PDD205

1. Appeal Of Adjudication Officer Decision No: ADJ-00019848

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 3 December 2019. A Labour Court hearing took place on 21 July 2020. The following is the Determination of the Court:-

DETERMINATION :

This is an appeal by Pascal Hosford (the Complainant)against an Adjudication Officer’s Decision ADJ-00019848 given under the Protected Disclosures Act 2014(the Act) in a claim that his employer the Department of Employment Affairs and Social Protection (the Respondent) penalised him for making a protected disclosure.

Background

The Complainant was employed in a managerial role by the Respondent from in and around October 2013 until 1st November 2019 when his employment ended.

The Complainant lodged his complaint with the WRC on the 14^th February 2019 and therefore the reckonable period as set out in section 41 (6) of the Workplace Relations Act 2015 is 15^th August 2018 to the 14^th February 2019.

The Complainant was a Civil Servant during the reckonable period. It was not disputed by the parties that the Complainant had made protected disclosures.

Complainant’s case

The Complainant’s written submission to the Court did not address the specific acts of penalisation he was relying on. Rather it set out issues that he believed arose from a previous Labour Court case and a High Court decision in relation to same. The submission also set out that the “but for” test has been too restrictive and too narrowly construed by the Courts and set out what the Complainant believed to be the appropriate tests.

The Court sought clarification from the Complainant in relation to the alleged acts of penalisation and established that the following were the penalisations being relied on:-

• 1) 21^st May 2018 -the non- application by the Respondent of its discretion to grant him payment for extended sick leave from the

  2) 21^st September 2018 - Email query regarding removing his work phone while he was absent on sick leave.

  3) September 2018 -access swipe was disabled and access to work emails was disabled. This impacted on his professional development as he could not access emails relating to a course he was enrolled in.

  4) November 18- failure by the Respondent to provide external supports that he had identified as being necessary to facilitate his return to work.

• a) Coincidence test

  b) Silencing Test

  c) Connection nexus

  d) Employer restraint.

Respondent’s case

The Respondent disputes that it in anyway penalised the Complainant. In relation to the four acts of penalisation identified the Respondent submitted as follows:-

• 1) the issue in relation to sick leave was a separate complaint under the Payment of Wages Act 1991 and their position is that the rules of the sick leave scheme were applied to the Complainant in line with Circular 05/2018. The Complainant had not met the requirement in the circular that exceptional circumstances existed. The decision not to pay extended sick leave was not in any way related to his protected disclosure but was made in line with the guidance set out in the circular.

  2) Email query 21^st September 2018. HR received a query from the IT section as to whether or not the Complainant’s phone should be disconnected. A responding email was issued immediately advising that his phone was not to be disconnected. The raising of a query cannot be considered to be a penalisation and no detriment arose to the Complainant from this query.

  3) September 2018 access swipe was disabled. The Respondent submitted that the reason his access swipe was disabled was not related to his protected disclosure. It was disabled because he had attended the building at a weekend when the building was empty, and he had not notified the Respondent of his intention to do so. This was considered a health and safety risk.

  In relation to his email access being removed, the Respondent says it only became aware of this at the Adjudication hearing. At no time had the Complainant brought it to their attention. It was the Respondent’s understanding that the access denial happened because his password had expired. The Respondent submitted that as they were not aware of his email access issues, same could not be penalisation.

  4) In relation to the 4^th issue, the Respondent says the Complainant received the same internal supports available to staff members returning to work including access to the Employee Assistance Programme which he chose not to avail of. The Complainant complied his own list of external supports that he required before he would return to work. The Respondent says the fact that it did not comply with this list in circumstances where there were internal supports cannot be considered to be penalisation under the Act.

The applicable law

• S 12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

  (2) Subsection (1) does not apply to the dismissal of an employee to whom section 6(2)(ba) of the Unfair Dismissals Act 1977 applies.

  (3) Schedule 2 shall have effect in relation to an alleged contravention of subsection (1) .

  (4) Subsection (3) does not apply in relation to the penalisation of an employee if the employee is within paragraph (d) of section 2(1) of the Unfair Dismissals Act 1977.

  (5) Any person who, on examination authorised under paragraph 3(1) of Schedule 2 , wilfully makes any material statement which the person knows to be false or does not believe to be true commits an offence and is liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

  (6) ………

“penalisation” means any act or omission that affects a worker to the worker’s detriment, and in particular includes—

(a) 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) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal;

Discussion

In order to determine a complaint of penalisation under the Protected Disclosures Act 2014 it must be establish that a protected disclosure had been made and if so the Court must examine whether a penalisation within the meaning of section 3 has occurred. It is not disputed in this case that a protected disclosure in line with s5 of the Act was made. It therefore falls to the Court to consider whether or not the Complainant was penalised for having made such a protected disclosure. As this Court pointed out in O’Neill v Toni and Guy Blackrock Limited [2010] E.L.R. 21 it is necessary for a Complainant to show that the penalisation of which he or she complains was imposed “for” having committed a protected Act. The act or omission complained of must have been incurred because of, or in retaliation for, the worker having made a protected disclosure. Where there is more than one causal factor in the chain of the events leading to the detriment complained of, the making of the protected disclosure, must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment.

In this case the Complainant has identified what he believes to be four acts of penalisation resulting in detriment.

In relation to complaint number 2, the Court does not accept that the raising of a query by the IT department, who would have had no knowledge of the protected disclosure and from which no discernible detriment flowed, could be considered to be penalisation in line with section 12 of the Act. Furthermore, there was no evidence adduced by the Complainant to show a causal link between the protected disclosure and the IT query.

The Court does not accept that a decision by the Respondent (complaint number 4) not to accede to the Complainants request for external supports in circumstances where he has offered no reasonable explanation as to why he could not avail of the internal supports available could be considered to be penalisation in line with section 12 of the Act. Again, the Complainant adduced no evidence to show a causal link between the protected disclosure with the decision by his employer not to accede to his request for external supports.

In relation to the Complainant’s complaint that access to his emails was denied, the unrefuted evidence given by the Respondent was that it was not aware of this until after the event means that there is no causal connection between the act and the protected disclosure.

In respect of the remaining two complaints, access to the building and the non- application by the Respondent of its discretion to grant him extended sick leave. The Court having carefully studied the submitted documents and listened to the oral arguments on the day finds that applying the “but for” test to these two issues, that these issues would have arisen even if he had not made a protected disclosure. In those circumstances the Court must find that the issues raised by the Complainant were wholly unrelated to the protected disclosure and therefore no detriment in line with s 12 of the Act arises.

For the reasons set out above the Court is satisfied that no penalisation occurred. The Complainant’s appeal cannot succeed and is dismissed. The decision of the Adjudication officer is affirmed.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
H.M.	______________________
14/08/20	Deputy Chairman