ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023645
Parties:
| Complainant | Respondent |
Anonymised Parties | An Education Support Worker | An Education Provider |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011 | CA-00030260-001 | 14/08/2019 |
Date of Adjudication Hearing: 22/11/2019
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
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.
Summary of Complainant’s Case:
The complainant has twenty-seven years’ service with the respondent or related bodies. She describes herself as very ‘solutions driven’, capable of showing initiative and as a problem solver. On September 28th, 2018 it came to the complainant’s attention that her name had been added to a form claiming payments without her knowledge; specifically an additional allocation for her budget. When she became aware of it she countermanded the authority for payment and confirmed that her name as it appeared on the form had not been placed there by her. However, the payment proceeded. There was a second copy of the invoice on which her name did not appear. She also requested that the matter be investigated. She reported it to her Director and copied the report to a number of colleagues. He acknowledged receipt of the communication. She also brought the matter to the attention of the Gardaí on the same day. A few days later on October 5th a meeting took place with the respondent. At this meeting the complainant was told who had added her name to the document and that the person who had done so had apologised. The complainant sought a written and oral apology from the person involved and was promised a further response by October 9th which never materialised. She says that she was ‘berated’ for bringing the matter to the attention of the Gardaí. She was criticised for doing so on the basis that it had been premature. She was told that it had not been looked on favourably by management. The following April (2019) the complainant sought funding and study leave to undertake her Ph.D. While she was initially told the leave would not be an issue it was then refused. In August 2019, she applied for a promotional position. While she considered herself qualified for the position she was not called for interview. The complainant considers that both these events; i.e. the refusal of study leave and the failure to call her for interview as acts of retaliation for raising the matter the previous September. |
Summary of Respondent’s Case:
The respondent says by way of a preliminary point that the point raised by the complainant does not meet the threshold in the Criminal Justice Act, 2011. That Act includes protection for ‘whistleblowers’ who make disclosures to An Garda Síochána regarding largely financial offences. The main purpose of the Act is to facilitate the prosecution of white-collar crime where it results in an illegal financial gain for an individual or loss to an organisation. The issue raised by the complainant in no way falls within the category of offences comprehended by the Act. The issue which gave rise to the complainant’s actions concerned the allocation of €85.00 (for Fire Warden training) to the budget line that she was responsible for. It later emerged that this was done solely to ensure that there was provision for this in the budget. There was no forgery or attempt to deceive and it followed unsuccessful attempts to contact the complainant. In fact, following investigation by the respondent it emerged that this was no more than a clerical error. There was no crime, nor any attempt to commit a crime. Also, it submits that the complainant did not make any complaint within the respondent’s Protected Disclosures policy. By way of background, the complainant is not employed by the respondent; she has been seconded to a related body since 1997 and she is not managed by, or under the control of the respondent. In raising her concern, the complainant included a large number of managers, and did so again some hours later when she had not received a response. Following her contact with the Gardaí the respondent received a call following which t was agreed that it would be proceeded for now as an internal matter. The respondent understood that the matter was resolved in the course of the meeting between the parties on October 5th, 2018. The only outstanding issue related to the complainant request to meet with the worker who had added her name to the invoice. It is accepted that this was not progressed but neither did the complainant raise it for over a year. In relation to the two incidents giving rise to the complaint of penalisation; the study support and the job application the following is the position. There is no connection between the events in September 2018 and these issues. The complainant first applied for funding for her Ph.D. on April 30th, 2014 and her application was unsuccessful. Bearing in mind that her direct employer was the agency to which she had been seconded she was advised to raise it there. She applied again in April 2019 for the same course and was again advised to raise it with the seconded agency. (Further information was submitted in evidence on the basis for the refusal). It did not lie within the gift of the respondent to agree her request. On the other matter of the job application, shortlisting was by the respondent CEO and Chair of its Board, neither of whom had even been in post with the respondent at that time (although the Chair had been an ordinary member of the Board then). There were sixteen applicants only five of whom were shortlisted. The respondent says this followed a process involving objective criteria and the complainant did not meet the required standard. It is wrong to suggest that the reporting of the issue to the Gardaí a year earlier would impact on a promotional competition. The complaint is without merit and should be dismissed in its entirety. |
Findings and Conclusions:
Starting at the beginning, it is easy enough to understand the complainant’s sense of annoyance that her name was added to the application for an additional budget allocation without her approval. In her written submission she listed six grounds for being ‘extremely annoyed’ at what happened; all of which come down to that simple point; that the name should not have been added without her agreement. Also, it was quite clear from her presentation to the hearing that the complainant had been (and indeed continues to be) extremely upset at a personal level by these events. What is less easy to understand is what followed the revelation of the appended name; it seems quite disproportionate to the issue that gave rise to the problem. After all, while agreeing that her name should not have been added to the document I take account of the fact that the sum involved was trivial, it was for a valuable health and safety measure and no-one was going to gain personally. The person who wrote her name acted, as far as one can tell, in good faith and apologised and certainly would not have gained in any way from her actions. Likewise, it is hard to see any adverse consequences arising for the complainant as a result of her colleague’s actions; no-one was going to benefit financially from the action. Instead of calmly pursing a simple enquiry aimed at finding out what happened, by the end of that day she had involved most of the senior management of the respondent’s organisation (and some outside it) and reported the matter to the Gardaí. Put simply, all of this reflected a surprising lack of judgement and sense of perspective about the issue, which is all the more difficult to comprehend given the complainant’s qualifications, experience and track record of achievement, which was submitted in evidence to the hearing, and which I fully accept. She outlined some of her reasons for doing so, but at this distance from the event one might have expected some better reflection on, and insight into the incident. Section 3 (1) of the Criminal Justice Act 2011 sets out in detail examples of ‘relevant offences’ for the purposes of the Act; ‘arrestable offences’ or ‘an offence consisting of aiding, abetting counselling or procuring the commission of an offence’. Section 3 (2) adds to this defines the areas in which the Minister may specify an arrestable offence; Banking, investment of funds and other financial activities, company law, money laundering and financing terrorism, theft and fraud, criminal acts etc. It is not beyond the bounds of possibility that an organisation such as the respondent might fall within the purview of the Act, but it would take a substantially greater level of gravity than an application for a contribution of €85 for fire safety training to bring it there. It has no basis. The case regarding penalisation is likewise weak, even fanciful. The complainant had had her application for study support declined four years earlier and the reasons explained. The explanation given by the respondent for its second refusal show absolutely no signs of being anything other than based on merit. Likewise, the suggestion that her failure to progress in the promotional competition is attributable to the events a year before lacks credibility. Again, it is natural for the complainant to be disappointed in these circumstances. But she advanced no grounds to challenge the validity of the shortlisting for interview beyond her own assertion that she was ‘’well qualified’ and ‘’fully expected to be called for interview’. It is worth noting the fact that she referred the matter to the WRC on the same day as she received the email advising that she would not be called for interview, which may shed unwelcome light on her grounds for pursuing the complaint. That said, the motive of any person in making a complaint is irrelevant to a decision on its merits. For the reasons set out above I find the complaint to be devoid of merit and it fails. |
Decision:
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.
For the reasons set out above I find Complaint CA-00030260-001 not to be well founded. |
Dated: 16th April 2020
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Whistleblower, penalisation. |