ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023777
A clamping company
Michael Kinsley BL instructed by Gary Daly & Company Solicitors
Byrne Wallace Solicitors
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: 15/10/2019
Workplace Relations Commission Adjudication Officer: Conor Stokes
In accordance with Section 41 of the Workplace Relations Act, 2015 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 respondent is an on-street enforcement contractor responsible for, amongst other things, the enforcement of parking restrictions and the provision of clamping and tow-away operations. The relationship is governed by a contract and entails regular monitoring meetings with the client. The complainant has been employed with the respondent since 1 April 2003 and works as a Traffic Controller. The role involves spotting and clamping illegally parked vehicles, issuing warnings, issuing tickets and de-clamping vehicles. Traffic Controllers are assigned beats and work on a shift basis.
This complainant is being pursued in conjunction with another complaint from a co-worker who is partnered with the complainant. Both complaints are based on the same set of facts.
Summary of Complainant’s Case:
During the course of his employment, the complainant has made various disclosures to his employer of inappropriate conduct by employees of the respondent and or failures of the respondent company to properly carry out its duties under the contract with the client.
The complainants submitted that full details of the disclosures made are in the possession of the respondent and are fully within its knowledge. These disclosures revolve around (i) motorists were being clamped in circumstances where there was no legal basis for doing so, (ii) that an incentive scheme operated by the respondent was resulting in improper actions by its employees in an effort to meet targets set, and (iii) that the respondent had misled the client regarding its resources.
These disclosures were made on an ongoing basis and in particular in the latter half of 2016.
In February 2019 the complainants were informed that they were being investigated for poor performance. The complainants submitted that this investigation was conducted in an unfair manner and brought this to the attention of the respondent.
In March 2019 the complainants wrote to the client making it aware of certain matters that had occurred including wrongful clamping where no breach had occurred on the part of the motorist, wrongful impounding and destruction of vehicles, wrongful actions by co-workers to avail of the incentive scheme, misrepresentation of resources, and failure of the respondent to act having been made aware of these matters.
On 4 July 2019, the complainants made similar complaints to a Government Minister. The complainants also mentioned at the hearing that they had made complainants to a local government representative in the middle of 2018.
The complainants were informed by letter on 3 July 2019 that they were required to attend a formal investigation under the disciplinary procedure. They were subsequently informed (in August 2019) that this disciplinary process was not being pursued.
It was submitted that the actions of the respondent, in subjecting the complainants to baseless disciplinary processes were motivated by the making of protected disclosures and amounts to penalisation for the purposes of the Protected Disclosure Act 2014.
Summary of Respondent’s Case:
The respondent submitted that although the complainant’s case is that they made protected disclosures since in or about 2016, that they have provided no particulars to support their allegations. Furthermore, it was submitted that any alleged contraventions prior to 15 February 2019 are statue barred under Section 41 (6) of the Workplace Relations Act 2015.
The respondent submitted that there were performance issues with the complainants in February 2019. The actions against the complainants and four other Traffic Controllers arose from concerns raised by the client about the level of enforcement which raised by the client at a series of fortnightly meetings and were looked into by the respondent’s managers. Arising from this, six employees were invited to investigative meetings under the disciplinary process. The result of this process was that the opportunity to improve performance was given to all six employees and no disciplinary sanction was applied.
The respondent submitted that while it subsequently came to light that the complainants had made protected enclosures to the client in early March 2019, the respondent had no knowledge of this at the time. The existence of Protected Disclosures only came to light in June 2019 when the client’s CEO wrote to the respondent.
The respondent submitted that the performance issues of July 2019 came about following a specific intervention on the part of the client relating to a particular incident. In response to a request to attend a disciplinary investigation meeting, the complainants wrote to the respondent informing it that they had made protected disclosures, putting them ‘on notice’ and expressing concern that the respondent did not know about the disclosures.
The respondent submitted that having considered the matter further, the complainants manager decided not to pursue the matter.
The respondent submitted that any concerns raised with it do not constitute protected disclosures, that the complainants were not penalised in terms of the Act, and furthermore that there was no causal connection between the concerns and the alleged detriment to the complainants.
Findings and Conclusions:
Preliminary matter: Jurisdiction – time limits
The respondent raised the issue of the time period under consideration in this investigation as a preliminary point. Section 41(6) and (8) of the Workplace Relations Act are concerned with the time limitations in cases before the Workplace Relations Commission:
(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.
The complaint was made on 14 August 2019 and no argument was presented to me as to a possible extension under Section 41(8). Accordingly, I am satisfied that I must limit my enquiries to matters arising from 15 February 2019 onwards.
In the case of Aidan & Henrietta Partnership v Anna Monaghan PDD162, the Labour Court held that “The Court must first establish that a protected disclosure has been made before it can examine whether a penalisation within the meaning of the Act has occurred”
The complainants contend that they made repeated disclosures to the respondent which fall within the definition of Protected Disclosures contained in the Act. Section 5 of that Act states that:
(1) For the purposes of this Act “protected disclosure” means, subject to and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7 , 8 , 9 or 10 .
(2) For the purposes of this Act information is “relevant information” if—
(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and
(b) it came to the attention of the worker in connection with the worker’s employment.
(3) The following matters are relevant wrongdoings for the purposes of this Act—
(a) that an offence has been, is being or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged,
(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,
(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or
(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.
The complainants submitted that raising their concerns with their employer together with the complaints they made to the Minister, public representative and to the respondent’s client company constitute protected disclosures.
The respondent contends that the reporting of irregular clamping and breaches of the regulations/legislation referring to parking infractions simply amount to the complainants doing what is required of them in the course of their job and is encompassed by Section 5(5) of the Protected Disclosures Act, 2014. Section 5(5) of the Act states that
(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.
The complainants submitted that the reporting of irregular clamping and breaches of regulations and legislation amounted to a protected disclosure. They stated that they raised complaints on many occasions both to their supervisors and as Union officials. Having considered this matter carefully, I am persuaded by the respondents’ submissions in that I consider the concerns raised by the complainants with their employer fall within the scope of Section 5(5) of the Protected Disclosures Act 2014. Accordingly, I do not consider that any further consideration needs to be given to matters arising from these disclosures.
However, there is also the matter of three disclosures made to a local government representative, to a Minister and to the respondent’s client. Having regard to Section 5 of the Act, I am satisfied that each of these disclosures represent a Protected Disclosure within the meaning of the Act.
Although the first of these took place before the February 15, the complainants contend that the initial performance investigation (in February 2019) arose as a result of their making that disclosure. That disclosure was raised by the local government representative in an anonymous fashion and there was no satisfactory explanation as to how this disclosure was linked to the complainants and any alleged detriment to the complainants. Having considered all the evidence presented to me, I am not satisfied that the complainants have established any causal link between this disclosure and subsequent investigation.
The other two disclosures post-date the investigation process that took place between February and April 2019.
In relation to the actions taken by the respondent in early July, I note the timeline of events and note that following the receipt of the notification of the disciplinary investigation, the complainants wrote to the respondent to put them on notice that they had made Protected Disclosures. Furthermore, I also note from the same correspondence that the complainants indicate that they do not know if the client has made the respondent aware of the existence of the disclosures and that they also accept that respondent may not be aware of the disclosures at that time.
Arising from this and from the evidence given at the hearing of this matter, I am not satisfied that the complainants have established a causal link between the making of these Protected Disclosures and their treatment in the disciplinary process. Therefore, I find that the complainants were not penalised for having made Protected Disclosures and this compliant must fail.
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.
The complainant has not established a causal link between the making of Protected Disclosures and the alleged detriment amounting to Penalisation. Accordingly, my decision is that no prima facie case of Penalisation has been established and this complaint fails.
Dated: 9th December 2019
Workplace Relations Commission Adjudication Officer: Conor Stokes
Penalisation, time limits, definition of disclosure, causation, prima facie case