ADJUDICATION OFFICER DECISION

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Adjudication Reference: ADJ-00061617

Parties:

| **** | Complainant | Respondent |
| Parties | Gilciene  Neves | Brindley Healthcare Services Limited  trading as Manor Homecare |

| Representatives | Self-represented | IBEC |

Complaint:

| Act | Complaint 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-00075309-002 | 10/09/2025 |

Date of Adjudication Hearing: 04/03/2026

Workplace Relations Commission Adjudication Officer: Seamus Clinton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard and to present any evidence relevant to the complaint. The hearing was held in the Hearing Rooms of the Workplace Relations Commission (WRC), Carlow. The complainant, Ms. Neves attended the hearing and gave evidence under oath. She was assisted by an interpreter. The respondent was represented by Mr. Gilfedder, IBEC. Ms. Gill, Managing Director for Disability, and Ms. Lipczynska, Manager Community Health Area 9, gave evidence under oath. In accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, the parties were advised that employment rights hearings are held in public and decisions are not anonymised unless there are special circumstances.

In coming to a decision, I have considered the relevant oral evidence and documents put into evidence. I have summarised the evidence having regard to the relevance to the complaint made.

Background:

| The complainant, Ms. Neves commenced employment with the respondent as a Rapid Respondent Health Care Assistant on 15th March 2025. She claims that she was penalised by the respondent for having raised health and safety concerns about her shift pattern.

The respondent submits that no protected act (health and safety complaint) was made and denies the complainant was penalised. |

Summary of Complainant’s Case:

| Summary of Ms Neves Evidence

Ms. Neves gave testimony that she informed her manager in May 2025 that her shift pattern was too onerous and she became tired due to the amount of driving and client visits. The manager informed her that they would solve the problem within a month when new vehicles became available. She said she had to wait longer than a month so she raised the issue again in August 2025.

She received a very good score in her first probation review after 5/6 weeks in employment. In June 2025, she was criticised for not reviewing the care plan prior to a client visit. Although she apologised for this at the time, she later realised that she had followed the care plan. She said she did not bring this to her manager’s attention due to her probation and reliance on a work visa.

In September 2025, she had some issues with client visits due to fatigue and stress. She informed management of her high blood pressure and consequently could not continue with some visits. She was informed at a meeting that she needed to make improvements within two weeks, and that she needed to clock-in and out in accordance with company procedures.

She said that after seeking an alternative shift pattern, she received complaints about her work and was under more scrutiny than her colleagues. On 4th September 2025, she received a formal letter that her performance needed to improve. The situation got to a point where she would feel anxious awaiting the next complaint. She said she was on sick leave when a probation meeting was requested by her manager which caused further anxiety.

Up to 10th September 2025, her shift pattern had not changed. She felt under increased scrutiny as she was on probation, and dependent on a work visa. She gave examples of incidents where she believed she was being treated more harshly than colleagues.

After September 2025, she informed management that her shift pattern did not allow her to take adequate rest breaks.  She said that it was only after she made a complaint to the WRC that her shift pattern changed.

Under cross-examination by Mr Gilfedder, she was asked about her existing and desired shift pattern. She said that all her colleagues worked this shift pattern and it allowed for more rest periods.

She was asked about the complaint from a service user of not staying for the full two hours. She replied that when she later checked this, the care plan did not indicate this.  She put into evidence the care plan documents.

She was asked whether she suffered any adverse treatment. She replied that she was receiving performance letters and felt intimidated. It was put to her that the “letter of concern” was intended to be supportive. She replied that she did not see it that way as her work was being overly scrutinised.

It was put to her that the reason her shift change was not accommodated earlier was due to a shortage of vehicles. She replied that she was informed that the shift would change after one month and it did not occur until October 2025.

She was asked if she passed probation and she confirmed that she did. |

Summary of Respondent’s Case:

| Summary of Ms. Gill’s Evidence

Ms Gill, Managing Director for Disability, gave testimony that due to the expansion of the company that additional staff were required. At interview stage, it was confirmed that the requirement was agreed as a 4-day week. The shift pattern requested could not be implemented until there were additional vehicles which were on order. Ms Neves was offered to use her own car and receive mileage expenses although that she did not agree to this. She said the challenge for the company was to match the staff, clients and vehicles. There was a commitment to alter the shift pattern although this could only be done with additional vehicles. She said the complainant is required to travel to work at her own expense and then on to clients. All these times are recorded for funding purposes.

Under cross-examination, she was asked by Ms. Neves of whether she was aware of the time required to pick up a car and pack equipment. She replied that these tasks are all factored into working time.

Summary of Ms. Lipczynska’s Evidence

Ms. Lipczynska, Area Manager, gave testimony on the terms agreed when Ms. Neves was hired. She said a complaint was received in June 2025. The practice is to follow up on all complaints. As Ms. Neves was relatively new to the role it was intended to be a positive intervention. She disagreed that the complainant was treated differently to other staff. She gave an account of the 5-month probation review meeting.

Under cross examination, she was asked whether the service was supportive as there were issues with assignments to service users. She accepted that on one occasion there may have been confusion when she was assigned a client visit. She said that staff are normally supported when issues arise. She said the “letter of concern” was issued as a letter of support.

She denied that the shift pattern was changed due to the WRC complaint as the earlier commitment on a shift change arose when the new vehicles arrived.

Summary of Respondent Closing Submission

Mr. Gilfedder submitted that there was no penalisation towards the complainant. He referred to the case law of Kelly t/a Western Insulation v. Algirdas Girdzius (HSD081) and MSR-FSR Ireland Limited v. Cummins (HSD204). |

Findings and Conclusions:

| The Law

Section 27 of the Act 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) ……

(e) ……

(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.

Penalisation is described to have occurred where there is a direct causal link between the making of a complaint and any detrimental treatment that followed. The Labour Court in O’Neill v. Toni and Guy Blackrock Limited [ELR21] considered in detail the matter of a causative link as follows:

“ 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 determent”.

Therefore, the complainant needs to establish not only that she suffered a detriment but that the detriment complained of was imposed because of, or was in retaliation for, having committed a protected act.

Findings

At the commencement of the hearing, it was clarified that written submissions of 24th October and 11th November 2025 referring to new complaints could not be considered with this penalisation complaint received by the WRC on 10th September 2025. The cognisable period for this complaint is from 11th March 2025 to 10th September 2025.

Protected Act

The complainant alleges detrimental treatment after she made a verbal complaint in May 2025 and follow-up written complaint in August 2025 about her shift pattern. These representations concerned a health and safety issue. I am satisfied that these were protected acts as per Section 27 (3) (c) of the Act.

Mr. Gilfedder relies on the case of Kelly, and Cummins, which I have reviewed. I consider Kelly as distinguished from this case due to the absence of a protected act in that case.

Detrimental Treatment

Section 27 (1) (d) includes examples of what constitutes penalisation such as ‘imposition or the administering of any discipline, reprimand or other penalty’. The complainant relies on the June 2025 reprimand and follow up “letter of concern” as an example of penalisation and adverse treatment compared to other colleagues. She also gave testimony that she was under increased scrutiny towards the end of her probation. The notes of the 5-month probation meeting refer to the earlier health and safety complaints of long hours and concludes that there should be a significant improvement within the next two weeks. Although the complainant passed her probation, there was no evidence presented at the hearing that this was confirmed in writing. I find this lack of written confirmation as unusual considering improvements were required within two weeks. Although the complainant passed her probation and obtained her desired shift pattern in October 2025, I need to consider whether prior to this she suffered detrimental treatment. This was a crucial period as the complainant was on probation and dependent on a work visa. I consider that she was unnecessarily reprimanded when she was issued with ‘a letter of concern’ and when she was warned that improvements were required within two weeks. Due to these actions I consider that she suffered detrimental treatment, in accordance with the Act.

It now needs to be considered whether ‘but for’ her earlier complaints would she have suffered this detrimental treatment.

Operative Reason/Causal Link

The complainant alleges that the operative reason for the detrimental treatment was due to the earlier health and safety issue representations. The respondent submitted that the operative reason for alleged detrimental treatment was unrelated to the earlier complaint. From the testimony and documents put into evidence, I am not satisfied that the earlier complaints had nothing to do with the subsequent adverse treatment. The treatment of the complainant towards the end of her probation was not adequately explained, especially when her first probation review was so positive.

I have considered Cummins, in the context of this case as relied upon by Mr. Gilfedder. In Cummins, the detrimental treatment of ‘performance review’ and ‘re-design of the workstation’ affected all workers in the same manner with no causal link.

I decide that the operative reason for the detrimental treatment was related to the earlier complaints and the complaint of penalisation has been made out.

Redress

Having found in the complainant’s favour, I need to decide on an amount that is just an equitable in the circumstances. I consider the detrimental treatment to be on the lower end of the scale particularly as the complainant passed her probation and was accommodated with the new shift pattern, albeit in October 2025.

I find the complaint well founded. I decide it is just an equitable that the respondent pay the complainant compensation of €2,500.00. This is compensation for a breach of a statute and is not wages or arrears of wages. |

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

| I find the complaint well founded. I decide it is just an equitable that the respondent pay the complainant compensation of €2,500.00. This is compensation for a breach of a statute and is not wages or arrears of wages. |

Dated:   20th March 2026.

Workplace Relations Commission Adjudication Officer: Seamus Clinton

Key Words:

| Penalisation, Safety, Health and Welfare at Work Act |