ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015455
A retired civil servant
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 3rd July 2018, the complainant made a complaint of penalisation pursuant to the Protected Disclosures Act. By letter of the 14th January 2019, the manager of the Post-Registration Unit of the Workplace Relations Commission, Vivian Jackson, informed the parties that there was a preliminary matter of jurisdiction and the matter should be dealt with by way of written submission only in accordance with section 47 of the Workplace Relations Act. The correspondence sets out that the matter could not be dealt with under section 47 if either party objected to this course of action. The letter requests that, if they object to dealing with the complaint by written submissions only, they notify this objection at their earliest convenience, but in any event not later than forty-two days from the date of the letter.
By letter of the 5th March 2019, Mr Jackson confirmed that neither party had objected to the complaint being dealt with by written submissions only and that the complaint would, therefore, be dealt with in accordance with section 47. On the 12th March 2019, the complainant made submissions in respect of the complaint. The respondent submitted correspondence on the 10th January and the 22nd May 2019.
On the 21st May 2019, the Director General delegated to me the power to deal with the complaint by written submissions only, pursuant to section 47 of the Workplace Relations Act. I have fully considered the submissions of the parties in reaching this decision.
The complainant is a retired civil servant. He asserts that he was penalised by the respondent for making protected disclosures to this respondent and to others. The respondent states that the complainant was never an employee and cannot, therefore, avail of section 12 of the Protected Disclosures Act.
Summary of Complainant’s Case:
In the complaint form, the complainant outlines that he has made four sets of protected disclosures, including to this respondent. He states that the disclosures were not investigated in an appropriate manner by a competent and independent person. He states that he has been subjected a series of punitive actions because of these disclosures.
On the 12th March 2019, the complainant submitted documents in support of his complaint. The first is detailed submissions, dated 12th March 2019. They recount the history of his concerns since 2010 regarding the performance of the inspectorate and his protected disclosure in 2015. He enumerates eight sets of punitive actions at the hands of the public body and a named Government Department. He outlines that he made subsequent disclosures to Government Ministers regarding failures in the investigation commissioned by the line department. He seeks that the Minister investigate these matters.
The complainant submits that section 8 of the Protected Disclosure Act provides that the respondent is “next in line” following the “obvious failure” of the line Minister to discharge their statutory duty. The complainant set out his concerns in correspondence to the respondent of 6th December 2017. He states that the only action taken by the respondent was to forward his correspondence to the line Minister. He states that the respondent’s “continued inaction” constitutes unfair treatment as defined in the Act. He states that the refusal to act in relation to the “ongoing and escalating punitive actions that I had been subjected to for making, and pursuing, these disclosures has resulted in the continuation of these detriments, and in particular, of the continued unfair termination of my employment…”
The second document is a detailed commentary and critique (dated 20th July 2017 and revised 4th September 2017) of the investigator’s report. The third document is dated the 4th September 2017 and provides further comments and critiques of the investigator’s report. The fourth is dated the 8th February 2019 and is the complainant’s submission in a Labour Court appeal. The fifth is a copy of a 2019 penalisation complaint against the line department.
In correspondence of the 27th May 2019 and in reply to the respondent’s communication of the 22nd May 2019, the complainant indicated that he had nothing to add to his previous submissions.
Summary of Respondent’s Case:
In correspondence of the 14th January 2019, the respondent submitted that there was never an employment relationship with the complainant. It submits that the Workplace Relations Commission has previously disposed of the penalisation complaint. It submits that the Protected Disclosures Act does not provide that the WRC or any other body can investigate whether the recipient of a disclosure has properly investigated the disclosure.
In the submission of the 22nd May 2019, the respondent outlines that there is no statutory or procedural basis for the complaint against it under Schedule 2 of the Protected Disclosures Act. It refers to the previous WRC adjudications and subsequent appeals. It outlines that the complainant’s correspondence of December 2017 was referred to the relevant Minister. Section 8 of the Act requires that the disclosure be made to the Minister with statutory responsibility for the relevant public body. The respondent states that matters relating to the substance of the investigation are for the line Department. It submits that the Act does not prescribe how investigations should be undertaken and the WRC cannot adjudicate upon matters relating to such investigations.
Findings and Conclusions:
The complainant commenced employment as a civil servant in January 1999 and worked at a public body from the 4th January 2008. His employment ended on the 9th January 2017 by reason of retirement.
As outlined in his submissions, the complainant made protected disclosures about the work of an inspectorate. The line Department referred the disclosures to investigation and the complainant raises concerns regarding the investigation. The complainant has presented several complaints to the Workplace Relations Commission arising from these matters, which I heard at first instance. They include four penalisation claims against Departments and a public body. He presented a complaint pursuant to the Unfair Dismissals Act against a Department.
The Protected Disclosures Act provides important protections to employees, workers and third parties where they have made a protected disclosure of relevant wrongdoing. The Act provides recourse to avail of this protection via the Courts or the Workplace Relations Commission.
Section 12 of the Protected Disclosures Act prohibits an employer from penalising an employee for having made a protected disclosure. This prohibition includes causing or permitting another person to penalise the person making the disclosure. Schedule 2 provides that employees can refer a complaint to the Workplace Relations Commission against their employer where they have been penalised for making a protected disclosure. Section 13 provides that a person incurring detriment as a result of a protected disclosure has a right of action in tort.
In section 3, the Protected Disclosures Act provides that civil servants fall within the ambit of “employee”. It also refers to the definition of “employee” in section 1 of the Unfair Dismissals Act, which is “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative”.
The Protected Disclosure Act also provides for a broader category of “worker”, which includes employees as well as those supplied by a third party or doing work experience pursuant to a training course. Section 5 of the Act sets out what a protected disclosure is and refers to this broader category of worker.
Schedule 2 of the Protected Disclosures Act permits only employees to present complaints of penalisation against an employer. While the act of penalisation may be actioned by a third party, it must be “caused or permitted” by the employer. The complaint of penalisation per Schedule 2 is one taken by the employee against their employer. The question, therefore, is the identity of the complainant’s employer.
Having carefully read through the complainant’s submissions, I note that nowhere does he say that he was employed by the respondent. He refers to the other proceedings arising in this matter, including those against the line Department (and not this respondent) pursuant to the Unfair Dismissals Act. The kernel of those proceedings is that his employer unfairly dismissed him wholly or mainly due to the protected disclosure. The complainant has also presented penalisation complaints naming Departments other than the respondent as his employer (including in March 2019). It is significant in these cases that a line Department, and not this respondent, are named as the employer. The complainant has not otherwise indicated when or how he was an employee of the respondent to the within complaint. He was a civil servant employed by the line Government Department and not by the respondent. I, therefore, find that the complainant was not an employee of the respondent.
It follows from this finding that the complainant cannot present a complaint of penalisation, or a contravention of section 12, against the respondent because he was not an employee of the respondent. I, therefore, decide that the complainant does not have locus standi to bring this complaint and I do not have jurisdiction in the matter.
Sections 41 and 47 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.
I decide that the complainant does not have locus standi to bring this complaint and I do not have jurisdiction in the matter.
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Protected Disclosures Act / protection from penalisation
Definition of “employee”
Recourse to the Workplace Relations Commission for employees