Complainant

Respondent

Parties

Amy  McEvoy

Nelipak Healthcare Packaging Limited

Representatives

Self-Represented

Mr. Brian Kavanagh, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015

CA-00061171-002

08/02/2024

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

CA-00061171-003

08/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061171-004

08/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Part 3 Section 20 of (European Cooperate Society)(Employee Involvement) Regulations 2007

CA-00061171-001

19/01/2024

The Complainant commenced employment with the Respondent on 4th January 2017. The Complainant remains a permanent, full-time employee, in receipt of an average weekly wage of €504.97.

O 19th January 2024 the Complainant referred an initial complaint to the Commission. Herein, she alleged that she had been suffered penalisation in the imposition of a disciplinary sanction. This form was returned to the Complainant by the Commission to seek some further information. On 13th February 2024, the Complainant returned the same confirming that wished to implead three further legislative provisions. By response, the Respondent denied that the Complainant had suffered any penalisation. Primarily, they submitted that the Complainant had not made any protected statement from which a detriment giving rise to penalisation might occur. The Respondent further denied that the imposition of the disciplinary sanction was in any way unfair or unreasonable.

A hearing in relation to this matter was convened for, and finalised on, 3rd May 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

Both parties issued extensive submissions in advance of the hearing. These submissions were expanded upon and contested by the opposing side in the course of the hearing. All direct evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

The Complainant submitted that she had been subjected to an unfair and unwarranted disciplinary sanction. In this regard, she stated that she had been disciplined for alleged excess absence when most of the absences in question were certified as sick leave. In particular, the Complainant referred to one occurrence of leave in May of 2023. In this regard, she submitted that the leave in question had been requested in good time by her to facilitate a medical procedure and was approved by management on this basis. In this respect, the Complainant submitted that the imposition of a disciplinary sanction for excess absence was fundamentally unfair in circumstances whereby much of the absence in question was pre-approved. The Complainant further submitted that at least two of the other absences related to partial days where she came into work but had to go home due to illness.

Towards the end of the Complainant’s evidence, the Adjudicator outlined the principles in respect of complaints of penalisation. In this regard, the Complainant submitted that the disciplinary sanction arose from a contractual term. She further submitted that the substance of the disciplinary matter related to her working time.   

In responding to the Complainant’s allegations, the Respondent submitted that the complaints were inherently misconstrued. In this regard they submitted that the Complainant did not make any disclosure that might constitute a protected statement under any of the impleaded Acts. In this regard, they submitted that in the absence of the same, the Complainant cannot demonstrate penalisation as defined in any of the impleaded legislation, and as a consequence of the same, her complaint must fail.

In the present case, the Complainant has submitted that the imposition of a disciplinary sanction by the Respondent was unreasonable in the circumstances. In this regard she submitted the substance of the allegations against her, that she had an excess of absence in a calendar year, had not been demonstrated on a factual level by the Respondent. In support of the same, the Complainant examined each of the six occurrences of alleged absence and outlined how the same constituted either certified sick leave, pre-approved leave or partial days of absence.

During the hearing, the Adjudicator outlined the general principles of complaints of penalisation to the Complainant. In this regard it was set out that in order to succeed in such a claim, in general terms a Complainant must establish that they made a complaint in relation to their employer regarding the rights imposed by the relevant legislation. Thereafter, a Complainant must demonstrate that they suffered a detriment as defined in the legislation. Finally, in general terms, a Complainant must demonstrate a causal connection between the detriment suffered and the initial complaint.

The test in this regard is best summarised in the leading case of Toni & Guy Blackrock Limited -v- Paul O’Neill HSD095. Here, in examining an allegation of penalisation under the Safety, Health and Welfare at Work Act, the Court held that,

“…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.”

The Court went on to state that,

“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 detriment. This involves a consideration of the motive or reasons which influenced the decision maker”

Regarding the present case, the Complainant has submitted that she was subjected to an unfair and unreasonable disciplinary sanction, While the Complainant position regarding the same was clearly articulated and not without its own merit, no evidence was offered regarding the matter of same arising as a consequence of a complaint under any of the impleaded Acts. When this was directly put to the Complainant, she stated that the subject matter of the disciplinary related to matter considered by the Organisation of Working Time Act and that the process relied on terms of the contract covered by the Terms of Employment (Information) Act. While this may be the case, the fact remains that no evidence was offered of any complaint regarding the Respondent’s obligations under the impleaded Acts. In such circumstances, and without prejudice to the Complainant’s position in respect to the fairness or otherwise of the disciplinary sanctions, I find that the complaints are not well founded.

CA-00061171-001 Complaint under the (European Cooperate Society)(Employee Involvement) Regulations 2007

I find that the complaint is not well-founded.

CA-00061171-002 Complaint under the Industrial Relations (Amendment) Act

I find that the complaint is not well-founded.

CA-00061171-003 Complaint under the Terms of Employment (Information) Act

I find that the complaint is not well-founded.

CA-00061171-004 Complaint under the Organisation of Working Time Act

I find that the complaint is not well-founded.

Penalisation, Protected Act, Toni and Guy