Employment law solicitor Richard Grogan of Richard Grogan & Associates writes on a recent Labour Court case.

In ADJ4397, the Adjudication Officer had to deal with the complaint under section 28 of the Safety, Health and Welfare at Work Act 2005.

In this case, the employee earned approximately €35,000 per annum and was awarded €25,000.

The case is an interesting case in that the employee submitted various complaints. The issue which had to be determined is whether the complaints constituted complaints regarding health safety and welfare at work. None of the complaints actually used the word health, safety or welfare, and none of them referred to the Act.

The Adjudication Officer reviewed the law in this area. The Adjudication Officer referred to the case of Toni & Guy Blackrock –v- Paul O Neill 2010 ELR page 1, which established that the burden of proof is on the complainant to establish that on the balance of probabilities she committed a protected act and that having regard to the circumstances it is apt to infer from subsequent events that the protected act was the operative consideration leading to the detriment imposed. The Adjudication Officer pointed out that the Labour Court had confirmed that if both are satisfied the burden shifts to the employer to show on credible evidence on the balance of probabilities that the protected act did not influence the detriment imposed.

The Adjudication Officer held that the scope of what can be a protected act is broad. The mere request for a copy of a bullying and harassment policy was sufficient in the Labour Court case in Board of Management of St. David’s CPS Secondary School Artane –v- McVeigh HSD118 to find a protected act. It is also well established the Adjudication Officer held that an employee does not have to use the respondent’s grievance procedures for their act to amount to a protected act as in Stobart Ireland Drivers Services –v- Carol 2013 IEHC581. The Adjudication Officer also pointed out that it is clear that the subject matter of a protected complaint or representation is not relevant to determination of claims pursuant to Section 20 as held in the case of St. Johns National School –v- Akduman 2010 21ELR30. In that case the Labour Court held it was making no finding in relation to the veracity of the complaint of bullying in making its determination pursuant to section 27.

Complaints under the Safety, Health and Welfare at Work Act are unusual. This is a very useful decision for practitioners to read not only on the facts but equally importantly in relation to an outline of the law.