SECTION 12 (2), PROTECTED DISCLOSURES ACT, 2014
DEPARTMENT OF EMPLOYMENT AFFAIRS AND SOCIAL PROTECTION DEASP
(REPRESENTED BY SARAH JANE HILLERY B.L., INSTRUCTED BY THE CHIEF STATE SOLICITOR'S OFFICE)
- AND -
Chairman: Mr Foley
Employer Member: Ms Doyle
Worker Member: Ms Tanham
1. Appeal of Adjudication Officer Decision No:ADJ-00011683 CA-00015298-001
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 24 October 2018. A Labour Court hearing took place on 6 February 2019. The following is the Determination of the Court:
This is an appeal brought by Pascal Hosford (the Complainant) against a decision of an Adjudication Officer made on 20thSeptember 2018 under the Protected Disclosures Act 2014 (‘the 2014 Act’) in respect of a complaint against the Department of Employment Affairs and Social Protection (the Respondent). The Notice of Appeal was received by the Court on 24thOctober 2018. The Complainant appeared as a litigant in person before the Court.
It is common case that the Complainant made a number of protected disclosures within the meaning of the Act of 2014. The complaint to the Workplace Relations Commission was made on 20thOctober 2017. No application having been made that the time limits set out in the Workplace Relations Act, 2015 at Section 41(8) should be extended for reasonable cause, the cognisable period for the within appeal is therefore the period between 21stApril 2017 and 20thOctober 2017.
The matter before the Court in light of those circumstances is to determine whether the Complainant has suffered a detriment within the meaning of the act between 21stApril 2017 and 20thOctober 2017 because of or in retaliation for his having made protected disclosures.
The Complainant submits that he suffered a detriment that amounts to penalisation within the meaning of the 2014 Act in that he was subject to a disciplinary procedure which resulted in him receiving a final written warning on 27thSeptember 2017.
The impugned disciplinary procedure was initiated by the Respondent on the basis of (a) Disruptive behaviour which was identified as including but not confined to the Appellant’s practice of sending e-mails inappropriately to large numbers of people who have no direct responsibility for the content or issues raised (b) a refusal to comply with reasonable management instructions and (c) a failure to comply with Civil Service Policies, Codes of Practice and Circulars which was identified as including occasions where the Appellant failed to have respect for colleagues at work when he had referred to statements and opinions of such colleagues “waffle” and “nonsense”.
Summary position of the Appellant
The Appellant submitted that he had been disciplined for having made protected disclosures. He submitted that at least some of the e-mails which formed part of the charges grounding the disciplinary procedure were protected disclosures. He submitted that his communication with the course director of a Summer School was also an action which he took in his effort to raise matters which formed part of earlier protected disclosures. He submitted that any management instruction with which he could be alleged to have failed to comply was a management instruction to cease making protected disclosures.
Summary position of the Respondent
The Respondent submitted that the decision to initiate the disciplinary procedure was entirely related to the matters set out to the Appellant in a letter of 26thJune 2017 wherein certain alleged misconducts were set out by Ms EQ, a Principal Officer of the Respondent.
Ms EQ gave evidence that no other matter was considered by her in reaching a decision to initiate a disciplinary procedure. She stated in evidence that she had spoken to the Appellant about his behaviour but that he had responded to say that he would not alter his behaviour and that this response had triggered the formal procedure.
The behaviours which were set out in the letter of 26thJune and which grounded the initiation of the formal disciplinary procedure were
Specified as relating to the Appellant’s practice of sending e-mails to large groups of people who had no responsibility for the content or the issues raised. Examples given to the Appellant on 26thJune 2017 included an e-mail sent to 69 internal staff and external recipients, an e-mail to 124 recipients dated 2ndDecember 2016, an e-mail dated 31stMay 2017 to senior staff regarding matters for which neither the Appellant nor the recipients had responsibility and e-mails to the director and attendees at a Summer School.
(b)Refusing to comply with reasonable management instructions
Specified as relating to the Appellant’s refusal on a number of occasions to comply with an instruction not to continue with a particular course of action.
(c)Failure to comply with Civil Service Policies, Codes of Practice and Circulars.
Specified as relating to incidents relating to the Appellant’s behaviour to colleagues in the workplace where he referred to statements and opinions of colleagues as “waffle” and “nonsense”.
The Respondent submitted that none of the matters which formed the basis for the decision to initiate disciplinary procedure amounted to protected disclosures in and of themselves. The Respondent accepted that many of the e-mails at issue in one element of the matter referred to matters which had already been the subject of protected disclosure. The issue which contributed to the decision to initiate the disciplinary procedure however was not the content of the e—mails but the Appellant’s practice of widespread mailing of internal colleagues and external parties.
Section 5 of the 2014 Act contains an exhaustive definition of ‘protected disclosure’:
- “5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) 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.
(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.”
(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.
(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.
(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure. (8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.
- “‘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;”
In its determination in Aidan & Henrietta Mc Grath Partnership v Anna Monaghan PD/15/1, this Court stated:
- “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.”
The alleged penalisation in the within appeal is the initiation and conduct of a disciplinary procedure by the Respondent. That procedure was initiated by letter from Ms EQ to the Appellant dated 26thJune 2017. That letter specified three grounds for the initiation of the disciplinary procedure. The Court has heard evidence from the author of that letter, Ms EQ, to the effect that the content of her letter was the sole basis for the initiation of the disciplinary procedure. The Appellant has asserted that the basis was other than that set out in the letter but has provided no evidential basis to support that assertion.
The Court finds that it cannot elevate assertions by the Appellant to the status of evidence. The Court therefore finds that the basis for the initiation of the impugned disciplinary procedure was that set out in the letter of 26thJune 2017.
The Complainant has made no persuasive submission that the matters which were outlined in that letter constituted protected disclosures. It is common case that certain matters referred to in e-mails from the Appellant to a wide audience were matters which had previously been disclosed by the Appellant to others such that those earlier disclosures constituted protected disclosures. No submission has been made which would support a finding that any such wider and repeated circulation of such matters conforms to the Act at Section 6 to 10 and the Court finds that it does not so conform. The Court finds that the Appellant’s repeated dissemination of matters, the earlier disclosures of which are protected disclosures within the meaning of the Act of 2014, cannot then be regarded as protected disclosure of the same matters.
The disclosure of a matter or practice which conforms to the definition of protected disclosure in the Act of 2014 at Section 5(1) is a protected act. In the within matter the Appellant appears, having made protected disclosures to relevant personnel and authorities, to have engaged in repeated communication on those same matters with a wide range of persons in what the Respondent considered an unacceptable manner. The Court is persuaded that the initiation of the disciplinary procedure was inter alia founded on the manner of the Appellant’s repeated widespread communication rather than any matter associated with his having made a protected disclosure.
The fact of a person having made a protected disclosure within the meaning of the Act of 2014 does not immunise the Appellant from a disciplinary response to behaviours which would ordinarily cause an employer to consider the initiation of such procedures provided such behaviours are not in themselves protected disclosures or arising in the course of making protected disclosures. In this case the Court finds that the behaviours which grounded the initiation of disciplinary procedures were not protected disclosures or arising from the making of such disclosures.
The remaining elements grounding the initiation of the disciplinary procedure cannot be found to have been arising from or in retaliation for having made a protected disclosure. The Court therefore finds that no aspect of the grounds for the initiation of the disciplinary procedure by letter dated 26thJune 2017 related to or were in response to the Appellant having made a protected disclosure or a number of protected disclosures. It follows that the events which the Appellant contends amount to a detriment cannot be found to have occurred in response to or in retaliation for the Appellant having made a protected disclosure.
The Court determines that the claims advanced by the Complainant under the 2014 Act are not well-founded.
The appeal fails. The Court affirms the decision of the Adjudication Officer.
The Court so determines.
Signed on behalf of the Labour Court
25 March 2019Chairman
Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.