In a recent claim before the Workplace Relations Commission (WRC), the complainant sought to argue that they were penalised due to raising safety issues at work and for raising a protected disclosure to the Health and Safety Authority (HSA). 

Complainant’s case

The complainant worked as a Store Manager for the respondent, a retail organisation, since January 2005. The complainant brought a claim to the WRC under the Safety, Health & Welfare at Work Act, 2005 and the Protected Disclosures Act, 2014, contending that he was penalised for having made protected disclosures to the HSA and having raised safety and welfare issues with his employer. 

The main complaints raised by the complainant with the respondent were as follows:

• In September 2018, the complainant made a protected disclosure concerning the welfare of a fellow worker and a disciplinary sanction which was issued to this worker. He argued that, following this, he was subject to aggressive and intimidating behaviour.
• In September 2022, the complainant raised a safety issue in respect of a recommendation that storage tubs be kept within the store, which was raised in a loss prevention audit.
• In October 2022, the complainant made a protected disclosure to the Health & Safety Authority concerning both the storage tubs and an ongoing safety issue regarding a lift in the store.
• In October 2022, the complainant made a complaint of harassment against his line manager.

The claimant raised a formal grievance in October 2022. The respondent investigated the matter, and it was not upheld. The respondent gave the complainant an opportunity to appeal this outcome.

The complainant felt that his concerns were not being addressed appropriately and ultimately raised a protected disclosure with the Health and Safety Authority (HSA), who carried out an inspection in November 2022. The complainant claimed that he received calls from his Area Manager and the Health and Safety Manager questioning the issues which were the subject of the HSA inspection. Furthermore, he put forward that the Safety Manager paid an unannounced visit to the store and told the complainant that an issue regarding the health and safety matter related to the in-store lift was the complainant’s responsibility.

The complainant submitted that he felt bullied and harassed by his Area Manager and felt intimidated by the Health and Safety Manager. He indicated that he felt penalised due to not having his expenses signed off by his manager within a reasonable timeframe, which resulted in him relinquishing his title of ‘delivery champion’. Furthermore, he contended that the safety issues that he raised fall within the criteria of wrongdoings as defined under the Protected Disclosures Act.

Respondent’s case

It was stated by the respondent that the complainant is a long standing and trusted employee. The respondent argued that the matters raised by the complainant were investigated. At the hearing, the respondent presented emails between the complainant and his Manager where the Manager responded to any allegations made by the complainant. Moreover, the respondent submitted, the allegation of harassment was investigated and was unfounded. The complainant did not appeal this outcome.

Regarding the protected disclosure made to the HSA, the respondent claimed that they did not know who had made the protected disclosure until they saw the complainant’s submission to the WRC. Therefore, they could not have penalised the complainant on foot of the protected disclosure as they did not know that the complainant was the disclosure. Notwithstanding this, the respondent further noted that they successfully passed the HSA inspection.

Adjudication Officer decision

The Adjudication Officer (AO) found that while the complainant did make complaints to the respondent on matters regarding safety, health and welfare at work, he was not penalised as a result of these complaints.

Furthermore, the Adjudication Officer found that the complainant was not penalised due to a protected disclosure he made to the Health and Safety Authority.

Regarding the claim of harassment, the Adjudication Officer found that this complaint was dealt with by the respondent and the complainant did not appeal this outcome.

The Adjudication Officer discussed the fact that the complainant relinquished the title of ‘delivery champion’ however found that as this role did not carry any extra remuneration, no detriment had been suffered.

The AO went on to examine time limits associated with the claims. The issue which the complainant raised regarding the disciplinary sanction of a colleague and the issue regarding the approval of expenses following this complaint took place in 2018 and 2019 and were thus viewed out of time.

In relation to the claim under the Safety, Health & Welfare at Work Act 2005, the Adjudication Officer found that the actions of the respondent did not amount to penalisation, and, in fact, the Health and Safety Manager was proactively following up with the complainant regarding his concerns.

In relation to the claim under the Protected Disclosures Act 2014, the Adjudication Officer found that in relation to the HSA inspection, the respondent did not know that the complainant was the discloser and thus could not have penalised the complainant as a result. In relation to the delay in approving expenses which occurred more recently, the Adjudication Officer accepted the respondent’s evidence that the 31 expenses claims made by the complainant between 1 January 2019 and 25 August 2023 were paid, with the average number of days between the employee submitting the expense and the expense being repaid being 8.84 days and noted that “by no stretch of the imagination can this time period be considered unreasonable or penalising on the Complainant.”

Ultimately, it was found that the complainant had not established a link between the making of complaints and suffering a detriment.

Therefore, the claims under both the Safety, Health & Welfare at Work Act 2005 and the Protected Disclosures Act 2014 were not well-founded.

Key takeaways

This case demonstrates the importance of an employer properly investigating any health and safety concerns raised by an employee and dealing with any harassment complaints in an appropriate manner. It also shows that an employee must show that they suffered a detriment when arguing that they have been penalised by their employer as a result of making a complaint.

Briana Duffy, Ibec Knowledge Centre