ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00004684
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014
Date of Adjudication Hearing: 06/01/2017
Workplace Relations Commission Adjudication Officer: Ray Flaherty
In accordance with Section 41 of the Workplace Relations Act, 2015 and following the referral of the complaint to me by the Director General, 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.
The Complainant joined the Respondent's Fire Service on 1 March 1990. On 1 December 2003 the Complainant was appointed Sub Station Officer at his local Fire Station and was subsequently appointed Retained Station Officer at the same station on 31 May 2009. The Complainant retired from the Fire Service on 24 September 2016.
The Complainant raised a number of concerns around what he saw his non-compliance by his crew with legislation covering the role as Fire Fighters with the Respondent. The Complainant believes that his raising of these concerns resulted in reprisal and in the Respondent failing to act to resolve the issues raised.
The Complainant contends that he was penalised for raising these matters and that he subsequently suffered stress which resulted in a lengthy absence from work.
Summary of Complainant’s Case:
In submission on behalf of the Complainant, his Trade Union representative stated that he was dedicated and diligent in the application of his role, in what was one of the busiest Fire Stations under the Respondent's control.
The Complainant's appointment as Station Officer followed a Performance Indicator Review of the fire service which resulted in some issues of concern been identified at that station in respect of response times. At the time, the Complainant had a meeting with the Respondent's Senior Assistant Chief Fire Officer (SACFO) who clearly outlined to him the measures to be used in ensuring compliance by the crew with time recording procedures.
Having been made aware of the necessity to make improvements in this area, the Complainant focused attention on the problems which resulted in this negative review and made attempts to improve these areas. He proceeded to make every effort to implement the appropriate policy in line with the best practice and the regulations already in place.
The Complainant had particular concerns around expected mobilisation times and the system which required fire crews to be "on call", with particular concerns in relation to potential crew fatigue in relation to the latter issue.
It was submitted that the Complainant verbally raised these issues with the SACFO on a number of occasions when he sought support and direction in managing the situation. It was submitted on the Complainant's behalf that this support was not forthcoming and no action was taken to address the issues raised.
In addition to the contention that support and direction was not forthcoming from his superiors, it was also submitted that information relating to the whereabouts of crew members was actually withheld from the Complainant. Information in relation to sick leave and/or annual leave absence of crew members were cited as examples of the type of information withheld from the Complainant. In this regard, it was submitted on behalf of the Complainant that he had to follow up on information by phone and email with his superiors. It was submitted on his behalf that he found this very stressful and particularly over at particular points in time when he found himself having to make contact with a specific crew member who had a complaint in progress against him (the Complainant) at the time.
It was submitted on the Complainant's behalf that over time he felt the personal impact of the situation and he grew quite frustrated and despondent. The Complainant began to believe that crew and management were working against him. It appeared the Complainant that his crew had become quite resentful of his attempts to implement policy and regulation, as this interfered with their habitual working arrangements.
It was submitted on behalf of the Complainant that on 2 September 2014, after realising the potential implications of continued non-compliance by his crew and a failure by his line manager to support his efforts to achieve compliance, he approached the SACFO seeking information on the process of making a protected disclosure. The Complainant submits that he was not provided with the information requested with regard to the Protected Disclosures procedure.
The outcome of a complaint made against the Complainant by one of his crew (some 18 months earlier), had by this time been independently investigated and had been found to be without substance. Around this point in time the Complainant lodged a complaint with the SACFO against two crew members whom he alleged did not comply with protocol. This matter was investigated by the SACFO and the Complainant was requested to engage in a meeting with these crew members, however, he was never advice of the outcome of what, if any, action was taken.
It was submitted on behalf of the Complainant that on the day after he submitted his complaint (3 September 2014), a crew member made a complaint against him relating to the opening of a letter delivered by post to the Fire Station on 13 August 2014. The Complainant was advised that an investigation into the crewmember's complaint would be initiated.
In the meantime, a further letter of complaint in respect of this same issue was signed by 10 crew members of the Fire Station. In this complaint the crew members stated that they could no longer work with the Complainant and sought his removal from his position as Station Officer. It was submitted, as significant on behalf of the Complainant that, only 6 of the 10 signatories who sought the Complainant's removal, based on their assertions around the opening of the letter on 13 August 2014, where in fact present at the station on the date and time the alleged incident took place.
It was stated that an investigation into the complaint submitted by the single Fire Fighter on 3 September 2014 was conducted by the SACFO. It was submitted on the Complainant's behalf that while the minutes of his meeting with the SACFO were requested they were never furnished to him.
The Complainant had a period of absence from 9 September 2014 to 18 November 2014 due to an injury sustained with the fire truck in which he was travelling as a passenger hit a tree while en route to a fire. It was submitted that no accident/injury form was completed and statements taken in relation to the incident were not provided to the Complainant. The Complainant contends that while on sick leave he felt harassed by the SACFO who he claims contacted him on numerous occasions by letter, phone and text in respect of the ongoing investigation into the single Fire Fighter's complaint. In this regard, it is contended that the Complainant was given unreasonably tight timeframes to provide responses and was acquired to attend a meeting with management on 16 September 2014, at which he had no representation.
It was submitted on the Complainant's behalf that in December 2014, just days before the findings of the investigation issued, approximately seven crew members reported in sick, in what has been described as a "blue flu" incident. The Complainant contends that this was in protest at the finding of the investigation which upheld the complaint raised by the single Fire Fighter. However, the Complainant further contends that the protest by the crewmembers resulted from the fact that the investigation made no recommendation on action to be taken against the Complainant. It is further contended on the Complainant's behalf that those crew members who signed the letter of complaint clearly wanted him removed.
The Complainant contends that he later became aware of the meeting which took place in a local hotel on 15 December 2014. The Complainant understands that this meeting was attended by, among others, the SACFO, some of the fire crew and a number of local county councillors. It is further alleged that matters, which were confidential to the Fire Service, were discussed during this meeting. It was further contended that the Complainant was not officially informed of this meeting.
It was submitted on behalf of the Complainant that he was requested to attend a Critical Incident Stress Management (CISM) meeting on 17 December 2014, but was left waiting outside the meeting, while a number of his superior officers discussed matters impacting working conditions in the Fire Station (i.e. the "blue flu" issue) with some of his work colleagues. The Complainant was then told that the CISM meeting had been postponed, but would take place at 6:00 pm that evening. The Complainant understands that this meeting was arranged for the purpose of discussing the work environment which was deemed to be quite stressful at the time. It is also contended that he discovered at this meeting that agreement had been reached with his crew at the earlier meeting that no action would be taken against them in respect of the "blue flu" incident.
It was contended on the Complainant's behalf that he was left feeling undermined and isolated by this and it resulted in stress and low self-esteem. As a result he became ill and had to take time off work. It was stated that the Complainant was absent again on sick leave from 19 December 2014 and was not certified fit to return to work prior to his retirement on 24 September 2016.
It was submitted that the findings of the investigation report, into the letter opening issue, were subsequently reviewed at the Complainant's request by the Acting Senior Chief Fire Officer (ASCFO). The findings were then appealed to the Chief Fire Officer (CFO), although the Complainant had initially been told he could not appeal the outcome.
The outcome of the appeal to the CFO (which it is contended took over seven months to issue) was not acceptable to the Complainant as he believed that the findings were inconsistent with the facts as presented. Consequently, the CFO's findings were subjected to a further review, which was carried out by the HR Manager.
It was submitted that the outcome of these reviews were not acceptable to the Complainant and the matter has now become part of an independent investigation, which is not yet commenced due to a dispute on the mechanism for selection of the investigator and the Terms of Reference for the investigation. It was stated that the parties are waiting a WRC decision in this regard.
With regard to the Complainant's period of time on sick leave prior to his retirement in September 2016, a number of matters were raised in relation to certain payments and remuneration issues.
These related to:
In summary, the Complainant's representative stated that he had always carried out his duty in line with the responsibilities assigned to him as Station Officer. It is further stated that problems existed at the Fire Station prior to the Complainant's appointment, as evidenced by the Performance Review which have been conducted earlier.
It was stated that the Complainant was charged with the responsibility of rectifying these problems but was not given the support required from management to allow him to carry out his duties and implement the changes necessary. It was further contended that the Complainant's efforts to do so was strongly resisted by his crew and without management support he found himself adrift and isolated.
It was further submitted that complaints were made against the Complainant by his crew members. In relation to the first of these, the Complainant was vindicated. However, the Complainant contends that the later complaint against him was only upheld because of pressure from the crew members who carried out an unofficial protest in an effort to force to their demand to have him removed from his post.
Finally, in this regard the Complainant contends that in October 2015, he lodged complaints against six crewmembers who signed a letter demanding his removal and the complaints are only now being investigated, although he believes that he is being further impeded in his efforts to have the matter addressed in an open and transparent form, because he has not been consulted in relation to the Terms of Reference for that investigation.
In summary, it was contended on the Complainant's behalf that since raising his concerns he suffered penalisation in relation to the following:
It is contended on the Complainant's behalf that all the above resulted in his absence from work on sick leave on two occasions – September to November 2014 and December 2014 to September 2016, when he retired from the service.
Finally, it was contended on the Complainant's behalf that following his absence on sick leave matters relating to his work were not addressed in good time and therefore resulted in the continuation of the penalisation. In addition, to the issues set out above in relation to payment/remuneration, the Complainant also contends that the following further examples of this penalisation:
In summary, it is submitted on the Complainant's behalf that he made his disclosures on numerous occasions to his manager and his sole motivation was to rectify the wrongdoings identified. Overall, in this regard, the Complainant believes that the treatment he received at the hands of the Respondent led to his work absence and illness. He is clear in his mind that this negative treatment resulted from his attempts to raise concerns around breaches of health and safety and general fire service regulations, which he believed were being breached and that had he ignored these breaches he would not have suffered the negative treatment.
Consequently, the Complainant have been penalised in that he suffered injury and financial loss and harassment for which he is seeking appropriate compensation.
Summary of Respondent’s Case:
Before dealing with the substantive issue of the complainant's complaint, the Respondent made a preliminary point in relation to time limits. In this regard, the Respondent submits that the complaint made by the Complainant is outside the statutory time limit provided for in Section 12 of the Protective Disclosures Act 2014.
The Respondent contends that a complaint of this nature cannot be entertained if it is presented at the end of the period of six months beginning on the date of the contravention to which the complaint relates.
The Respondent states that the Complainant's complaint under the Act was made on 28 August 2016. Consequently, the Respondent states that any detriment that the Complainant allegedly suffered would have had to have occurred on or after 28 February 2016, if it was to be within the time limit set out in the Act. The Respondent contends that the Complainant has not provided with any detail regarding the detriment that he allegedly suffered, therefore it is alleged that, if it did occur it would be outside the statutory time limit provided for within the Act.
Notwithstanding the preliminary point in relation to time limits, the Respondent proceeded, without prejudice, to address the substantive issues of the Complainant's complaint. In this regard, the Respondent contends that there are two issues to be addressed. Firstly, it must be decided whether or not the Complainant made the disclosure protected by the Act and ,secondly, it must be established whether or not the Respondent penalised or imposed a detriment on the Complainant because of, or in retaliation for, having made a protected disclosure.
The Respondent submits that it operates a Protected Disclosure policy, which has a designated officer in place whose responsibility it is to receive and subsequently address matters raised under the Protected Disclosures Act. The Respondent stated that the designated officer has confirmed that he is not in receipt of any communication by the Complainant under the Protected Disclosure Act.
Without prejudice to the previous point made by the Respondent, is contended that the only communication received from the Complainant which could be construed to form a disclosure was correspondence which was received in October 2015, in which he alleges that a named Fire Fighter had breached the sick pay policy of the employer. This correspondence also referred to the fact that a group of named Fire Fighters had met with elected representatives to discuss the matter in dispute between the Complainant and other members of the crew.
The Respondent contends that the issue in relation to the breach of the sick pay policy does not constitute a protected disclosure under the provisions of Section 5 of the said Act. In addition, the Respondent submits that the matter in relation to the public meeting between a group of Fire Fighters and elected representatives cannot constitute a protected disclosure.
The Respondent also states that the matters, set out in the Complainant's correspondence of October 2015, were already the subject of a formal grievance by the Complainant and are being addressed through the Respondent's grievance procedure. It was further submitted by the Respondent that the procedure being utilised in addressing the Complainant's complaint has already been the subject of referral under the Industrial Relations Act and an outcome of the hearing into this matter is awaited.
With regard to the second matter in relation to whether or not the Complainant suffered detriment as a result of raising those issues, the Respondent contends that the provisions of the Act states that the penalisation or detriment being complained of must have been imposed as a direct result of having made a disclosure. The Complainant contends that, to this end, only four staff of the Respondent were aware of the matters which the Complainant alleges constitutes a protected disclosure. The staff in question were: the Chief Fire officer, the Senior Assistant Chief Fire Officer, the Head of Human Resources and the Senior Staff Officer in Human Resources.
The Respondent contends that any allegation of penalisation or detriment on or to the Complainant must relate to the actions of these employees. It is further contended that neither the Respondent nor any of its employees have penalised nor threatened penalisation against the Complainant in respect of his grievances. In addition it is submitted that the Respondent does not accept that it has been responsible for any action or effect which falls within the provisions of Section 12 (a) - (J) of the Act. It is contended by the Respondents that there must be a "but for" consequence in order to establish the penalisation has occurred.
The Respondent also contends that the question of what can be considered as a detriment has not been subject of any definition within case law in Ireland. However, the Respondent contends that it has been broadly defined within the courts in the UK as being "applying a test of whether a reasonable worker could conclude that they had been disadvantaged by the treatment in question".
In a further reference to British case law the Respondent referred to the House of Lords case of Shamoon v the Chief Constable of the Royal Ulster Constabulary where it was found that "an unjustified sense of grievance cannot amount to detriment".
In this regard it is contended by the Respondent that the Complainant was not satisfied by the response of the CFO and the SACFO to his grievances. However it is submitted that this in itself does not constitute detriment or penalisation. It is further stated that the detriment or penalisation must be shown to be imposed for having made a protected disclosure. The Respondent submits that this requires the Complainant to show a chain of causation between the making of the protected disclosure and the alleged detriment/penalisation. According to the Respondent, the Complainant's allegation appears to be that detriment was caused by the failure of the Respondent to address his complaints. However, the Respondent contends that that in itself does not amount penalisation or detriment within the meaning of Section 12(1) (a) of the Act.
In summary, the Respondent submitted that, at all times, it sought to address the substantive issues behind the complaints related to the inter relationships between the members of the Fire Service in the station question.
In addition, the Respondent is also of the opinion that the complaints in their nature are subjective. The Respondent does not believe that there is any element of mal fides on the part of the Complainant, however substantively they are founded on his relationship with the individuals concerned and of the nature of the complaints are not objective.
Findings and Conclusions:
The case before me for consideration is a claim by the Complainant that he was penalised or threatened with penalisation by the Respondent for having made a protected disclosure under the Protected Disclosures Act, 2014.
In their response to this complaint, the Respondent raised a number of preliminary points in relation to the complaint as submitted. It is, therefore, necessary to address these preliminary issues before moving to any consideration of the substantive element of the complaint.
The first preliminary point raised by the Respondent relates to the time limits set down under the Protected Disclosures Act, 2014.
In this regard, Section 12 (Schedule 2) Subsection (6) of the said Act states as follows:
"Subject to subparagraphs (7) and (8), a rights commissioner shall not entertain a complaint under this paragraph if it is presented after the end of the period of 6 months beginning on the date of the contravention to which the complaint relates."
It is clear that Subsection (6) requires that any complaint be lodged within six months of the date the contravention, which is the subject of the complaint, took place. The submission made on behalf of the Complainant clearly sets out that his complaint under the Protected Disclosure Act is based on the belief that he suffered penalisation as a consequence of him raising concerns around workplace practices at the Fire Station where he was Stationed Officer.
Having carefully considered all the evidence adduced, I am of the view that there are significant question marks over whether or not the Complainant has actually made a protected disclosure, in line with the requirements set out in the Act. However, for the purposes of dealing with the preliminary points raised by the Respondent it is necessary to set aside these concerns when dealing with the time limit issue.
In this regard, I am satisfied, from a careful analysis of the detailed timeline of events, submitted as part of the Complainant's submission, that the "workplace practices", being referred to here, all took place in the period between the Complainant's appointment as Station Officer in May 2009 and his departure on sick leave on 19 December 2014.
In addition, I am satisfied that the substantive element of what the Complainant contends as the penalisation suffered, also occurred within that period. Consequently, I am satisfied that the appropriate start date for any time limit period in relation to the submission of a complaint for penalisation, must be seen as 19 December 2014.
Given that the Complainant's complaint under the Act was not submitted until 28 August 2016, I am satisfied that the complaint is well out of time.
Before concluding on the matter of time limits, I believe it is appropriate to consider the two further Subsections of the Act, which deal with this issue.
Subsection (7) of the Act further states:
"Notwithstanding subparagraph (6), a rights commissioner may entertain a complaint under this paragraph presented after the end of the period referred to in subparagraph (6), but not later than 6 months after the end of that period, if satisfied that the failure to present the complaint within that period was due to exceptional circumstances."
Based on the same reasoning, as set out above in relation to the initial time period of six months, I find there to be no exceptional circumstances which might trigger the application of Subsection (7) in this case. In any event, where I to permit the application of Subsection (7) it would still leave a significant gap between that date and the submission of the complaint.
Finally, on the matter of time limits, I also must have regard for Subsection (8) of the Act, which states:
"Where a delay by an employee in presenting a complaint under this paragraph is due to any misrepresentation by the employer, subparagraph (6) shall be construed as if the reference to the date of the contravention were a reference to the date on which the misrepresentation came to the employee’s notice"
Having carefully considered all the evidence adduced, I am satisfied that there is no evidence of misrepresentation by the employer which would require the application of Subsection (8) of the Act in this case.
Consequently, taking all of the above into consideration, I am satisfied that the Complainant's complaint is well outside the statutory time limit provided for in the Act.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having carefully considered all of the evidence adduced and based on the considerations/findings set out above in relation to the preliminary issue of time limits, as raised by the Respondent, I find that the Complainant's complaint is out of time and, as a result, I have no jurisdiction to hear the complaint.
Workplace Relations Commission Adjudication Officer: Ray Flaherty