Complainant

Respondent

Parties

Maire  Aherne

National Council For Special Education

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Katherine McVeigh BL instructed by Eversheds Sutherland

Act

Complaint/Dispute 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-00047189-001

16/11/2021

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

CA-00047189-002

16/11/2021

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

CA-00047189-003

16/11/2021

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

CA-00047189-004

16/11/2021

The complainant submits that she was penalised by the respondent for raising safety health and welfare concerns and ‘but for’ raising the concerns she would not have been penalised.  The respondent submits that the matters are res judicata and without prejudice to same refutes the complaints.

Parties submitted extensive submissions and additional submissions including substantial correspondence regarding events and reference made to procedures including Civil Service Disciplinary Code and procedure under the Underperformance Policy.  Matters have been subject to previous WRC Adjudication (ADJ-00029820 Decision 25/01/2022), appeal to the Labour Court (HSD224 -Decision 10/06/2022) and High Court Judgement (2022 214 MCA – Decision 16/03/2023).  Other Case law  cited included: Monaghan Urban District Council v. Alf-A-Bet Promotions Ltd. 1980 WJSC-SC 1341, Dunne v Honeywell [1991] ILRM 595, 1990 WJSC-HC 1749 , Webb v. Ireland [1987] IESC 2 , Minister for Justice, Equality and Law Reform and The Commissioner of An Garda Siochana and The Workplace Relations Commission and Boyle, Cotter and Fitzpatrick [2017], Folkes v Chadd 99 ER 589, 3 Doug 157 , [1783] , Beckwith v Sydebotham [1807] 170 E.R. 897, 1 Camp 116, R (Nadarajah Abdi) v Secretary of State for the Home Department [2005] EWCA Civ 1363, Joseph Constantine Steamships Line v Imperial Smelting CORPORATION LTD [1942] AC 154, Minister for Justice and Equality, Commissioner of An Garda Síochána v WRC C-378/17, ADJ-00028293 An Operations Coordinator v A Facilities Management Service Provider,O’Neill v Toni & Guy Blackrock (Determination No. HSD095), Department of Justice Equality and Law Reform and Kirwan (Determination HSD082),Riordan v An Taoiseach [2001] 4 IR 463 ,Tracey v Burton [2016] IESC 16, The Minister for Justice and Equality and The Commissioner of the Garda Síochána v Workplace Relations Commission C-378/1

The summaries below are an attempt to distil the arguments made. 

The complainant commenced employment on 01/09/2004, her complaint was received by the WRC on 16/11/2021 and she is employed as a Special Education Needs Organiser.  The complainant referenced during her submission the vast tomes of documentation relevant to the complaints between the complainant and the respondent.

The complainant was instructed by management on 25/08/2020 to carry out a business activity in schools that, as a trained Lead Worker Representative, she believed to be in contravention of the “(Return to) Work Safely Protocols” and posed an unnecessary risk to staff, the school communities and public, contrary to the statutory obligations on employers set out in the Safety Health and Welfare at Work Act 2005.  She raised this concern informally on 25/08/2020 and formally 31/08/2020 in 15 clear points and the respondent failed to consider it appropriate under the Act and upon return to work safety protocol and the employer then commenced penalisations to stop the complainant requesting appropriate safety controls. The respondent advised that the complainant misunderstood the Lead Worker Representative role, and submitted that she “refused to carry out a reasonable management instruction”.

The complainant was seeking redress for protracted penalisation over a 24 month period, while she made every possible effort to cooperate with the employer and to act calmly and professionally at all times, while she endeavoured to comply with duties as a Lead Worker representative and as an employee with responsibilities under the Safety, Health and Welfare at Work Act 2005.  Each independent examination carried out under the Civil Service Disciplinary Code of the respondent’s pursuit of disciplinary sanctions against her for raising a safety concern and for acting in compliance with the relevant statutory provisions has found that the management instruction was “unfair” and “unreasonable” and that the respondent repeatedly failed “to adhere to the rules of natural justice” and “failed to adhere to its own disciplinary policy”.  The External Appeal Officers in the first and third disciplinary actions found “the procedures … to be fundamentally flawed from the outset”. The second disciplinary action did not proceed past an External Investigation, which found the management instruction to visit schools without reasonable controls during a pandemic to be “unreasonable” and “unfair”. Nevertheless, the respondent persisted with its campaign of coercion and penalisation of the Complainant, despite the findings and recommendations of its own Disciplinary Processes and External Investigator; and despite even being provided with the opinion of a “competent person” under the Safety, Health and Welfare at Work Act 2005, at the Complainant’s expense.

It was submitted it is for the Respondent to demonstrate to the Adjudicator that it had legitimate grounds to discipline the Complainant for allegedly “refusing or failing to comply with a reasonable management instruction”. As the Respondent is claiming that the instruction is reasonable because it complies with all legislation, it is for the Respondent to provide evidence that the employer legitimately disciplined the employee: in respect of a management instruction that was in compliance with relevant legislation and policies and which was therefore a reasonable instruction by management, which instruction was unreasonably refused or failed to be carried out by the employee with no good reason given.  The employer has consistently presented this matter as one of a disobedient employee and that is to trivialise the implications of this adjudication to the widespread and general detriment of employees. She submitted that had she been a less experienced employee, the relentless undermining, which at times resembled gaslighting, may have had a much more harrowing impact.

The complainant submitted she was penalised for complying with or making a complaint under the Act and that she was penalised for raising a safety concern by misuse of the Management of Underperformance Policy. She said she raised a safety concern with her employer on 31/08/2020 that an instruction was given by line management to the respondent’s SENO staff on 26/08/2020 to attend in schools for the purposes of carrying out administrative work and holding meetings with school staff contravened covid protocols. Her line manager retaliated on 07/09/2020 by initiating unwarranted and unsubstantiated complaints about her work performance which were subsequently formalised into a Management of Underperformance process which culminated in a Verbal Warning being issued on 14/04/2021, a written warning issued 29/04/2021 and a Final Written Warning issued on 19/05/2021 under the Civil Service Disciplinary Code. This sanction was at External Appeal stage at the time of lodging the complaint. 

The verbal warning set out:

 “I am satisfied that the lack of progress made under the Performance Improvement Plan warrants a Verbal Warning. Therefore, I am providing you with a Level 1 Verbal Warning in accordance with the Civil Service Underperformance Policy, which equates to the same level of warning under the Civil Service Disciplinary Code. 

A written warning was issued on 29/04/2021 sets out :

“…Having reviewed the matter and taken into account your response, I am satisfied that the lack of progress made under the Performance Improvement Plan warrants a Written Warning. Therefore, I am providing you with a Level 2 Written Warning in accordance with the Civil Service Underperformance Policy, which equates to the same level of warning under the Civil Service Disciplinary Code.”

A final written warning dated 19/05/2021 sets out :

 “I am satisfied that the lack of progress made under the Performance Improvement Plan warrants a Final Written Warning. Therefore, I am providing you with a Level 3 Final Written Warning in accordance with the Civil Service Underperformance Policy, which equates to the same level of warning under the Civil Service Disciplinary Code….

The PIP has now concluded and you have received a Level Three Final Written Warning. Having regard to the extent to which you failed to engage with the PIP, it is urgent and imperative that you immediately address the performance issues that have been identified to you, at length, and thereby to improve your performance. You will be provided with a further period of two weeks from the date of this letter to improve your performance and, at the end of that period, you will be called to a disciplinary meeting under the Civil Service Disciplinary Code. If your performance has not improved to a satisfactory standard when assessed at such a disciplinary meeting you may be subject to a further disciplinary sanction, up to and including dismissal.

Evidence of Complainant:

The complainant is 18 years working with the respondent and in her role is sent information by the schools and may need to do a school visit and that it is a rewarding role  There has been a WRC hearing and a Labour Court Hearing and a High Court hearing.  She said she had been penalised and that it was her belief that she should only attend school if there was no alternative and her health and safety concerns came about following research and that the public health advice was to do things remotely.  She said this background was in front of the WRC and the Labour Court and she neither convicted or exonerated with the performance process and that ‘but for’ raising her complaint the respondent would not have engaged with the warnings.  There was a gradual build up from the respondent.  This has taken an enormous tole on her and her family and she is still working full time while dealing with all the details of the respondent’s submissions regarding matters and that she commissioned her own report which found the approach by the respondent brought risk to the students, staff and teachers.

Cross Examination of Complainant:

Under cross examination the complainant said the penalisation was threat of dismissal, imposition of disciplinary, coercion or intimidation and that the safety concern she raised was school visits during Covid.  The High Court did not proceed with the penalisation aspect of her complaint which the WRC and Labour Court looked at.  There has been a WRC decision ADJ-00029820 issued and a Labour Court decision HSD224 and there were numerous dates for case management for the high court and a high court judgement issued on 16/03/2023 after the submission of this instant complaint.  The WRC decision had referred to  documents including Covid-19 Guidance for NCSE staff completing school visits to deliver NCSE services, NCSE Covid-19 Response Plan: Compliance with Return to Work Safely Protocols on 4 August 2020, SENO Operational Guidelines 2020/21, Standard Operating Procedures (SOP) issued on 19 May 2021; Covid 19 School and Home Visit, Civil Service Disciplinary Code and procedure under the Underperformance Policy.  The WRC Decision referred to penalisation and the law was set out in that decision and in the Labour Court Decision HSD224 she confirmed that the Labour Court decided she had made a health and safety complaint and that there was a penalisation that the Labour Court referred to as “de minimis” and declined to award compensation and that the appeal regarding disciplinary action failed and that her issue was whether the respondent was complying with health and safety.  She said that the High Court judgement found that the applicant was unsuccessful and denied that the instant matters had been decided previously.

The respondent referenced during their submission the vast tomes of documentation relevant to the complaints between the complainant and the respondent and outlined that the respondent is entitled to initiate disciplinary procedures on foot of the failure of the complainant to carry out a reasonable instruction and there has been WRC decision and Labour Court decision and High Court judgment regarding related matters and that the complaints are res judicia.   The complainant had been removed from a role and the Labour Court  determined that this was a ‘de  minimis’ breach and that compensation was not appropriate and the Labour Court  found that the Complainant was not penalised for having raised safety concerns but was disciplined because she would not attend school meetings, despite being instructed to do so.

Reference was made to the Labour Court Decision whereby

“It cannot be open to an employee to decide simply that they are acting in accordance with the protections of the Act and that their employer is, as a consequence, obliged automatically to accept that contention and, as a result, the employee is exempted automatically from any related instruction”.

And that

“Any employer is entitled to initiate disciplinary processes where an employee is not acting in accordance with a legitimate instruction. That is what occurred in this case.”

The Labour Court found that there was no breach as a result. The Complainant is attempting to re-litigate the same cause of action before this hearing and simultaneously before the High Court. This is raised as a preliminary objection and the Complainant is still refusing to perform this essential role of her job, namely school visits and the within complaints all arise from the same issue, namely the refusal of the Complainant to carry out school visits in line with her contract of employment. As a result, there has been three separate processes, two of which were initiated under the Civil Service Disciplinary Code and one initiated under the Civil Service Underperformance Policy.

The complainant received  under the Civil Service Disciplinary Code a Final Written Warning following an instruction issued 14/08/20, alleged safety concern 31/08/20, first disciplinary hearing 14/09/20, final written warning 17/09/20 and submission of her complaint to the WRC on 01/10/20 which was dismissed by the WRC; appealed to Labour Court and appealed by the Complainant to the High Court.  There was a first appeal process of final written warning with an internal appeal on 23/12/20, with an external appeal on 05/03/2021 which recommended investigation.  There followed on 6/05/21 First External Investigation Report and on 28/05/21 the final written warning was upheld.  There then followed a second appeal process with a second disciplinary hearing on 18/05/21, and the FWW of 17/09/20 was upheld.  On 03/09/21 there was a second internal appeal and a second external appeal on 22/11/21 and thereafter followed on 10/12/21 a letter from the CEO letter submitting she did not accept Second External Appeal decision and the FWW of 17/09/20 was upheld.

There was a second External Investigation Report issued 19/08/21 and a decision not to convene disciplinary hearing yet due to multiple live procedures and there were procedures utilised under the Underperformance Policy whereby on 07/09/20 Complainant alleges this is the first time that the PIP was mentioned, 02/11/20 PIP underperformance flagged, 18/11/20 PIP Review Meeting , 08/04/21 First Verbal Warning, 22/04/21 Second Verbal Warning, 29/04/21 Progress Review Meeting under Underperformance Policy, 19/05/21 FWW issued, 22/07/21 Internal Appeal of FWW), 01/09/22 Email to complainant withdrawing FWW of 19/05/21 due to unavailability of External Appeal Officer.

It was submitted that complainant refers to the same disciplinary procedure invoked by the Respondent, and one in which has been adjudicated upon by the WRC, Labour Court and is on appeal to the High Court relating to one disciplinary process. This matter is res judicata, complaints are out of time with allegations of raising safety concerns in August 2020.  The Complainant relies on the exact same facts that were heard in full and decided upon, against the Complainant, before the WRC, Labour Court, and which is now on appeal by the Complainant to the High Court.  It has already been decided that the Final Written Warning of 17/09/2020 was not penalisation within the meaning of the 2005 Act. The complaints now raised by the Complainant are follow-ups to that same procedure, and that same cause of action decided upon by another forum.

A PIP Review Meeting with the Complainant took place on 18/11/2020, with a PIP being put in place in December 2020. Subsequently verbal warnings were given to the Complainant on 08/04/2021 and 22/04/ 2021, with a further progress meeting held on 29/04/2021. This culminated in a Final Written Warning issuing to the Complainant on 29/04/2021.   The Complainant was allowed an appeal of the said Final Written Warning, which provided to her on 22/07/ 2021 and appealed again to an External Appeal Officer, but due to circumstances outside the Respondent’s control this appeal could not proceed. The Respondent as a consequence to ensure fairness and a fair process to the Complainant withdrew the final written warning.  An External Investigation Report was published and on 19/08/2021, the Respondent emailed the Complainant, the Report and informed her that a decision had been made not to convene a disciplinary hearing due to the multiple procedures that were live with  no further progress on this matter. The Complainant cannot meet the burden that is on her to suggest that the above is penalisation. The Respondent was entitled to invoke the Underperformance Policy as set out in the documentation.

The Complainant cannot prove, on the balance of probabilities, that she suffered a detriment because of, or in retaliation for, having committed a protected act under the 2005 Act.

Evidence of Mr Trevor Jordan:

Evidence of Mr Trevor Jordan was that he joined November 2022 and that during covid the respondent like other organisations had to adapt to  circumstances and there were some visits to schools with appropriate provisions.

Cross Examination of Mr Trevor Jordan:

Under cross examination Mr Jordan said he took over duties including health and safety and that decisions made were based on health guidelines and he could not answer hypothetical questions and that any member can raise it with him if they have health and safety concerns and that the response would be different depending on the health and safety concern and that the response to a potential gas leak would be different to a running tap.  He would be the decision maker or someone delegated to make a decision and could not speak to who a competent person might be as every case is different and that safety controls must be in place and that his understanding was that management made decisions at the time.  He said the law is the law and the obligations are set out in the law and could not comment on where there might be two instructions what might get the priority and he would not disagree with the obligations set out in the law.  He could not answer to whether someone involved in a decision should continue to be involved in a decision.

Parties submitted extensive submissions and additional submissions including substantial correspondence regarding events including reference to WRC Decision ADJ-00029820 (25/01/2022) and its appeal to the Labour Court HSD224 ( 10/06/2022) and High Court Judgement 2022 214 MCA (16/03/2023) and whilst I will not be referring to every email, or incident I have taken into account all the submissions made to me in the course of my investigation as well as the evidence presented at the hearing.  Reference was made to relevant procedures including Civil Service Disciplinary Code and procedure under the Underperformance Policy.

In summary this instant complaint is that the complainant raised a health and safety complaint on 31/08/2020 and that she was penalised by the misuse of the management of the Underperformance Policy which culminated in a Verbal Warning issued on 14/04/2021, Written Warning 22/04/2021 and a Final Written Warning issued on 19/05/2021 under the Civil Service Underperformance Policy and that but for raising a health and safety complaint she would not have received warnings which amounted to penalisation.  The respondent submits that the complaints have already been decided upon and that all the complaints are therefore res judicata and without prejudice to same that the complainant was  not penalised.

I note the complainant raised a health and safety complaint on 31/08/2020 and received a Verbal Warning issued on 14/04/2021, Written warning 22/04/2021 and a Final Written Warning issued on 19/05/2021.  It was not in dispute that the complaints within the WRC Adjudication Decision ADJ-00029820 reference complaints received by the WRC  10/10/2020.  I find therefore, that warnings referenced by the complainant in this specific complaint were issued after the previous complaint received by the WRC, therefore, have not already been decided upon and therefore are not res judicata.

Health, Welfare and Safety at Work Act, 2005

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 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.

(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 undersection 11or appointed undersection 18to 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.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

It is to be established if in the cognisable period, 17/05/2021 - 16/11/2021, the Respondent acted in a manner contrary to the terms of s.27.  The verbal warning and written warning were issued outside this cognisable period and there was no reasonable cause to extend this time further.  The Final Written Warning was issued on 19/05/2021 and is within the cognisable period.

My role as set out in the Labour Court Decision HSD224 familiar to the parties, is to establish if there was a protected act as per s.27(3) which there was on 30/08/2020.  It is next to be determined if the complainant suffered a detriment, and noting that imposition of any discipline, reprimand or other penalty (including a financial penalty), a final written warning would be seen as a detriment.  As the answer to both of these questions is the affirmative it is then to be established if there is a causal link between the two?

As detailed in Paul O’Neill v Toni & Guy Blackrock Limited [2010] ELR 1,

 “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 Labour Court Decision HSD224 which referenced some of these aforementioned incidents sets out:

“The appeal by the Complainant regarding disciplinary action taken against her fails as the Court is satisfied that this arose due to the Complainant’s non compliance with a legitimate instruction”.

Having reviewed the extensive submissions and albeit the specific disciplinary action referred to in HSD224 differs in date to the instant of 19/05/2021, I find that the complainant was issued a warning due to failures to comply with legitimate instructions, the details of which were set out in the warning

“….the lack of progress made under the Performance Improvement Plan warrants a Final Written Warning. …it is urgent and imperative that you immediately address the performance issues that have been identified to you, at length, and thereby to improve your performance

This LC Decision HSD224 further sets out:

“…for penalisation to be established ‘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’.”

The respondent has shown other, objective, reasons for the initiation of a disciplinary process unrelated to the fact that the Complainant raised safety concerns and therefore the ‘but for’ test has not been met and I find that the complainant was not penalised and the complaint is not well founded.

The complainant commenced employment on 01/09/2004, her complaint was received by the WRC on 16/11/2021 and she is employed as a Special Education Needs Organiser.  The complainant referenced during her submission the vast tomes of documentation relevant to the complaints between the complainant and the respondent.

The complainant was instructed by management on 25/08/2020 to carry out a business activity in schools that, as a trained Lead Worker Representative, she believed to be in contravention of the “(Return to) Work Safely Protocols” and posed an unnecessary risk to staff, the school communities and public, contrary to the statutory obligations on employers set out in the Safety Health and Welfare at Work Act 2005.  She raised this concern informally on 25/08/2020 and formally 31/08/2020 in 15 clear points and the respondent failed to consider it appropriate under the Act and upon return to work safety protocol and the employer then commenced penalisations to stop the complainant requesting appropriate safety controls. The respondent advised that the complainant misunderstood the Lead Worker Representative role, and submitted that she “refused to carry out a reasonable management instruction”.

The complainant was seeking redress for protracted penalisation over a 24 month period, while she made every possible effort to cooperate with the employer and to act calmly and professionally at all times, while she endeavoured to comply with duties as a Lead Worker representative and as an employee with responsibilities under the Safety, Health and Welfare at Work Act 2005.  Each independent examination carried out under the Civil Service Disciplinary Code of the respondent’s pursuit of disciplinary sanctions against her for raising a safety concern and for acting in compliance with the relevant statutory provisions has found that the management instruction was “unfair” and “unreasonable” and that the respondent repeatedly failed “to adhere to the rules of natural justice” and “failed to adhere to its own disciplinary policy”.  The External Appeal Officers in the first and third disciplinary actions found “the procedures … to be fundamentally flawed from the outset”. The second disciplinary action did not proceed past an External Investigation, which found the management instruction to visit schools without reasonable controls during a pandemic to be “unreasonable” and “unfair”. Nevertheless, the respondent persisted with its campaign of coercion and penalisation of the Complainant, despite the findings and recommendations of its own Disciplinary Processes and External Investigator; and despite even being provided with the opinion of a “competent person” under the Safety, Health and Welfare at Work Act 2005, at the Complainant’s expense.

It was submitted it is for the Respondent to demonstrate to the Adjudicator that it had legitimate grounds to discipline the Complainant for allegedly “refusing or failing to comply with a reasonable management instruction”. As the Respondent is claiming that the instruction is reasonable because it complies with all legislation, it is for the Respondent to provide evidence that the employer legitimately disciplined the employee: in respect of a management instruction that was in compliance with relevant legislation and policies and which was therefore a reasonable instruction by management, which instruction was unreasonably refused or failed to be carried out by the employee with no good reason given.  The employer has consistently presented this matter as one of a disobedient employee and that is to trivialise the implications of this adjudication to the widespread and general detriment of employees. She submitted that had she been a less experienced employee, the relentless undermining, which at times resembled gaslighting, may have had a much more harrowing impact.

The complainant submitted she was penalised for complying with or making a complaint under the Act and that she was penalised for raising a safety concern by misuse of the Management of Underperformance Policy. She said she raised a safety concern with her employer on 31/08/2020 that an instruction was given by line management to the respondent’s SENO staff on 26/08/2020 to attend in schools for the purposes of carrying out administrative work and holding meetings with school staff contravened covid protocols. Personnel Officer threatened, then initiated a series of unwarranted Disciplinary Actions which culminated in a Final Written Warning being issued on 28/05/2021 that set out:

“Having considered the matter I find your refusal to comply with reasonable management instructions constitutes serious misconduct and warrants appropriate disciplinary action.

Given that this matter was previously appealed and is not being reconsidered, I have decided that it is appropriate to confirm the Level 3 Final Written Warning which was administered on September 17th 2020.  This Final Written Warning will remain active for 24 months form September 17th 2020.”

This sanction was at External Appeal stage at the time of lodging the complaint.

Evidence of Complainant:

The complainant is 18 years working with the respondent and in her role is sent information by the schools and may need to do a school visit and that it is a rewarding role  There has been a WRC hearing and a Labour Court Hearing and a High Court hearing.  She said she had been penalised and that it was her belief that she should only attend school if there was no alternative and her health and safety concerns came about following research and that the public health advice was to do things remotely.  She said this background was in front of the WRC and the Labour Court and she neither convicted or exonerated with the performance process and that ‘but for’ raising her complaint the respondent would not have engaged with the warnings.  There was a gradual build up from the respondent.  This has taken an enormous tole on her and her family and she is still working full time while dealing with all the details of the respondent’s submissions regarding matters and that she commissioned her own report which found the approach by the respondent brought risk to the students, staff and teachers.

Cross Examination of Complainant:

Under cross examination the complainant said the penalisation was threat of dismissal, imposition of disciplinary, coercion or intimidation and that the safety concern she raised was school visits during Covid.  The High Court did not proceed with the penalisation aspect of her complaint which the WRC and Labour Court looked at.  There has been a WRC decision ADJ-00029820 issued and a Labour Court decision HSD224 and there were numerous dates for case management for the high court and a high court judgement issued on 16/03/2023 after the submission of this instant complaint.  The WRC decision had referred to  documents including Covid-19 Guidance for NCSE staff completing school visits to deliver NCSE services, NCSE Covid-19 Response Plan: Compliance with Return to Work Safely Protocols on 4 August 2020, SENO Operational Guidelines 2020/21, Standard Operating Procedures (SOP) issued on 19 May 2021; Covid 19 School and Home Visit, Civil Service Disciplinary Code and procedure under the Underperformance Policy.  The WRC Decision referred to penalisation and the law was set out in that decision and in the Labour Court Decision HSD224 she confirmed that the Labour Court decided she had made a health and safety complaint and that there was a penalisation that the Labour Court referred to as “de minimis” and declined to award compensation and that the appeal regarding disciplinary action failed and that her issue was whether the respondent was complying with health and safety.  She said that the High Court judgement found that the applicant was unsuccessful and denied that the instant matters had been decided previously.

The respondent referenced during their submission the vast tomes of documentation relevant to the complaints between the complainant and the respondent and outlined that the respondent is entitled to initiate disciplinary procedures on foot of the failure of the complainant to carry out a reasonable instruction and there has been WRC decision and Labour Court decision and High Court judgment regarding related matters and that the complaints are res judicia.   The complainant had been removed from a role and the Labour Court  determined that this was a ‘de  minimis’ breach and that compensation was not appropriate and the Labour Court  found that the Complainant was not penalised for having raised safety concerns but was disciplined because she would not attend school meetings, despite being instructed to do so.

Reference was made to the Labour Court Decision whereby

“It cannot be open to an employee to decide simply that they are acting in accordance with the protections of the Act and that their employer is, as a consequence, obliged automatically to accept that contention and, as a result, the employee is exempted automatically from any related instruction”.

And that

“Any employer is entitled to initiate disciplinary processes where an employee is not acting in accordance with a legitimate instruction. That is what occurred in this case.”

The Labour Court found that there was no breach as a result. The Complainant is attempting to re-litigate the same cause of action before this hearing and simultaneously before the High Court. This is raised as a preliminary objection and the Complainant is still refusing to perform this essential role of her job, namely school visits and the within complaints all arise from the same issue, namely the refusal of the Complainant to carry out school visits in line with her contract of employment. As a result, there has been three separate processes, two of which were initiated under the Civil Service Disciplinary Code and one initiated under the Civil Service Underperformance Policy.

The complainant received  under the Civil Service Disciplinary Code a Final Written Warning following an instruction issued 14/08/20, alleged safety concern 31/08/20, first disciplinary hearing 14/09/20, final written warning 17/09/20 and submission of her complaint to the WRC on 01/10/20 which was dismissed by the WRC; appealed to Labour Court and appealed by the Complainant to the High Court.  There was a first appeal process of final written warning with an internal appeal on 23/12/20, with an external appeal on 05/03/2021 which recommended investigation.  There followed on 6/05/21 First External Investigation Report and on 28/05/21 the final written warning was upheld.  There then followed a second appeal process with a second disciplinary hearing on 18/05/21, and the FWW of 17/09/20 was upheld.  On 03/09/21 there was a second internal appeal and a second external appeal on 22/11/21 and thereafter followed on 10/12/21 a letter from the CEO letter submitting she did not accept Second External Appeal decision and the FWW of 17/09/20 was upheld.

There was a second External Investigation Report issued 19/08/21 and a decision not to convene disciplinary hearing yet due to multiple live procedures and there were procedures utilised under the Underperformance Policy whereby on 07/09/20 Complainant alleges this is the first time that the PIP was mentioned, 02/11/20 PIP underperformance flagged, 18/11/20 PIP Review Meeting , 08/04/21 First Verbal Warning, 22/04/21 Second Verbal Warning, 29/04/21 Progress Review Meeting under Underperformance Policy, 19/05/21 FWW issued, 22/07/21 Internal Appeal of FWW), 01/09/22 Email to complainant withdrawing FWW of 19/05/21 due to unavailability of External Appeal Officer.

It was submitted that complainant refers to the same disciplinary procedure invoked by the Respondent, and one in which has been adjudicated upon by the WRC, Labour Court and is on appeal to the High Court relating to one disciplinary process. This matter is res judicata, complaints are out of time with allegations of raising safety concerns in August 2020.  The Complainant relies on the exact same facts that were heard in full and decided upon, against the Complainant, before the WRC, Labour Court, and which is now on appeal by the Complainant to the High Court.  It has already been decided that the Final Written Warning of 17/09/2020 was not penalisation within the meaning of the 2005 Act. The complaints now raised by the Complainant are follow-ups to that same procedure, and that same cause of action decided upon by another forum.

A PIP Review Meeting with the Complainant took place on 18/11/2020, with a PIP being put in place in December 2020. Subsequently verbal warnings were given to the Complainant on 08/04/2021 and 22/04/ 2021, with a further progress meeting held on 29/04/2021. This culminated in a Final Written Warning issuing to the Complainant on 29/04/2021.   The Complainant was allowed an appeal of the said Final Written Warning, which provided to her on 22/07/ 2021 and appealed again to an External Appeal Officer, but due to circumstances outside the Respondent’s control this appeal could not proceed. The Respondent as a consequence to ensure fairness and a fair process to the Complainant withdrew the final written warning.  An External Investigation Report was published and on 19/08/2021, the Respondent emailed the Complainant, the Report and informed her that a decision had been made not to convene a disciplinary hearing due to the multiple procedures that were live with  no further progress on this matter. The Complainant cannot meet the burden that is on her to suggest that the above is penalisation. The Respondent was entitled to invoke the Underperformance Policy as set out in the documentation.

The Complainant cannot prove, on the balance of probabilities, that she suffered a detriment because of, or in retaliation for, having committed a protected act under the 2005 Act.

Evidence of Mr Trevor Jordan:

Evidence of Mr Trevor Jordan was that he joined November 2022 and that during covid the respondent like other organisations had to adapt to  circumstances and there were some visits to schools with appropriate provisions.

Cross Examination of Mr Trevor Jordan:

Under cross examination Mr Jordan said he took over duties including health and safety and that decisions made were based on health guidelines and he could not answer hypothetical questions and that any member can raise it with him if they have health and safety concerns and that the response would be different depending on the health and safety concern and that the response to a potential gas leak would be different to a running tap.  He would be the decision maker or someone delegated to make a decision and could not speak to who a competent person might be as every case is different and that safety controls must be in place and that his understanding was that management made decisions at the time.  He said the law is the law and the obligations are set out in the law and could not comment on where there might be two instructions what might get the priority and he would not disagree with the obligations set out in the law.  He could not answer to whether someone involved in a decision should continue to be involved in a decision.

Parties submitted extensive submissions and additional submissions including substantial correspondence regarding events including reference to WRC Decision ADJ-00029820 issued 25/01/2022 and its appeal to the Labour Court HSD224 issued 10/06/2022 and High Court Judgement 2022 214 MCA issued 16/03/2023 and whilst I will not be referring to every email, or incident I have taken into account all the submissions made to me in the course of my investigation as well as the evidence presented at the hearing.  Reference was made to relevant procedures including Civil Service Disciplinary Code and procedure under the Underperformance Policy.

In summary the instant complaint is that the complainant submits that she raised a health and safety complaint on 31/08/2020 and that she was penalised by the misuse of the management of the Underperformance Policy which culminated in a series of unwarranted Disciplinary Actions which culminated in a Final Written Warning issued to on 28/05/2021 and that but for raising a health and safety complaint she would not have received this which amounted to penalisation.  The respondent submits that the complaints have already been decided upon and that all the complaints are therefore res judicata and without prejudice to same that the complainant was  not penalised.

I note the complainant raised a health and safety complaint on 31/08/2020 and it was not in dispute that on 28/05/2021 she received communication that a final written warning of 17/09/2020 was upheld.  It was not in dispute that the complaints within the WRC Adjudication Decision ADJ-00029820 reference complaints received by the WRC 01/10/2020.  I find therefore, that the warning dated 28/05/2021 referenced by the complainant in this specific complaint was issued after the previous complaint received by the WRC, therefore, has not already been decided upon and therefore is not res judicata.

Health, Welfare and Safety at Work Act, 2005

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 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.

(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 undersection 11or appointed undersection 18to 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.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

It is to be established if in the cognisable period, 17/05/2021 - 16/11/2021, the Respondent acted in a manner contrary to the terms of s.27.  The Final Written Warning was issued on 28/05/2021 and is within the cognisable period.

My role as set out in the Labour Court Decision HSD224 familiar to the parties, is to establish if there was a protected act as per s.27(3) which there was on 30/08/2020.  It is next to be determined if the complainant suffered a detriment, and noting that imposition of any discipline, reprimand or other penalty (including a financial penalty), a final written warning would be seen as a detriment.  As the answer to both of these questions is the affirmative it is then to be established if there is a causal link between the two?

As detailed in Paul O’Neill v Toni & Guy Blackrock Limited [2010] ELR 1,

 “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 Labour Court Decision HSD224 which referenced some of these aforementioned incidents sets out :

“The appeal by the Complainant regarding disciplinary action taken against her fails as the Court is satisfied that this arose due to the Complainant’s non compliance with a legitimate instruction”.

Having reviewed the extensive submissions and albeit the specific disciplinary action referred to in HSD224 differs in date to the instant of 28/05/2021, I find that the complainant was issued a warning due to her failure to comply with management instructionsthe details of which were set out in the warning :

“your refusal to comply with reasonable management instructions constitutes serious misconduct and warrants appropriate disciplinary action”….I have decided it is appropriate to confirm the Level 3 Final Written Warning which was administered on 17/09/2020”.

The LC Decision HSD224 further sets out:

“…for penalisation to be established ‘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’.”

The respondent has shown other, objective, reasons for the initiation of a disciplinary process unrelated to the fact that the Complainant raised safety concerns and therefore the ‘but for’ test has not been met and I find that the complainant was not penalised and the complaint is not well founded.

The complainant commenced employment on 01/09/2004, her complaint was received by the WRC on 16/11/2021 and she is employed as a Special Education Needs Organiser.  The complainant referenced during her submission the vast tomes of documentation relevant to the complaints between the complainant and the respondent.

The complainant was instructed by management on 25/08/2020 to carry out a business activity in schools that, as a trained Lead Worker Representative, she believed to be in contravention of the “(Return to) Work Safely Protocols” and posed an unnecessary risk to staff, the school communities and public, contrary to the statutory obligations on employers set out in the Safety Health and Welfare at Work Act 2005.  She raised this concern informally on 25/08/2020 and formally 31/08/2020 in 15 clear points and the respondent failed to consider it appropriate under the Act and upon return to work safety protocol and the employer then commenced penalisations to stop the complainant requesting appropriate safety controls. The respondent advised that the complainant misunderstood the Lead Worker Representative role, and submitted that she “refused to carry out a reasonable management instruction”.

The complainant was seeking redress for protracted penalisation over a 24 month period, while she made every possible effort to cooperate with the employer and to act calmly and professionally at all times, while she endeavoured to comply with duties as a Lead Worker representative and as an employee with responsibilities under the Safety, Health and Welfare at Work Act 2005.  Each independent examination carried out under the Civil Service Disciplinary Code of the respondent’s pursuit of disciplinary sanctions against her for raising a safety concern and for acting in compliance with the relevant statutory provisions has found that the management instruction was “unfair” and “unreasonable” and that the respondent repeatedly failed “to adhere to the rules of natural justice” and “failed to adhere to its own disciplinary policy”.  The External Appeal Officers in the first and third disciplinary actions found “the procedures … to be fundamentally flawed from the outset”. The second disciplinary action did not proceed past an External Investigation, which found the management instruction to visit schools without reasonable controls during a pandemic to be “unreasonable” and “unfair”. Nevertheless, the respondent persisted with its campaign of coercion and penalisation of the Complainant, despite the findings and recommendations of its own Disciplinary Processes and External Investigator; and despite even being provided with the opinion of a “competent person” under the Safety, Health and Welfare at Work Act 2005, at the Complainant’s expense.

It was submitted it is for the Respondent to demonstrate to the Adjudicator that it had legitimate grounds to discipline the Complainant for allegedly “refusing or failing to comply with a reasonable management instruction”. As the Respondent is claiming that the instruction is reasonable because it complies with all legislation, it is for the Respondent to provide evidence that the employer legitimately disciplined the employee: in respect of a management instruction that was in compliance with relevant legislation and policies and which was therefore a reasonable instruction by management, which instruction was unreasonably refused or failed to be carried out by the employee with no good reason given.  The employer has consistently presented this matter as one of a disobedient employee and that is to trivialise the implications of this adjudication to the widespread and general detriment of employees. She submitted that had she been a less experienced employee, the relentless undermining, which at times resembled gaslighting, may have had a much more harrowing impact.

The complainant submitted she was penalised for raising a safety concern with her line manager on 14/06/2021 that an instruction to attend a school for the purposes of carrying out administrative work and meeting with school staff contravened covid protocols. Specifically, she asked to be allowed to carry out school visits in compliance with the national “Work Safely Protocol.  Her line manager communicated this to the Personnel Officer who initiated disciplinary action 29/06/2021:

“I refer to recent correspondence with your Team Manager Deirdre Tobin, regarding an instruction to make contact with a school, to arrange a date to visit this school to review their SNA allocation for the 2021/2022 school year and I note that you have not carried out this instruction as requested despite a number of requests from your manager to do so. It has therefore been decided that an investigation under the Civil Service Disciplinary Code into your conduct in this matter will take place”.

The complainant was advised on 19/08/2021 that

“Further to previous correspondence, I wish to advise you that Ms C  has now investigated this matter and provided a report which I have attached. You will note that, among other findings, Ms C has found that you repeatedly refused to carry out reasonable instructions. The findings of the report are such that they merit this matter being the subject of a disciplinary meeting. I am conscious that you have a number of appeals in progress regarding disciplinary sanctions. In order to allow you time to address the issues arising, I will not immediately convene a disciplinary meeting in respect of this investigation report. Once the other appeals have concluded I will convene a disciplinary meeting to put any concerns arising from the report to you and allow you to respond. A copy of the Disciplinary Code is attached.”

Evidence of Complainant:

The complainant is 18 years working with the respondent and in her role is sent information by the schools and may need to do a school visit and that it is a rewarding role  There has been a WRC hearing and a Labour Court Hearing and a High Court hearing.  She said she had been penalised and that it was her belief that she should only attend school if there was no alternative and her health and safety concerns came about following research and that the public health advice was to do things remotely.  She said this background was in front of the WRC and the Labour Court and she neither convicted or exonerated with the performance process and that ‘but for’ raising her complaint the respondent would not have engaged with the warnings.  There was a gradual build up from the respondent.  This has taken an enormous tole on her and her family and she is still working full time while dealing with all the details of the respondent’s submissions regarding matters and that she commissioned her own report which found the approach by the respondent brought risk to the students, staff and teachers.

Under cross examination the complainant said the penalisation was threat of dismissal, imposition of disciplinary, coercion or intimidation and that the safety concern she raised was school visits during Covid.  The High Court did not proceed with the penalisation aspect of her complaint which the WRC and Labour Court looked at.  There has been a WRC decision ADJ-00029820 issued and a Labour Court decision HSD224 and there were numerous dates for case management for the high court and a high court judgement issued on 16/03/2023 after the submission of this instant complaint.  The WRC decision had referred to  documents including Covid-19 Guidance for NCSE staff completing school visits to deliver NCSE services, NCSE Covid-19 Response Plan: Compliance with Return to Work Safely Protocols on 4 August 2020, SENO Operational Guidelines 2020/21, Standard Operating Procedures (SOP) issued on 19 May 2021; Covid 19 School and Home Visit, Civil Service Disciplinary Code and procedure under the Underperformance Policy.  The WRC Decision referred to penalisation and the law was set out in that decision and in the Labour Court Decision HSD224 she confirmed that the Labour Court decided she had made a health and safety complaint and that there was a penalisation that the Labour Court referred to as “de minimis” and declined to award compensation and that the appeal regarding disciplinary action failed and that her issue was whether the respondent was complying with health and safety.  She said that the High Court judgement found that the applicant was unsuccessful and denied that the instant matters had been decided previously.

T The respondent referenced during their submission the vast tomes of documentation relevant to the complaints between the complainant and the respondent and outlined that the respondent is entitled to initiate disciplinary procedures on foot of the failure of the complainant to carry out a reasonable instruction and there has been WRC decision and Labour Court decision and High Court judgment regarding related matters and that the complaints are res judicia.   The complainant had been removed from a role and the Labour Court  determined that this was a ‘de  minimis’ breach and that compensation was not appropriate and the Labour Court  found that the Complainant was not penalised for having raised safety concerns but was disciplined because she would not attend school meetings, despite being instructed to do so.

Reference was made to the Labour Court Decision whereby

“It cannot be open to an employee to decide simply that they are acting in accordance with the protections of the Act and that their employer is, as a consequence, obliged automatically to accept that contention and, as a result, the employee is exempted automatically from any related instruction”.

And that

“Any employer is entitled to initiate disciplinary processes where an employee is not acting in accordance with a legitimate instruction. That is what occurred in this case.”

The Labour Court found that there was no breach as a result. The Complainant is attempting to re-litigate the same cause of action before this hearing and simultaneously before the High Court. This is raised as a preliminary objection and the Complainant is still refusing to perform this essential role of her job, namely school visits and the within complaints all arise from the same issue, namely the refusal of the Complainant to carry out school visits in line with her contract of employment. As a result, there has been three separate processes, two of which were initiated under the Civil Service Disciplinary Code and one initiated under the Civil Service Underperformance Policy.

The complainant received  under the Civil Service Disciplinary Code a Final Written Warning following an instruction issued 14/08/20, alleged safety concern 31/08/20, first disciplinary hearing 14/09/20, final written warning 17/09/20 and submission of her complaint to the WRC on 01/10/20 which was dismissed by the WRC; appealed to Labour Court and appealed by the Complainant to the High Court.  There was a first appeal process of final written warning with an internal appeal on 23/12/20, with an external appeal on 05/03/2021 which recommended investigation.  There followed on 6/05/21 First External Investigation Report and on 28/05/21 the final written warning was upheld.  There then followed a second appeal process with a second disciplinary hearing on 18/05/21, and the FWW of 17/09/20 was upheld.  On 03/09/21 there was a second internal appeal and a second external appeal on 22/11/21 and thereafter followed on 10/12/21 a letter from the CEO letter submitting she did not accept Second External Appeal decision and the FWW of 17/09/20 was upheld.

There was a second External Investigation Report issued 19/08/21 and a decision not to convene disciplinary hearing yet due to multiple live procedures and there were procedures utilised under the Underperformance Policy whereby on 07/09/20 Complainant alleges this is the first time that the PIP was mentioned, 02/11/20 PIP underperformance flagged, 18/11/20 PIP Review Meeting , 08/04/21 First Verbal Warning, 22/04/21 Second Verbal Warning, 29/04/21 Progress Review Meeting under Underperformance Policy, 19/05/21 FWW issued, 22/07/21 Internal Appeal of FWW), 01/09/22 Email to complainant withdrawing FWW of 19/05/21 due to unavailability of External Appeal Officer.

It was submitted that complainant refers to the same disciplinary procedure invoked by the Respondent, and one in which has been adjudicated upon by the WRC, Labour Court and is on appeal to the High Court relating to one disciplinary process. This matter is res judicata, complaints are out of time with allegations of raising safety concerns in August 2020.  The Complainant relies on the exact same facts that were heard in full and decided upon, against the Complainant, before the WRC, Labour Court, and which is now on appeal by the Complainant to the High Court.  It has already been decided that the Final Written Warning of 17/09/2020 was not penalisation within the meaning of the 2005 Act. The complaints now raised by the Complainant are follow-ups to that same procedure, and that same cause of action decided upon by another forum.

A PIP Review Meeting with the Complainant took place on 18/11/2020, with a PIP being put in place in December 2020. Subsequently verbal warnings were given to the Complainant on 08/04/2021 and 22/04/ 2021, with a further progress meeting held on 29/04/2021. This culminated in a Final Written Warning issuing to the Complainant on 29/04/2021.   The Complainant was allowed an appeal of the said Final Written Warning, which provided to her on 22/07/ 2021 and appealed again to an External Appeal Officer, but due to circumstances outside the Respondent’s control this appeal could not proceed. The Respondent as a consequence to ensure fairness and a fair process to the Complainant withdrew the final written warning.  An External Investigation Report was published and on 19/08/2021, the Respondent emailed the Complainant, the Report and informed her that a decision had been made not to convene a disciplinary hearing due to the multiple procedures that were live with  no further progress on this matter. The Complainant cannot meet the burden that is on her to suggest that the above is penalisation. The Respondent was entitled to invoke the Underperformance Policy as set out in the documentation.

The Complainant cannot prove, on the balance of probabilities, that she suffered a detriment because of, or in retaliation for, having committed a protected act under the 2005 Act.

Evidence of Mr Trevor Jordan:

Evidence of Mr Trevor Jordan was that he joined November 2022 and that during covid the respondent like other organisations had to adapt to  circumstances and there were some visits to schools with appropriate provisions.

Cross Examination of Mr Trevor Jordan:

Under cross examination Mr Jordan said he took over duties including health and safety and that decisions made were based on health guidelines and he could not answer hypothetical questions and that any member can raise it with him if they have health and safety concerns and that the response would be different depending on the health and safety concern and that the response to a potential gas leak would be different to a running tap.  He would be the decision maker or someone delegated to make a decision and could not speak to who a competent person might be as every case is different and that safety controls must be in place and that his understanding was that management made decisions at the time.  He said the law is the law and the obligations are set out in the law and could not comment on where there might be two instructions what might get the priority and he would not disagree with the obligations set out in the law.  He could not answer to whether someone involved in a decision should continue to be involved in a decision.

.

Parties submitted extensive submissions and additional submissions including substantial correspondence regarding events including reference to WRC Decision ADJ-00029820 issued 25/01/2022 and its appeal to the Labour Court HSD224 issued 10/06/2022 and High Court Judgement 2022 214 MCA issued 16/03/2023 and whilst I will not be referring to every email, or incident I have taken into account all the submissions made to me in the course of my investigation as well as the evidence presented at the hearing.  Reference was made to relevant procedures including Civil Service Disciplinary Code and procedure under the Underperformance Policy.

In summary this instant complaint is that the complainant raised a safety concern on 14/06/2021 which culminated in being advised on 29/06/2021 that there would be an investigation and following an investigation being advised on 19/08/2021 that the “findings of the report are such that they merit this matter being the subject of a disciplinary meeting” and that it would not immediately be convened to allow the complainant time to address issues arising from other appeal and that but for raising a health and safety complaint she would not have been investigated and this amounted to penalisation.  The respondent submits that the complaints have already been decided upon and that all the complaints are therefore res judicata and without prejudice to same that the complainant was  not penalised.

The complainant raised a health and safety complaint on 14/06/2021 and was advised on 29/06/2021 that there would be an investigation under the Civil Service Disciplinary Code and further communication on 19/08/2021 advised her there would be a disciplinary process which would be put on hold to allow for other appeals.  It was not in dispute that the complaints within the WRC Adjudication Decision ADJ-00029820 reference complaints received by the WRC  10/10/2020.  I find therefore, that the dates of the complainant’s specific complaints have not already been decided upon and therefore are not res judicata.

Health, Welfare and Safety at Work Act, 2005

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 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.

(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 undersection 11or appointed undersection 18to 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.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

It is to be established if in the cognisable period, 17/05/2021 - 16/11/2021, the Respondent acted in a manner contrary to the terms of s.27.  The matters of 29/06/2021 and 19/08/2021 are within the cognisable period.

My role as set out in the Labour Court Decision HSD224 familiar to the parties is to establish if there was a protected act as per s.27(3) which there was on a number of occasions including on 14/06/2021. It is next to be determined if the complainant suffered a suffered a detriment, and noting that a threat of imposition of any discipline, reprimand or other penalty (including a financial penalty), an investigation and further movement to disciplinary would be clearly seen as a detriment.  As the answer to both of these questions if is affirmative it is then to be established if there is a causal link between the two?

As detailed in Paul O’Neill v Toni & Guy Blackrock Limited [2010] ELR 1,

 “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 Labour Court Decision HSD224 which referenced some of these aforementioned incidents sets out :

“The appeal by the Complainant regarding disciplinary action taken against her fails as the Court is satisfied that this arose due to the Complainant’s non compliance with a legitimate instruction”.

Having reviewed the extensive submissions and albeit the communication on 29/06/2021 of an investigation and then on 19/08/2021 that there would be a disciplinary meeting differs to such cautions referred to in HSD224, I find that they arose owing to the belief of the respondents that it was merited.The communication to the complainant on 29/06/2021 which I have read in conjunction with preceding communication clearly is advising the complainant of their intention to investigate what appeared to be her failure to carry out requested instructions despite previous requests. 

“You will note that, among other findings, Ms C has found that you repeatedly refused to carry out reasonable instructions. The findings of the report are such that they merit this matter being the subject of a disciplinary meeting.”

Following the investigation and the extensive report arising, the respondent advised on 19/08/2021 they would be proceeding with disciplinary meetings at a future date. 

This LC Decision HSD224 sets out:

“…for penalisation to be established ‘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’.”

The respondent has shown other, objective, reasons for matters arising on 29/06/2021 and 19/08/2021 unrelated to the fact that the Complainant raised safety concerns and therefore the ‘but for’ test has not been met and I find that the complainant was not penalised and the complaint is not well founded. 

The complainant commenced employment on 01/09/2004, her complaint was received by the WRC on 16/11/2021 and she is employed as a Special Education Needs Organiser.  The complainant referenced during her submission the vast tomes of documentation relevant to the complaints between the complainant and the respondent.

The complainant was instructed by management on 25/08/2020 to carry out a business activity in schools that, as a trained Lead Worker Representative, she believed to be in contravention of the “(Return to) Work Safely Protocols” and posed an unnecessary risk to staff, the school communities and public, contrary to the statutory obligations on employers set out in the Safety Health and Welfare at Work Act 2005.  She raised this concern informally on 25/08/2020 and formally 31/08/2020 in 15 clear points and the respondent failed to consider it appropriate under the Act and upon return to work safety protocol and the employer then commenced penalisations to stop the complainant requesting appropriate safety controls. The respondent advised that the complainant misunderstood the Lead Worker Representative role, and submitted that she “refused to carry out a reasonable management instruction”.

The complainant was seeking redress for protracted penalisation over a 24 month period, while she made every possible effort to cooperate with the employer and to act calmly and professionally at all times, while she endeavoured to comply with duties as a Lead Worker representative and as an employee with responsibilities under the Safety, Health and Welfare at Work Act 2005.  Each independent examination carried out under the Civil Service Disciplinary Code of the respondent’s pursuit of disciplinary sanctions against her for raising a safety concern and for acting in compliance with the relevant statutory provisions has found that the management instruction was “unfair” and “unreasonable” and that the respondent repeatedly failed “to adhere to the rules of natural justice” and “failed to adhere to its own disciplinary policy”.  The External Appeal Officers in the first and third disciplinary actions found “the procedures … to be fundamentally flawed from the outset”. The second disciplinary action did not proceed past an External Investigation, which found the management instruction to visit schools without reasonable controls during a pandemic to be “unreasonable” and “unfair”. Nevertheless, the respondent persisted with its campaign of coercion and penalisation of the Complainant, despite the findings and recommendations of its own Disciplinary Processes and External Investigator; and despite even being provided with the opinion of a “competent person” under the Safety, Health and Welfare at Work Act 2005, at the Complainant’s expense.

It was submitted it is for the Respondent to demonstrate to the Adjudicator that it had legitimate grounds to discipline the Complainant for allegedly “refusing or failing to comply with a reasonable management instruction”. As the Respondent is claiming that the instruction is reasonable because it complies with all legislation, it is for the Respondent to provide evidence that the employer legitimately disciplined the employee: in respect of a management instruction that was in compliance with relevant legislation and policies and which was therefore a reasonable instruction by management, which instruction was unreasonably refused or failed to be carried out by the employee with no good reason given.  The employer has consistently presented this matter as one of a disobedient employee and that is to trivialise the implications of this adjudication to the widespread and general detriment of employees. She submitted that had she been a less experienced employee, the relentless undermining, which at times resembled gaslighting, may have had a much more harrowing impact.

The complainant submitted she was penalised for complying with or making a complaint under the Act and raised a safety concern on 25/08/2021 that an instruction was given by line management to attend in schools for the purposes of carrying out administrative work and holding meetings with school staff contravened covid protocols. Her line manager communicated this to the respondent’s Personnel Officer, who threatened on 26/08/2021 to initiate Disciplinary action as “you have been repeatedly warned that the consequence of your behaviour may include disciplinary action up to and including dismissal from the Civil Service”

 Evidence of Complainant:

The complainant is 18 years working with the respondent and in her role is sent information by the schools and may need to do a school visit and that it is a rewarding role  There has been a WRC hearing and a Labour Court Hearing and a High Court hearing.  She said she had been penalised and that it was her belief that she should only attend school if there was no alternative and her health and safety concerns came about following research and that the public health advice was to do things remotely.  She said this background was in front of the WRC and the Labour Court and she neither convicted or exonerated with the performance process and that ‘but for’ raising her complaint the respondent would not have engaged with the warnings.  There was a gradual build up from the respondent.  This has taken an enormous tole on her and her family and she is still working full time while dealing with all the details of the respondent’s submissions regarding matters and that she commissioned her own report which found the approach by the respondent brought risk to the students, staff and teachers.

Cross Examination of Complainant:

Under cross examination the complainant said the penalisation was threat of dismissal, imposition of disciplinary, coercion or intimidation and that the safety concern she raised was school visits during Covid.  The High Court did not proceed with the penalisation aspect of her complaint which the WRC and Labour Court looked at.  There has been a WRC decision ADJ-00029820 issued and a Labour Court decision HSD224 and there were numerous dates for case management for the high court and a high court judgement issued on 16/03/2023 after the submission of this instant complaint.  The WRC decision had referred to  documents including Covid-19 Guidance for NCSE staff completing school visits to deliver NCSE services, NCSE Covid-19 Response Plan: Compliance with Return to Work Safely Protocols on 4 August 2020, SENO Operational Guidelines 2020/21, Standard Operating Procedures (SOP) issued on 19 May 2021; Covid 19 School and Home Visit, Civil Service Disciplinary Code and procedure under the Underperformance Policy.  The WRC Decision referred to penalisation and the law was set out in that decision and in the Labour Court Decision HSD224 she confirmed that the Labour Court decided she had made a health and safety complaint and that there was a penalisation that the Labour Court referred to as “de minimis” and declined to award compensation and that the appeal regarding disciplinary action failed and that her issue was whether the respondent was complying with health and safety.  She said that the High Court judgement found that the applicant was unsuccessful and denied that the instant matters had been decided previously.

The respondent referenced during their submission the vast tomes of documentation relevant to the complaints between the complainant and the respondent and outlined that the respondent is entitled to initiate disciplinary procedures on foot of the failure of the complainant to carry out a reasonable instruction and there has been WRC decision and Labour Court decision and High Court judgment regarding related matters and that the complaints are res judicia.   The complainant had been removed from a role and the Labour Court  determined that this was a ‘de  minimis’ breach and that compensation was not appropriate and the Labour Court  found that the Complainant was not penalised for having raised safety concerns but was disciplined because she would not attend school meetings, despite being instructed to do so.

Reference was made to the Labour Court Decision whereby

“It cannot be open to an employee to decide simply that they are acting in accordance with the protections of the Act and that their employer is, as a consequence, obliged automatically to accept that contention and, as a result, the employee is exempted automatically from any related instruction”.

And that

“Any employer is entitled to initiate disciplinary processes where an employee is not acting in accordance with a legitimate instruction. That is what occurred in this case.”

The Labour Court found that there was no breach as a result. The Complainant is attempting to re-litigate the same cause of action before this hearing and simultaneously before the High Court. This is raised as a preliminary objection and the Complainant is still refusing to perform this essential role of her job, namely school visits and the within complaints all arise from the same issue, namely the refusal of the Complainant to carry out school visits in line with her contract of employment. As a result, there has been three separate processes, two of which were initiated under the Civil Service Disciplinary Code and one initiated under the Civil Service Underperformance Policy.

The complainant received  under the Civil Service Disciplinary Code a Final Written Warning following an instruction issued 14/08/20, alleged safety concern 31/08/20, first disciplinary hearing 14/09/20, final written warning 17/09/20 and submission of her complaint to the WRC on 01/10/20 which was dismissed by the WRC; appealed to Labour Court and appealed by the Complainant to the High Court.  There was a first appeal process of final written warning with an internal appeal on 23/12/20, with an external appeal on 05/03/2021 which recommended investigation.  There followed on 6/05/21 First External Investigation Report and on 28/05/21 the final written warning was upheld.  There then followed a second appeal process with a second disciplinary hearing on 18/05/21, and the FWW of 17/09/20 was upheld.  On 03/09/21 there was a second internal appeal and a second external appeal on 22/11/21 and thereafter followed on 10/12/21 a letter from the CEO letter submitting she did not accept Second External Appeal decision and the FWW of 17/09/20 was upheld.

There was a second External Investigation Report issued 19/08/21 and a decision not to convene disciplinary hearing yet due to multiple live procedures and there were procedures utilised under the Underperformance Policy whereby on 07/09/20 Complainant alleges this is the first time that the PIP was mentioned, 02/11/20 PIP underperformance flagged, 18/11/20 PIP Review Meeting , 08/04/21 First Verbal Warning, 22/04/21 Second Verbal Warning, 29/04/21 Progress Review Meeting under Underperformance Policy, 19/05/21 FWW issued, 22/07/21 Internal Appeal of FWW), 01/09/22 Email to complainant withdrawing FWW of 19/05/21 due to unavailability of External Appeal Officer.

It was submitted that complainant refers to the same disciplinary procedure invoked by the Respondent, and one in which has been adjudicated upon by the WRC, Labour Court and is on appeal to the High Court relating to one disciplinary process. This matter is res judicata, complaints are out of time with allegations of raising safety concerns in August 2020.  The Complainant relies on the exact same facts that were heard in full and decided upon, against the Complainant, before the WRC, Labour Court, and which is now on appeal by the Complainant to the High Court.  It has already been decided that the Final Written Warning of 17/09/2020 was not penalisation within the meaning of the 2005 Act. The complaints now raised by the Complainant are follow-ups to that same procedure, and that same cause of action decided upon by another forum.

A PIP Review Meeting with the Complainant took place on 18/11/2020, with a PIP being put in place in December 2020. Subsequently verbal warnings were given to the Complainant on 08/04/2021 and 22/04/ 2021, with a further progress meeting held on 29/04/2021. This culminated in a Final Written Warning issuing to the Complainant on 29/04/2021.   The Complainant was allowed an appeal of the said Final Written Warning, which provided to her on 22/07/ 2021 and appealed again to an External Appeal Officer, but due to circumstances outside the Respondent’s control this appeal could not proceed. The Respondent as a consequence to ensure fairness and a fair process to the Complainant withdrew the final written warning.  An External Investigation Report was published and on 19/08/2021, the Respondent emailed the Complainant, the Report and informed her that a decision had been made not to convene a disciplinary hearing due to the multiple procedures that were live with  no further progress on this matter. The Complainant cannot meet the burden that is on her to suggest that the above is penalisation. The Respondent was entitled to invoke the Underperformance Policy as set out in the documentation.

The Complainant cannot prove, on the balance of probabilities, that she suffered a detriment because of, or in retaliation for, having committed a protected act under the 2005 Act.

Evidence of Mr Trevor Jordan:

Evidence of Mr Trevor Jordan was that he joined November 2022 and that during covid the respondent like other organisations had to adapt to  circumstances and there were some visits to schools with appropriate provisions.

Cross Examination of Mr Trevor Jordan:

Under cross examination Mr Jordan said he took over duties including health and safety and that decisions made were based on health guidelines and he could not answer hypothetical questions and that any member can raise it with him if they have health and safety concerns and that the response would be different depending on the health and safety concern and that the response to a potential gas leak would be different to a running tap.  He would be the decision maker or someone delegated to make a decision and could not speak to who a competent person might be as every case is different and that safety controls must be in place and that his understanding was that management made decisions at the time.  He said the law is the law and the obligations are set out in the law and could not comment on where there might be two instructions what might get the priority and he would not disagree with the obligations set out in the law.  He could not answer to whether someone involved in a decision should continue to be involved in a decision.

Parties submitted extensive submissions and additional submissions including substantial correspondence regarding events including reference to WRC Decision ADJ-00029820 issued 25/01/2022 and its appeal to the Labour Court HSD224 issued 10/06/2022 and High Court Judgement 2022 214 MCA issued 16/03/2023 and whilst I will not be referring to every email, or incident I have taken into account all the submissions made to me in the course of my investigation as well as the evidence presented at the hearing.  Reference was made to relevant procedures including Civil Service Disciplinary Code and procedure under the Underperformance Policy.

In summary this instant complaint is that the complainant raised a safety concern on 25/08/2021 and was penalised by being threatened on 26/08/2021 of initiation of Disciplinary action as “you have been repeatedly warned that the consequence of your behaviour may include disciplinary action up to and including dismissal from the Civil Service” on 26/08/2021 and that but for raising a health and safety complaint this threat would not have arisen.  The respondent submits that the complaints have already been decided upon and that all the complaints are therefore res judicata and without prejudice to same that the complainant was  not penalised.

I note a health and safety complaint was raised and the complainant submits she was advised on 26/08/2021 by email that “the consequence of your behaviour may include disciplinary action up to and including dismissal from the Civil Service”.  It was not in dispute that the complaints within the WRC Adjudication Decision ADJ-00029820 reference complaints received by the WRC 10/10/2020.  I find therefore, that the specific complaints referenced in this complaint occurred after the previous complaint received by the WRC, therefore, have not already been decided upon and therefore are not res judicata.

Health, Welfare and Safety at Work Act, 2005

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 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.

(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 undersection 11or appointed undersection 18to 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.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

It is to be established if in the cognisable period, 17/05/2021 - 16/11/2021, the Respondent acted in a manner contrary to the terms of s.27.  The matters of 26/08/2021 are within the cognisable period.

My role as set out in the Labour Court Decision HSD224 familiar to the parties, is to establish if there was a protected act as per s.27(3) which there was.  It is next to be determined if the complainant suffered a detriment, and noting that imposition of any discipline, reprimand or other penalty (including a financial penalty), would be seen as a detriment.  As the answer to both of these questions is the affirmative it is then to be established if there is a causal link between the two?

As detailed in Paul O’Neill v Toni & Guy Blackrock Limited [2010] ELR 1,

 “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 Labour Court Decision HSD224 which referenced some of these aforementioned incidents sets out :

“The appeal by the Complainant regarding disciplinary action taken against her fails as the Court is satisfied that this arose due to the Complainant’s non compliance with a legitimate instruction”

Having reviewed the extensive submissions and albeit the communication on 26/08/2021 to initiate “Disciplinary actionup to and including dismissal from the Civil Service” differs in cautions referred to in HSD224, I find that they arose owing to the belief by the respondents that it was merited.When  read in conjunction with preceding communication clearly the respondent is advising the complainant of options available to them to initiate Disciplinary action should it be warranted.

This LC Decision HSD224 sets out:

“…for penalisation to be established ‘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’.”

The respondent has shown other, objective, reasons for matters arising on 26/08/2021 unrelated to the fact that the Complainant raised safety concerns and therefore the ‘but for’ test has not been met and I find that the complainant was not penalised and the complaint is not well founded. 

CA-00047189-001

I find that the complainant was not penalised and I therefore find that the complaint is not well founded.

CA-00047189-002

I find that the complainant was not penalised and I therefore find that the complaint is not well founded.

CA-00047189-003

I find that the complainant was not penalised and I therefore find that the complaint is not well founded.

CA-00047189-004

I find that the complainant was not penalised and I therefore find that the complaint is not well founded

Penalisation, health and safety, covid, adjudication, labour court,  high court, disciplinary, appeals,