WRC rejects claim that worker penalised for raising Covid-19 safety concerns

A woman who alleged she was penalised for raising health and safety concerns about going to work in a school during the first year of the Covid-19 pandemic has had her complaint rejected by the Workplace Relations Commission.

Máire Ahern, a special education needs organiser, made a complaint under Section 28 of the Safety, Health and Welfare at Work Act 2005 against the National Council for Special Education (NCSE).

She told the commission that the council insisted she meet school staff face-to-face to discuss the care of children with special needs and refused to allow her hold the meetings remotely.

In her submission, she claimed the council was non-compliant with the Government’s Return to Work Safely Protocol at the time, and that she was “repeatedly penalised” for raising the safety concern.

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In submission to an adjudication hearing last August, Katherine McVeigh BL, for the NCSE, said her client issued a “clear instruction” to Ms Ahern on August 24th, 2020 and her colleagues at the same grade about resuming school visits, but that she refused to comply.

‘Failure to follow’

Ms McVeigh said the NCSE followed up with a disciplinary hearing on September 14th, 2020 due to Ms Ahern’s “failure to follow a reasonable instruction” and that she was given a final written warning three days later.

The council said it had a “robust” appeals process in place and that an independent investigator also concluded that Ms Ahern had failed to follow the instruction.

“A year later in August 2021, the complainant is still refusing to carry out this reasonable instruction from the respondent, despite remaining an employee of the respondent and being paid full salary,” Ms McVeigh said.

She also handed in documents including specific NCSE guidelines for staff on making school visits sent out in August 2020, along with the council’s document setting out how it would comply with the Return to Work protocols and correspondence with Ms Ahern.

It denied any penalisation and said it was for Ms Ahern to prove – arguing she would have to believe there was “serious and imminent danger” which she could not reasonably have been expected to avert in going back to school.

Not well founded

In a decision published on Wednesday, commission adjudication officer Úna Glazier-Farmer said Ms Ahern’s complaint was not well founded.

“While I do find there was as a matter of fact a disciplinary sanction imposed…I do not find that the complainant has discharged the burden of proof that the disciplinary action was ‘in retaliation’ for raising her concerns,” she wrote. “It was for failure to carry out reasonably instructions of the Respondent. I find this does not amount to penalisation for the purposes of Section 27 of the Act.”

She said it was “a fact that the schools were open” between September 1st and October 10th, 2020 on foot of the public health guidance in place at the time.

“Most pertinent to this complaint is (the fact) there was a considerable amount of guidance provided by the respondent around visiting schools which was deemed an ‘essential’ activity of the complainant’s position,” she added.