HSD256

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043107 (CA-00053540-001)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts, 2005 to 2014.  A Labour Court hearing took place on 11th December 2024. 

The following is the Determination of the Court:-

DECISION:

This matter comes before the Court as an appeal by ACCHL Limited T/A Homesavers (the Appellant) against a decision of an Adjudication Officer given under the Safety, Health and Welfare at Work Act, 2005 (the Act) in a complaint made by Darrell Donnelly (the Complainant).

The Adjudication Officer decided that the complaint was well founded and made an award of €30,000.

Summary submission of the Complainant

The Complainant contends that he was penalised by the Appellant contrary to the Act at Section 27(2) in response to his conduct as outlined in Section 27(3) of the Act. He was subject to a change of location of his place of work and a transfer of duties, and he was suspended for making complaints about the ongoing public and employee health issue arising from a mouse infestation in the store which he managed, the failure of the Appellant to resolve the problem and the failure of the Respondent to deal honestly with public health authorities.

There is no dispute that there was communication from the Complainant which constituted protected acts under section 27(3) of the Act. This was a continuing and increasing issue from March 2022 until the Complainant’s resignation from his employment.

The Complainant suffered detriments as a result of making complaints as regards health and safety in his employment in that the location of his place of work was changed and he was released from work, albeit with pay, for a number of days without any explanation or due process.

The location of the place of work of the Complainant and his suspension occurred because he made complaints regarding the health and safety of his workplace and any alternative reason advanced by the Appellant is implausible. The Complainant was a victim of penalisation contrary to the Act.

The Complainant commenced his employment with the Appellant in August 2018 as a Supervisor and two and a half years later was promoted to Store Manager. His gross pay in 2022 was €3,166.19 per month.

From March 2022 there was a severe mouse infestation in the store. The Complainant and other staff were spending considerable time cleaning up mouse droppings and mouse urine and removing and cleaning damaged stock. The store was smelly and unhealthy and a danger to public health.

The Complainant notified the area manager of the problem, requesting that it be resolved but no action was taken beyond normal bait boxes being attended to.

In April 2022 the manager of the pest control company inspected the store and said it was the worst mouse infestation he had ever seen.

In May 2022 the area manger advised the Complainant that the Appellant was not going to take any further steps against the mouse infestation. In July 2022 the Complainant decided that he could not work under the conditions in the store and gave his resignation to the area manager and another manager. He was however persuaded to remain in employment on the basis of a promise to resolve the mouse problem and to appoint two new Assistant Store Managers. Neither of those promises were fulfilled.

Thereafter the Complainant was instructed by the Appellant to obstruct access by Environmental Health Officers (EHO’s) and Gardai on a visit to the store, and to deny the authorities access to the “pestguard” book and to the warehouse. This put added pressure on the Complainant as a result of being instructed to be unco-operative with authorities who were trying to investigate a serious public health problem.

Early in September 2022 the Complainant handed in his notice again but withdrew that resignation when the Area Manager promised him that another assistant manager would be appointed.

A partial closure order was issued to the store by health authorities on 9th September 2022 and lifted again on 23rd September but, in fact, significant issues with mouse infestation around foodstuffs continued until at least October 2022.

On 13th September 2022 the Commercial Manager visited the store and met with the Complainant. He asked about the Complainant’s withdrawn resignation earlier in the month. The Complainant explained that he was receiving no help from anyone regarding his management team and the mouse infestation. The Manager responded that the complainant was to go to the Nenagh store the next day beginning at 9.00am. He said this would assist with the Complainant’s mental health. When the Complainant advised the Manager that he did not drive, he countered that he expected the Complainant to be at the Nenagh store at 9.00am or he would be very disappointed. The Manager told the Complainant that he could go home and take the day and the following day off with pay, and he took from him the keys to the Limerick store.

The Complainant was now in an impossible situation and under enormous stress. His GP certified him unfit for work due to work related stress from 14th September 2022 and he remained so certified until his final resignation from his employment in December 2022. He was never able to go back to work in the Appellant’s employment and the Appellant made no attempt to bring him back.

He submitted a grievance on 10th October 2022 but by the end of November he realised he could not return to work and tendered his resignation so that he could obtain alternative employment. He did, at the Appellant’s request, attend a grievance meeting on 13th November 2022 but, as he had anticipated, the grievance report which issued on 7th December 2022 was entirely disingenuous.

The Complainant secured new employment commencing on 28th December 2022.

Summary testimony on behalf of the Complainant

The Complainant stated that he commenced employment with the Appellant in August 2018 as a supervisor. He was promoted to store manager at end of 2021 and received a pay rise to bring his annual salary to €38,000.  He received a permanent contract in July 2022.

Over a year before all the problems arose, JP, the commercial manager of the Appellant, had asked him about moving to the Ennis store. He said that he couldn’t move as he does not drive.

The Complainant complained to his area manager, D G, about the mouse problem in March 2022.  DG came to the store at least once per week, if not twice. Every time he came, the Complainant made a complaint to him. His staff were coming to him and complaining about it. DG told him that he had given the information to the Commercial manager and there was nothing more for him to do.

In July 2022 EHO’s came in to inspect the store. They said they needed to speak to a manager and to see the pest control book. The Complainant called the Commercial Manager. He said that the Complainant should not let them see the pestguard book or to enter the back of the shop or the warehouse. They were not to take photos. There were three EHO’s in the food section. The Complainant told them they couldn’t take photos.

They came back the next day and asked to see records. The Complainant called the Commercial Manager. He told JP that the EHO’s said that their head office had sent an email request for access to the Appellant. JP told the Complainant that he was not to give them records or let them in to the back of the shop or the warehouse.

The Gardaí came and told the Complainant that he had to hand over the pest control records. He told them that he was not allowed to give the pest control book and he refused. The Gardaí told him that he had to give the book to the EHO’s. He called JP who told him that he was not to give the book and that he was in contact with the owner of the business to decide what to do.  The Complainant was going back and forth with JP and the EHO’s and the Gardaí. The EHO’s told him that he could be prosecuted as store manager.

Around the 2nd or 3rd July, DG was in the shop. He complained to him that he wasn’t qualified to deal with the EHO’s and the Gardaí and that he was just trying to follow company policy. He complained to DG that he had been threatened with prosecution.

In early July he had a discussion with JP on the phone. He told him the pressure he was put under by the EHO’s.  They wanted the pest control book and when he wouldn’t hand it over they told him he would be prosecuted. He told JP that he found it all stressful. 

He resigned by email on 7th July. JP came to the store. The Complainant and DG were in the pet section cleaning up after the mice. He told JP that he had emailed his resignation.

The Complainant did not say anything about the problems in his resignation email. Mentally he was not in a good place, and he just wanted to get out cleanly. He didn’t want to give out about things in a resignation email as he thought it could come back on him.

Around the middle of August or 3rd week in August, DG told him that he would no longer be dealing with the EHO’s and Gardaí. He said that DG and another colleague, K R, would be dealing with them. The Complainant was not told why.

On 7th September, the Complainant resigned a second time. He had been promised that assistant managers would be recruited and that had not happened. He wasn’t going to continue with false promises.  He discussed things with DG and took back the resignation. A member of management rang him and asked about the resignation. The Complainant said that he needed something to happen. The member of management said he would be getting another assistant manager.  The Complainant had wanted two, not one.

On the 8th or 9th September an order was made by the Health Authorities to partially close the shop. The Complainant walked into the office and KR and DG were there with a floor cleaning sheet in front of them. He saw names on the sheet that he knew. He saw a name of an ex-colleague who had left the business, but they were putting his name on the sheet to show he had cleaned shelves. KR said they were putting down names of people who were no longer there. He said he was not doing that, left and banged the door.

On Tuesday 13th September, JP came to the store. The Complainant was in the warehouse, breaking down pallets. JP asked about his most recent resignation and withdrawal. He told JP about it and what had been going on in the shop. JP asked to see him in the office.

JP said, this is the second time he had resigned and told him that he was going to the Nenagh store. The Complainant said he would not do that because he did not drive. JP told him that he had to report to Nenagh. He said he would be very disappointed if he did not report to the Nenagh store. JP asked him for his keys and told him to go home. The shift in Nenagh was 9am to 7pm. The shift in Limerick was 6am to 4pm.

To get to Nenagh, he would have to take two buses, it would take 58 minutes. He would have to get up at 6am and wouldn’t be home until about 9.15pm.

JP didn’t say anything about the move being temporary, only that he had discussed with HR and that the Complainant was to report to Nenagh.

The Complainant went on sick leave with effect from 14th September 2022.

When cross examined by the Appellant, the Complainant said that he had always been in the Limerick store. He had progressed through the ranks and was well regarded by management. He got a permanent store manager contract in July 2022. He could not remember if there was a mobility clause but accepted that there probably was. He was aware that people could be moved.

The mouse situation was serious, there was a lot of mice and it was a challenging place to work.

When the EHO’s first attended on 4th July, JP instructed him not to give them access. He accepted that he was aware that there was a visitor policy for the store and that external visitors needed permission to attend. The EHO’s told him they had sent emails but got no reply from the Appellant.

JP did not tell him to direct the EHO’s to the visitor policy and to seek authority from head office to attend. Instead, JP told him that the EHO’s were not to be shown the pest control book, and the book was to be put in the cash office. JP said he would be guided as to how to deal with the EHO’s and that the owner of the company was getting involved.

The Complainant stated that he made a complaint to DG in person on the 7th July which was same day as his first resignation. It was a difficult conversation. He accepted that he had praised DG in his resignation email.

He stated that he never saw a record of store cleaning. There was cleaning records for mice, but not the cleaning records we usually had. There were records made up that day.

He accepted that in his complaint form initiating the within complaint he did not reference anything about staff falsifying cleaning records and that his submissions to the Court did not raise the issue of alleged falsification of records.

As regards the events of 13th September, he accepted that he had, prior to that date, had a phone call with JP while JP was on holidays. In that phone call he had advised JP that he was having problems and JP said that he would talk to him when he returned from leave.

JP did not propose the move to him and then go and talk to HR. That is not what happened. JP just said he was to report to Nenagh on Monday. JP said attendance in the Nenagh store was based on five days per week from 9am to 7pm. JP said there was no mouse problem in Nenagh and that the move would help with the Complainant’s mental health.

He accepted that in his meetings with JP on the 13th September he became emotional and upset

He did not offer his keys to JP on the 13th September. JP asked for the keys.

Summary closing statement of the Complainant

The Complainant submitted that the facts underpinning the within complaint have been admitted. It is clear that the Complainant suffered a detriment in that his location of work was changed, and his duties were changed.

The issue for the Court was whether the detriment suffered by the Complainant resulted from his commission of a protected act.

The Appellant’s submission is that the Appellant was, by moving his location of work to Nenagh, attempting to assist and support the Complainant. However, the Complainant’s submission is that the decision of the Appellant to transfer the Complainant was a direct result of his having committed a series of protected acts.

The submission of the Appellant in this respect does not ‘stack up’. If the effort was to assist and support the Complainant they would have sent him to the occupational health service rather than move the location of his employment against his vehement objections.

Summary submission on behalf of the Appellant

The Appellant accepted that there was a problem with mice in the store where the Complainant was employed and accepted that the Complainant brought that matter to the attention of the Appellant. The Appellant engaged a professional pest extermination company to eliminate the problem.

The Complainant’s complaint hinges on the assertion that his proposed transfer in September 2022 to a different store location was a form of penalisation for raising health and safety concerns. He also contends that a manager’s response to the visible upset of the Appellant in the store on 13th September 2022, which was to offer a period of paid time off to the Complainant, amounted to penalisation.

The transfer and the offer of paid time off were measures to support the Complainant’s mental health and well-being and not penalising actions. The Appellant’s responsive actions, including responding actively to concerns as regards the Complainant’s mental health and offering professional counselling are demonstrative of a supportive, not punitive, approach.

The legal framework requires the Complainant to first establish, on the balance of probabilities, that his raising of health as safety concerns led directly to penalisation. He has however not provided proof beyond a reasonable doubt that the adverse actions he claims he experienced were directly caused by his health and safety complaints.

The timeline of events is critical in evaluating the Complainant’s claim. The health and safety concerns, specifically the mouse infestation, were raised by the Complainant many months prior to the alleged acts of penalisation. During the substantial interim period, the Complainant was not only treated with respect and consideration but also received positive recognition and advancement within the company.

For an action to be considered a direct penalisation there must be a clear and immediate temporal connection between the complaint and the penal action.

The transfer at issue was formed with consideration for the Complainant’s mental health and overall well-being following instances of significant stress experienced by the Complainant and his tendering and withdrawal of resignations.

In order for the Complainant to succeed in his complaint he must establish a direct causal link between the raising of health and safety concerns and the alleged penalisation. In fact, however, the Appellant’s actions in terms of transfer of the Complainant were made with consideration to his health and overall situation. The actions of the Appellant were consistent with an employer’s duty to ensure the welfare of its employees.

The Complainant submitted his resignation to the Appellant on 7th September 2022, having earlier submitted a resignation and withdrawal in July 2022. The Complainant was seeking to leave his employment in September 2022 of his own accord, giving only three days' notice. His last date of employment was intended by him to be 10 September 2022 which was a Saturday. The Respondent submitted that the Complainant did not mention any issues in relation to mouse infestation as the reason for his resignation.

Two days later, on 9th September 2022, the relevant authorities issued a partial closure notice on the store in Limerick to be effective immediately. EHO’s had visited the store in the few days prior to the Complainant’s resignation. The HSE were concerned that the store did not have any pest control measures in place, and they had been unable to access any pest control records.

On 12 September 2022 at 8:57am, the Complainant sent an e-mail to the Respondent, informing them that he was withdrawing his resignation stating:

“This is an email to let you know that I am taking back my resignation that I sent last week. I have discussed a few things with [the Area Manager] and [the Regional Manager] and I hope that some problems can be sorted that I raised.”

On Tuesday, 13th September, the Complainant attended work as normal. The Commercial Manager visited the store, and the Complainant had a conversation with him. The Complainant communicated to the Commercial Manager that the mouse infestation and having to deal with Government bodies was affecting his mental health. The Complainant refers to this specifically in the written grievance that he submitted to the Respondent on 10 October 2022 wherein he refers specifically to speaking to the Commercial Manager about his mental health:

"Once again, I handed in my notice because I lost my Assistant Manager and Supervisor in the space of 10 days.”

“[the Commercial Manager] visited the store on Tuesday 13 September and asked me why I sent in my resignation.”

"I explained to him that I was receiving no help from anyone above me regarding management team and mice problem in the store. I mentioned it was affecting my mental health and I needed the help that was promised to me to happen immediately."

Upon becoming aware on 13th September 2022 of the concerns raised by the Complainant regarding his mental health, the Commercial Manager took swift action and, in doing so, consulted with the Appellant’s HR Manager.

The Appellant made a decision to offer professional counselling services (fully paid for by the Appellant) to the Complainant. The Appellant then made a decision that it would be in the best interest of the Complainant’s mental health and wellbeing to move him temporarily to the same position in the closest store, starting from Monday 19 September. At 4:52pm on 13th September 2022, the Appellant issued a letter to the Complainant offering him free counselling sessions and communicating with him regarding the temporary move to another store.

On 14th September, the Complainant submitted a medical note to state that he was suffering from work related stress and would be absent from work for one month. The Complainant was subsequently medically certified as unfit for work until 9th December. In each of the medical certificates, the reason for the absence was described as work-related stress.

Just before he was due to return to work, the Complainant submitted a third resignation, stating that his final date of employment would be 14 December. The Appellant wrote to him, asking him to reconsider his resignation. The Complainant communicated to the Appellant that he was not changing his mind and that he would be taking up a new position with another company starting on 22 December 2022. The Complainant's employment ceased with the Appellant on 20 December on amicable terms.

The Appellant was fully cognisant of its duties and responsibilities as an employer and its obligations under the Act regarding the health and safety of its employees and customers. At all times, the Appellant had pest control measures in place through a contract with a professional third-party service provider.

A letter from the third-party pest con control contractor to the Appellant dated 21st September 2022 confirmed that the store was free of all pest activity. The partial closure notice was lifted by the authorities on 22nd September 2022 and no further notices or orders have since been issued by the authorities.

Summary testimony on behalf of the Appellant.

Evidence of the Commercial Manager

JP, the commercial manager of the Appellant, gave evidence.

He became aware of the mouse issue around May of the year. The Appellant made efforts to resolve the matter through regular cleaning, regular pest control visits and compliance with pest control recommendations.

He received a call from the Complainant around 12.00pm or 1.00pm on 4th July 2022. He advised him that there were two EHO’s who wanted to look at documents and look at the warehouse. He advised the Complainant that they could not access these areas and records unless they have written permission from the Appellant to do so in accordance with the policies in place in the employment. There is a policy in the employment that third parties must be verified before they are permitted in to the premises and warehouse. That policy had come in a few years earlier in response to an incident in which a robbery in the Limerick store had taken place as a result of a person gaining access to the premises.

The Complainant told him that he wasn’t too sure of the detail of the visitor policy.

The EHO’s on the premises took exception to this. The Complainant kept JP abreast of the situation, but he could tell that the Complainant was stressed. The Gardaí did come also.

JP’s position was that he was waiting on the Compliance team of the Appellant to come back to him. He rang the area manager, DG, and told him that the Complainant was struggling and to go down to the store to support him. DG went to the store.

The EHO team turned up again on 5th July 2022.  The Compliance team had been verified at that stage and so could access whatever they wanted accompanied by a manager.

JP was on holidays in September, returning on 11th. He got a call from the Complainant while on holidays, which he answered. The Complainant said that he had ongoing issues. JP told him that he was on holidays and that he would speak to him when he got back. The Complainant said he did not think he would be there when the Complainant got back.

JP was subsequently advised that the Complainant had resigned on 7th September. He was later advised that he had retracted his resignation. JP was a little bit confused and wanted to know what was going on.  He found out about the closure of the food section of the store by order when he returned from leave. He was not made aware of any allegation relating to cleaning records and any possible issue arising from the alleged actions OF DG and KR.

JP went to the store on 13th September 2022, did a walk-around, and then called to the office of the Complainant at around 9.15am.

He asked the Complainant whether there were any problems or issues that he could help him with. The Complainant explained about the mouse issues and the lack of support provided to him and in particular the promises of extra assistant managerial staff that hadn’t been delivered upon.

The conversation was approx. 15 – 20 minutes in duration. The Complainant mentioned his mental health twice, which was a red flag to JP. He said that a move to the Nenagh store might be a good idea and that he would check with HR. Nenagh was a good store with no issues and was an easy store to manage. He knew that the Complainant didn’t drive but it was only 18-20 minutes more travel by public transport than his commute to the Limerick store. In the view of JP, the Complainant was not coping well with the Limerick store.

He rang HR and explained the situation to CMcC and she agreed with the proposition that the Complainant would move stores to the Nenagh store. The move would be on a temporary basis. He went back to the Complainant and told him that the move would be temporary. That was confirmed to the Complainant by e-mail later that day from HR. That mail also advised him that the Appellant would provide counselling services if that was the wish of the Complainant.

The Complainant said to JP when he met him after his engagement with HR, that he was not going to the Nenagh store and started to get upset.  JP said to the Complainant that the move would benefit him and allow him and get away from the problems in the Limerick store. He said to the Complainant that he would like him to go home because he was upset. He confirmed to him that he would be paid in respect of this time.

JP said to the Complainant that he’d like a call from the Complainant after he had talked with his wife. He could let JP know what he was doing. JP did ask the Complainant for the keys to the store.

The witness said that he had used the mobility clause in the employment contracts of staff of the Appellant prior to this and confirmed that he still does. He had, for example, previously moved a store manager, the previous one to Complainant, out of the Limerick store and into the Nenagh store in July or August 2021.

Under cross examination the witness said that the July mouse situation was serious, and that the involvement of the authorities was serious matter.

He had received a call from the Complainant and sent DG, the area manager, to the store to support him.

He said that he did not instruct the Complainant to put the pest control records in the cash office.

It wasn’t that JP didn’t want the EHO’s to know the extent of the mouse problem, it was that once they had the relevant verifying documentation from the Appellant’s compliance team to say they could access all parts of the store, they would be permitted to go in and look at whatever they want.

It is true that the Complainant was threatened with prosecution. CMcC was subsequently assigned to deal with the relevant authorities shortly after the visit on 4th July.

There were two steps to the discussion with the Complainant on 13th September 2022. Firstly, JP discussed matters with him and then had a call with HR. Secondly, he came back to the Complainant. It was the witness’s suggestion for him to move to the Nenagh store, but he had to consult with HR.  The suggestion from the witness was in the first part of the engagement with the Complainant. After the second part of the meeting the witness considered that the Complainant was not fit to continue managing the Limerick store.

The witness confirmed that he did not send the Complainant to occupational health. He acknowledged also that the Complainant said that he did not want to go to the Nenagh store, but that he, JP, sanctioned the move notwithstanding.

Evidence of the Area Manager

Evidence was given by DG who was the area manager at the material time. He had six years’ service at the time and was responsible for eleven stores, including the Limerick store.

He became aware of the mouse issue before May because the Complainant had informed him about it.

The EHO’s attended a couple of times, and he was present on the second occasion. He was asked by the Commercial Manager to attend because of the issues on the day involving the Complainant, the EHO’s and the Gardaí. When he arrived at the store there was only Gardaí there.

The Complainant told him about the issues. He mentioned his level of stress and that he had been told he would be prosecuted.

During the week of 8th September, he was in Limerick on a few occasions to help manage the situation. He did interact with KR. They were all involved in trying to manage the cleaning process.

The store uses cleaning sign-off sheets – he has been using them since he started in the employment. Every hour a manager has to walk the floor to ensure there are no hazards, spillages etc. There were no changes to the cleaning documentation arising from or  in relation to the mouse problem.

On 8th September he was in the office with KR dealing with cleaning records. They had to have the records for the authorities. They had the documents on the table, but he wasn’t doing anything with them. They had been in and out of the office because it was very busy. There were managers coming in and out of the office.

The Complainant entered the office that day, but he did not remember if the Complainant expressed dissatisfaction with the documentation. He was very stressed. He slammed the door on a number of occasions.

On 8th September the Complainant mentioned that he had ‘had enough’ and was going to quit. DG took it as a joke. It was the Complainant’s decision.

The Complainant was always requesting the appointment of two assistant managers. The Appellant attempted to recruit to those roles. One was successfully recruited, but then left the employment.

DG was not there on 9th September.

Under cross examination the witness said that he didn’t report the Complainant’s emotions and stress to HR. In his view everybody is under pressure all the time. He didn’t see high levels of stress and asserted that everybody is stressed on occasion.

He didn’t instruct the Complainant in July 2022 or since that he was not to deal with EHO’s or Gardaí.

He did not falsify any documentation.

Evidence of the HR Director

CMcC has been 22 years with the company. She had two HR Business Partners reporting to her at the material time together with administrative staff.

She was aware of the Complainant’s repeated resignations. Resignations at a certain level and upwards would come to her. She would communicate with the Area manager or the Commercial Manager to see if the HR team could help. She did not want the Complainant to leave the Appellant’s employment. He was very well thought of in the Appellant company.

On 13th September, JP rang her. She knew he was going to Limerick to speak to the Complainant. JP explained the issues being raised by the Complainant and referenced that he had twice tendered his resignation from the employment. The Commercial Manager said that the Complainant could not cope with the mouse issue and the issue surrounding the appointment of assistant managers. He also said that the Complainant had not been able to cope with EHO’s and Gardai in July 2022.

The manager advised her that, in his meeting on 13th September 2022, the Complainant had mentioned his mental health twice, which was a red flag to him. He had also become upset and emotional during the meeting. JP said that he was worried about his mental health and wanted to take him out of the situation. He said he wanted to move him to the Nenagh store. The witness had a look at where the Complainant lived and advised JP that she had no problem with the proposition from a HR point of view.

It was known at that time that the authorities would still be checking on the situation in the Limerick store. JP said that when all the problems were fixed in the store, the Complainant could go straight back to Limerick.

She instructed one of HR Business Partners to do a letter to the Complainant and that was done and issued that same day advising him of his temporary move to the Nenagh store.

The Commercial Manager said that he was going to advise the Complainant to go home because he was not in a good state. The witness checked the roster and advised JP to make sure that the Complainant knew that the Appellant would pay him for the 13th and 14th September leading into a period of pre-booked and planned annual leave. There was no mention at any time of suspension for any reason of the Complainant.

The witness stated that the mobility provision in the employment contracts of the Appellant was regularly utilised in all stores. It is utilised for example for career development and, where appropriate, during the conduct of grievance investigations and procedures.

Under cross examination the witness stated that whereas the referral of employees to occupational health is regularly done, depending on the situation, she thought that the solution put forward by the Commercial Manager was appropriate in this case.

Summary of the closing statement of the Appellant

The Appellant accepted that the Complainant had committed protected acts, but also clarified that it disputes whether one alleged protected act was in fact a protected act. It is not accepted a protected act occurred on 8th September no falsification of records by DG and KR occurred at all. In any event, the Complainant did not at any time raise an issue around alleged falsification of records before the hearing of the Court.

The Commercial Manager advised the Complainant on 13th September 2022 that a move to the Nenagh Store arose out of a concern for his health. That concern reflected his history of resignations and the fact that he had raised his mental health twice in the meeting with the Manager on that day.

There is no merit to the contention that the proposed move to the Nengah store was an act in retaliation for the Complainant committing a series of protected acts. In fact, based on the fact that he had resigned on two occasions and that his subsequent engagement with the Appellant on each occasion resulted in a withdrawal of his resignation which was accepted by the Appellant, the opposite is the case. If the Appellant wished to remove the Complainant from the Limerick store for any reason other than a concern for his health, it could have accepted his resignation on both occasions.

The Legal Context

What is in issue in this case is whether the Appellant was penalised within the meaning of Section27 of the Act. In order for that complaint to succeed, the Appellant must show that he committed a protected act as describe in the Act at Section 27, that he suffered a detriment and that the detriment occurred because he committed the protected act.

Section 27 of the Act, in relevant part, provides: -

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 under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

As this Court pointed out in O’Neill v Toni and Guy Blackrock Limited [2010] E.L.R. 21,

“it is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment.   This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

It is essential that the Appellant establish that he committed a protected act, within the meaning of Section 27(3) of the Act, before the other elements in this test come into play.

Discussion and conclusions

The Court’s jurisdiction under the Act relates to alleged breach of Section 27. In essence, Section 27 of the Act protects an employee from penalisation and at Section 27(3) specifies the acts in respect of which the protection from penalisation is afforded.

The Complainant has submitted that he was penalised within the meaning of the Act for making complaints over a period of time to the Appellant as regards matters relating to safety, health or welfare at work. He then submits that the Appellant, because he had made those complaints, suspended him with pay on 13th September 2023 in contravention of the Act at Section 27(2)(a) and, in contravention of the Act at Section 27(2)(c), subjected him to a change of location of work and transfer of duties.

There is no dispute between the parties that the Complainant committed a number of Acts which constitute protected acts within the meaning of Section 27 of the Act, albeit the Appellant does contend that one alleged protected act referred to by the Complainant was not, in fact, a protected act.

The Appellant submits that an engagement took place between the Complainant and the Commercial Manager on 13th September 2022. It was submitted that at that engagement the manager observed emotional upset on the part of the Complainant and noted that he had twice referred to his mental health in that meeting. The Complainant accepted in evidence that he had become upset at the engagement on 13th September.

The Appellant’s submission is that the manager reacted supportively to the upset of the Complainant during his engagement and decided that he should be afforded leave with pay until an impending period of annual leave and that, on his return to work, should be assigned to a role as manager in another store which was easier to manage, and consequently would be less challenging for the Complainant. The manager gave evidence that he was influenced by the fact of the Complainant’s upset on 13th September 2022 and his reference to his mental health. He was also influenced by the fact that that the Complainant had resigned his position with the Appellant in July 2022 and on 7th September 2022, and later withdrew the resignation on each occasion.

There is no dispute that the Appellant’s manager informed the Complainant during the conversation on 13th September that he was released from work for that and the next day with pay and to avail of his pre-planned leave thereafter, and that he was to move to another store on Monday 19 September 2022.

It is clear also that the Appellant wrote to the Complainant on 13th September to offer him the support of counselling services to be paid for by the Appellant and advising him of a temporary move to another store.

In the event, the Complainant entered upon a period of certified sick leave on 14th September and never returned to work with the Appellant and never attended for work at another location. He resigned his employment in December 2022 to, he said, take up other employment, and he took up such employment on 28th December 2022.

The Court notes that the issue of a mouse infestation in the store had obtained since March 2022 and that the Complainant had repeatedly raised the issue with members of the Appellant’s management. There is no contention that the Complainant suffered any detriment for having raised this series of complaints or representations over the period from March 2022 onwards. In fact, it is an undisputed fact that when the Complainant resigned his position in July 2022 and again on 7th September 2022 he was engaged with by the Appellant and on each occasion he withdrew his resignation.

It is the case that the Complainant engaged with a manager of the Appellant on 13th September and that he became upset during that engagement.

The Court is persuaded by his evidence that the reaction of the Appellant’s manager was to the upset of the Complainant and his references to his mental health, and his assessment that the challenge of managing the Limerick store was contributing to the difficulties being experienced by the Complainant and consequently to the actions of the Complainant including his repeated resignations. The Court notes that the purported temporary transfer of the Complainant to the Nenagh store was not the first time an employee of the Appellant had been subjected to such a transfer and that the contract of employment of the Complainant permitted re-assignment between stores.

The Court concludes, on the balance of probabilities, that the provision of leave with pay to the Complainant was no form of suspension and certainly was not disciplinary in nature. The Court also concludes that the purported temporary transfer, which never took place because of the certified illness and subsequent resignation of the Complainant in December 2022, was a reaction to what the manager observed to be his upset and repeated resignations and withdrawal of resignations.

The Court therefore concludes that the Complainant has not made out his complaint that he suffered a detriment because of his repeated commission of protected acts from March 2022 to September 2022.

Decision.

The Court concludes that the within complaint has not been made out and that the within appeal must therefore succeed.

The decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
26th February 2025	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.