ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006360
Parties:
| Complainant | Respondent |
Anonymised Parties | Mr. A | A Public Body |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 |
CA-00008721-001 | 12/12/2016 |
Date of Adjudication Hearing: 27/09/2017
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 12th December 2016, the complainant referred a complaint of penalisation pursuant to the Protected Disclosures Act. This complaint is closely associated with complaints made by the same complainant against the parent Government Department of the respondent public body. Those others complaints are subject to reports bearing reference ADJ 6381 and ADJ 9800.
The three complaints were heard together on the 27th September 2017 at a single adjudication hearing. The complainant attended the adjudication. The respondent public body was represented by Arthur Cox Solicitors and two witnesses gave evidence on its behalf. They are referred to in this report as the Regional Manager and the Legal Advisor.
For ease, the complainant presented his case on all three complaints as a single narrative and this is set out below. This report further contains the complainant’s cross-examination by the public body. It also sets out the submissions and evidence of the public body, including the cross-examination of its witnesses.
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant asserts that he was penalised by the respondent for a protected disclosure he made to the respondent and to a Government Department. The respondent denies the claim. |
Summary of Complainant’s Case:
At the outset of the adjudication, the complainant raised a number of preliminary matters. The first was whether it was proper to proceed with this adjudication while his protected disclosure, and the issues raised therein, remained to be addressed. He had not been satisfied with how the public body and the parent Department had addressed his protected disclosure so far, but he had written to both the previous Minister and the new Minister, and was awaiting a substantive reply from his letter. He said that the complaint of penalisation could only be adequately addressed once the investigation of his protected disclosure was completed. He acknowledged that this was mainly an issue of credibility in support of the complaint of penalisation. The complainant also raised issues of fairness and the appropriateness of the respondent public body playing a role in deciding his complaint.
The complainant outlined that on the 1st October 2015, he made a protected disclosure to the respondent public body and to the parent Government Department. The response he received from the senior official of the parent Government Department was that he would be supported in making this disclosure. A named person was appointed by the Department to investigate the issues raised in his disclosure. The issues related to how the public body enforced its statutory powers and the legal stance adopted towards certain potential breaches. This Investigator concluded the investigation in March or April 2016. The complainant said that he received a letter from the Department to say that the Investigator had found no evidence to support his complaints. The issues the complainant had raised were put down to complex circumstances, discretion and differences in approach. The complainant requested a copy of the report but it was not forthcoming. While he had been offered the option of a review, he could not participate in such a review without having the report and without knowing the reasons for its findings. He had no idea as to the basis of the decision.
The complainant sought to have another investigator appointed to look into his protected disclosure. By November or December 2016, he had exhausted all efforts to have this second independent investigator appointed. He made further disclosures, first when, in November 2016, he wrote to the previous Minister and then in July 2017 to the new Minister. He received an acknowledgement from the newly-appointed Minister to say that a response is awaited. The complainant said that he received a redacted Investigation report in July 2017.
The complainant said that he had been raising the issues included in his protected disclosure since 2009 or 2010. He had been the subject of low level penalisation, with snide comments about him “not being one of us” and that he was “rocking the boat”. Things changed when a party the complainant was investigating for regulatory compliance made a complaint about the complainant. The party concerned had agreed to pay monies due to two third parties and the party gave the complainant the cheques to give to the others in question. The party under investigation subsequently cancelled the cheques and complained that the complainant had bullied it. The complainant was taken off the case and told not to correspond with this party. The complaint made against the complainant was investigated by the respondent public body and a report issued in December 2014. While the report said that there was no basis for the claims made by the party, it made adverse findings against the complainant. They included that his role had not been to settle breaches and that he had misunderstood his role in brokering a deal. A finding was made that the complainant had been wrong in not issuing a caution and that the handling of cheques was contrary to policy. The complainant said that he was very unhappy with the serious allegations made by the party against him and in being taken off the file. This allowed the parties investigated by the respondent to determine who would inspect them and this was untenable.
The complainant appealed the adverse findings made against him via an internal procedure. A new letter was subsequently issued, which watered down the findings. The complainant was still removed from the file and remained unhappy with the outcome. He then raised the matter via the civil service mediation process and following this, it was agreed with the Department that a new letter would issue to say that there was no basis for any adverse findings and the complainant would get two weeks extra annual leave to compensate for the stress. The mediator issued the letter the following Monday, but it did not include the agreed wording. The whole handling of the complaint was unfair and this included reneging on the mediated agreement. This was a punitive act taken against him arising from his criticisms. This continued from his making the protected disclosure to the end of his employment. The complainant outlined that the public body’s penalisation of him included not consenting to an Industrial Relations referral he made and in the nine months of delay kicking this around. He submitted that this pushed back the time limits of his complaint and arose from a misrepresentation on the part of the public body.
The complainant said that he was concerned with how the public body addressed compliance issues arising in certain institutions (details supplied). This ongoing issue and how the public body handled the complaint made by the party were the final straws. He had already mentioned to both the public body and the Government Department that he would make a protected disclosure. There was then no policy to do this and it was only in September 2015 that an interim policy was circulated. He made the protected disclosure soon afterwards. In the immediate aftermath of making the disclosure, he received correspondence from the director of the public body, requiring him to attend a meeting. He replied to say that this was inappropriate and described the correspondence as intemperate. It was not appropriate to summons him to such a meeting after making of a protected disclosure. He did not attend the meeting and heard no more from the director. The complainant said that the two letters issued by the director of the public body were addressed to him at an incorrect address – an office of the public body with which the complainant had no association. The letters had been emailed to him and he believed that they had also been posted to him. He feared that they had been opened in the office where they were addressed and then sent to the office where he was based. He feared that this meant that his disclosure was common knowledge throughout the public body. He raised this with the public body and was informed in 2017 that the correspondence had only been sent by email. The complainant said that it was incorrect for the correspondence to refer to his allegations against colleagues, when the matters he raised were addressed to management.
On the 4th December 2015, the complainant received correspondence from the HR Manager of the Department which raised issues of “serious misconduct” against the complainant. His immediate reaction was that they were trying to get at him for making the protected disclosure. He had met the Investigator two days earlier. He said that while the public body and the Department say that the disciplinary process began in July 2015, the letter regarding disciplinary action was only sent in December 2015. He acknowledged that he heard in July 2015 that the office in which he worked was considering taking disciplinary action him in relation to two of his files. It had been a senior manager who informed him of this - he was same senior manager who compiled the 72-page submission on which the HR manager later sought to instigate disciplinary proceedings against the complainant. His managers would have been aware that he intended to make a protected disclosure and this assertion is used against him in the 72-page complaint. This refers to the complainant blowing the whistle as an example of him not accepting direction. On receiving the correspondence of the 4th December 2015, the complainant made the point to HR that the disciplinary proceedings had the effect of punishing him for his disclosure. They said that they were not aware of the disclosure and the complainant questioned whether this was the case as disclosures were under the remit of the Assistant Secretary. The HR Manager agreed to suspend the disciplinary process while the investigation into the complainant’s protected disclosure took place. The Department was of the view that the investigation should be completed first before other issues were addressed – the complainant said that this mirrored his own argument that this adjudication should only proceed once the investigation in his disclosure was completed in its entirety.
The complainant outlined that after he returned from sick leave in 2016, he wished for the disciplinary process to be completed. He was to retire in a few months and was looking to clear his name of the serious allegations made against him. The Personnel section of the Department suggested a process to look again at the failed mediation. It emailed him on the 28th September 2016 and this followed his raising issues with the Assistant Secretary. The email was not satisfactory as it only proposed to look again at the issues considered at the failed civil service mediation. The complainant declined to take part as he wanted all issues to be considered. The Department considered that the disclosure matter was completed and had only wanted to look again at the issues that were considered at mediation. The complainant said that his view was that the disciplinary process remained live and the baseless allegations made against him remained on his record. The Department had indicated that all issues would be addressed, but when he received the email of the 28th September 2016, he knew that this would not happen. This amounted to a misrepresentation that allowed him to extend time on his complaint. The complainant said that he was on sick leave between February and July 2016, but did not receive one phone call to ask how he was. It was deplorable that the Regional Manager of the public body had not contacted him until the day of the adjudication. The complainant said that in March 2016, he was again in contact with the Investigator as he was anxious for the investigation to progress. While on sick leave, the complainant had access to his work email and a database of cases. He accessed the database as it contained information relevant to his protected disclosure. He saw that one case had been reassigned to his manager and that his finding of a breach had been reversed. The manager had told the party considered that it did not owe the money identified by the complainant. He emailed the manager to raise this with him. There was no direct reply to his email and he subsequently received a registered letter from a named senior manager based in the headquarters of the public body. This challenged him for accessing work emails while on sick leave and for retaining paper files at home. The complainant described this correspondence as completely disproportionate, as it contained a threat of disciplinary action. The respondent had previously not sought the return of the files, and to now do so in this manner was disproportionate. At this time, the complainant also contacted the Investigator to say that he had a “smoking gun” regarding the attitude of management ignoring the legal liability of parties. He had accessed the systems of the public body to ensure that this information was before the investigation, and this was highly relevant to his disclosure. The complainant outlined that he had retained files to also assist in showing that his disclosure was correct. This was why the public body now wanted the files back. He said that the correct approach would have been for the respondent to ask for them back, rather than to make threats while he was on sick leave. He said that he later returned the files.
In respect of the defamation proceedings, the complainant said that he had been defamed by a party he had dealt with in the course of his employment. The public body refused to defend the complainant’s good name and so, he initiated legal proceedings. The public body’s letter of the 25th July 2016 sought to prevent the complainant from exercising his constitutional right to his good name. It questioned whether he could return to the inspector role. While the correspondence refers to the public body getting legal advice and that this would be given to him, he was never supplied with the advice.
In respect of his return to work, the complainant referred to the email of the 25th July 2016 and that this was the first occasion in which a specific date for his return was given. His previous certificate was coming to an end, so he was aware that it was likely that he would be going back to work on this date. There followed a four-week period in which he was deemed fit to work and available to work, but could not work as he had no access to the public body IT systems. He had no cases assigned to him. He would only return to work when he had proper work to do, and would not return to only sit in his office. The respondent had prevented him from going back to work and he had to take annual leave instead.
On his return to work, the complainant said that he was restricted to working five hours per day. This was despite the fact that he was certified to return full-time and wished to do so. It had been the respondent’s intention to restrict the amount of work the complainant could do. Following his protected disclosure, the public body now wished to prevent the complainant from going back to work and this included restricting his hours. Personnel had told him that the five-hour day had come from the Department Chief Medical Officer. He acknowledged that he was paid a full-time salary during this time. He complained to the pubic body about only working five hours per day and stated that he could work full-time. He never met the Chief Medical Officer. The complainant was anxious to follow up on files and conduct re-inspections, in particular of one beef processor. The public body did not allow him to conduct the re-inspections and this was because he had made the protected disclosure.
In respect of his application for retention, the complainant said that this represented the most serious act of penalisation and fell within his December 2016 complaint. The Minister had made a public statement about helping older workers to stay in employment. The complainant has children of school-going age and in college. The Government Department, however, had not told him of the possibility of applying for retention beyond his 65th birthday on grounds of hardship. The attitude of the Department was to “get him out” and this included how it treated his application for retention and to stay in work beyond 65. The Department should have brought the scheme to his attention. They were aware of the scheme but never told him about it. They only later told him of a D/PER instruction not to proceed with such applications. The complainant had enquired initially about the scheme in August 2016 and it appeared that the instruction was issued five days after he made the application on the 26th October 2016. The complainant referred to a written assessment of his application that showed that he met the hardship criteria where his income post-retirement would be less than 25% of his current income. He referred to an email of the 27th October 2016 from the new HR Manager, which raised the issue of service. The complainant said that this indicated that the Department was looking at ways of refusing his application. It looked from the assessment that he was going to qualify on hardship grounds and the reference in the email to the Assistant Secretary shows a connection with the protected disclosure. There was also a reference in the email to whether the person would have to be replaced; this was another additional consideration brought into the application. This demonstrated the mindset of the Department. The fact of the initial positive assessment, the fact that D/PER did not have a role in the scheme and the email from the new HR manager that the complainant would meet the criteria, it was decided by one means or another that his application would not succeed.
The complainant outlined that there was toing and froing over figures. He referred to the email of the 2nd December 2016 that stated that D/PER would not approve a retention application. He availed of the Freedom of Information Act to obtain documentation from D/PER and the only document he received was an email sent to the Department. On the 6th December 2016, the HR Manager requested more information, but at the same time, said that he would not recommend the application. He said that his application had been picked out for this sort of treatment. The information he obtained from D/PER should that other applications had been approved.
In cross-examination by the public body, the complainant confirmed that he had retired as an Executive Officer with allowance and that he had previously worked in another named public sector body. He accepted that the Department dealt with matters such as sick pay and retirement, and that he had first been assigned to work for the inspectorate and then to the public body. He also accepted that the inspector role involved duties such as visiting outside parties and checking records. He said that it was a bone of contention whether inspectors should make onward referrals to a quasi-judicial process. He denied that he was ever involved in pursuing awards for members of the public. It was put to the complainant that, in summary, his case was that he sent the email of the 1st October 2015 and the Assistant Secretary replied to say that this would be treated as a protected disclosure. It was put to him that he had four specific complaints of penalisation. The first was the engagement with the director of the public body and his assertion that “perhaps” the correspondence addressed to him was opened. The second was the letter of the 4th December 2015 regarding the disciplinary process. The third were the issues of April and May 2016 regarding access to online IT systems and databases as well as the issue of files. The fourth were the issues around his return to work in July and August 2016. The complainant was asked about his Circuit Court defamation proceedings; he replied that they were “nowhere” as his solicitor had lost interest. It was put to the complainant that in May 2016, an application had been made on his behalf for judgment in default in these proceedings; he said that he was not aware of this.
In further cross-examination by the public body, the contents of emails of the 9th and 23rd March 2016 were put to the complainant; he agreed that he was on sick leave when the emails to an outside party and to a line manager were sent. He was asked where the threat was in the March 2016 letter from the Director of Corporate Services; he accepted that it did not contain a threat. In respect of his email of the 31st March 2016, the complainant said that he was concerned that representatives of the public body would call to his home to collect files. It was put to the complainant that he had kept at home live files that needed to be tended to; he replied that he had hoped to be back at worker sooner. He agreed that he ascribed a malign intent to the public body’s wish to recover the files. He said that the letter of the 13th April 2016 regarding the return of files and remote online access was unreasonable in the context of his protected disclosure and his reliance on information contained in important files. He had wanted to return files and did so when he could. It was put to the complainant that up to the letter of the 9th May 2016, he continued to access the remote online IT system of the public body; he replied that he was monitoring cases as part of his protected disclosure. He was cooperating with the investigation. It was put to the complainant that this access included accessing files on the 1st March, the 14th April and the 4th May 2016 relating to the company that he later sought motion for judgment against in the Circuit Court on the 16th May 2016; he replied that this related to his protected disclosure and not to the Circuit Court proceedings. The complainant was asked if the investigation into his protected disclosure was completed by the end of April 2016, why had he accessed the remote online IT system on four or five occasions after that. In respect of his email to the Regional Manager of the 11th May 2016, the complainant said that he had accessed the IT system to monitor cases relevant to his protected disclosure.
In respect of the letter of the 25th July 2016 sent to him by the Legal Advisor it was put to the complainant that while he suggested that he had not been permitted to advance legal proceedings on his own behalf, this was not stated in the letter. It was put to the complainant that at this stage, the complainant would return to work but not with the duties of an inspector; he agreed that this could be interpreted from the letter. It was put to the complainant that there was no reference in the letter to the protected disclosure; he accepted that there was no direct reference to the disclosure. In respect of his email of the 26th July 2016 regarding his return to work, the complainant was asked why he says he was compelled to take annual leave; he replied that he had no alternative but to take annual leave. He would not go to work and sit looking at the four walls. He was not sure when his first day back in the office had been. He did not accept that there had been confusion over whether his return to work would be on his first day in the office or when he worked from home. It was put to the complainant that in an email of the 29th July 2016, the public body indicated that he had access to the online IT system without access to a database; he said that this appeared to be the case. In respect of his reference in an email of the 8th August 2016 regarding meeting a solicitor, the complainant said that he guessed that this related to his protected disclosure. It was put to the complainant that while this email refers to him being obliged to take annual leave, this was not the case; he replied that he had wanted to work and to attend to cases. In respect of the email from the public body of the 8th August 2016 saying that he could return to the office to work on files; he said that he was anxious to go back to work, but only as an inspector with access to the systems. It was put to the complainant that ultimately, he was restored full access to the database despite the legal advice obtained by the public body; he replied that he had been told that the legal advice was against giving him access, but he never saw this advice. He said that access had been restored to him. The complainant accepted that he had come back to work after that and worked normally until his retirement. The complainant was asked why he waited until the 12th December 2016 to lodge his claim of penalisation against the public body; he said that he did not know why he lodged the complaint on this date.
In closing comments, the complainant referred to his two recent set of submissions and asked that they be taken into account. |
Summary of Respondent’s Case:
The Regional Manager gave evidence. He said that since 2009, he had been an Assistant Principal and Regional Manager of the inspectorate department in charge of two locations. He said that the complainant was an employee of the Department. In May and April 2016, cases had been re-assigned from the complainant to his line manager and to other inspectors. It was usual for this to happen during a period of sick leave. He explained that the public body operated an online gateway for remote access and access to email and work resources. The public body also had an online case management system. One needed a legitimate reason to access files assigned to a colleague. The complainant had accessed files reassigned from him to his line manager. This led to the correspondence issued to the complainant regarding his access to the remote access system. He said that he had not been motivated by the protected disclosure in how he dealt with the complainant about his access to IT systems and the return of files. The complainant continued to access the IT systems even when told not to. In respect of the complainant’s return to work, the Regional Manager said that he was based in a different office to the complainant so there was confusion as to his return to work after the email of the 25th July 2016 saying he was fit to come back. At this time, the complainant had been able to gain intermittent access to IT systems through a back-up server. He replied to the complainant on the 27th July 2016 to say that he now had access to the IT systems except for the case management database. The complainant’s access to the database was restored on the 16th August 2016. He said that all annual leave was approved by the line manager. There was uncertainty as to his return to work, whether it was the 22nd July or the 27th July 2016 and the complainant had taken ten days of annual leave. The complainant raised the issue of his online access on the 8th August 2016 but he had been due to return to work the following day. There was confusion. He said that he made every effort to restore the complainant’s access and to get him back.
In cross-examination of the Regional Manager, it was put to the Regional Manager that there was no confusion regarding the complainant’s return to work, even prior to the 22nd July 2016 as this was clear from the emails, especially when the complainant had said he would only go back to work when his access was restored. The Regional Manager replied that he had facilitated the complainant’s return. The Regional Manager confirmed that he and the complainant had worked together since 2009. It was put to the Regional Manager that he had not contacted the complainant since he went to hospital in February 2016; he replied that he had said “hello” at a named midlands location and on the day of the adjudication. The complainant said that the hello had been a nod. In further cross-examination, it was put to the Regional Manager that the letter of the 29th July 2015 referred clearly to the inspectorate’s loss of trust and confidence in the complainant, reading out a paragraph of the letter; he replied that this had been a collective document and he had not been happy with how one file in particular had been dealt with. He said that he had not made decisions regarding the complainant’s return.
The Regional Manager said that he put together the 72-page document sent by the inspectorate department to the Department raising disciplinary issues regarding the complainant. He said that this raised legitimate issues regarding the complainant’s role and his work. The document was sent to Personnel. The Regional Manager said he followed up with the HR Manager in August 2015 and it was then up to Personnel to act. He said that the submission consisted of five pages with the remainder being emails and supporting documentation.
The Legal Advisor gave evidence. She gave an outline of her professional experience and her statutory role. She referred to the legislative framework operated by inspectors, including their “considerable” powers of entry, of taking and copying documents and of taking prosecutions. She said that this was the context of her approach to this case. She had been generally aware of the complainant’s protected disclosure, but not of the detail. In May 2016, she became aware of the complainant’s Circuit Court proceedings. She said that red lights started to flash when she learnt of the complainant’s motion for judgment and the complainant’s access of online files regarding this defendant company. This was an issue because of the complainant’s pending return to work. She was aware that the complainant’s line manager had been assigned this file. The Legal Advisor said that it was an issue of concern that the complainant had taken legal proceedings in respect of issues arising from his role as an inspector. She was concerned that the complainant would issue defamation proceedings against other parties. The complainant had not answered the question posed in the letter of the 25th July 2016 whether there were proceedings against other parties.
The Legal Advisor said that she obtained external legal advice as she was aware of the other issues involving the complainant, e.g. the disciplinary issues and the protected disclosure. She wanted advice from someone who did not know of the protected disclosure. The advice obtained by the public body that it would be negligent for the public body to allow the complainant to continue in the inspector role. The Legal Advisor said that she did not commit to provide the complainant the actual advice she received and that an outline of the advice was later given to him. The public body informed the complainant of its decision that he could return to work and access files. She had not sought to punish the complainant and her concern arose from his role as an inspector. She described this as a unique situation and she would do the exact same thing again. She categorically did not seek to penalise the complainant. In cross-examination, it was put to the Legal Advisor that how after having sought and then obtained legal advice and in the context of the disciplinary proceedings, the complainant was allowed return to work; she replied that her concern had been the defamation proceedings and that it had not been her decision to allow his return. She was not sure when the outline of the legal advice had been given to the complainant and that the public body had gone against the legal advice by allowing the complainant return as an inspector. The complainant had not suffered any detriment. The Legal Advisor was asked why the legal advice was not shared with the complainant; she replied that she had not committed to giving the advice to him and in any event, they had not acted in line with the content of the advice.
In closing comments, the public body submitted that the onus of proof rested with the complainant to show that penalisation had occurred. The public body submitted that the complainant was not its employee, but was an employee of the Department. It referred to section 3 of the Protected Disclosures Act regarding the definition of employee and submitted that the Department was the complainant’s employer for the purposes of the Act. It was further submitted that section 12 of the Act refers to acts of the employer. The public body outlined that it had sought to answer the whole case presented by the complainant, and not to rely on this preliminary point. The public body submitted that there was no basis to extend time beyond the six-month period preceding the application and that older matters could not be considered. In respect of the matters relating to the complainant’s return to work, the evidence showed that the actions of the Regional Manager and the Legal Advisor were not related to the protected disclosure. The words in section 12 of “for having made” required there to be a causal link between a disclosure and an act of penalisation. It was submitted that it was not sure if there was any adverse treatment of the complainant, especially as it had gone against legal advice regarding his return. The public body referred to the Labour Court authority of McGrath Partnership v Monaghan PDD162, where it was held that the detriment must be “because of” the protected disclosure and the disclosure must be an operative cause. This required looking at the motives and reasons of the decision-maker. It submitted that the overwhelming evidence was that what happened had nothing to do with the protected disclosure. It also relied on NHS Manchester v Fecitt & Others v Public Concern at Work [2011] EWCA 1190 and ADJ 1721. It submitted that the complaint against the public body could not succeed. |
Findings and Conclusions:
The complainant submits that he was subjected to acts of penalisation arising from a protected disclosure he made on the 1st October 2015 to both the public body and the parent Department. He also refers to raising concerns over a prolonged period about the work of the public body and in particular, the management of its inspectorate service.
It was not in dispute that the complainant had made a protected disclosure within the ambit of the Protected Disclosures Act. While the public body does not accept that the allegations made in the disclosure are true, it does not challenge the presumption in section 5 that the disclosure falls within the scope of the Act.
The public body denies the claim and raises a number of preliminary issues. It signaled the time issue in its written submissions, and asserts that some of acts the complainant states amount to penalisation fall outside the limitation period. The public body addressed the issue of whether the complainant was an employee of the public body in its evidence and in cross-examination. It made the closing submission that the complainant was an employee of the Department and that section 12 refers to “employer”. It stated that it wished for the substance of the case to be aired.
I note that that the respondent public body did not make the submission that evidence should be constrained to either preliminary point. The complainant and the respondent witnesses gave detailed evidence on all elements of the case, as set out above. This is the preferable approach. In addressing preliminary issues arising in tort actions, O’Donnell J., in L.M. v. An Garda Síochána [2015] IESC 81, urged caution in deciding cases on preliminary points: “32. It is, as a general matter, important that the point sought to be tried as a preliminary issue should have the possibility of either terminating the claim altogether or at least resulting in an obvious saving in both costs and time consequent on a reduction of the issues to be tried. A point should also raise a clear issue to which it is possible to give a clear answer. The more qualified and contingent the possible answers, the less likely that the court will be able to provide a clear and decisive disposition of the case and a clarification of the law. The decision to direct a trial of a preliminary issue is therefore one which requires careful consideration by trial judges. It is important that judges do not too readily accept a respondent’s protestations of complexity, impossibility or inconvenience in trying a preliminary issue, while at the same time interrogating with some scepticism a moving party’s claim that the point is clear and potentially dispositive of the litigation or some significant portion of it.” Having considered the evidence and submissions in their totality, it falls to first consider the fact established at the adjudication that the complainant was not an employee of the public body, but an employee of the Department. The interpretation section of the Protected Disclosures Act (section 3) provides for the following definitions of employee, employer and worker: “employee” has the meaning given by section 1 of the Unfair Dismissals Act 1977 and includes an individual who is deemed to be an employee by virtue of subsection (2)(a);
“employer”, in relation to a worker, means, subject to subsection (2)(c)— (a) in the case of an individual who is a worker by virtue of paragraph(a) of the definition of that term, the person with whom the worker entered into, or for whom the worker works or worked under, the contract of employment, (b) in the case of an individual who is a worker by virtue of paragraph (b) of the definition of that term, the person with whom the worker entered into, or works or worked under, the contract, (c) in the case of an individual who is a worker by virtue of paragraph (c) of the definition of that term— (i) the person for whom the worker works or worked, or (ii) the person by whom the individual is or was introduced or supplied to do the work, or (d) in the case of an individual who is a worker by virtue of paragraph (d) of the definition of that term, the person who provides or provided the work experience or training;
“worker” means an individual who— (a) is an employee, (b) entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business, (c) works or worked for a person in circumstances in which— (i) the individual is introduced or supplied to do the work by a third person, and (ii) the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them, or (d) is or was provided with work experience pursuant to a training course or programme or with training for employment (or with both) otherwise than— (i) under a contract of employment, or (ii) by an educational establishment on a course provided by the establishment, and includes an individual who is deemed to be a worker by virtue of subsection (2)(b) and any reference to a worker being employed or to employment shall be construed accordingly.”
For completeness, subsection (2)(a) referred to in the definition of “employee” provides: “(2) For the purposes of this Act— (a) an individual who is or was— (i) a member of the Garda Síochána, or (ii) a civil servant (within the meaning of the Civil Service Regulation Act 1956), is deemed to be an employee”
It is clear that the complainant was not an employee of the public body. He was a civil servant and an employee of the Government Department. Having considered the evidence, I find that, in respect of the public body, the complainant fell within the definition of “worker” provided in subsection c), i.e. an individual supplied to work by a third person or where the terms of his employment were substantially determined by either or both the public body and the Department. It is clear from the evidence that there was a significant degree of overlap in the interactions between the complainant, the public body and the Department. The disciplinary letter was sent from the office of the public body to the Department in July 2015. The protected disclosure was made to both. The public body dealt with the complainant’s return to work from sick leave and the issue of his access to work resources.
Having found the complainant is a worker with regard to the public body (and not its employee), it falls to consider whether he can seek redress by means of this complaint of penalisation. Section 12 (1) of the Protected Disclosures Act provides “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.” The redress provision for a breach of section 12 is contained in the first Schedule of the Act and provides the complaint mechanism to the Workplace Relations Commission. It is clear that section 12 applies only to employees and not to the wider group of workers. (To note, the legislation in Ireland differs from UK statute where a wider group of workers can take penalisation claims pursuant to the extended definition of “worker” in section 43K of the Employment Rights Act.)
It follows from the plain wording of section 12 that the complainant is not entitled to pursue a complaint of penalisation against the respondent public body. As a worker, he falls within the scope of section 13 of the Protected Disclosures Act, the action in tort for “detriment”. Claims made pursuant to section 13 do not fall within the ambit of the Workplace Relations Commission and are matters for the civil courts.
I, therefore, do not have jurisdiction to decide a claim of penalisation against the public body as the complainant was not an employee of this respondent. It follows that the complaint of penalisation against the respondent public body is not well-founded. |
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.
CA-00008721-001 I find that I do not have jurisdiction to hear a complaint of penalisation made pursuant to the Protected Disclosures Act against the respondent and the complaint is, therefore, not well-founded. |
Dated: 28/11/17
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Protected Disclosures Act Section 3 / definition of “employee” and “worker” Section 12 / penalisation / employee |