Penalisation under the Safety Health and Welfare at Work Act 2005.
This issue was addressed by an Adjudication Officer in case ADJ-00019117.
The Adjudication Officer in this case set out the issue relating to the standard of proof and quoted the Labour Court case in Patrick Kelly trading as Western Installations -v- Girdzius HSD 081 which set out that the burden of proof required in such circumstances is as follows:
‘’It is clear from a plain reading of Subsection(3a) of this Section that penalisation is rendered unlawful under the Act when it is perpetrated on an employee for having performed or committed one or more of the acts referred to in the succeeding paragraphs of this section. Thus, it is perfectly plain that in order to succeed in the cause of action grounded on the Section a claimant must establish not only that he/she suffered a detriment of the type referred to at Section (1) but that the detriment was imposed because of or was in retaliation for the employee having acted in a manner referred to in Subsection (3a)’’.
The Adjudication Officer summed it up that for an employee to win they must show ‘but for’ having made a complaint the penalisation would not have occurred.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.