Complainant

Respondent

Parties

Máire  Aherne

National Council For Special Education

Complainant

Respondent

Anonymised Parties

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Representatives

Niamh Diskin 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-00048417-001

01/02/2022

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 01/02/2021 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 subsequently complying with the Safety, Health and Welfare at Work Act 2005 when the employer refused to consider the safety concern as it is required to do under the Act. The most recent act of penalisation by the employer was the delivery to her home address on 24/12/2021 by registered post, a Final Written Warning dated 10/12/2021 signed by the Chief Executive Officer of the respondent.  This warning referenced an External Appeal report dated 22/11/2021 which examined the Appeal of a Final Written Warning given 17/09/2020 following raising of a safety concern about a work instruction, which had upheld an External Appeal. This complaint relates to complaints already submitted under Adjudication File Ref: ADJ-00035994 Complaint Ref: CA-00047189 as it is a further instance of penalisation for raising the same safety concern with her employer.

The CEO set out in her correspondence on that Christmas Eve:

“..am writing in respect of the recommendations of Ms X, external appeals officer, contained in a report dated 22 November 2021. Under section 4.8 of the Civil Service Disciplinary Code, the outcome of an external appeal is a recommendation which management should take into account but which management is not obliged to accept. I have taken Ms X’S  recommendations into account. I have also considered the findings of a previous external appeals officer, Mr Y, in relation to the same matters. The following is my decision.

The NCSE has obligations to properly manage the provision of services to children with special educational needs who rely on our services. Proper management includes a requirement to apply appropriate sanctions in cases where employees engage in misconduct. In this case, you have been found by an external independent barrister to have “unreasonably failed and refused to comply with one or more reasonable management instructions”. This is misconduct according to the Disciplinary Code. I do not accept the recommendation of Ms X that no disciplinary action should be taken in respect of the misconduct that has been found by Ms Z  to have occurred. For those reasons, I accept the recommendations of Mr Y and I do not accept the recommendations of Ms X. The final written warning that you have received will remain in place

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 other dates and that she received on 24/12/2021 a Final Written Warning dated 10/12/2021 signed by the CEO rejecting the 22/11/2021 external report of Ms X that had examined the appeal of a final written warning 17/09/2020 and that but for raising a health and safety complaint this would not have arisen 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 Mx X’s report dated 22/11/2021 and the CEO letter arrived 24/12/2021 and 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 incidents referenced by the complainant in this specific 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, 02/09/2021 - 01/02/2022, the Respondent acted in a manner contrary to the terms of s.27.  The communication from the CEO was received on 24/12/2021 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 following the report of Ms X.  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 set 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 while I have some understanding of the frustrations experienced by all involved in the aforementioned incidents, I find it an extraordinary action by the CEO to respond by communicating  on 24/12/2021:

“..am writing in respect of the recommendations of Ms X, external appeals officer, contained in a report dated 22 November 2021. Under section 4.8 of the Civil Service Disciplinary Code, the outcome of an external appeal is a recommendation which management should take into account but which management is not obliged to accept. I have taken Ms X’S  recommendations into account. I have also considered the findings of a previous external appeals officer, Mr Y, in relation to the same matters. The following is my decision.

……Proper management includes a requirement to apply appropriate sanctions in cases where employees engage in misconduct. In this case, you have been found by an external independent barrister to have “unreasonably failed and refused to comply with one or more reasonable management instructions”. This is misconduct according to the Disciplinary Code. I do not accept the recommendation of Ms X that no disciplinary action should be taken in respect of the misconduct that has been found by Ms Z  to have occurred. For those reasons, I accept the recommendations of Mr Y and I do not accept the recommendations of Ms X. The final written warning that you have received will remain in place

It is not lost on me either that the CEO’s letter while dated 10/12/2021 was not delivered until Christmas Eve 2021.  The respondent had sought experienced external investigators such as Ms X and numerous other similarly experienced personnel to assess the matters under the appropriate terms of reference.  It is unclear how therefore, the CEO, could just set aside the laws of natural justice such as the complainant’s right of reply when the CEO decided to discard Ms X’s investigators report and thereby determine:

“The final written warning that you have received will remain in place”.

This should also be viewed against a background of investigators who had highlighted procedural failings by the respondent.

That said, it is my role to determine whether in this instant complaint the actions of the respondent amounted to actual  penalisation and that ‘but for’ the complainant raising a safety concern this would not have arisen.  Taking into consideration all the circumstances and submissions and evidence and while I find that the actions of the CEO not conductive to best practice, it does not of itself amount to penalisation.  As set out by the Labour Court:

“The Complainant cannot show any corroboration for her view that the instruction was in contravention of the protections afforded by the Act to the health and safety of employees”

The respondent has shown other, objective, reasons for matters arising on 24/12/2021 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.

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,