ADJUDICATION OFFICER DECISION
CORRECTION ORDER ISSUED Pursuant to section 41 (16) of the Workplace Relations Act, 2015. This Correction Order is made to further anonymise the parties to the Complaint.
This Order corrects the original Decision issued on 20/05/2020 and should be read in conjunction with that Decision.
Adjudication Reference: ADJ-00006976
Joan Donegan, Irish Federation of University Teachers
Terence McCrann, McCann Fitzgerald
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: 11/03/2020
Workplace Relations Commission Adjudication Officer: Jim Dolan
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 Complainant is a professor teaching in the Respondent university and has been employed by the Respondent since June 2007.
This complaint was received by the Workplace Relations Commission on 1st February 2017.
Summary of Complainant’s Case:
The Complainant contends that he has been penalised by the Respondent as a direct consequence of having made a protected disclosure under the Protected Disclosures Act 2014.
It is submitted that the Complainant made protected disclosures in relation to the Respondent’s failure, failing or likely to fail to meet legal obligations under the Universities Act 1997 and the health and safety of staff and students being or likely to be endangered.
The Complainant utilised procedures available at the time of making the protected disclosure. The Complainant informed his line manager on several occasions between May 2014 and October 2014 and continued to seek an “in house” resolution through the support of the Respondent’s Mediation Service and IFUT. The Respondent’s President and HR Director were fully aware of the disclosures.
The Respondent reacted to the Complainant having made a protected disclosure by describing the information regarding wrongdoing and omission as a dispute, by investigating the disclosure and by invoking a “sham” and shifting dispute resolution / grievance / dignity at work procedure in a clear attempt to mislead, to silence and discredit the Complainant.
This is further substantiated by the fact that the Investigation Examiner’s Report, carried out at the request of the Respondent’s President [hereinafter the Examiner’s Report] found no basis on which there was even any “potential” that the Complainant had breached any HR or other University policy (March 2016) and the President confirmed in writing that there was no basis for a finding of fault (22 August 2016).
As a result of making the protected disclosure the Complainant has been penalised by being subjected to an unfair and shifting dispute / grievance / dignity at work procedure; by reprimand, unfair treatment, disadvantage, injury, damage and loss.
Despite the fact that the Examiner’s Report (March 2016) found, on the facts, that there was not any potential that the line manager’s “grievance” could be upheld and there was no finding of any fault, the Complainant was removed from his position in his Department.
Respondent Policy on Protected Disclosures
At the time the issues arose the Respondent had not met its statutory obligations to have a policy in place to deal with protected disclosures. A policy on protected disclosures was unilaterally introduced by the Respondent in 2016 without consultation with any of the campus unions and 2 years 8 months after the Act came into effect. This policy was rejected by all campus unions and to date there is no agreed policy.
When the matter came up for hearing in 2017, the Respondent approached IFUT to request settlement discussions. At the request of both parties, the WRC agreed to the adjournment of proceedings, and subsequently, to several other such requests for which we are grateful.
A mediator was appointed to oversee the settlement discussion in late 2017. The Complainant was disappointed to hear from the Mediator that the Respondent had no settlement proposal to make. The Complainant worked with the Mediator and in January 2018 agreed a proposal which became the basis of an Interim Mediation Framework that was accepted by the Respondent. Inter alia this explicitly included the development of a Level 10 programme and commitment to avoid competition by other units in this and associated activities. Despite extensive delays in gaining responses from the Respondent, the Complainant worked with the Director of the Institute to develop proposals and these were presented to the Respondent’s President in July 2018. Three months later the Complainant received a response that the proposals provided the basis of settlement. The Complainant worked with the Director of the Institute and the Dean of Social Sciences, to address the outstanding concerns. On 27th November 2018 the Complainant met with the Dean and concluded, what he and the Dean believed, to be a final agreement on the substantive issues. The Complainant was also disappointed to learn at this meeting that the confidentiality agreement in relation to the mediation process had been breached and that the current Head of the Department who is the line manager and other party to this dispute, had been informed about the discussions underway.
An addendum to the interim mediation framework was proposed on 10th December 2018 but was missing several elements of the understandings reached previously with the Dean. The matter was referred to the mediator and despite being so close to agreement, we were shocked to receive a revised proposal after IFUT closed for the Christmas period, on the afternoon of 21st December 2018. This document fundamentally altered the proposal and rejected several key substantive agreements including a Level 10 programme, which had previously accepted nine months earlier in the interim mediation framework of March 2018 on which the process was founded.
Before joining the Respondent, the Complainant gained extensive industry experience working at senior management levels in both manufacturing and service organisations. He holds undergraduate, masters and doctoral degrees.
He joined the Respondent in 2007.
Despite the many challenges associated with such an ambitious project, an International review panel established by the current President, noted in 2012 “that within the School there was a very strong esprit de corps among the School staff” evidenced by a high level of collegiality, all working to a common purpose and a shared sense of the School as “really nice place to work”.
A protected disclosure as defined by the 2014 Act at Section 5 is a disclosure of relevant information. The 2014 Act at Section 2 clarifies that 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.
Between May and October 2014, the Complainant acting in good faith, made a direct disclosure of relevant information concerning serious wrongdoings and omissions to his line manager. The Complainant reasonably believed these wrongdoings and omissions were occurring within the Department and which had come to his attention in connection with his employment. The concerns related to health and safety; hazardous working conditions and legal obligations relating to student assessment.
Almost all interactions are recorded in emails and / or evidence in the Examiner’s Report.
During interaction aimed at identifying potential legal and health and safety failures and identifying remedies, the Complainant raised inter alia the following issues directly with his line manager:
On 6th October 2014 the Complainant specifically disclosed information regarding the health and safety of colleagues and students, the risks posed by overcrowding and the risk of fire hazards through the Respondent’s act of omission.
May – October 2014 the Complainant raised serious concerns relating to academic standards. Specifically
- incorrect awarding in an Examination Board of a student with a pass in their master’s degree where the student had failed.
- Legal obligations in relation to proper procedures, processes and assessment of students thus creating grounds for legal appeal.
On 6th October 2014 the Complainant witnessed and reported internally a concern regarding the health and safety of a particular staff member and the failure of the Respondent to provide a safe working environment.
In line with the Code of Practice on Protected Disclosures, the Complainant provided the Respondent with the earliest possible opportunity to address the issues raised.
It is important to note that the Respondent did not, at any time, try to address the issues arising or if the Respondent felt the issues raised were unfounded, take the opportunity to assure the Complainant of this. To the contrary the Respondent replied in emails to thank the Complainant for his important interventions (see emails 16th-18th September 2014).
In August 2014 although becoming increasingly concerned about the approach being taken by his line manager, the Health and Safety issues emerging and the failures to meet legal obligations, the Complainant continued to seek an “in house” resolution.
On 6th October 2014 the Complainant in a meeting with his line manager again provided information and made disclosures in relation to Health and Safety issues involving staff, and students, together with issues of legal obligations and other problems with a proposed assessment system and governance procedures. In this meeting, the Complainant also stated that he had sought the assistance of the University Mediation Service. He requested his line manager to contact the service with a view to arranging a facilitated conversation to address these issues.
Further disclosures at the School Meeting of 6th October 2014 also raised concerns for the Health and Safety of students and staff due to overcrowding and fire hazard.
To be clear, the information disclosed by the Complainant was not a grievance or indeed specific to the Complainant. The Complainant provided information about serious and relevant wrongdoings and omissions as defined in section 5(2) of the Protected Disclosures Act 2014.
The distinction between a grievance and a protected disclosure is made clear in McGrath Partnership v Monaghan PDD 162. In common with the instant case, the Respondent in Monaghan attempted to treat the disclosure made by the Complainant as a grievance rather than a protected disclosure. The Labour Court made it clear that a protected disclosure is where a worker has information about a relevant wrongdoing as defined in the legislation which may or may not be specific to the employee concerned.
Having initially informed the Complainant that he would contact the Mediation Service, the line manager instead, went on to make serous allegations in relation to the Complainant.
To be absolutely clear, until this point, the line manager had never raised any issue of dissatisfaction in relation to the Complainant. In fact, the line manager had thanked the Complainant for his interventions and noted the importance of them.
Section 12(1) of the Protected Disclosures Act provides that “an employer shall not penalise or threaten penalisation against an employee, or cause or permit any person to penalise or threaten penalisation against an employee, for having made a protected disclosure”.
On 3rd December 2014 the Complainant was shocked to receive a letter from the Respondent’s President noting the most egregious allegations made by his line manager against the Complainant.
In that letter of 3rd December 2014, the Respondent’s President unilaterally initiated a process under the University Dispute Resolution Statutes, vesting the process under the sole control of the President and according to the President “conducted under statute and under the President’s discretion”. This action had far reaching consequences in relation to the Complainant’s right to fair process and natural justice and has been used inter alia to deny rights to representation, fair hearing, appeal and oversight by the WRC. This was also in breach of normal industrial relations procedures agreed with the Respondent and the Unions.
The process which followed can be characterised by shifting and expanding allegations and drifting and unclear processes:
The following comment in the Examiner’s Report is illustrative of the Respondent’s negative mindset toward the Complainant. The Examiner reported that “His [line manager] direction from the President and HR was that it was best to be cautious in his dealing with the Complainant”. Further in a letter to the Complainant dated 22nd August 2016, the Respondent’s President referred to “excessive questioning of decisions”. In McGrath Partnership v Monaghan PD 162 evidence of a negative comment was held to be significant as it was “…. Illustrative of the mindset of the Respondent”.
Critically the Examiner’s Report found the following in relation to the specific allegations made by the line manager in his grievance claim:
This process seriously impinged on the Complainant’s right to natural justice made it impossible for the Complainant to protect his rights in such a confusing and difficult environment. Specifically:
The Respondent’s President has steadfastly refused to allow any further external oversight or appeal. This is particularly unsatisfactory given that the issue should have been addressed under normal industrial procedures, and notwithstanding that fact, there is an explicit statutory requirement in the Universities Act 1997 IV.26.2.c for University Dispute resolution procedures to provide for consideration of issues in dispute by an independent person or persons, as appropriate one of whom in the case of a constituent university, shall be a nominee of the Chancellor.
It is submitted that as a result of having made the protected disclosure, there was an orchestrated attempt to discredit the Complainant by commencing and instigating a “sham” dispute / grievance / dignity in the workplace procedure, in an attempt to mislead and treat the serious concerns and the information provided as a “dispute” to silence the Complainant, to exclude him and label him as a trouble maker.
Removal from Post
The Examiner’s Report should have concluded the matter as the Terms of Reference required the Examiner to:
“establish either as a matter of fact, or on the balance of probabilities, whether or not the grievances are legitimate and can be upheld and whether any such grievances, if upheld, are in breach of Human Resource or other relevant policies within the Respondent company. “[Later amended by the examiner to clarify the process could only be considered a pre-investigation and would only identify “potential” that a grievance could be upheld and that it could not make any finding of fault].
Notwithstanding the above, as the Examiner’s Report made no finding that there was any potential that the grievance could be upheld and so should have completely cleared the Complainant’s name.
Despite this fact, on 22nd August 2016 the President removed the Complainant from his position in the Department.
The Respondent did not implement the conclusions of the Examiner’s Report; did not provide for the appointment of an independent person as required in Universities Act 1997 IV.26.2.c; did not provide for appeal and was punitive in the approach adopted.
The President proposed secondment of the Complainant to another Institute despite there being no suitable role available for the Complainant in that Institute and the Dean of the Faculty of Social Sciences has described the Institute as being bankrupt. The Complainant, under protest, engaged as instructed with the Director of the Institute. The Director confirmed continuously since September 2016 that the University had not provided any job description or role for the Complainant to undertake and that the institute had no programmes in place that were suitable to the Complainant’s skills. In this context, the Director, in consultation with the Complainant, devised a set of activities, including a Level 10 programme and associated activities suited to the Complainant’s skills, the principles underlying these programmes were explicitly accepted by the University in March 2018 forming the basis for an Interim Mediation Framework, the detailed development of the proposals were presented to the President in August 2018 as part of the Mediation process and subsequently rejected by the President on 21st December 2018.
As the situation stands the Complainant’s name has not been formally cleared and he continues to suffer damage to his reputation internally and externally and to his career. After the Devine & Associates Ltd examination, during which most staff in the school were interviewed, the Complainant was, in August 2016, removed from the School without explanation to anyone. The effect of this action created a lacuna where rumours of a very personal nature that are most distressing to the Complainant and his family emerged. Having engaged as best as possible with a flawed process now in its fifth year and having been found to be at no fault, the penalisation has continued. To date, no staff member involved in the above investigation interview process has been advised that the process found no fault on the part of the Complainant.
At a meeting to discuss the President’s decision, the President, in the presence of the General Secretary of IFUT, stated that the process could not exonerate the Complainant despite there being no findings against him. He argued that while there were no findings against him the examination had not proved that that he did nothing wrong, in effect making it an impossible requirement for the Complainant to prove his innocence.
The implications of the President’s decision continue to be deeply distressing to the Complainant and are a cause of extreme concern in view of the damage to his professional reputation, career and wellbeing. He has been excluded from his colleagues and social network at work. He has been isolated and removed from communications. He was removed from all his teaching duties. He has been excluded from the professional network that his role in the Department provided. He has been excluded from opportunities to supervise doctoral students. He has been excluded from all staff development activities in his discipline. This exclusion has now existed for 2 ½ years. The impact of this is highly damaging to his future career.
IFUT is of the view that removing the Complainant from his role is unwarranted, excessive, and unnecessary, amounts to severe penalisation and is in breach of the Protected Disclosures Act 2014.
The Examiner indicated to the Complainant that there would be no appeal to his Examiner’s Report, but the Complainant could appeal later in the process if the President moved to a further stage in the statutes.
The President subsequently refused to provide means for appeal or reference to an independent person as required by statute and Universities Act 1997 IV.26.2.c.
The Respondent refused a request of the WRC for conciliation to address the incorrect use of the statute, arguing that this is an excluded dispute and not subject to normal industrial relations. The President has used his declaration of an “excluded dispute” as a means to unilaterally deny fair process, appeal, and any means of independent oversight, and is in breach of requirements for fair process and in breach of the Universities Act 1997.
The Universities Act 1997 requires Universities to maintain a dispute resolution statute and that statute must provide “for consideration of issues in dispute by an independent person or persons, as appropriate, one of whom, in the case of a constituent University, shall be a nominee of the Chancellor of the National University of Ireland”. In the implementation of the statute the President has refused to allow the Complainant avail of this statutory obligation.
The Complainant sought to discharge his duties and raise concerns, in relation to failures or potential failures of health and safety and failures or potential failures of compliance with legal obligations. These were reasonably held beliefs based on information that the Complainant became aware of in the normal course of his employment. The information was disclosed directly to the Complainant’s line manager in accordance with the stepped approach of the Protected Disclosures Act 2014.
The response to the Complainant’s disclosure has been one of penalisation, in the form of unfounded complaints that had not been raised previously in any form, an unfair process, and removal from his position, despite no finding of fault. Had the Head of Department, the President, and the Director of Human Resources acted reasonably in response to these concerns and initiated fair processes, the outcomes could have been very different. It may have avoided the extreme distress caused to other staff in the School and the extraordinary action of removing and replacing the entire administration department following complaints which were brought to the attention of the Director of Human Resources by the staff concerned.
The President records in his final decision that he is removing the Complainant from his position as a consequence of excessive questioning. This questioning relates directly to the raising of issues that are protected disclosures.
It is submitted that the Complainant made disclosures of relevant information in a manner specified under the Protected Disclosures Act 2014 and that the disclosures are protected. The disclosures were made by the Complainant to his line manager. In response to the disclosures, the line manager made unfounded allegations about the Complainant that had not previously been raised. The President initiated a Dispute Resolution procedure that denied the Complainant fair procedure and failed to provide statutory requirements for independent oversight. Despite the President’s acceptance that there was no basis for any finding of fault, the Complainant was removed from his position. The unfounded allegations, the absence of fair procedure, the removal of the Complainant from his position, and the delay of over 4 years in concluding this process constitute the action of penalization for making protected disclosures.
We ask that
a) The Complainant’s record be completely cleared.
b) The Complainant be reinstated to his position without conditions or qualifications.
c) The Respondent takes action to restore the Complainant’s reputation within the Department, the University more generally, and externally.
d) The Respondent compensates the Complainant for its appalling treatment which has had serious negative effects on his wellbeing, his reputation, his career and his family.
Summary of Respondent’s Case:
This submission is furnished to the Workplace Relations Commission to the details of the Complainant’s complaints as set out in his complaint form dated 1st February 2017. This complaint was first listed for hearing in October 2017 and was adjourned to facilitate the parties’ engagement in a mediation process. That mediation process has not been successful.
As no written submission has been received from the Complainant, and as the Complainant has not specified the disclosure that he allegedly made and upon which the within complaint is grounded, the Respondent is at a significant disadvantage in preparing for this hearing. Notwithstanding this, the Respondent has endeavoured to respond to the Complainant’s complaint as best it can, and it reserves the right to make further submissions, both orally and in writing, when the Complainant has provided full information in relation to his complaint.
The Complainant commenced employment with the Respondent on 14th May 2007 and was Head of the Respondent’s Department until June 2012. After stepping down as Head of the Department, the Complainant remained involved in the School and reported to the new Head of School, Professor A.
On 11th November 2014, 11 months after taking up the position of Head of the Department, Professor A wrote to the Respondent’s President lodging a grievance “regarding the behaviour, and impact thereof, on the School of the Complainant (complainant named)”. In his grievance letter, Professor A refers to irreconcilable differences with the Complainant arising from the Complainant’s approach to him in his capacity as Head of the Department. Professor A refers to disruptive behaviour which he describes as “intimidating” and “highly unwelcoming”. He describes the Complainant as “domineering” and his email communication as “inappropriate and unacceptable”. He further states that he felt that the Complainant was undermining his role as Head of the Department, and that “given the nature of his behaviour, from his perspective, he had considerable concerns about meeting with him in private and confronting him about his behaviour and communications”. He requested the Respondent to investigate this complaint.
Between November 2014 and June 2015, the Respondent made efforts to resolve the issues between the Complainant and Professor A informally. These efforts were not successful and on 25th June 2015 the Respondent wrote to the Complainant to confirm that it had appointed Mr D BL to carry out an investigation into the grievances raised by Professor A. This investigation would proceed under Section K2 of the Respondent’s statutes. Mr D commenced his investigation in June 2015 and the investigation concluded with the issuing of a detailed report in March 2016.
Mr D found that the Complainant had communicated and interacted with Professor A on a number of occasions in a manner that he knew or ought to have known would have been potentially adverse to Professor A and his standing in the School as Professor and Head of School. Mr D also found that a pattern of communications from the Complainant had reasonably been interpreted as undermining Professor A in his role of Head of School. Mr D strongly suggested that the parties consider a facilitated / mediated process to assist in rebuilding where necessary and fostering collegiate relationships.
Following receipt of Mr D’s report, the Respondent decided that it was necessary to take appropriate steps under section K2 of the Respondent’s statutes, to minimise the impact of the dispute on the effective and efficient running of the Department and to facilitate the ultimate resolution of the dispute. In this regard, the Respondent decided that it was appropriate to separate the Complainant and Professor A, and as the Complainant was one of two academic directors of the Institute, the Respondent decided to temporarily second the Complainant to the Institute on a full-time basis. The Complainant was informed of this decision in a meeting with the President on 14th June 2016, and this was confirmed in writing on 22nd August 2016. In his letter dated 22nd August 2016, the President stated that “it was clear that the professional relationship between yourself and Professor A have broken down, the School is no longer functioning normally, no viable approach to resolving the dispute presented itself in the course of these initial meetings”. He stated:
“My enquiries and those conducted on my behalf by Mr D, have led me to the following findings and conclusions, communicated to you at our meeting of 14th June 2016:
1. You did on a number of occasions behave in a manner which could reasonably be interpreted as excessively questioning of the decision of Professor A as Head of School, potentially undermining him and destructive to the normal management of the School.
2. You knew or ought to have known that such behaviour would potentially be averse to Professor A as Professor and Head of School.
3. It was reasonable for Professor A to construe your behaviour as disruptive and inquisitorial.
4. There is no evidence that you were deliberate or malicious in your actions; it is more likely the dispute emerged as a result of significant differences between two Professors in terms of style and approach, with you having strongly held and strongly expressed views on how the School should be managed and directed, and Professor A having a different approach and a clear mandate from the University with regard to the strategic direction of the School.
5. There is no basis for a clear finding of fault on either part; nonetheless these differences in style and approach have created a deep division between the parties which will take considerable time and effort to heal.
6. The University is required to take action under these circumstances; a failure to take adequate action would be a failure in the duty of care owed by the University to both parties to the dispute and would present an unacceptable risk to the effective options and strategic development of the Department.
7. The only effective means to resolve the dispute is to have the two parties working at separate parts of the University at least for a period of time.
8. While Professor A interpreted and experienced your behaviours, as controlling and intimidating, Professor A did not make a formal complaint of bullying and harassment, nor did my investigations find any evidence that you set out to intimidate Professor A. Neither my enquiries nor those conducted on my behalf by Mr D should be construed as supporting or allowing stand an allegation of bullying or harassment”.
The President’s letter went on to confirm his decision under Statute K2 of the Respondent’s Statutes to temporarily second him to the Institute on a full-time basis for an initial period of three years with effect from 9th September 2016. The President expressed his hope that these separate working arrangements and the passage of time would provide a period of relief during which the professional relationship between the Complainant and Professor A might be healed, perhaps through mediation.
On 6th September 2016, the Complainant wrote to the Respondent’s Director of Human Resources through his representative, IFUT, in relation to the Respondent’s decision to temporarily second him to the Institute. IFUT described this decision as “a unilateral repudiation of the Complainant’s entitlements under the Industrial Relations Acts 1969 and 1990 and the Safety, Health and Welfare at Work Act 2005” and they indicated their intention to refer this matter to the Workplace Relations Commission.
IFUT wrote to the Workplace Relations Commission requesting a conciliation conference on this matter, however the Respondent declined to participate in conciliation in circumstances where the complaint, which arose under Statute K2 of the Respondent’s statutes, was an “excluded dispute”. As an alternative, the Respondent proposed that the parties engage in mediation.
IFUT responded by letter dated 14th October 2016 and stated that the Complainant would not participate in mediation as proposed, in circumstances where “this initiative does not address the substantive issue of the removal of the Complainant from his position without cause and without any mechanism of appeal”.
On 21st December 2016 following a meeting, between IFUT and the Respondent to discuss the Complainant’s duties while on secondment and next steps for resolution of this matter, the Director of Human Resources again wrote to IFUT to emphasise the Respondent’s willingness to participate in a third-party mediation process.
On 1st February 2017, IFUT wrote to the Director of Human Resources in response to her letter dated 21st December 2016. In this letter, IFUT stated:
“I refer to your correspondence dated 21st December 2016. As previously advised, (the complainant was named) will not be participating in a mediation process which purports to deal with the delivery of management objectives and goals, in a monocratic secondment scenario.
The proposed mediation process as outlined does not address the substantive issue of removal of the Complainant from his position without cause and without any mechanism of appeal.
As a consequence, we have no alternative but to refer this case to the Workplace Relations Commission for penalisation under the Protected Disclosures Act 2014”.
In her response, dated 2nd March 2017, the Director of Human Resources stated:
“Further to the above matter and your correspondence of 1st February 2017. I now understand that (the complainant was named) has made a complaint under the Protected Disclosures Act to the WRC.
I am not aware that any issues arise whatsoever under the Protected Disclosures Act and I attach a copy of the University’s policy in that regard. Further, I am unaware that the Complainant at any stage, had and/or raised any issues on foot of this policy.
The (Respondent was named) will be conveying its views in full to the WRC as we are unclear as to the basis for the making of any such complaints”.
On 1st February 2017, the Complainant submitted his complaint to the WRC.
Response to the Complainant’s Complaint
In his complaint form dated 1st February 2017, the Complainant states:
“The Complainant raised issues of wrongdoing with the University Mediation Services, Head of School, President and Director of Human Resources involving serious concerns he had over his personal health and safety and that of others, due to the behaviours of his manager. Instead of listening and responding to these concerns in a reasonable way, he was subjected to penalisation. Initially, this took the form of an investigation whereby the most serious charges were made against him personally and following by, (even though he was found to be totally innocent) a directed transfer from his role and position within the University. The penalisation has caused him great personal anxiety and stress and has significantly impacted on his profile and reputation both within and outside the University”.
Section 12 (1) of the Protected Disclosures Act 2014 provides that “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”.
In McGrath Partnership v Monaghan PD/15/1/PDD162, the Labour Court observed that the provisions of section 12 of the Protected Disclosures Act regarding penalisation were broadly similar to those provided for in the Safety Health & Welfare at Work Act 2005, and in this regard, the Labour Court referred to its decision in O’Neill v Toni & Guy (Blackrock) Limited. In O’Neill, the Labour Court found that in order to make out a complaint of penalisation, it was necessary for a complainant to establish that the detriment of which he or she complains of was imposed “for” having made a protected act (in this case, for having made a protected disclosure). In O’Neill, the 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 influence the decision maker in imposing the impugned detriment”.
Application of the “but for” test in section 12 complaints has most recently been endorsed in a decision of the Labour Court in Fingal County Council v John O’Brien PDD184 from November 2018.
At the outset, the Respondent submits that no protected disclosure was made to it at any time by the Complainant concerning health and safety, or any other matter and accordingly, any steps taking in relation to the Complainant cannot be penalisation for the purposes of the Protected Disclosures Act.
The Respondent further submits that the independent investigation to which the Complainant refers in his complaint form commenced following receipt of a grievance from Professor A regarding interpersonal issues that had arisen between him and the Complainant. The decision to temporarily second the Complainant to the Institute on a full-time basis was made by the Respondent following receipt of Mr D’s report in the hope that these separate working arrangements and the passage of time would provide a period of relief during which the professional relationship between the Complainant and Professor A might be healed, possibly with the benefit of mediation.
The Respondent submits that the first time that the Complainant refers to the making of a disclosure is in his representative’s correspondence dated 1st February 2017, which is also the date on which he filed his complaint in the Workplace Relations Commission. This was long after the events which the Complainant indicates were acts of penalisation occurred. As noted above, the Respondent is not aware of any protected disclosure made by the Complainant at any time, and in these circumstances, applying the O’Neill test to the current facts, the Respondent submits that there is no causal link between the Respondent’s actions and any disclosure made by the Complainant (the existence of which is denied). The Respondent submits that the making of a protected disclosure (which is denied) was not therefore the operative cause for the decision to temporarily second the Complainant to the Institute.
It should be noted that following receipt of this correspondence, the Respondent wrote to the Complainant, through his representative, informing him that the Respondent was unaware of any protected disclosure made by the Complainant. The Complainant did not respond to this letter, and the Respondent remains at a loss as to the disclosure allegedly made by the Complainant.
The Respondent further submits that a substantial Protected Disclosures (Whistleblowing) Policy has been put in place and available to all staff since 1st March 2016. Part 7 of this policy headed “Reporting on Retaliatory Actions (Perceived/Actual)” provides:
“For the purposes of this Policy, “retaliatory actions” means any act of discrimination penalisation or threat of penalisation, reprisal, harassment, or vengeance, direct or indirect, recommended, threatened or taken against a worker by any person because the worker has made a disclosure pursuant to this policy. If the worker believes that he/she is a victim of actual or perceived retaliatory actions as a result of the disclosure, they should report the matter directly to a member of the Disclosures Committee. The Disclosures Committee is required to investigate all such allegations of retaliatory action”.
Notwithstanding that an internal mechanism was available to the Complainant if he felt that he had been penalised or retaliated against in any way for having made a disclosure (which is denied) the Complainant chose not to avail of that internal mechanism before referring a complaint to the Workplace Relations Commission. The Respondent therefore submits that the within complaint is premature, and that the available internal mechanisms should have been exhausted by the Complainant before referring the matter to the Workplace Relations Commission.
Finally, and separately to the within complaint, the Respondent notes that the Complainant has indicated that his reputation has been affected by his secondment to the Institute. This is not the case. In addition to his role as Academic Director of the Institute the Complainant continues to be listed as an academic member of the Department on the Respondent’s website, and his profile acknowledges his involvement in the School’s programmes as he continues to oversee research projects on this programme. The Complainant continues to supervise PhD students in the Department and he represents the Respondent on the Irish Academy for his discipline. The Respondent submits that the Complainant continues to be an employee of good standing within the Respondent, and that the proposed temporary secondment to the Institute will not negatively impact on his reputation within or outside of the Respondent.
In conclusion, the Respondent submits that:
· The Complainant did not make a disclosure for the purposes of the Protected Disclosures Act 2014 and accordingly could not have been penalised for the purposes of section 12(1) of the Act.
· The Complainant first indicated that he had made a protected disclosure on 1st February 2017, long after the events which the Complainant indicates were acts of penalisation. Accordingly, the making of a protected disclosure (which is denied) was not the operative cause for the decision to temporarily second the Complainant to the Institute and.
· The Respondent has a comprehensive Protected Disclosures (Whistleblowing) Policy in place, which includes detailed provisions relating to penalisation and which provide an internal mechanism for employees who feel that have been/are being penalised for having made a protected disclosure. While this policy has been in place since March 2016, the Complainant did not make any complaint under it.
RESPONDENT SUPPLEMENTARY SUBMISSION
This submission is made in response to the Complainant’s submission which was furnished to the Respondent on the last hearing date on 13th February 2019 (the Complainant’s submission) and to which the Respondent has not had any opportunity to respond. In its preliminary submission dated 9th January 2019 (the preliminary submission) the Respondent reserved its right to make further submissions in circumstances where the Complainant had not specified the purported protected disclosure on which his complaint is based, and no written submission had been received from the Complainant. This submission is supplemental to and should be read in conjunction with the preliminary submission.
It is not proposed to set out in detail the background to the complaint, the Respondent’s understanding of which is set out in the preliminary submission. The Complainant’s submission does, however, state that he made protected disclosures to the Respondentemployer on several occasions between May 2014 and October 2014 regarding the purported failure of the Respondent to meet its legal obligations and relating to the alleged endangerment of the health and safety of staff and students.
The Respondent first became aware of the particulars of this claim upon being furnished with the Complainant’s submission and as such, this supplemental submission, together with such further evidence as may be tendered at any resumed hearing, seeks to respond to the claim made. This supplemental submission is intended to rebut the presumption that a disclosure is a protected disclosure until the contrary is proven, as provided for by section 5 (8) of the Protected Disclosures Act 2014.
Allegation(s) of Wrongdoing
The Complainant’s submission states that “[a]t the time these issues arose the University had not met its statutory obligations to have a policy in place to deal with Protected Disclosures (sic)”. The Complainant’s submission however indicates that protected disclosures were made as early as May 2014, whereas the Act was only commenced with effect from 15th July 2014 by virtue of the Protected Disclosures Act 2014 (Code of Practice on Protected Disclosures Act 2014) (Declaration) Order 2015 which took effect on 28th October 2015, over a year after the purported disclosures at issue in these proceedings.
The Respondent also submits that a comprehensive Protected Disclosures (Whistleblowing) Policy has been in place since 1st March 2016. The policy includes reporting lines for internal matters and sanctions against those who engage in retaliatory actions. Had the Respondent at any point after July 2014 understood the Complainant to have raised a protected disclosure, such a disclosure would have been examined by a Disclosures Committee in accordance with the policy. The Complainant has not made any complaint under the provisions of this policy nor has he raised allegations of wrongdoing more generally at any time prior to these proceedings. The Complainant’s submission indicates that he raised “inter alia” the following matters directly with his line manager:
· On 6th October 2014 the Complainant states that he disclosed certain concerns regarding overcrowding and the risk of fire hazards.
· Between May and October 2014, the Complainant states that he raised “serious concerns relating to academic standards” specifically the incorrect awarding in an Examination Board of a degree to a Master’s student where the student had failed and legal obligations relating to the assessment of students.
· On 6th October 2014, the Complainant states that he witnessed and reported a concern regarding the health and safety of an unnamed staff member.
While the complaint form dated 1st February 2017 states that the Complainant raised “issues of wrongdoing … involving serious concerns he had over his personal health and safety and that of others, due to the behaviours of his manager” it is not apparent from those set out in the Complainant’s submission that any are now alleged to arise due to the behaviours of his line manager, Professor A.
The above matters were never understood to be protected disclosures by the Respondent nor were they framed as information regarding serious wrongdoing by the Complainant prior to 1st February 2017, on which date the Respondent first received correspondence from the Complainant’s representative referring to the 2014 Act. By this date, the policy had been in place for almost a year and no complaint had been made by the Complainant pursuant to its provisions and indeed none has been made to date. That such a claim came as a surprise to the Respondent is evidence by an email from the Respondent’s Director of Human Resources to the Complainant on 2nd March 2017 following receipt of the complaint stating that she was not aware of any issues had arisen under the Acts as she was unaware that the Complainant had “at any such stage raised any issue” on foot of the policy. As no protected disclosure was made, no such disclosure was recorded in any report of the Respondent outlining the number of protected disclosures made in a given year pursuant to section 22 of the Act. Given that the Respondent has at all times prior to the complaint been unaware that any protected disclosures had been made, it is not credible that the Respondent could now be characterised as having penalised the Complainant for having raised protected disclosures.
At all relevant times, between May and October 2014, contrary to the Complainant’s assertion that he made “ a direct disclosure of relevant information concerning serious wrongdoings and omissions to his line manager” the Complainant’s line manager and others engaged with him in relation to routine concerns of an academic nature and which were the subject of differences of opinion between staff without these ever having been framed as allegations of wrongdoing. These include the comments made at a meeting between the Complainant and Professor A on 6th October 2014 and the content of a discussion at a school meeting on 6th October 2014 which referred to at paragraph 4.8 and 4.9 of the Complainant’s submission. The Complainant in these proceedings is attempting to characterise constructive comments which were raised in the course of routine meetings, as having being allegations of wrongdoing in order to characterise his subsequent secondment to the Institute as penalisation under the Act.
The report issued by Mr D in March 2016 in relation to the grievances raised by Professor A, contains no indication that the matters raised by the Complainant were understood by him, the Respondent, or any other parties, at any time to comprise protected disclosures. This is despite the Complainant’s assertion at 4.3 of his submission that “[a]lmost all interactions are recorded in emails and/or evidenced in the Examiner’s Report”. For example, the proposals relating to continuous assessment which were the subject of comment by various members of staff; while the Complainant raised valuable and practical issues, these were not framed as allegations of wrongdoing and the report bears this out, noting that it was “the subject of robust discussion at the May 2014 school meeting”.
Similarly, on 5th September 2014, the Complainant posed three questions to Professor A highlighting a range of concerns in relation to a proposal to adjust the Continuous Assessment Policy. This was the subject of further correspondence between the Complainant and Professor A, in the course of which the former stated that he understood his differences with the latter to relate to “logic and academic freedom”. The Report indicates the Complainant’s view that there was “a lack of meaningful conversation happening” but never relays an understanding that this comprised an allegation of wrongdoing. Indeed, in an email dated 17th September 2014 from the Complainant to Professor A the Complainant thanks Professor A for his engagement and states “as always with complex policies raises some new one (sic)”. Whereas the Complainant states that Professor A thanked the Complainant for his comments, this was never an acknowledgement that allegations of wrongdoing had been made. In fact, Professor A states that these are “three important questions” but it is clear that no party understood them to comprise any allegation of wrongdoing. Crucially, at no point, in any of the material exhibited by the Complainant is any such allegation made.
The Report makes no reference to protected disclosures raised as such at a school meeting on 6th October 2014 whether relating to the health and safety of staff and students arising from overcrowding or in relation to the continuous assessment policy. Indeed, those in attendance at the meeting who were interviewed for the purpose of the Report do not state that they understood there to have been any allegations of wrongdoing made in relation to these or other matters. The view of other staff members recounted in the Report is that “[t]here had been discussion which was normal at such meetings, across the board about the pros and cons”. In fact, the Report indicates that it was another member of staff rather than the Complainant who initially raised issues of health and safety arising from the capacity of certain lecture rooms, albeit this was never framed by any party as an allegation of wrongdoing on the part of the Respondent.
In light of the foregoing, the comments of the Labour Court in the decision of Dairygold Co-Operative Society Ltd –v- Dermot O’Driscoll (ADJ-00010428) are relevant:
“The very purpose of the Act is to provide protections to people who make disclosures of wrongdoing. If there is no disclosure of wrongdoing a statement or disclosure is not ‘relevant information’ in accordance with the definition set out in s.5 (2) (a) and cannot be regarded as a protected disclosure within the meaning of the section”.
It is submitted that it would be incorrect to suggest that in circumstances such as these the Respondent ought to have engaged the provisions of the Act where no reasonable employer would have construed the matter as involving a disclosure of relevant information within the meaning of the Act. Differences of professional opinion in the absence of any allegation of wrongdoing do not fall within the scope of the Act. The comments of Sales LJ in the Court of Appeal of England and Wales in the case of Kilraine v Karen London Borough of Wandsworth  EWCA Civ 1436 are relevant. Sales LJ emphasised that whether a disclosure satisfies the requirements for statutory protection should be assessed in light of the particular context in which it is made. He also stated that an employer should have a fair opportunity to dispute the context relied upon.
The Complainant states at paragraph 4.12 of his submission that he was initially informed by his line manager that the matter would be referred to the Respondent’s mediation service and that he sought an ‘in house’ resolution through the Mediation Service. The Mediation Service operated by the Respondent is a confidential service and details of this process are not available to the Respondent. However, as the process is voluntary, where a party to a dispute or grievance does not voluntarily accept to engage in mediation, the mediation cannot proceed. We refer to correspondence in relation to what was then described as “relocation/job displacement”.
The Complainant in this case is broadly similar to that in the case of An Employee v An Employer ADJ-00003371. In that case, a complaint of penalisation under the Act was not accepted by the WRC in circumstances where the Complainant failed to produce any evidence of protected disclosures being made prior to such a claim being made by her legal representative to her employer. The employer successfully rebutted the presumption in s.5(8) of the Act, where the complainant in that case did not utilise the comprehensive whistleblowing policy in the organisation. The following comments of the Adjudicator are relevant to the issues in the instant proceedings:
I note from 10th August 2015 the Complainant communicated by email with her colleagues, including the MD in relation to work related issues. There was no explanation given by the Complainant as to why she did not put in writing “protected disclosure” during the course of her employment from 2015.
The Respondent’s response to the issues
Without prejudice to the Respondent’s argument that no protected disclosures were raised by the Complainant, and contrary to the Complainant’s assertion that “the Respondent did not, at any time, try to address the issues arising” the Respondent has investigated and addressed the matters which were raised by the Complainant and which comprise the purported “protected disclosures” on which the complaint is now premised.
Regarding the risks to health and safety posed by overcrowding, this was initially raised by the Complainant’s colleague in the Department (the Colleague) rather than by the Complainant himself. The matter was the subject of some correspondence between the Colleague and Professor A in his capacity as Head of School. To address the concerns raised, the venue for certain lectures was changed and Professor A raised the matter with the timetable team and the Registrar. The broader issue of crowding within lecture theatres was addressed at a School meeting on 6th October 2014. The Colleague noted by email the “time and energy” given to the matter by Professor A. The minutes of this meeting reflect that the Complainant, in the course of this meeting, queried the number of students expected to enrol in Arts in the longer term. Indeed, it has been engaged in continuous infrastructural developments to accommodate this growth in student numbers. In particular the Department is the biggest growth area for the Respondent.
Between May and October 2014, the Complainant states that he raised concerns regarding academic standards with the Respondent. Certain changes to the assessment of students were the subject of ongoing consultation with staff during this period, in particular changes to the continuous assessment policy of the Department. The matter was tabled for discussion at a School meeting by other members of staff on 7th May 2014 and following this discussion, a sub committee was formed, a majority of which recommended a compromise policy. Following consultation in group and individual meetings and further correspondence with stakeholders, the compromise reached permitted individual academics adopt their preferred approach in each module, and this decision was communicated to staff and students. As such, the compromise allowed each academic to determine whether to apply the new policy (under which a module was passed provided there was an average of 40% attained across all elements of the module) or the old policy (whereby a student may not pass a module without certain levels being attained in continuous assessment, irrespective of the overall result). The minutes of the Department meeting held on 6th October 2014 state that the Complainant “raised concerns that some technical issues remain in relation to the passing grade” and stated that the policy was “inconsistent and incompatible under Academic Freedom”. At no point is any allegation of wrongdoing documented.
While the Complainant also avers that he raised concerns regarding the incorrect awarding of a degree to a Master’s student, the Respondent, following enquiries based on the available records, is unaware of any student having been incorrectly awarded a mark or of any such issue being raised by the Complainant prior to the complaint made in these proceedings. For completeness, it should also be noted that, as stated in the Report, the earliest interaction between Professor A and the Complainant which was identified as a grievance by Professor A, dates from May 2014.
On 6th October 2014 the Complainant states that he witnessed and reported a concern regarding the health and safety of an unnamed staff member. Having consulted all records and sought information from relevant personnel, the Respondent has no record of any such concerns having been documented by the Complainant. The Respondent at all relevant times operated and continues to operate a Health and Safety policy and was not made aware of any issues arising by the Complainant. Accordingly, the Respondent reserves the right to respond to the details of this complaint upon receipt of further information from the Complainant.
As such, the Respondent made reasonable attempts to address concerns of which it was made aware when they were brought to its attention by the Complainant and others. This approach reflects the culture within the Respondent organisation as part of which concerns are addressed constructively as a matter of course and there is no question of intimidation of any employee for raising issues of concern in good faith. In accordance with the requirements of the Industrial Relations Act 1990 (Code of Practice on Protected Disclosures Act 2014) (Declaration) Order 2015, the matter was addressed on foot of discussion and clarification and the Complainant was aware of the manner in which concerns had been addressed.
The Complainant submits that, as a result of having made the purported protected disclosures, there was an “orchestrated attempt to discredit, silence and exclude him and to label him as a troublemaker”. The Complainant further submits that he was, in a “punitive” fashion, removed from his position in the Department and seconded to the Institute as a result of raising issues which he considers to be protected disclosures.
Without prejudice to the Respondent’s contention that no protected disclosures were made by the Complainant, the Respondent submits that, if it is concluded that such protected disclosures were made, that no acts of penalisation have occurred. The Complainant, as outlined above, is attempting after the fact to characterise the dispute process arising from Professor A’s grievance under section K2 of the Respondent’s Statues and his resultant secondment as penalisation under the Act. While the Complainant has claimed that the dispute process was a “sham” which sought to “mislead, silence and discredit the Complainant” the Respondent had an obligation to investigate and address the issues which were raised by Professor A in his grievance dated 11 November 2014. Even if it is conceded that the Complainant made protected disclosures in advance of the dispute process (which, for the avoidance of doubt, it is not) this cannot act as an impediment to the Respondent taking measures to address the issues raised in good faith by Professor A. The fact (if it were established) of having made protected disclosure(s) cannot insulate an employee such as the Complainant from steps taken to address serious employee grievances such as those raised by Professor A, where the concerns were adversely affecting the effective operation and strategic development of the Respondent’s Department. As noted above, and as stated in the Report, the earliest interaction between Professor A and the Complainant which was identified as a grievance by Professor A dates from May 2014.
In his letter to the Complainant on 22nd August 2016 confirming his decision to second the Complainant, the Respondent’s President acknowledged that there was no evidence of the Complainant having been deliberate or malicious in the manner in which he was disruptive to the normal management of the Department and had excessively questioned the decisions of Professor A. He stated that “it is more likely the dispute emerged as a result of significant differences between two Professors in terms of style and approach”. However, he stated that, while there was no basis for a finding of fault on either part, these differences created a “deep division …. which will take considerable time and effort to heal” such that the only effective means to resolve the dispute is for the two parties to work separately for a time. Clearly, the actions taken relate to the dispute between the Complainant and Professor A and cannot be said to be linked to any protected disclosures purported to have been advanced by the Complainant.
While the Complainant states that his “removal” from the Department “without explanation to anyone” amounted to penalisation, there is no credible basis on which this can be sustained. In the first instance, there is no close proximity between the purported protected disclosure and the supposed acts of penalisation. In accordance with the “but for “test endorsed by the Labour Court in Fingal County Council v John O’Brien (PDD184) and which is quoted in the Preliminary Submission, the supposed acts of penalisation were, in truth, imposed following the grievance submitted by Professor A relating to the Complainant. As stated by the Respondent’s President in his letter to the Complainant on 22nd August 2016, a failure to take adequate action “would be a failure in the duty of care owed by the [Respondent] to both parties to the dispute and would present an unacceptable risk to the effective operations and strategic development of the Department”.
The “excessive questioning” which formed one component of the reasoning for the President’s decision to second the Complainant to the Institute (to which reference is made in the Complainant’s submission) did not relate to purported protected disclosures made by the Complainant and is considerably broader in scope and impact than the purported disclosures relied upon the Complainant. As outlined to the Complainant in a letter from the Respondent dated 3rd December 2014 inviting him to a preliminary meeting relating to Professor A’s grievances, the matters arose from actions of the Complainant which were disruptive of Professor A’s work “to establish a strategy, set policies and manage the School in its academic, administrative, financial, personnel and other activities”; these were stated to include excessively disputing and undermining the introduction of a new continuous assessment policy, but also inappropriate interventions regarding the remunerative arrangements for occasional staff, intimidating behaviour at School meetings, and the circulation to staff of an email purporting to describe the outcome of a confidential selection process of which the Complainant was not a part. The procedure commenced following receipt by the Respondent of a grievance from Professor A regarding interpersonal difficulties that had arisen with the Complainant. This procedure was in no sense a “sham” and was not a response to the Complainant’s protected disclosure, given that no parties within the Respondent had ever understood the Complainant to have made protected disclosures prior to the making of this complaint. The Respondent had a duty as an employer to investigate this grievance (and indeed, would have had such a duty whether a protected disclosure was made by the Complainant or not) as a result of which independent investigation the decision to second the Complainant was made. The Respondent concluded on the basis of the inquiries that the Complainant did, on numerous occasions, behave in a manner which could reasonably be interpreted as excessively questioning the decisions of Professor A as Head of School, as potentially undermining him and as disruptive to the normal management of the School. These findings were made almost six months before the first indication from the Complainant that he had raised what are now characterised as protected disclosures.
The Complainant indicates that the “absence of fair procedure” and the use of Section K2 of the Respondent’s Statues constituted penalisation contrary to section 12 of the Act. The Respondent rejects any contention that there was an absence of fair process in the procedures invoked, which involved a full consideration of all issues by the Respondent’s President following the commissioning of an independent investigation report into the matter, during which the Complainant was given every reasonable opportunity to respond to the complaints of Professor A. The appropriate procedure to follow in the case was to invoke section K2 of the Respondent’s Statutes.
The Complainant’s submission also indicates that these purported acts of penalisation have damaged his reputation and career. Contrary to his assertions, he has not been excluded from his colleagues and social network. The Complainant continues to have an office and a mailbox in the Department together with other academic staff of the School and continues to have a profile on the School’s website. While the Complainant is not teaching any modules, this is not unusual for an academic of his seniority and he supervises doctoral candidates where, in accordance with the established process, he agrees to do so following a proposal made by a student. The workload is not standard but is not without precedent for an academic of this seniority. There is no basis on which the Complainant can be considered to be anything other than an employee of good standing.
The Complainant also indicates that “the delay of over 4 years in concluding this process” amounts to penalisation. For the avoidance of doubt, the grievance raised by Professor A which resulted in the decision of the Respondent to second the Complainant to the Institute was concluded in less than two years and resulted exclusively from the dispute between Professor A and the Complainant. Given the nature and seriousness of the dispute, this length of time taken to conclude what was accepted to be a dispute with considerable impact cannot be considered to amount to penalisation under the Act.
In conclusion, the Respondent submits that the Complainant did not make a disclosure of relevant information for the purposes of the Act and accordingly, could not have been penalised for the purposes of Section 12 (1) of the Act. It was never apparent (nor could it reasonably have been) to any party that the Complainant had made allegations of wrongdoing in accordance with the provisions of the Act and no complaint under the Respondent’s Protected Disclosures (Whistleblowing) Policy was ever received from the Complainant. Given the absence of any disclosure of wrongdoing in the context set out above, a statement does not amount to a ‘protected disclosure’ and accordingly the protections of the Act simply do not apply. The Complainant has sought to characterise after the fact constructive comments which were raised in the course of routine meetings, as having comprised protected disclosures in order to characterise his subsequent secondment as penalisation under the Act.
Without prejudice to this position, the Respondent also submits that, insofar as issues were raised by the Complainant and others, these were addressed by the Respondent and were the subject of consultation.
Finally, the Respondent defends any claims of penalisation made by the Complainant on the basis that the purported acts of penalisation did not arise as a result of the making of any protected disclosure and therefore, the crucial element of causation is absent from this case. The decision to second the Complainant to the Institute was made following an independent investigation into the interpersonal difficulties between the Complainant and Professor A and did not relate to any purported protected disclosures made by the Complainant. The Respondent acknowledges that there is a “significant dispute with considerable impact” between the Complainant and Professor A; however, this is entirely distinct from any claims made regarding protected disclosures and indeed the outcome of that dispute process would not have differed even had the Complainant failed to raise the issues which he now seeks to characterise as protected disclosures. The actions taken by the Respondent’s President were justified in light of the findings of the Report, including the finding that while the Complainant had every right to articulate his views, “he knew or ought to have known that the impact of his actions in effectively questioning the rationale for the decision by the Head of School, would have been potentially adverse to Professor [A] and his standing in the school as Professor and Head of School”.
The Complainant in his submission dated 13th February 2019 has sought that his “record be completely cleared” that he be reinstated to his position without conditions or qualification, that the Respondent “takes action to restore his reputation” and that he be compensated for the effects of the matters complained of. Schedule 2 of the Act, the Workplace Relations Commission, sets out the redress to be awarded where claims of penalisation are established. However, as no claim of penalisation has been established, this does not arise in this case. The Respondent will endeavour to resolve any interpersonal issues between the Complainant and Professor A which are entirely distinct from the issues the subject of this claim. Indeed, a significant part of the Complainant’s submissions centre on the confidential and extensive mediation process that the parties participated in and the Complainant goes into significant detail into the elements of a possible resolution which ultimately did not conclude. However, this demonstrates that at the very heart of the matter is an ongoing interpersonal and professional issue between the Complainant and Professor A which is not in any way related to any issues under the Act.
Findings and Conclusions:
Contained within the Complainant’s submission there were four paragraphs under the heading of Settlement Discussions. Contained within one of these paragraphs is a reference to “Interim Mediation Framework”. This was in reality a mediation process and it is quite surprising that the Representative for the Complainant has included this in her submission. The first rule of mediation is confidentiality. Any reference to mediation should not be included in a submission that has been prepared for an adjudication process.
A brief summary of the complaint as presented reads as follows:
· On 6th October 2014 the Complainant states that he disclosed certain concerns regarding overcrowding and the risk of fire hazards.
· Between May and October 2014, the Complainant states that he raised “serious concerns relating to academic standards” specifically the incorrect awarding in an Examination Board of a degree to a master’s student where the student had failed and legal obligations relating to the assessment of students.
· On 6th October 2014, the Complainant states that he witnessed and reported a concern regarding the health and safety of an unnamed staff member.
A protected disclosure for the purpose of the Protected Disclosures Act is defined at section 5 of the Act and 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 the Act) made by a worker in the manner specified in section 6, 7, 8, 9, or 10.
Again, for the purpose of the 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
Section 5 (3) addresses relevant wrongdoings, point (d) reads as follows:
“that the health and safety of any individual has been, is being or is likely to be endangered”
The Report completed by issued by Mr D in March 2016 in relation to grievances raised by Professor A contain no indication that the matters raised by the Complainant were understood by him, the Respondent or any other party to comprise protected disclosures. This report indicates that it was another member of staff rather than the Complainant who initially raised issues of health and safety arising from the capacity of certain lecture rooms, this was never framed by any party as an allegation of wrongdoing on the part of the Respondent.
Representative for the Respondent cites the comments of the Labour Court in the decision of Dairygold Co-Operative Society Ltd –v- Dermot O’Driscoll (ADJ-00010428) are relevant:
“The very purpose of the Act is to provide protections to people who make disclosures of wrongdoing. If there is no disclosure of wrongdoing a statement or disclosure is not ‘relevant information’ in accordance with the definition set out in s.5 (2) (a) and cannot be regarded as a protected disclosure within the meaning of the section”.
The following case from the Sales LJ in the Court of Appeal of England and Wales in the case of Kilraine v Karen London Borough of Wandsworth  EWCA Civ 1436 are relevant. Sales LJ emphasised that whether a disclosure satisfies the requirements for statutory protection should be assessed in light of the particular context in which it is made. He also stated that an employer should have a fair opportunity to dispute the context relied upon.
In Donegal County Council v Liam Carr (PDD 161), a Fire Station Officer alleged that he had made 6 separate protected disclosures. Four of the complaints related to the alleged behaviour of fire-fighters in the station. One related to a works payment claim and the other related to the physical fitness of two fire-fighters in relation to their ability to carry out their jobs.
The employee alleged that as a result of these protected disclosures, he suffered penalisation in the form of being undermined in his position as Station Manager.
The Labour Court held that the allegations could not constitute protected disclosures, as it was part of his role as a Station Officer to detect and report such matters.
In the instant case, the Complainant, as a senior lecturer in an overcrowded lecture hall has a duty of care to his students. If a health and safety problem exists it is part of his job to report such a matter to the relevant person / body. In reporting such a matter that is what he is doing, not making a protected disclosure.
The other part of the complaint submits that the Complainant made a protected disclosure in relation to the Respondent’s failure, failing, or likely to fail to meet legal obligations under the Universities Act 1997.
The representative for the Complainant contends that the Complainant utilised procedures available at that time of making the protected disclosure. The Complainant informed his line manager on several occasions between May 2014 and October 2014 and continued to seek an ‘in house’ resolution through the support of the Respondent’s Mediation Service and his trade union, IFUT. It was submitted that the Respondent’s president and HR Director were fully aware of these disclosures.
In response the Respondent states that at all relevant times between May and October 2014 the Complainant’s line manager and others engaged with him in relation to routine concerns of an academic nature and which were the subject of differences of opinion between staff without these ever having been framed as allegations of wrongdoing. These would include the comments made at a meeting between the Complainant and his line manager on 6th October 2014 and also the content of a discussion at a school meeting on 6th October 2014 which are referred to in the Complainant’s submission. The Respondent contends that the Complainant is attempting to characterise constructive comments which were raised in the course of routine meetings, as having being allegations of wrongdoing in order to characterise his subsequent secondment as penalisation under the Act.
On 11th November 2014 the head of school, Professor A, wrote to the Respondent’s President in relation to the behaviour of the Complainant, he described this behaviour as being “so disruptive as to block the smooth running of the school, especially on issues of change in academic, managerial and financial policies and approaches. These behaviours are consuming an excessive amount my time, relative to the issues he is raising in the context of the University strategies and priorities, thus reducing my time and energy to pursue key strategic priorities of this university. In addition, on a personal level, he is affecting my working life by making it conflictual and disruptive. I find his behaviours to be intimidating and highly unwelcoming”.
The President commissioned Mr D to conduct a thorough examination of the complaint and report back to him. Mr D issued his report in March 2016 and I note that neither Professor A, the Respondent or any other party considered the matters raised by the Complainant to be protected disclosures.
The Complainant’s representative points to an exchange of emails between the Complainant and his line manager dated 16th – 18th September 2014. Having read these emails, I find no reference to wrongdoing or protected disclosures. Certainly, there is a difference of opinion on some matters and these are clearly expressed.
Both parties at hearing made reference to the Universities Act, 1997. Section 14 of that Act refers to academic freedom and reads as follows:
14. – (1) A university, in performing its functions shall –
a) Have the right and responsibility to preserve and promote the traditional principles of academic freedom in the conduct of its internal and external affairs, and
b) Be entitled to regulate its affairs in accordance with its independent ethos and traditions and the traditional principles of academic freedom, and in doing so it shall have regard to –
i) The promotion and preservation of equality of opportunity and access.
ii) The effective and efficient use of resources, and
iii) Its obligations as to public accountability
And if, in the interpretation of this Act, there is a doubt regarding the meaning of any provision, a construction that would promote that ethos and those traditions and principles shall be preferred to a construction that would not so promote.
(2) A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions and shall not be disadvantaged, or subject to less favourable treatment by the university, for the exercise of that freedom.
Professor A wanted to implement some changes to the method of continuous assessment (CA) and these proposed changes were questioned by the Complainant and some of his colleagues who may have felt that the collegiate approach taken by the Complainant during his tenure as head of school was being diluted by Professor A.
The Respondent in conclusion have stated, “that the Complainant did not make a disclosure of relevant information for the purposes of the Act and accordingly, could not have been penalised for the purposes of Section 12 (1) of the Act. It was never apparent (nor could it reasonably have been) to any party that the Complainant had made allegations of wrongdoing in accordance with the provisions of the Act and no complaint under the Respondent’s Protected Disclosures (Whistleblowing) Policy was ever received from the Complainant. Given the absence of any disclosure of wrongdoing in the context set out above, a statement does not amount to a ‘protected disclosure’ and accordingly the protections of the Act simply do not apply”.
I have given this complaint a lot of thought and would have to agree with the Respondent’s conclusion that no protected disclosure has been made.
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.r
I have given this complaint a lot of thought and would have to agree with the Respondent’s conclusion that no protected disclosure has been made. If there is no protected disclosure there can be no penalisation under this Act.
The complaints as presented under the Protected Disclosures Act 2014 is not well founded.
Dated: May 20th 2020
Workplace Relations Commission Adjudication Officer: Jim Dolan
Protected Disclosures Act, 2014.