 2018.  In his letter to the head of ER on May 26th 2020, he refers to alleged risks and hazards he has been reporting to the respondent since 2017.  Ms Ruane argued that, because of the distance in time between the alleged protected act and the alleged penalisation, the timeframe does not support the claim.

Detriment

Ms Ruane submitted that the complainant provided no evidence of detriment, within the meaning of s.27(1) or (2) of the Safety, Health and Welfare at Work Act.  As authority for the respondent’s position, Ms Ruane referred to the decision of my colleague, Michael McEntee in his Decision in Keith Cassidy v the Board of Management of Clonkeen College[2] which, finding against Mr Cassidy, the adjudicator held that none of the examples cited in section 27 could be said to apply.  There was no dismissal, loss of pay or privileges etc for the Complainant.”

Ms Ruane also cited the case at the Northern Ireland Court of Appeal of Shamoon v Chief Constable of the Royal Ulster Constabulary[3]which was also referred to by The complainant.  In his judgement on this case, Lord Hope of Craighead considered the meaning of penalisation referred to in an earlier case, De Souza v the Automobile Association[4]which held that,

“…the court or tribunal must find that, by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had to work thereafter.”

Lord Hope qualified this remark by pointing out, at paragraph 35, that, “an unjustified sense of grievance cannot amount to a detriment within the statutory meaning.”

Letter from the head of ER on June 5th 2020

The complainant alleges that the head of ER’s letter of June 5th 2020 advances opinions and conclusions to coerce and intimidate him not to continue with his health and safety complaints.  The respondent argues that this is not the case.  The complainant asked the head of ER to respond to his letter and his submission to the WRC and the head of ER simply responded to his request.  Ms Ruane submitted that the complainant suffered no detriment because of the letter and that the head of ER is entitled to answer the contentions put forward by the complainant.  He was not required to agree withtThe complainant or to concede his claims.

Ms Ruane referred to the examples of the alleged detriment that the complainant suffered.  She said that the respondent denies that the letter of June 5th resulted in any detriment whatsoever within the meaning of s.27 of the Safety, Health and Welfare at Work Act.

Ms Ruane said that the complainant suggests that the head of ER’s comments in the letter regarding the WRC process and the legal proceedings were an act of intimidation.  This is denied and the context of these comments were that the parties were encouraged by the adjudication officer to attempt to seek a resolution between themselves.  The head of ER was explaining that, while they had “without prejudice” discussions regarding a resolution, this would not be possible while the complainant was also pursuing a legal avenue of redress.  This was not intended as a threat and the respondent is entitled to decide how it responds to claims of litigation.

The complainant appears to suggest that, in his letter, the head of ER dismissed his medical diagnosis.  Again, Ms Ruane submitted that the complainant suffered no detriment in this regard.  The respondent had arranged for the complainant to attend an occupational health review to determine his fitness to return to work and it would not have been appropriate for the head of ER to address this in his letter.

The complainant suggests that the head of ER’s request to him to return to work was some form of threat or coercion.  This is refuted.  During the period that the complainant was absent, the respondent was managing the impact of Covid-19 on service users and employees.  There was a high level of infection among the workforce, resulting in a high level of absence.  In this context, the head of ER was encouraging the complainant to return to work, as he was a valued member of the staff for the respondent and for its service users.

“But For” Test

Ms Ruane submitted that, as no detriment was imposed, there is no “but for” element to the complainant’s claim and, on this ground, his complaint is without substance.  In this regard, the respondent is relying on the decision of adjudicator in Cassidy v Clonkeen College.  Ms Ruane also referred to the decision of the Labour Court in Toni and Guy Blackrock Limited v Paul O’Neill[5]where the “but for” test was explained as follows:

“Where there is more than one causal factor in the chain of events leading to the detriment, 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/she would not have suffered the detriment…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 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 complaint relied upon did not influence the Claimant’s dismissal.”

Ms Ruane submitted that, if there was a protected act, it was made by the complainant in 2017 / 2018.  The matters referred to above refer to a period over two years later and there was no causal connection between them and the letter from the head of ER on June 5th 2020.

It is further submitted that the head of ER’s response was issued in the context of ongoing communications regarding the complainant’s claims at the WRC as opposed to being a response to any alleged health and safety claims made by the complainant.

Any delay in carrying out the risk assessment was in part due to the fact that Covid-19 caused a pressure on resources and the delay was not in response to the complainant’s letter of May 26th 2020.

Any delay putting the safety statement in place in light of the risk assessment is due to the complexity regarding what, if any measure can be put in place and the delay is not a response to the complainant’s letter of May 26th 2020.

In response to paragraph 3.1 of the respondent’s submission, the complainant said that the key area of concern to the family who made the complaint in 2015 was their view that their child was wrongly assessed.  The complainant referred to the findings in the report regarding a school visit, a decision to issue a verbal apology to the family because of a delay in issuing a care plan for the child and a finding that the complainant was arrogant, condescending and unprofessional.  The complainant said that he is named in the first complaint of January 2016, in the second complaint and in the reviewer’s report.

The complainant referred to the respondent’s assertion (at 3.4 of their submission) that the outcome from the investigation of the chief officer into his grievance concerning the review report was that there were no adverse findings against him.  The complainant refutes this and claims that no one told him that there were no adverse findings against him.  He said that no one told the child’s parents that their complaints about him were not upheld and the failure to do this has undermined his reputation and his ability to do his job.

The complainant said that a core part of his job is to diagnose children and to provide a clinical opinion.  He said that the conduct of the respondent towards him is undermining his ability to do his job.  If the outcome of the investigation into the review report is that the complaints of AB’s parents have not been upheld, he should have been told.

Referring to the head of ER’s letter and his concern for the complainant to return to work, the complainant referred to this as a “passive, veiled threat.”  He said that this was “not okay” and that any employee experiencing this would be deterred from raising an issue in the future.

Referring to the respondent’s contention that the complainant did not appeal the outcome of the chief officer’s report, the complainant said that he wrote to the chief officer on November 28th 2018, 12 days after the report was issued, and he clearly stated that he didn’t accept the outcome.  He said that there is no provision for an appeal against the findings of the chief officer because he is the most senior manager.

The complainant said that he returned to work on September 28th 2020 and that it took until April 2021 for a risk assessment to be carried out.  He said that the child’s parents continued to criticise him.  They were referred to a colleague who he supervised.  The complainant said that this gives the impression that he did something wrong. 

Timeframe for Consideration of a Complaint of Penalisation

The Safety Health and Welfare at Work Act 2005 (“the 2005 Act”) is one of the Acts listed at Schedule 5 of the Workplace Relations Act 2015, giving the WRC authority to investigate complaints of penalisation under s.27 of the 2005 Act.  The complainant’s complaint is that, in the letter issued to him by the head of ER, on June 5th 2020, he was penalised by his employer because he complained about risks and hazards in his working environment.  He claims that the penalisation comprised damage to his trust and confidence, failure of his employer to observe a duty of care to him, reputational damage and passive, veiled threats.

Section 41(6) of the Workplace Relations 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.

The complainant submitted this complaint to the WRC on November 11th 2020.  At the opening of the hearing, in accordance with s.41(6) above, Ms Ruane submitted that the cognisable timeframe for consideration of this complaint of penalisation is from May 12th until November 11th 2020.  The head of ER’s letter was sent to the complainant on June 5th 2020, and I have jurisdiction therefore, to consider any act of penalisation that may have occurred between June 5th and November 11th 2020.  The complainant submitted a second complaint of penalisation to the WRC on April 27th 2022, and this is concerned with detriments which he alleges occurred at a later timeframe following the health and safety risk assessment which was carried out on April 21st 2021.  That complaint is the subject of a separate decision under ADJ-00039216.

The Relevant Law

Section 27(1) of the Safety, Health and Welfare at Work Act 2005 refers to “penalisation” as,

any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

Subsection (2) provides examples of the conduct of an employer encompassed by the definition of penalisation:

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

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

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

(e) coercion or intimidation.

The complainant argues that he made a protected act which is encompassed by the definition at s.27(3)(c) of the 2005 Act:

(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[.]

The complainant’s case is that, in his letter to the head of ER on May 26th 2020, he advised his employer that he wanted to return to work but that he was concerned about his health and safety in his working environment.  He alleges that, in his letter of reply on June 5th 2020, the head of ER responded by imposing a number of detriments, amounting to efforts to threaten, intimidate and coerce him to return from sick leave.  He claims therefore, that he has been penalised, in breach of s.27(2)(e) above.

The Burden of Proof

The decision of the Labour Court in Toni and Guy established that the burden of proof is on a complainant to show that they carried out a protected act and that, considering the circumstances of what then occurred, it is reasonable to assume that, “but for” having committed the protected act, no detriment would have been imposed.  In considering this matter, I have decided, in the first instance, to examine the evidence of the complainant, to determine if he suffered a detriment. 

Was the complainant Penalised by his Employer?

The complainant’s case is that, in contravention of s.27(2)(e) of the 2005 Act, in the letter from the employee relations manager on June 5th 2005, he was coerced and intimidated.  His claims in this regard are under four headings:

1.            Significant damage to trust and confidence

The complainant complains that, in his letter, The head of ER stated that the review report of June 2017 would not be withdrawn and that his grievance was not upheld.  Some of the allegations submitted by the complainant under this heading concern actions that were taken before the letter of June 5th 2020.  For example, the complainant complains that the respondent refused to advise the child’s parents that their complaints “against me” were not upheld. 

Findings 

Considering the meaning of “detriment,” the complainant relies on the decision of the Labour Court in An Garda Síochána and Hazel Delahunt[6].  In that decision, referring to the decision of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary (footnote 3), the chairman, Mr Duffy quoted from the remarks of Lord Hope regarding the way the word “detriment,” draws a “limitation on its broad and ordinary meaning from its context and from the other words with which it is associated.”  At s.27(2) of the 2005 Act, the word “detriment” is situated in the context of a list of actions that an employer might take that are clearly detrimental and negative for an employee:  dismissal, suspension, demotion, transfer of duties, reduction in wages, a disciplinary sanction and coercion and intimidation.  The meaning of penalisation at s.27(2) therefore, implies an action on the part of the employer that, in degrees of detriment, runs from dismissal to a reduction in wages.

Aligned with the contextual meaning, Lord Hope went on to quote from De Souza v Automobile Association (footnote 4) where LJ May held that,

“…the court or tribunal must find that by reason of the act or acts complained of, a reasonable worker would or might take the view that he had been thereby disadvantaged in the circumstance in which he had thereafter to work.”

My task is to consider if another “reasonable worker” who was treated in a similar way to the complainant, would conclude that they had been penalised, in the context of the meaning of that term, which includes such serious detriments as dismissal and loss of pay.

If the complainant has lost trust in his employer, this is not a penalty, as provided for in the 2005 Act, but is a flaw in the relationship between him and the respondent which may or may not be remedied.  It is unreasonable, in my view, to attribute a detriment to the head of ER’s statement on June 5th 2020 that the respondent cannot withdraw the review report, when this was clear from the outcome of the investigation of the chief officer in November 2018.  The email from the head of ER on December 17th 2019 to the complainant’s representative in Fórsa shows that “we did cover report withdrawal and apology.”  The minutes of the meeting of December 16th do not show that the head of ER gave any commitment to withdrawing the report, but shows that the complainant listed this as one of his five demands.  I accept that the complainant was disappointed and frustrated that the report would not be withdrawn, but it is not reasonable, in my view, for him to elevate his disappointment to the level of a detriment, which he describes as “significant damage to trust and confidence.”

2.            Failure to act with duty of care and to act with due diligence and care

The complainant complained that the professional opinion of an independent consultant regarding his medical condition was dismissed.  He claims that his illness was not taken seriously. 

Secondly, under this heading, he claims that he was coerced and intimidated when the head of ER advised him that the respondent could not deal with his grievance if his personal injuries claim was proceeding.

Thirdly, under this heading, the complainant complains that, to his detriment, the head of ER advised him that the respondent would take no action to ensure that he wasn’t subjected to the same treatment again.

Findings

This alleged detriment concerns the remarks made by the head of ER at paragraph 15 of his letter of June 5th.  I have repeated this paragraph in full below because it contains some of the alleged detriments that the complainant complains about: 

“I am disappointed that we failed to reach any settlement to your case before the Adjudication service but efforts were deployed to do so.  Those efforts were undermined by your refusal to accept the option of a rebuttal to the complaint to be appended to the report, the public health crisis and the departure of your representative, Mr Cunningham from Fórsa.  What I am more concerned about is the length of time you have been absent from work.  All staff in particularly frontline staff are extremely valuable to the respondent to ensure we can deliver a quality service to the public.  I have, at our meeting in December 2019, raised my concerns at your continued absence.  There is no impediment to you returning to work nor has there ever been.  Medical reports have confirmed your stress levels at your perception of this matter and the negative impact you see it has on your character, professional reputation and the risks and hazards in your work environment that precludes you returning to work.  That said, you have a contractual obligation to your employer to be at work and an obligation as a clinician to be available to your patients.  I ask that you make every effort to return to work in the near future.  Your grievance which is now a complaint before the WRC can be dealt with in parallel.  I reject the view expressed in your letter that the respondent has no intention of addressing your grievance / complaint.  I have made every effort up to March to find a solution and spoke regularly with Mr Cunningham but as set out above I was not going to resolve the complaint at WRC separate to the legal proceedings.  When Mr Cunningham resigned his post in Fórsa I spoke to Barbara Kelly and Shane Lambert both Fórsa to keep negotiations alive.”

I disagree with the complainant’s assertion that, in his comments above, the head of ER dismissed his medical diagnosis.  It is apparent that the head of ER wanted the complainant to return to work; however, he refers to the medical reports which “confirmed your stress levels…”  He does not challenge the medical reports, but “that said,” he encouraged the complainant to return.

The complainant claims that he was coerced by these remarks into returning to work.  Returning to the Labour Court decision in Shamoon, the chairman, Mr Duffy held that,

“The word ‘coercion’ connotes some form of action, without lawful authority, which is directed at compelling a person to do or abstain from doing any act that the person has a right to do or abstain from doing (see, for example, s.9 Non-Fatal Offences Against the Person Act 1997).  Intimidation, as a tort, is generally understood as comprising the infliction of harm by the use of unlawful threats whereby the liberty of others to do as they please is interfered with (see Murdoch’s Dictionary of Irish Law, 4th edition, 2004).”

In his letter to the complainant, the head of ER reminded him of his contractual obligation to be at work and he expressed his opinion that there was no impediment to him being at work.  No reasonable person could equate these statements with the definition of coercion and intimidation as described by Mr Duffy above.

There is no evidence in the letter that the respondent advises that they will take no action to ensure that the complainant is not subjected to “the same treatment,” (the outcome of the review report) again.  In his letter, the head of ER said, “you should have been made aware of the appeal of the Complaints Officer report and I would have preferred if you were interviewed directly by the Complaints Officer.”  He went on, “certain aspects of the report of the Complaints Officer did not adhere fully to the policy.”  In this way, the head of ER conceded that the appeal of the child’s parents to the respondent’s initial response to their complaint should have been handled differently.  He did not state that, if the same circumstances arose again, the respondent would handle another complaint in the same way and it is clear that some learning has occurred.

3.            False and Inaccurate Rebuttals and Statements

The complainant claims that the letter of June 5th implies that he made “specious and unfounded complaints against senior management,” that his medical diagnosis is not to be taken seriously, that his complaints about the review report are trivial and that his conduct since the WRC hearing on December 3rd 2019 has been obstinate and unreasonable.

Findings

The imposition of an impediment, as set out in the definition of penalisation in the 2005 Act, must show a serious impact and cannot be based on implied meanings. 

The complainant’s claim that his medical diagnosis and his assessed needs were not taken seriously is based on his statement in his letter to the head of ER that he wanted to return to work, but that “risks and hazards remain…”  The complainant said that he was concerned that there could be a repeat of the way in which the respondent dealt with the complaint of AB’s parents and that this was a risk to his health and safety at work.  The head of ER’s statement that “there is no impediment to you returning to work” is a comment on the “risks and hazards” referred to by the complainant and not a suggestion that he was not ill.

I find that it was reasonable for the head of ER, as a senior manager in the respondent, to exhort the complainant, a senior clinician, to return to work in the context of the pressure on services in the early months of the Covid-19 pandemic.  I note also that the head of ER stated that the complainant’s grievance could be progressed “in parallel” with his return to work.

Regarding The complainant’s third allegation under this heading, that his complaints are trivial and unreasonable, I find that there is no substance in this claim.  His grievance was considered by the chief officer and taken seriously.  Efforts were made at an adjudication hearing on December 3rd 2019 to try to resolve his complaints and a subsequent local meeting was held on December 16th.  Following this, the head of ER said that he had discussions with the complainant’s representative in Fórsa and he was also in correspondence with the complainant’s solicitor in February 2020.   Around the same time, he spoke about the complainant’s case to the union representative who replaced the first representative.  These are not the actions of a manager treating an employee’s complaints as trivial.

Lastly, under this heading, The complainant said that the head of ER’s response implies that his conduct was obstinate and unreasonable.  Again, he failed to identify any statement in the letter where this was suggested and, even if such a suggestion had been made, it does not fall under the definition of “coercion or intimidation” at s.27(2)(e) of the 2005 Act. 

It is my view that the letter of June 5th 2020 was correctly copied to the chief officer, the head of HR and the occupational health consultant and I find that no detriment arises from this.

4.            Threats

The complainant claims that his diagnosis and concerns about his working environment were dismissed.  He was informed that he was in breach of his contractual obligation to be at work.  He said that he felt threatened and coerced to return to work.

Findings

Feelings are subjective, and I must accept the complainant’s assertion that he felt threatened and coerced.  In addition to coercion or intimidation, the impediments which are defined as penalisation at s.27(2) include suspension, dismissal, demotion, transfer of duties or a disciplinary sanction.  It is apparent therefore, that the Act intends a detriment to be a serious and negative imposition on an employee which must constitute more than the emotional response of that employee to a workplace grievance.  Having received the head of ER’s letter shortly after June 5th, the complainant did not return to work until 16 weeks later, on September 28th 2020, a situation that is not consistent with a claim of coercion or intimidation.

Taking all the facts into account, I find that no detriment, within the meaning of s.27(2)(e) of the 2005 Act, was imposed on the complainant arising from the letter of June 5th.  It follows therefore, that the complainant has not met the burden of proof established in Toni & Guy, which requires him to demonstrate that, but for having made a protected act, a detriment would not have occurred.

Did the complainant Make a Protected Act?

In the interest of completeness, and, in response to the very comprehensive submission that the complainant submitted regarding this matter, I wish to briefly address his contention that, in his letter to the head of ER on May 26th 2020, he made a protected act.  The letter is comprised of 10, mostly short paragraphs and is headed, “Re: (Name of the complainant) Complaints and Grievances.”  In paragraph 2, the complainant clearly sets out the purpose of his letter:

“It is therefore with a profound sense of regret that I find myself in the unenviable position of feeling forced to write to you because I have received no formal response from you in relation to my WRC submission following our meeting on 16/12/2019.”

From this, and from the heading, it is apparent that the complainant’s motivation in writing the letter was to seek a response from the head of ER to the submission he made at the WRC on December 3rd 2019 and his proposal at the meeting on December 16th which was held to try to resolve matters informally.  There is no reference in the opening paragraphs, or anywhere in the letter, to the making of a protected act or a complaint about health and safety.  In paragraph five, the complainant refers to “risks and hazards:”

“To be clear, I want to return to work, however, the risks and hazards in my work environment that I have repeatedly and continuously reported to the respondent since June 2017 remain.  This, (coupled with the respondent ignoring the advice set out in its own “Respondent” Occupational Health report) is stymieing both my recovery and my return to work.”

In paragraph six, the complainant expresses his frustration at being “forced to endure such a protracted Grievance procedure.”  He complained about,

“…the prolongation of the process without any formal explanation or formal response to my submission; thereby subjecting me to yet another protracted and degrading process. 

The complainant repeats his sense of frustration in the next paragraph, stating that it is clear to him that the respondent has no intention of addressing his grievance.  He goes on, in the eighth paragraph, to state that, if what he said in the previous paragraph is true, then he must consider that the process envisioned by the WRC adjudicator, at the hearing under the Industrial Relations Act on December 3rd 2019, “has not materialised in the manner foreseen…”  This relates to the adjudicator on that day encouraging both sides to make an effort to resolve matters between themselves.

In his concluding paragraph, the complainant asked the head of ER to consider “the contents above.”  In his final sentence, he said,

“Should there not be a response by the 10th of June, which openly responds to and meaningfully / reasonably addresses the Industrial Relations / statutory issues noted in my WRC submission, I will have no option but to request the WRC process be reconvened.”

In his letter, the complainant’s clear intention was to complain about the lack of progress since the meeting on December 16th 2019 regarding his grievance about the existence of the review report.  This is apparent from the second paragraph in which he said that he felt “forced” to write because he had not received a formal response.  In nearly every paragraph, he expresses frustration about the delay, and, in the final paragraph, he issues an ultimatum, saying that, in the absence of a response by June 10th, he will request the resumption of the WRC hearing.

The complainant relies on s.27(3)(c) of the 2005 Act which defines a protected act as,  

(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[.]

While the complainant refers to “risks and hazards in my working environment,” this is not adequate to be considered as a complaint regarding safety and health at work, as set out at s.27(3)(c).  It is not sufficient to write a letter headed “Complaints and Grievances” and then, in receipt of an unwelcome response, claim that the initiating correspondence contains a protected act. 

In his letter, the complainant did not set out any details about risks to health and safety, but, in one sentence, but he simply referred to “risks and hazards in my work environment that I have repeatedly and continuously reported to the respondent since June 2017…”  In this way, the complainant attaches emphasis to the continued existence of the review report, which is the focus of his grievance that he is seeking to have resolved before he returns to work.  I am satisfied that, in his letter of May 26th 2020 to the head of ER, the complainant did not make a protected act, but that he sought to apply pressure on the employee relations manager to get his grievance resolved.

Conclusion

I have considered the facts of this case, as set out in the written submissions of the parties and I have considered the evidence of the complainant at the hearing on May 2nd 2023.  I find that no impediment or penalty within the meaning of penalisation at s.27(2) of the Health, Safety and Welfare at Work Act 2005 was imposed on the complainant in the letter of June 5th 2020 from The head of ER.  I find further that the complainant did not make a protected act in this letter of May 26th 2020 to the head of ER and that there is no substance to his complaint of penalisation.

Based on the conclusions I have set out above, I decide that this complaint is not well founded.

Penalisation, detriment, protected act, “but for”