ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011683
A Higher Executive Officer
A Government Department
Lorraine Williams Chief State Solicitors Office
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: 11/01/2018 & 06/06/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant herein has referred a matter for dispute resolution under Section 12 of the Protected Disclosures Act of 2014 and the referral has been made within six months of the initial circumstances of the relevant dispute/contravention.
The Complainant is a Higher Executive Officer within a Government Department and has, since 2014, been engaged in the Finance section overseeing Facilities management. The Complainant has been with the Civil Service since 1977 and with this Department since 1985. He is a qualified Accountant. The Complainant’s position has some authority in that he has people answerable to him.
The Complainant describes himself as a Profile Whistle-blower and has, he says, been lifting the lid on internal financial issues from well before the enactment of the 2014 legislation. I understand the Complainant has brought Judicial Review proceedings against his Employer in the past. Since the enactment of the 2014 Act the Complainant has made various statutory Protected Disclosures to his Employer, to Revenue, to DEPR, the Attorney General, the Public Accounts Committee, Ministers, Politicians and the Media.
In the proceedings currently before the WRC the complainant has brought a complaint against his employer by way of a Workplace Relations Complaint Form dated the 20th of October 2017. The Complaint Form specifically references Section 12 of the Protected Disclosures Act 0f 2014.
Section 12 of the Protected Disclosures Act 0f 2014 states -
12(1) An employer shall not penalise or threaten penalisation against an employee or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.
The Complainant is happy to describe himself as a “Whistle-blower” who having waived his right to anonymity has, what he perceives to be, a public profile. His whistleblowing activities would be common knowledge in the workplace. The Complainant’s claim is that he has been penalised and victimised by his Employer by reason of his Whistleblowing activities.
The circumstances giving rise to the matter before me are as follows:
The Complainant had a Disciplinary sanction imposed on him in September of 2017 at the end of a Disciplinary Process undertaken by his Employer. The process looked at certain apparently unsolicited communications which had been made to members of staff internally in the Department, as well as other third-party external individuals. The Employer says these communications were made contrary to the code of standards and behaviours expected of civil servants, contrary to express instruction to desist from making such communication and the actions amounted to disruptive behaviour.
I note that the decision has been the subject of an internal Appeal process as well as an external Appeal which was conducted by a Management Consultancy firm in and around the same time that this matter first came before the WRC, and this Adjudicator, in January of 2018. Neither Appeal was successful, and the sanction imposed in September 2017 (a 24-month final written warning) is extant. I have read through the Complainant’s comments and observations in relation to the external Appeal process.
A protected Disclosure is defined in Section 5(1) of the Protected Disclosure Act 2014 and is the disclosure of relevant information by a worker which is deemed relevant if per section 5(2) there is a reasonable belief that it tends to show a wrongdoing and it came to the attention of the worker within the worker’s employment. Section 5(3) defines the different types of wrongdoing which might come to the workers attention during the course of the employment.
There are certain recognised rules around the best practise in terms of whom to make a Protected disclosure to and the Respondent herein provides that such disclosures should be made to a Principal Officer. As previously mentioned, I understand that the Complainant herein has made Disclosures to many appropriate recipients.
Summary of Complainant’s Case:
The Workplace Relations Complaint Form was submitted on or about the 20th of October 2017 and a subsequent letter dated the 27th of October 2017 from the Complainant was requested to be associated with the Complaint made under Section 12 of the Protected Disclosure Act 2014. The Complainant in particular is challenging the lawfulness (and indeed constitutionality) of embarking on a Disciplinary Process under the Civil Service Disciplinary Code. Such a process patently contravenes, he says, the protections afforded him under the Protected Disclosure Act 2014 and having regard to his status as a Whistle-blower. The Complainant challenges the Outcome letter for that Disciplinary process dated the 27th of September 2017.
The Complainant makes the case that the actions taken by the employer amount to penalisation, detriment, harm and threats in an effort to silence the Whistle-blower. The Complainant states that the employer is trying to prevent ongoing and correct employee vigilance.
The Complainant has submitted 35 grounds of Appeal against the Employer’s Disciplinary sanction. Whilst all of these have been considered by me, the ones that appeared to have resonance include-
“Pt. 30 -By definition, fact and law, disruptive behaviour and the associated potential consequences for employer/organisation/management go hand in hand with whistleblowing”
“Pt. 8 -There is no requirement on an employee to prove that Disciplinary Action relates to Whistleblowing - only to demonstrate substantial grounds – which test is met.”
“Pt. 7 -The onus is on the Employer to prove that no connection/nexus with Protected disclosure fails. The substantive reasons for Disciplinary action are entirely related to Protected disclosure”
The Complainant provided me with a large amount of written submission herein. The Complainant has also provided me with an historical context going back to 2012. I also had the benefit of his oral submission and he was given every opportunity to explain his case to me. The Complainant’s evidence was tested in cross examination. The Complainant, in his Submission stated that the Disciplinary procedure to which he was subjected, and the Disciplinary sanction subsequently imposed only came about as a result of his having previously made Protected Disclosures. The Complainant says that the subject matter of the emails complained of were in fact ongoing aspects of the Protected Disclosures made through official channels and therefore were themselves Protected Disclosures and cannot be distinguished or separated out arbitrarily in the manner proposed by the Employer.
The Complainant has asked that I give the Respondent herein a “good kicking” as he says the Civil Service should be leading the way in terms of applying the best practise for the recognition of Protected Disclosures and the protection to be afforded the Disclose. He says I should be critical of the Departments current policy.
In addition, the Complainant is adamant that both the Respondent and I should recognise that a certain amount of disruptive behaviour must be accepted as going hand in hand with the fact of making Protected Disclosures – the Discloser must be afforded that entitlement.
The Complainant makes the case that his Employer’s initial attempt to penalise him came in the form of a proposed Performance Improvement Plan which was attempted to be rolled out in April 2017. The Complainant objected strenuously, and the PIP was withdrawn only to be re-placed it seems with a “full blown “serious misconduct” process launched against profile whistle-blower”.
At the Disciplinary meeting the Complainant states that-
“.. the charges were pressed as if the Protected Disclosures Act of 2014 did not exist and where the new law statutorily changed matters and where each item charged under international persuasive precedent and under best Practices goes (protectively) hand in hand with being a whistle-blower.”
This excerpt is in line with the Complainant’s contention that the employer must accept that the Whistle-blower has an entitlement to act contrary to the code of standards and behaviours expected of civil servants, he can act contrary to express instruction to desist from making communication and should be afforded room for a certain amount of disruptive behaviour.
Summary of Respondent’s Case:
The Respondent provided me with a written submission and I also heard the evidence of a number of relevant witnesses. The Complainant was given ample opportunity to challenge that evidence which might have been his first opportunity to do so face to face and orally.
In any event, the Respondent made it very clear from the start of the proceedings that it was aware that the Complainant had made Protected Disclosures and I have been provided with the Policy and Guide for the Protected Disclosure Reporting that operates in the Department (since June 2016). The Respondent indicated that it did not challenge the fact and veracity of these Protected Disclosures having been made by the Complainant. There is no suggestion that I would look at the substance of any Protected Disclosure that has been made. The Respondent understands that all Protected Disclosures made (and there might have been up to 20 such disclosures made by the Complainant) will undergo the same Assessment and an appropriate investigation will be launched should the Disclosure warrant same. The Respondent is aware of at least one Protected Disclosure having gained traction within the Department. Others still need to be processed. The Respondent states that it fully recognises its obligation not to penalise the Discloser. The Respondent in response to the Complainants allegations, states that the Disciplinary Process was initiated by reason of unacceptable steps being taken by the Complainant in the workplace which related to his performance and not to the fact that he was a Discloser within the meaning of their own policy document and the Act. The Employer says certain communications were made contrary to the code of standards and behaviours expected of civil servants, contrary to express instruction to desist from making such communication and the actions amounted to, they say, disruptive behaviour.
The Employer says it was moved to engage in a Disciplinary process as a result of the persistent and consistent actions of the Employee in sending unsolicited and unwarranted emails to his colleagues and others, outlining and referencing information including his protected disclosures. The Respondent asks that I accept that the Disciplinary action they believed they had to take, was primarily taken because of the disruptive nature of sending these emails (which incidentally have absolutely nothing to do with the Complainant’s work) rather than because of their content which the Employer knew related to issues which the Complainant had also raised at an official level as Protected Disclosures. The Respondent claims that the content of these emails cannot be considered Protected Disclosures as they have not been disclosed through the appropriate channels to approved recipients per the Guide. These communications are little more than a scatter gun approach of promulgating information in furtherance of his own agenda.
The Respondent accepts that my role is to determine whether on the evidence I find that the Complainant has been subjected to a penalisation for having made Protected Disclosures. The Respondent has asked me to distinguish between the Protected Disclosures made under the Protected Disclosure Policy in operation in the workplace, and the information being disseminated by the Complainant on a voluntary basis which happens to include some of the same material. The principal Officer gave comprehensive evidence regarding the procedures adopted in relation to Protected Disclosures
I have been invited to apply the “but for” test which had previously been applied in relation to penalisation in Section 27 of the Safety Health and Welfare at Work Act of 2005. The penalisation complained of must have been incurred because of or in retaliation for having carried out the protected act. Where there are other factors that might be taken into consideration I must consider whether “but for” the Complainant having made a Protected Disclosure (or many protected disclosures) he would not have suffered the detriment in question. Essentially that a punishment may be dressed up as being connected to one thing whereas it really is connected to the Protected Disclosure.
The Employer is adamant that the communications that were made were contrary to the code of standards and behaviours expected of civil servants, contrary to express instruction to desist from making such communication and the actions amounted to disruptive behaviour. The sanction imposed was therefore appropriate and measured and had absolutely nothing to do with the Employee’s status as a Whistle-blower.
In terms of proportionality of sanction (24-month final warning) the Respondent points out that the Complainant’s sanction is at point three of the scale where point 13 is Termination.
Findings and Conclusions:
I have carefully considered the evidence adduced over the course of two days hearing. There has been a voluminous amount of submission and other paperwork provided to me by the Complainant as well as the Respondent. I have tried to narrow down the issues to the Complaint which is before me though the Complainant in his submission has asked me to look beyond that which it is possible for me to consider.
The Complainant’s line manager JL gave evidence. He is an Assistant Principal Officer. He was well aware that the Complainant had made official Protected Disclosures through the appropriate lines as set down in the policy. However, his staff were getting upset at the nature of the emails being sent by the Complainant. It was causing disruption in the workplace. He had tried to reign in the Complainant by using the newly operational PIP programme however he realised that was not the appropriate approach. It was for this reason that the Disciplinary Action came about.
EQ was the Principal Officer above JL. She described an avalanche of emails being launched once the question of imposing a PIP had been removed. His emails were directed at people senior to himself and implied they were complicit in deception at the highest level – the “three monkeys” approach. EQ said it was highly offensive to staff that this was being insinuated.
EQ looked at previous issues and the pattern was clear and needed to be addressed. The complainant was conducting a crusade and trying to promote his cause amongst the workforce.
A number of incidents arose in the months preceding the Disciplinary Action and measures ultimately taken. For ease of reference I have headed each with a description and set them out in chronological order.
December 2016 email to 124 Recipients
In December of 2016 the Complainant sent an email to 124 recipients. Not all of the recipients were known to the Complainant. The Accounts department had previously, in the course of its recognised operations, sent an email out to the same 124 recipients. The initial email was dealing with upgrading issues on the internal Department system. The majority of the recipients were internal to the Department and certainly included the Complainant. There were, however, also a number of persons from an external service providers and consultants who were also included on the list. The Complainant took it upon himself to communicate with this list of names on wholly unrelated matters and included as an attachment an article about his whistleblowing activities. There is also reference made by the complainant to white collar crime and the deferential role of the Civil Service, amongst others, to those with powerful vested interest. This was said by EQ to have been received by people with a certain amount of confusion and worry and that she had addressed the matter with the Complainant at that time. EQ sent an email to the Complainant reprimanding email on the 5th of December 2016 –
“The content to your reply to this email did not in any way relate to the original content or to the roles of the vast majority of people who received the email. I am particularly concerned that people external to the Department were included on the distribution list. Your email constitutes an abuse of the Department’s acceptable Use Policy…Do not use the email system to forward content that is not relevant to recipients.”
There can be no doubt per EQ that there would be no further tolerance for these types of email communications.
March 2017 criticism of Capital Asset expenditure
A further Email was sent on the 21st of March 2017 by the Complainant to Mangers within his department. The content concerned the Department of public Expenditure and Reform’s Circular concerning Capital Asset expenditure. The Complainant notes that the Office of Public Expenditure practise in this area seems “at variance with the DEPR circular”. The thrust of what the Complainant appears to be saying is that capital asset data is being deliberately misstated throughout the Civil Service. The Complainant concedes that his analysis is a personal one in the email but has included members of the OPW in his communication. His line manager JL comes back to him within an hour and admonishes him for
“…including the OPW in discussions on capital and in particular your own personal view on what the Government policy should be. This is the role of DEPR.”
Despite this response from JL the Complainant continues to communicate with the OPW staff as well as his own Managers as heretofore and a further 2 email go out on the 21st of March which tends to suggest that the Complainant saw the response of JL to be tantamount to putting a stop to the Complainant asking “awkward questions” and “allowing superiors overly influence our independent thinking”.
By close of business that day, EQ the Complainant’s Line Manager steps in with a decisive instruction
- “Pascal, do not send any more emails on this topic. JL and I will discuss with you another time”
Despite what his Management believe to have been a very clear instruction on the topic the Complainant wrote another email on this very topic on the 28th of March 2017. The Complainant refers to -
“gross mismanagement, waste and misapplication of scarce administrative resources over long number of years”
It is noted that in this last letter, sent after being expressly told not to, also flags the fact that the Complainant intends making a protected disclosure in relation to this topic. The Respondent has asked me to note that the issue raised by the Complainant regarding Capital Assets had not previously been the subject of a Protected Disclosure.
May/June 2017 emails concerning White Collar crime
The Complainant sent a series of emails on the 31st of May 2017 and 1st of June 2017. The implication of these emails was that there was some sort of criminality in operation in the department. The communications were made to up to 30 of the Complainant’s colleagues including people based in Cork and Limerick. These communications were seen as some sort of an agenda extraneous to the Complainant’s job description and had nothing to do with what he is engaged to do.
The Complainant’s emails of the 31st of May are titled “White Collar Crime” and describes himself as a “Whistle-blower” and states that the emails are –
“Circulated under the full protection of the Protected Disclosures Act of 2014 – including against reprimand, threat of reprimand or penalisation”
The content of the email might be taken to be accusatory of the “Senior Civil Servants” to whom the email is addressed as having -
“particular accountabilities and responsibilities regarding White Collar Crime and the consequent significant losses in Statutory State Revenues”
He goes on to say -
“I am writing… for a number of reasons including that many at inter Departmental Management Board Levels are currently the subject of Report by me …to An Garda Siochana regarding my suspicions to unlawful acts”.
The Complainant references the status of Company Directors which has long been a topic of interest to him – although it is simply not his area of work since 2014. The email talks of corruption, vested interests, gross errors in law and maladministration. The Complainant invites his colleagues to support him in bringing about legislative change and urges them to make Protected Disclosures of their own where they have reasonable belief as to wrongdoing. The email provides attachments. I have found these documents difficult to follow but generally understand that the Complainant alleges that there is a cover up at the highest levels which somehow benefits Company Directors (in terms of their insurance or liability) and the essence is that top Government and Civil Service Officials are somehow implicated and that it is the Complainant’s task to promulgate and make known these facts.
A second and follow up Email on the 1st of May again sent to the same number of people and which refers to the email of the 31st May. The complainant describes the “circling of the wagons” by management and their horrific attempt to place him under a Performance Improvement Plan solely because of his whistle-blower activities and seeking to silence him. These allegations are made under the protection, the Complainant suggests of the Protected Disclosure legislation. Certainly, I would have to accept that the allegations are made very public with no right of reply afforded to persons implicated by innuendo or otherwise. The email suggests that the Whistle-blower having a reasonable belief as to serious wrongdoings by colleagues is not subject to the “outmoded 2008 Civil Service code” regarding the respect one colleague must have for another. The rational as I understand it is that the complainant believes that having made Protected Disclosures about the wrongdoings of others he has some sort of liberty to speak freely and without fear of repercussion – potentially even covering a personal attack.
The Respondent found that the sending of these emails was unnecessary and disruptive. The particular issue regarding Company Directors had long since been looked into, but more importantly the persons receiving these unsolicited emails were all senior managers who had no reason to receive emails of this nature with this content, as the content was irrelevant to their own areas of specialisation. There was pages and pages of documents which individual employees were reading through unnecessarily and on the employer’s time.
Challenging the Line Manager
Subsequently over the course of a few days between the 2nd and 6th of June 2017 an issue arose with regarding the preparation of the previous months budget estimates. In the course of the correspondence between the Complainant and his Manager JL the Complainant ‘s tone is perceived by JL to be unacceptable. For example, the Complainant suggests that JL has provided a “lame excuse” and he describes “an amount of obfuscation, fudging and waffle”. The fact that this dismissive language was contained in an email which was cc’d to a number of people was seen by JL as insubordinate and disrespectful and not in keeping with the standards of dignity expected in the workplace.
Department hosted Summer School
The Respondent hosts a summer school each summer. It is highly thought of, and the organisers take some pride in the quality of the Guest speakers and the themes to be discussed. The Complainant was attending the event in August of 2017. The Complainant wrote directly to the Guest Speaker (a professor and academic from a highly regarded University in the UK) wherein he suggests a new topic for discussion relating to Social Insurance issues and indicates that he has been trying to spearhead change in this regard including as a “whistle-blower”. The Complainant received a polite but firm refusal in circumstances where the topics had already been selected and much work had already been put into the topics chosen. The Guest speaker does suggest that discussion groups due to happen might be a good time to raise the issues. The Complainant writes back and accuses the Speaker of having a “closed mind” lacking “courage and flexibility” and accuses all involved of needing to show flexibility honesty and integrity.
This communication from the Complainant was seen as somewhat embarrassing to his Managers within the Department. The tone was disrespectful in their estimation. The reference to the closed minds was particularly disparaging. An apology had to issue. The insults were seen by the Organisers as being very disparaging of all the guests invited and the attendees expected said EQ in evidence.
Ultimately the Complainant was not allowed to attend the Summer School which he says was an unwarranted penalisation.
In consequence of the foregoing litany of events it was decided that steps needed to be taken. Ultimately, the Complainant’s immediate line manager (EQ) wrote to the Complainant on the 26th of June 2017. The letter clearly outlines the concerns of the Complainant’s immediate Management. Three issues are raised in the said letter of the 26th of June 2017 :
Disruptive behaviour – In particular, the issue of sending emails inappropriately to people who have no direct responsibility for the content of the emails or the issues contained therein. These included the 2 emails sent after the PIP had been shut down on the 31st of May and one sent on the 1st of June. This also included the earlier email sent on the 2nd of December 2016 which had the article attached was also considered disruptive.
Also, the persistent requests for intervention in relation to issues well outside his area of work as HEO in FMU, For example the emails of 31st of May and March 21st. These emails were disruptive to colleagues who neither sought nor needed the communications from the Complainant
Lastly the communication with the Summer school Course Director was seen as highly disruptive behaviour.
Refusing to comply with reasonable management instruction – The letter states that there have been instances of a wilful refusal not to follow clear and explicit direction of the immediate line manager EQ and in particular relating to her written request that he desist in a particular course of action. For example, his email of the 21st March and his email of 1st of June. There was a clear instruction given as far back as the 5th of December 2016 not to abuse the manner in which email usage is deployed.
Failure to comply with Civil Service policies and codes of practise – The expectation that civil servants treat other civil servants with dignity in the workplace has not been complied with in circumstances where the Complainant has openly referred to the statements of colleagues as “nonsense” and “waffle”. As contained in the emails of the 9th and 10th of January 2017 and the 6th of June 2017.
The letter goes on to explain that the fact that the Complainant has made Protected Disclosures, as is his right, does not somehow exempt him from following reasonable instruction of management, nor does it mean that he can operate outside the codes of practise which operate in the workplace for the benefit of all.
On foot of everything she has thus outlined, the Complainant’s manager EQ indicates that she will be dealing with this matter in accordance with para 2.4 of the Civil Service Disciplinary Code which allows a “relevant manager” oversee a disciplinary process. It is noted that with sanction from above (such as an overseeing Manager) EQ can impose disciplinary sanction up to final warning. EQ asserts that the facts are not complex and therefore the Code allows the fact-finding exercise to become a part of the Disciplinary meeting (per 3.2.3.). I would note that the Code of Conduct allows this to happen “where the suspected conduct in not serious” which seems to be at variance with EQs description of instances of “serious misconduct” (although I note this is later dropped to just misconduct – as pointed out by the Complainant). The Complainant is invited to a Disciplinary meeting on the 29th of July 2017 to discuss the matters fully documented in the letter. There can be no doubt that the intention was to discuss this matter in the context of them being instances of “serious misconduct” under the code of conduct and could constitute a serious breach of civil service rules and procedures and/or a breach of recognised standards and behaviours.
The Scheduled meeting was attended by the Complainant on the 29th of June. Although he had been advised he could be accompanied, the Complainant came alone.
The outcome of this meeting was made known to the Complainant on the 27th of September 2017 at which time the Complainant was given a final written warning to operate on his file for a 24-month period. The letter outlines that-
“You should behave appropriately at work and treat all co-workers with dignity and respect at all times. You should avoid disruptive behaviour at work and comply with reasonable instructions of management. Any re-occurrence of the behaviours outlines above may result in further disciplinary action being considered”
As previously noted, the seemingly onerous 24-month warning, is allowed for at point 3 on the scale of applicable sanctions of which there are 13. It seems therefore that a 24-month warning is actually at the lower end of the sanctions which could have been applied.
The 27th September letter includes a comprehensive synopsis of the consideration given to Mr. Hosford’s actions and the deliberation behind the final decision. The Synopsis asserts:
“The fact that Mr. Hosford has made protected disclosures in the past has no relevance to the allegations under consideration”
On balance, I am satisfied that the Respondent herein has correctly applied an appropriate Disciplinary sanction on the Complainant.
To my mind, there was nothing offered in evidence which warranted the repeated and uninvited bombardment of his colleagues’ emails. Had the content of the emails been different but equally blunt and/or insubordinate the same sanction would have also been justified. It was the tone and the veiled (and often not so veiled) criticisms of other employees that gave rise to the finding of misconduct. The fact that the content amounted to a repetition of some matters the Complainant had already made the subject of Protected Disclosures is incidental. The Complainant was on a solo run of pushing his agenda and I accept that the employer had to curtail this activity.
It is not acceptable that the Complainant has arbitrarily drawn by-standing strangers into his net, and it was disloyal of him to have been so careless in this regard.
I would suggest that the treatment of the summer school guest lecturer was a particularly offensive attack on the integrity of an innocent bystander and would suggest that this incident alone would have warranted a Disciplinary intervention and sanction.
I do not find that the Civil Service Code of Conduct is somehow deficient or outdated because it pre-dates the Protected Disclosure 2014 Act. I am perfectly satisfied that it is robust enough to meet the demands of the Act and that the standards of civility and respect expected of Civil Servants is as high as it ever was and cannot be eroded by any individual reason of his or her having made a Protected Disclosure.
The Complainant offered no evidence to justify the suggestion that Disruptive behaviour is a by-product of making a Protected Disclosure and should therefore be allowed in the workplace. In my opinion there is no justification for making that assumption and I consider the level of Disruptive behaviour displayed by the complainant to have gone well beyond what might be reasonable. I must find that Employees not involved in wrongdoing and not directly affected by wrongdoing are entitled to be not drawn into the issues in the way that the Complainant has sought to do.
I recognise that the attempt to bring matters to a head by utilising the Performance Improvement Plan option was a little clumsy. It was appropriate to deal with these issues by invoking the Disciplinary procedure.
It is noted that the Complainant asked me to consider the merits of a “supplemental” issue raised after the hearing had been completed. On balance I do not think it is appropriate for me to consider the matter of the refusal to Access Critical Illness provisions as this is extraneous to what was before me on foot of the Workplace Relations Complaint Form.
It is clear to me that the sanction imposed was imposed for the reasons provided in the letter of outcome. It is irrelevant that the Complainant had previously made Protected Disclosures. The “but for” caselaw provided to me is applicable. In fact, I would go so far as to say that the Complainant’s Managers’ seemed almost ambivalent to the fact of the Complainant had made Protected Disclosures. Management’s concern was to create workplace harmony and increased productivity. The Complainant needed to stop coming in late, do the work expected of him and stop obsessing about his Whistle-blowing status.
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.
Section 12 of the Protected Disclosures Act 0f 2014 states -
12(1) An employer shall not penalise or threaten penalisation against an employee or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.
I am satisfied that the Complainant has not been penalised for having made a protected disclosure and his complaint herein therefore fails.
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Protected Disclosures Act 2014 - Disruptive behaviour – Disciplinary Action