ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006381
Parties:
| Complainant | Respondent |
Anonymised Parties | Mr. A (1) | A Government Department |
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-00008796-001 | 15/12/2016 |
Date of Adjudication Hearing: 27/09/2017
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 15th December 2016, the complainant referred a complaint of penalisation to the Workplace Relations Commission pursuant to the Protected Disclosures Act. This complaint is closely associated with complaints made by the same complainant against the same Government Department and a public body under the auspices of the Department. The other complaints are subject to reports bearing reference ADJ 6360 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 was represented by Cathy Smith, BL, instructed by the Chief State Solicitor’s Office. Two witnesses attended to give evidence: the HR Manager and the new HR Manager.
For ease, the complainant presented his case on all three complaints as a single narrative and this is set out below. The report further contains his cross-examination by the Government Department. It also sets out the submissions and evidence of the respondent, 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 is a civil servant and asserts that he was penalised by the respondent Department for a protected disclosure he made on the 1st October 2015. The respondent denies the claim. |
Summary of Complainant’s Case:
The complainant raised a number of preliminary matters at the outset of the adjudication. 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 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 public body and to the parent Government Department. The response he received from the senior official of the 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 another investigator appointed to consider 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 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 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 Department, the complainant said that a verbal agreement had been reached at the civil service mediation regarding precise wording to say that there was no basis for the adverse findings made against him. There was, however, no reference to this in the letter that issued following the mediation. In respect of who reneged on the agreement, he did not differentiate between the Department and the public body. His guess was that the public body was unhappy. He assumed that it reneged on the agreement and did not ask. It was put to the complainant that the wording contained in the letter was the exact agreement reached at the mediation; he replied that someone had reneged on the agreement they reached. It was put to the complainant that there was a common thread that he blamed everything he did not like on his employer. It was put to the complainant that prior to the issue of the disciplinary letter on the 4th December 2015, there were prior discussions in July 2015; he replied that he was aware in July 2015 of talk regarding a disciplinary process. He said that the invitation to a disciplinary meeting on the 16th December 2015 was motivated by his protected disclosure. It was put to the complainant that he accepted that the HR Manager did not know of the protected disclosure and he acknowledged this in an email of the 11th December 2015; he replied that the HR Manager probably did not know of the disclosure. It was put to the complainant that he could not dispute that the invitation to a disciplinary meeting could not be linked to the disclosure; he replied that a senior manager in his department had compiled the disciplinary document and was also a recipient of the disclosure. This senior manager was the moving force behind how he was treated. It was put to the complainant that whatever this manager did in July 2015, this could not be linked to the later protected disclosure of the 1st October 2015; he replied that prior to making the disclosure, he had mentioned making the disclosure, including to this senior manager. He submitted the disclosure within two weeks of the respondent circulating its policy on making protected disclosures. He stated that the disciplinary process began as soon as work started on preparing the 72-page submission. This document was attached to the disciplinary letter of the 4th December 2015 and included very serious, defamatory allegations. It was put to the complainant that the HR Manager had suspended the disciplinary process when he became aware of the protected disclosure; he replied that he was prepared for the process to proceed and sent a detailed reply to the allegations. He, of course, objected to the basis of the disciplinary process as he was just doing his job. It was put to the complainant that the HR Manager did the opposite of what he was accusing him of; he replied that there should not have been a disciplinary process at all. Once the process commenced, he sought to clear his name but it was kept hanging over him until his retirement. It was put to the complainant that the HR Manager had offered to mediate these issues on his return to work; he did not agree.
In further cross-examination by the Department, it was put to the complainant that there was nothing untoward of an employer demanding that an employee not work while on certified sick leave; he agreed with this, but that his manager should have contacted him about this issue. Instead he was threatened with registered letters. The sick leave policy also requires that management keep in touch with the employee, but this did not take place. It was put to the complainant that the point of sick leave was to allow recovery; he said that the threatening letters were not appropriate and he had been allowed meet the Investigator while on sick leave. It was put to the complainant that he had instigated contact with the Investigator to further the investigation; he accepted that it had been his decision to contact the Investigator, who had verified with the employer that it was appropriate for him to meet the complainant. It was put to the complainant that the HR Manager had exercised a discretion to extend critical illness cover to him, so that he remained on full pay; he accepted this and said that he has not raised the issue of pay. It was put to the complainant that this would have been the perfect opportunity to penalise the complainant; he replied that it would have been obvious detrimental treatment not afforded to others. In respect of his return to work, the complainant said that he had told his line manager as soon as he was deemed fit to return. It was put to the complainant that it was standard policy for the Department to speak with the Chief Medical Officer regarding a return to work; he said that he was not aware of this. It was put to the complainant that as he had been out for six months, he was referred to the Chief Medical Officer and then facilitated with reduced hours. He replied that this may be the case and that he saw things in the context of how he had been treated. He said that everyone at the top level of the Department sought to prevent his return. His GP and consultant had certified him as fit for full-time work. It was put to the complainant that he did not challenge the referral to the Chief Medical Officer, but had made a big issue of it today. It was also put to the complainant that he had sought to retire early on his return; he accepted this and said that the respondent had suggested administrative leave. It was put to the complainant that this was discretion exercised in his favour; he said that taxpayer money was no object for the respondent, but it sought to prevent him going back to work and this included the offer of administrative leave. He had wanted issues to be addressed.
It was put to the complainant that the substance of his issues regarding the work of the Department were not part of this adjudication; he accepted this and said that he wanted to substantiate his allegations following a fair and independent evaluation. The complainant was asked whether he had the email where he requested the investigation report; he said that he had sought this in emails to the Assistant Secretary. It was put to the complainant that he was never refused the report and that he never requested it; he replied that he had sought clarification of the report and asked for the report. It was put to the complainant that the statutory retirement age in the civil service is 65 and that retention applications are rarely granted; he replied that he has obtained figures to show that retentions are granted. It was put to the complainant that he had not been singled out; he replied that if everyone’s application was subject to the same scrutiny, no-one’s application would be approved. Some were subject to D/PER approval while others were not. It was put to the complainant that while there had been a preliminary assessment of his application, he did not come within the thresholds; he did not accept this. It was put to the complainant that the Department had acted within the instructions received from D/PER and this was nothing to do with the protected disclosure; he replied that he had asked to see the email from D/PER, but also the original email from the Department which led to the D/PER email in reply. It was put to the complainant that he had withdrawn his retention application on the 28th November 2016; he replied that he re-presented it later. It was put to the complainant that he had sought clarification on the application and this was why there was so much toing and froing. It was put to him that he never reactivated the application after the 28th November 2016. It was to the complainant that there was toing and froing over figures and other aspects of the applications were efforts to make things work. This was done despite there being no live application; he replied that no reasonable person could interpret this as the Department facilitating his application and that it had sought to stop his application. It was put to the complainant that the Department had offered to review the decision to refuse the retention application, even though this was not provided for in the Circular. It was put to the complainant that few applications for retention were approved; he did not agree that the numbers were low. It was put to the complainant that the Department and not the public body was his employer. In respect of his Circuit Court proceedings, it was put to the complainant that no action had been taken against him to stop his litigation; he replied that he was told that the litigation would impact on his ability to do his job.
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:
In opening comments, the respondent Department outlined that the complaint regarding the treatment of the retention application did not fall within the claim made pursuant to the Unfair Dismissals Act. The complainant could not raise penalisation within the Unfair Dismissal complaint and it was not included in his penalisation complaint against the Department.
The HR Manager gave evidence. He outlined that he was now a Principal Officer in charge of a particular function, but between September 2013 and September 2017, he was HR Manager of the Department. He had received the 70 or 80-page submission in correspondence of the 29th July 2015 from the inspectorate regarding the complainant and this was immediately prior to his annual leave. He had a specific role in the disciplinary process. He parked the file until he had the time to review the file and to act. He completed this process in late November 2015 and thought that there were a number of issues to be addressed. He wrote to the complainant to this effect on the 4th December 2015 and enclosed the Disciplinary Code, which was standard practice. He said that the delay in doing this was due to the volume of work and the desire to block off time. He needed to take due diligence of the file. He said that he became aware of the protected disclosure when told about it by the complainant. He had not been aware of the disclosure, so no link could be made between the letter of the 4th December 2015 and the disclosure. On being told of the disclosure, he needed to consider whether he could continue with the disciplinary process. In of itself, a protected disclosure could not stop a disciplinary process, but suspending the disciplinary process was the most judicious approach in this case. The disciplinary process was suspended for the investigation of the disclosure and for the complainant’s sick leave. He said that after the complainant’s return to work, he contacted him in September 2016 about addressing these issues.
The HR Manager said that following the email from the Assistant Secretary of the 23rd September 2016, he identified a range of issues to be addressed. He emailed the complainant on the 28th September 2016. He said that he broke down this email into subsections a), b) and c). The disciplinary policy had to follow specific procedures, but he proposed that these issues could be dealt with in an agreed process. He said that while no new issues would be considered, he could not explain why the email does not refer to the issues in both subsections a) and b) being part of a process. The HR Manager said that the disciplinary process provided for a tight timeframe and it would have been difficult and academic to complete before the complainant’s retirement. It was also not a way to mark the end of an employee’s service. He said that the Department seeks to avail of the formal disciplinary policy where there is no agreement with the employee about a way forward to address issues. He said that on receipt of the complainant’s reply of the 28th September 2016, he decided to wait on the further actions of the complainant. Given the complainant’s pending retirement, the disciplinary process was not reactivated. He did not see the connection between the protected disclosure and the disciplinary process as he had determined that there was no value in continuing the disciplinary process in the light of the pending retirement.
In respect of the complainant’s retention application, the HR Manager said that he had dealt with five applications on hardship grounds, three of which were granted and two refused. Because they only dealt with one or two applications a year, they had the refresh on the Circular and conditions. They also checked with D/PER. The granting of an application was in the gift of the employer. The complainant made enquiries in August and September 2016 regarding staying on after retirement and about his superannuation. There followed an email exchange regarding 65 being the age of retirement. A named employee of the Department was asked to consider the complainant’s application in October 2016 and at this time, the HR Manager became aware that D/PER had made a blanket decision not to sanction applications for retention. The named employee deemed that the complainant was likely to meet the thresholds, but the HR Manager noted that the form was an old form and they had to get the correct figures to evaluate the application. There was a possible variation as to how the complainant’s children were assessed. This led to the complainant being over the threshold and this was communicated to the complainant as the same time as information about the D/PER direction. The HR Manager said that he stood over his decision on the complainant’s application and that he was answerable to how the Circular was implemented. He and the complainant were then in dialogue over the calculations and there was no formal reactivation by the complainant of his application. He continued to communicate with the complainant so that they had the answers regarding the calculations, in the event of the application being reactivated. In respect of the civil service mediation, the HR Manager said that this concluded that an earlier process had exonerated the complainant of a complaint made against him. The complainant was also to be granted two weeks of additional annual leave for the stress. This was not implemented as the complainant had disagreed with the terms.
In cross-examination, the HR Manager was asked why he continued with the application for retention in the light of the direction from D/PER; he replied that were D/PER to change their position, it was beneficial to have the figures and calculations in place. The HR Manager was asked why he had asked for other sources of income and why he had not accepted that expenses regarding the complainant’s medical expenses, in particular for his heart condition, should be considered; he replied that this information would only have raised his income and that the ultimate refusal had followed the D/PER direction. It appeared to the HR Manager that the complainant was over the thresholds. It was put to the HR Manager that jobseekers benefit should not have been included in assessment, and this payment was excluded in the preliminary, positive assessment of his application; he replied that D/PER had advised that social welfare payments should be included in the assessment. The HR Manager was asked when this advice was given; he replied that this was after the 28th November 2016. It was put to the HR Manager that the complainant had sought for all communications via the Freedom of Information Act; he replied that some of the engagement with D/PER took place by phone so no record may have been made. He said that the Circular was old and had not been revised in the light of the higher pension age. It was put to the HR Manager that in 2017, there had been new and successful applications; he replied that he did not know of these applications but pointed to the four grounds for retention, one of which relates to hardship. In reply, the complainant said that the records he had sought pursuant to the Freedom of Information Act specifically related to applications on the hardship ground.
The new HR Manager gave evidence. He said that he joined the HR section in April 2016 and began reading into the Circular. It arose that whether an officer was to be replaced following retirement was a consideration and he communicated this to the HR Manager. The Department had just gone through the moratorium and the workforce plan, so it was pertinent to inform the HR Manager of this. The new HR Manager said he was not aware of the complainant’s protected disclosure.
In concluding comments, the Department submitted that the complainant had not made an application to extend time and there was no basis for such an extension on reasonable cause. It was further submitted that the complainant was out of time in seeking to raise the retention issue as an act of penalisation and to do so on the day of the adjudication. In respect of the claims of penalisation, most were out of time. In respect of the disciplinary process, the complainant had accepted that the HR Manager had not known of the protected disclosure. The Protected Disclosures Act did not provide protection in anticipation of a protected disclosure, and the Department referred to acts identified by the complainant that preceded his protected disclosure. Those acts fell outside the scope of the Act. The Department further submitted that there was no causal connection between the protected disclosure and the acts complained of, for example the phased return to work. There was also no causal link between the protected disclosure and the complainant’s application for retention. The Department submitted that it was the complainant who sought to revisit the protected disclosure. The Department said that while there was confusion over whether the disciplinary process was included in the offer of further mediation in the HR Manager’s email of the 28th September 2016, the complainant’s reply was about the protected disclosure. It was submitted that the complainant had acted in the same way when he withdrew the application for retention in order to pursue the issue of his protected disclosure. It was submitted that the engagement with D/PER was common. The problem in respect of the application was that the numbers did not work out for the complainant; it was not the protected disclosure that led to the refusal. In respect of the complaint made pursuant to the Unfair Dismissals Act, the complaint was that the complainant was forced into retirement and that there was a connection between the dismissal and the protected disclosure. He raises the initiation of the disciplinary process. It was submitted that there was no dismissal as the ending of the complainant’s employment was required by statute. The Civil Service Act 1956 provides for a mandatory retirement age of 65. Referring to the decision of Clarke J. in Minister for Justice and Equality and the Commissioner of An Garda Síochána v Workplace Relations Commission [2017] IESC 43, the ending of the complainant’s employment does not fall within the jurisdiction of this adjudication as this would require the disapplication of national law by the Adjudication Officer. Notwithstanding the referral to the Court of Justice of the European Union, of which Clarke J. supported, his point is binding. The Department submitted that the question arising from section 2(1) of the Unfair Dismissals Act was whether the dismissal arose wholly or mainly from the protected disclosure. It was submitted that this question must be answered in the negative as it was due to a piece of legislation. It was submitted that the complainant’s retention application and this being an act of penalisation cannot be included in the claim of unfair dismissal. It was submitted that the complainant’s employment terminated on the 8th January 2017 and his subsequent complaint relates to unfair dismissal; it was not possible to incorporate a new penalisation claim made today. |
Findings and Conclusions:
The complainant asserts that he was penalised by the respondent Government Department for making a protected disclosure on the 1st October 2015. The disclosure was communicated by the complainant to a senior civil servant as well as to senior management of the public body. The disclosure relates to how the statutory inspectorate service operated by the public body carried out its functions. It was not in dispute that the complainant had made a protected disclosure within the ambit of the Protected Disclosures Act. While the respondent 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 complainant asserts that he was subjected to acts of penalisation for having made the protected disclosure on the 1st October 2015 and in further raising these issues, for example in correspondence with Ministers. The respondent denies that the complainant was subject to any such acts of penalisation and raises the issue of time.
Section 3 of the Protected Disclosure Act defines penalisation: “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.”
As opened by the respondent, the Labour Court in McGrath Partnership v Monaghan PDD162 held as follows: “The [Protected Disclosures] Act is a new piece of legislation with limited case law, however, the provisions regarding penalisation are broadly similar to those provided in the Safety Health and Welfare Act, 2005. As this Court pointed out in O’Neill v Toni and Guy Blackrock Limited[2010] E.L.R. 21, it is clear from the language of Section 27 of the 2005 Act that in order to make out a complaint of penalisation it is necessary for a complainant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Section 27(3) of the 2005 Act. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant 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 Complainant 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 detriment.” Before addressing the conflicts in evidence of the parties, it is worth considering the time limitation issued raised by the respondent. Complaints of penalisation under section 12 are made pursuant to section 41 of the Workplace Relations Act. Section 41(6) and (8) provide: “(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. “
As is clear from the text of the statutory provision, complaints of penalisation must be made within six months of the date of contravention. As submitted during the adjudication, this provision differs from the continuing discrimination provisions at sections 77(5) and 77(6A) of the Employment Equality Acts. (To note, the protected disclosure limitation periods in the UK Employment Rights Act include repeated acts of penalisation so long as one act is in the limitation period.)
Before examining the acts which the complainant asserts amount to penalisation, it is worth considering the nature of the legal test in a penalisation case. Such a case contrasts, for example, from a claim made pursuant to the Payment of Wages Act where the questions to be determined are whether the wages were due, were they paid and whether the employer can rely on the deductions permitted by the statute. The question of motive or the reasons which influence the decision-maker are not relevant. It is not a factor whether previous wages were paid or unpaid. As outlined by the Labour Court in McGrath, the ‘but for’ test requires consideration of both the question of motive and what reasons influenced the decision-maker. The Labour Court also acknowledged that there may be more than one cause to the employer’s act and the test is whether penalisation was the operative cause. This is a subjective analysis of the motives of the employer and what influenced it. Part of this must include an analysis of the course of dealing between the parties to assess the motives and influences at play at the time of an alleged act of penalisation.
As the ‘but for’ test is more than the application of an objective test, and requires a subjective analysis, it also requires an assessment of the probative value of the wrongs complained of. Where it is alleged that there have been wrongs over an extended period of time, it is necessary to assess the probative value of these acts in order to adequately apply the ‘but for’ test to the alleged wrongs within the limitation period. I note that the parties in this case addressed these issues in evidence, notwithstanding a preliminary objection from the respondent on the time point.
An unusual feature of this case is the overlap between the Department and the public body. Given the considerable interaction of complainant with both entities, and the overlap between them, I have addressed below the issues raised by the complainant regarding the public body and assessed whether the complaint of penalisation is made out. The complainant asserts that he was subjected to acts of penalisation, which include the adverse findings made against him in the report of the 22nd December 2014; the outcome of the civil service mediation process; the failure of the public body to consent to an Industrial Relations referral; the correspondence sent to him by the Director of the public body immediately after his protected disclosure, including that it was addressed incorrectly; the instigation of disciplinary proceedings against him in December 2015; his access to work resources while on sick leave; correspondence issued by the public body regarding his defamation proceedings and his return from sick leave, including his role (both his title and ability to do re-inspections), the length of his working day and his access to resources.
The complainant also raises how the respondent dealt with his application for retention in the civil service. The respondent asserts that this complaint is not part of this adjudication, and referenced only in the complaint of unfair dismissal subject to ADJ 9800. It asserts that a complaint of penalisation cannot be advanced by way of a complaint made pursuant to the Unfair Dismissals Act and this complaint is now out of time.
Having considered the submissions of the parties, I find that I have jurisdiction to consider the retention element of the complaint as part of this penalisation complaint. In reaching this finding, I note that the bulk of the events complained of occurred prior to the lodging of the complaint on the 15th December 2016. They commenced in August 2016 and continued until October 2016. There was later correspondence in December 2016, some of which post-dates the making of the complaint, which I consider as context in assessing the complaint. I also note that the kernel of the complaint is that the complainant asserts he is being penalised for making a protected disclosure. I note that he sets this out in detail in the submissions of the 25th September 2017. I also note that the respondent addressed this issue in submissions prior to the adjudication and in evidence at the hearing.
I have regard to the following dicta in Galway-Mayo Institute of Technology v Employment Appeals Tribunal and others [2007] IEHC 210, where Charleton J. held: “It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”
Given the general issue of penalisation is well-signaled in the complaint form and the specific retention issue is set out in detail in the complainant’s supplementary submissions, and also, the respondent has set out its position on the issue and challenged that of the complainant, it is appropriate for this adjudication to make findings in relation to the retention issue.
Addressing the substance of the complaint, I make the following findings and comments in relation to the complaint. There have been longstanding differences between the complainant and management colleagues regarding the role of the inspectorate service. This includes differences as to practice and to legal issues encountered in their work. The complainant referred to raising issues for quite some time and he knew of the inspectorate’s intention to instigate disciplinary proceedings in the summer of 2015. This points to a background of a disharmonious working environment. This is clear, for example, in the inspectorate’s report of the 22nd December 2014 which addressed a site visit undertaken by the complainant on the 16th October 2014. The report recommends that the complainant no longer work with this third party and states that the recommendations in the report have no disciplinary implications.
Matters escalated in the latter half of 2015. The complainant referred a protected disclosure on the 1st October 2015. I note the reaction of the then director of the public body and the reference to the disclosure in the 72-page submission made by the inspectorate to the respondent Department. On the other hand, I note that nothing came from either intervention. The complainant did not attend a meeting with the director to discuss the disclosure and, as addressed later, the disciplinary complaint went nowhere. In respect of the address to which the director’s letters were addressed, I note that the complainant referred to a possibility that colleagues had opened the letters, as opposed to this taking place. I note the later clarification that this correspondence was sent only by email.
The Department HR Manager indicated in late November 2015 that the issues identified in the 72-page submission merited being sent forward to a disciplinary process. At this point, the complainant stated to the HR Manager that he had made the protected disclosure. The complainant accepted that the HR Manager had not previously known of his protected disclosure. I note that the HR Manager decided, on balancing the issues before him, to suspend the disciplinary process and to investigate the substance of the protected disclosure. Given the way the issues raised in the protected disclosure and those raised in the 72-page submission are so bound up together, this appears to be the prudent course of action. In effect, the HR Manager prioritised disposal of the disclosure issues before considering the disciplinary matters. This was adverse to the authors of the 72-page submission.
The complainant is critical of the findings later reached by the person assigned to investigate the disclosure. He referred to this investigator being from an employer background. While the complainant later sought for another investigator to be appointed, I note that there was substantial interaction between the complainant and the investigator including in April and May 2016 when the complainant was on sick leave. In respect of the investigator’s report, I would have expected this to have been shared with the complainant when the report was concluded. This did not take place. It is, however, not clear when the complainant asked for the full report, as opposed to an outline of the findings. An outline had been emailed to the complainant by the Assistant Secretary (to whom the disclosure had first been addressed, and who had said he would support the complainant.) It would seem an obvious step to reply to the email giving the outline of the investigator’s findings to seek the full report.
In respect of the civil service mediation process in which the complainant, the public body and the Department all participated, it is unclear what terms this concluded upon. It is unsatisfactory that this was not reduced to writing or otherwise clear to all. The complainant expected certain wording that was not contained in the letter subsequently sent to him. He attributes this to the public body. While I note the obvious unsatisfactory position of what parties think is a resolution turns out not to be a resolution, there is nothing to suggest that this was because of the Department or the public body. There was also the opportunity to press the mediator in relation to their understanding of where the mediation had concluded. Instead, the process ended without any agreement being implemented. The complainant, for example, was not afforded additional annual leave. I note, however, that the complainant made no formal complaint at the time the mediation process ended and his not getting the additional leave. While the public body eventually did not consent to a dispute referred under the Industrial Relations Acts, this is not probative of penalisation because this process requires the consent of the employer. I also note the participation of the public body in other mediation processes.
A number of issues arose in or around the complainant’s period of sick leave in 2016, and his subsequent return to work. The public body raised the complainant’s access to online files, to contacting third parties and retaining paper files while on sick leave. It wrote to the complainant about its concerns. The complainant replied to say that he was not in breach of the sick pay policy. Having reviewed the correspondence, there is nothing to suggest that these acts amount to penalisation of the complainant. Even if the public body was incorrect to refer to there being a breach of the sick pay policy, the fact of raising this as an issue is too remote from the complainant’s disclosure. Moreover, even if the records and files included cases the complainant raised in the protected disclosure, there is no basis to conclude that what the public body did was ‘but for’ the disclosure. The complainant had referred the cases in question to the Investigator, who was then completing his investigation. This included the case the complainant referred to as a ‘smoking gun’, i.e. the email correspondence sent to him during sick leave. Notwithstanding that this exchange took place, I do not believe that instructing the complainant to no longer work on files while on sick leave is probative of penalisation, and nor did preventing his access to an online system. The complainant was on certified sick leave and in receipt of sick pay at this time.
In respect of the complainant's return to work, I note that while issues had been raised regarding the complainant’s Circuit Court proceedings and whether he could return as an inspector, the complainant did return to work in this role. While he was not provided with the legal advice obtained by the public body, I note that the public body went against this advice. While the complainant was unhappy with a shortened work day, there is nothing to suggest that this is probative of penalisation. In evidence, the complainant accepted that this staggered return to work was at the behest of the Department Chief Medical Officer. There was a conflict over whether there was confusion over the day of his return to work. Even if the complainant is correct that the position was clear to all, I note that the complainant returned to work and resumed his role. While a delay in returning to work and having to take annual leave (as submitted by the complainant) can amount to unfair treatment (and captured by penalisation), I note the relatively short period of the delay in assessing whether it amounted to penalisation or was probative of penalisation. I find that it did not amount to unfair treatment.
In the email of the 26th September 2016, the HR Manager sets out steps to address the issues raised by the complainant, broken down to subsections a), b) and c). The email, however, is unclear. The second paragraph refers to the respondent’s willingness to re-engage in a mediation process that would overtake a) and b), but later refers to not addressing new issues beyond a). It reads as if there was a typographical error in omitting subsection b) from this sentence. This chimes with the HR Manager’s evidence that no steps were taken to pursue the disciplinary matter as the complainant was to retire in the coming months. I note the complainant’s reply of the 28th September 2016, where he finds nothing in the HR Manager’s email that suggests any intention to address the outstanding issues. He was dissatisfied that this process would only revisit his grievance from the mediation process and not the issues in b) (the disciplinary issues). The complainant also states that he wishes to progress these issues via the relevant legislation. While there was lack of clarity in the email of the 26th September 2016, I do not think that it can amount to, or is probative of, an act of penalisation. Even if the complainant was dissatisfied with the proposal, there is nothing to suggest that the HR Manager set out the proposal in the way he did ‘but for’ the protected disclosure. In assessing the HR Manager’s evidence, I note that he took steps to facilitate the complainant, for example in extending critical illness cover to the complainant.
Section 8(4) of the Civil Service Regulation Act, 1956 allows for the retention of the civil servants following their retirement. Applications for retention fall within the ambit of Circular 13/1975. The complainant sought retention on hardship grounds and on grounds of public interest. There followed extensive correspondence. An initial assessment suggested that the complainant met the hardship ground, with jobseekers’ payments not included as income. Later calculations factored in jobseekers’ payments and the complainant did not meet the criteria. The respondent referred to the position of D/PER where it stated that it was not acceding to any requests for retention. Section 8 refers to the consent of the Minister of the Public Expenditure and Reform (as it then was) in directing a retention.
The kernel of the complainant’s case is that the respondent Department did what it could to get him out because of his protected disclosure. The question is whether the Department’s refusal of the application for retention was but for the protected disclosure. In assessing the evidence, I note the central role played by another Government Department in processing applications. While this other Department may or may not have been correct in deciding not to accept any applications for retention, this is clearly not an act of penalisation of the complainant. I note the contradictory approaches to assessment of the complainant’s post-retirement income and whether a jobseekers’ payment would be included. The fact of a contradiction is insufficient to make out penalisation. Even if the respondent was incorrect to include jobseekers’ payments in assessing income, it does not automatically follow that the claim of penalisation succeeds. Having considered the evidence presented at the adjudication, I find that the inclusion of jobseekers’ payment (even if wrong) was not an act of penalisation. In reaching this finding, I note that overall cooperative approach of the HR Manager to the complainant (in not progressing the disciplinary complaint, in continuing critical illness cover and in considering the complainant’s application for administrative leave). I also note that even if the application was granted, this was for retention as a civil servant. The complainant could have been deployed anywhere in the Department or the civil service, and would not necessarily have been assigned to the public body or carried on the same inspector role. I note the infrequency of granting such applications for retention. I also note that from the perspective of the HR Manager and the Department, the disclosure had been investigated, even if it was the subject of ongoing correspondence with the Minister. Whether the complainant remained a civil servant did not prevent further investigation of the issues raised in his protected disclosure of the 1st October 2015. I do not see how the respondent had motive ‘to get him out’ as attributed by the complainant. Furthermore, even if the Department had applied the income assessment in accordance with the Circular, the Department and Minister had discretion whether or not to grant retention.
Taking the above findings and comments together, I find that the claim of penalisation is not well-founded. I find that the acts of penalisation claimed within the limitation period were not actions ‘but for’ the complainant’s protected disclosure. They include the issues arising during the 2016 sick leave, the complainant’s return from sick leave and the application for retention. In applying the test, I have looked at a wide range of actions of both the Department and public body to assess their probative value and whether they can be attributed to penalisaton. This broad enquiry was required to ensure that the actions within the limitation period were properly assessed, given the subjective nature of the test and that it requires that the protected disclosure be only an operative cause. |
Decision:
CA-00008796-001 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.
For the reasons outlined above, I find that the complaint made pursuant to the Protected Disclosures Act is not well-founded. |
Dated: 28/11/17
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Protected Disclosures Act, 2014 McGrath Partnership v Monaghan PDD162 Galway-Mayo Institute of Technology v Employment Appeals Tribunal and others [2007] IEHC 210 Section 8(4) of the Civil Service Regulation Act, 1956 |