Complainant

Respondent

Parties

Ger Malone

Services Industrial Professional Technical Union (SIPTU)

Representatives

Self-represented

Karan O’Loughlin, SIPTU

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00053940-001

30/11/2022

The Complainant is employed by the Respondent as an Industrial Organiser. The Complainant alleges that she made 17 protected disclosures to the Respondent which gave rise to 29 acts of penalisation.

The Respondent rejects the Complainant’s allegations in their entirety.

The Complainant presents the complaints as a “continuum” of protected disclosures and consequential penalisations/victimisations suffered and the time extension application is made without prejudice to that.

The test applicable for time extension is that of “reasonable cause” as per section 41(8) of the Workplace Relations Act 2015, as amended.

The Complainant submits the following in support of her application for extension of the time limits in this case on the grounds of reasonable cause:

1.       The Complainant found herself in an unbelievable scenario whereby the officers and management of the Respondent organisation had publicly “union bashed” her out of the Chairman position of the Staff Representative Council (SRC) consequent to her sending a litany of wrongdoings to the National Executive Council (NEC) which she had come across in her capacity as Chairman of the SRC and as an Industrial Official.

2.       Not only had the Respondent initiated a campaign to remove the Complainant from the position but also prohibited her at every meeting with the staff from discussing the content of the disclosures letter with them.

3.       The Complainant was in a complete state of shock, she was traumatised; her beloved union had been flipped on its head; and everything that she had practiced and believed in for over 34 years was shattered. The Respondent had actively vilified her for disclosing the wrongdoings and had simultaneously buried the protected disclosures with little or no resistance.

4.       The Complainant was up against one of the most powerful establishments in the country. There was/is no proper governance; there was no independent watchdog; and the protected disclosures she had made were of enormous significance.

5.       There were no protected disclosures procedures in place in the Respondent organisation.

6.       The NEC were the highest body within the Respondent organisation and the highest-ranking officials in the Respondent organisation had unfettered power over the NEC members.

7.       The Complainant believed that the management of the Respondent organisation had leaked parts of her protected disclosure letter to the Sunday Independent to cause a fear frenzy amongst staff and to point the blame at the Complainant.

8.       The management of the Respondent organisation had done nothing to stop the article featuring in the Sunday Independent.

9.       The management of the Respondent organisation did not carry out an investigation into the source of the leak.

10.   The Sunday Independent had not contacted the Complainant as the author of the letter for comment.

11.   Some Sector Organisers had actively misled and/or or coerced staff under them to support a petition to remove the SRC committee and were actively blaming the Complainant for damaging the Respondent organisation.

The overwhelming imbalance in power was a significant factor coupled with the enormity of the situation and the piecing together of what was actually going on which prevented the Complainant from referring her complaints to the Workplace Relations Commission.

The Complainant had, and has, no right to join an independent trade union so that protective mechanism was not available to her. The Complainant had no SRC representative to represent or assist her. The Complainant was in a complete state of shock and disbelief as to what was actually going on and an overwhelming sense of betrayal not knowing who to trust. The Complainant was paralysed with fear about what this meant; who she was up against; and overwhelmed by the conflict between fulfilling her obligations to members of the Respondent organisation and exposing the wrongdoings that were in direct conflict with the Respondent’s purported position of “Fairness at Work and Justice in Society”.

After she lost the SRC election, the Complainant picked herself up and continued to try to carry out her job of protecting, representing and organising the members. The activists in Local Authority A continued to be persecuted as did she. The Complainant desperately tried to get support from the Respondent who pretended that it was backing her whilst all the time penalising her through insidious means, obstructing and attempting to silence her.

The more time that passed the more evident it became to the Complainant that she too was a victim of the organised persecution that her activists and members had been subjected to since 2020. It became crystal clear that the management of the Respondent organisation was relentlessly obstructing and attempting to silence her. It was clear that the same victimisation tactics that a shop steward in Local Authority A had been subjected to were being applied to her. It was at this point that she knew that she had no alternative but to refer her complaints of penalisation/victimisation for disclosing wrongdoings to the Workplace Relations Commission.

In considering the test for reasonable cause, the Complainant relies on the findings of Charlton J, at paragraph 16, of the Supreme Court judgment in Baranya v Rosderra Irish Meats Group Ltd IESC77 where he stated that:

 “The breakdown of an employment relationship is not necessarily a linear process with entirely logical and rational steps on all sides. There can be vacillation, mixed feelings, false dawns, reconciliations and setbacks and sometimes it is only after the person picks themselves up off the ground, if even then, that they start to figure out what actually happened.”

The Complainant submits that the above is what occurred in her case as evidenced in her submission.

In case DWT0338, Cementation Skanska and Tom Carroll, the Labour Court pointed out that:

“it is noted that the standard required by this subsection is that of “reasonable cause”. This may be contrasted with the much higher standard of “exceptional circumstances preventing the making of the claim” which is provided in other employment related statutes. The act gives no guidance as to the type of circumstances that can constitute reasonable cause and it would appear to be a matter of fact to be decided by the Rights Commissioner (and by extension the Court on appeal) in each individual case. It is the court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the court should consider it the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.

These points were further elaborated on in case QFF Distribution Limited and Keith O’Reilly PDD171, citing the High Court in Donal O’Donnell and Catherine O Donnell v Dun Laoghaire Corporation (1991) ILRM 30 where Costello J stated:

“The phrase “good reasons” is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O.84r.21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”.

In this case, the Complainant found herself in an incomprehensible and unprecedented scenario. After she had made the protected disclosures to the NEC, management of the Respondent organisation adopted tactics to deflect from the wrongdoings and switch the emphasis on to the Complainant as the wrongdoer. The Complainant references the overwhelming imbalance in power that exists between the might of the Respondent and her as an employee. The management of the Respondent organisation subjected her to relentless and escalating penalisation/victimisation. The Complainant had to piece together what was happening. She had to figure out what was real and what was not. It was only at the point where she realised the true extend of the bigger picture and the connected activities whereby her livelihood was under direct threat that she referred her complaints.

The Complainant submits that the Respondent is not prejudiced by the extension.

Section 41(8) of the Workplace Relations Act 2015 states “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The Respondent submits that the Adjudication Officer must apply the standard of “reasonable cause” in the instant case.

In Cementation Skanska Limited v Tom Carroll WTC/03/2, the Labour Court set out the factors that are to be considered in determining if reasonable cause exists:

·       The complainant must show that there are reasons which both explain the delay and afford an excuse for the delay.

·       The explanation must be reasonable – make sense, be agreeable to reason and not be irrational or absurd.

·       There must be a causal link between the circumstances and the delay demonstrating that the claim would have been submitted otherwise.

·       An objective standard must be applied to the facts and circumstances known to the Claimant at the time.

·       If there was a short delay, then only a slight explanation would be required. However, if there was a longer delay then more cogent reasons are necessary.

·       Where reasonable cause has been shown, the Court must consider if the Respondent has suffered prejudice by the delay and whether the Claimant has a good arguable case.

The Complainant lodged her complaint to the Workplace Relations Commission on 30 November 2022. Therefore, any alleged incident that occurred after 29 May 2022 can be included in the Complainant’s claim i.e. acts of penalisation 19 – 29 in the Complainant’s submissions. However, the Complainant is seeking an extension of time for a further six months which would mean that any alleged incident that occurred between 30 November 2021 and 29 May 2022 would also be included in the Complainant’s claim. It is submitted that these alleged incidences are alleged acts of penalisation 11 – 18 in the Complainant’s submission.

The Complainant has argued in her supplementary submissions on this issue that the alleged acts of penalisation and the alleged detriment that these acts allegedly had on her (which she says was one of shock, disbelief, fear, overwhelm and a lack of trust) is the reason for her delay in lodging her claim to the Workplace Relations Commission in a timeframe that would ensure her alleged acts of penalisation 11 – 18 would be within the jurisdiction of the Adjudication Officer to hear.

However, these acts and the detriment that might have flowed from them are allegations that are being strongly disputed by the Respondent and are yet to be determined. If it is found that they did not occur in the way that the Complainant has argued, then these situations could not provide a logical explanation to the Complainant’s delay in lodging her claim. As a result, the Respondent submits that the Adjudication Officer is not in a position to determine whether the Complainant’s explanation amounts to a “reasonable cause”.

The Complainant has not provided any further explanation for the delay in her submissions. The Complainant does not explain how the alleged incidences resulted in her being unable to lodge her claim to the Workplace Relations Commission prior to 30 November 2022. Nor does she demonstrate any causal link between these alleged incidences and any delay that would make it clear that without these alleged incidences having occurred, the Complainant would have otherwise lodged her claim earlier. The Complainant only reiterates the alleged acts of penalisation and vaguely alludes to the alleged detriment she has suffered. The Complainant has also not provided any clear explanation of this detriment or any evidence of it.

The Complainant has said that she was in shock, disbelief, fear, and was experiencing overwhelm and lack of trust during this period. However, the Complainant does not provide any dates in her submission as to the period that she is referring to or the dates of any of these alleged incidences.

The Complainant was not on sick leave during the period in question (which is 30 November 2021 – 29 May 2022) and was attending work as normal. The Complainant lodged a third-party claim on behalf of members of the Respondent organisation on 2 December 2021; three third party claims on behalf of members of the Respondent organisation on 11 March 2022; one third party claim on behalf of members of the Respondent organisation on 8 April 2022; and one third party claim on behalf of members of the Respondent organisation on 8 August 2022 with the Workplace Relations Commission. Alleged protected disclosure number nine was made by the Complainant during this period on 25 May 2022. On consideration of the alleged acts of penalisation 11 – 18, the Complainant was also actively engaging with the Respondent during this period in relation to many of the issues that she has raised throughout her complaint. This illustrates the Complainant’s ability during this period to understand, assess and action employment rights issues. Had the Complainant lodged her own claim on any of these above dates, this period could be included in her claim.

The Complainant has also argued that “she had and has no right to join an independent trade union so that protective mechanism was not available to her, and she had no SRC representative to represent or assist her”. The Complainant’s representative at the initial hearing in this case has been known to her for a considerable period. The Complainant’s representative worked in the same office as the Complainant until 29 March 2023 when she retired. The Complainant’s representative was also a SRC representative from in or around November 2021 until her retirement in March 2023. The Complainant could, therefore, have spoken to this individual at an earlier stage to seek representation if she felt it was necessary to do so.

When considering which circumstances may allow for a “reasonable cause” for a delay in lodging a complaint with the Workplace Relations Commission, the following explanations have been rejected by the Court:

·       New information coming to light past the time limit – Minister for Finance v The CPSU [2006] IEHC 145.

·       Illness / disability; surgery, heart attack, anxiety, depression, intellectual disability, homelessness – Tesco Ireland Limited v David O’Connor EDA166; QFF Distribution Limited v Keith O’Reilly UD/17/149; Kylemore Service Group v Michael Loftus UD/16/33; Kepak Group v Valdomiro Augusto Arantes UD/16/49; and Employee v Employer UD693/2012.

·       Lack of knowledge of the time limit – Globe Technical Services Limited v Kirsten Miller UD17/177.

·       Assuming / trusting that a legal professional has submitted the claim in time – Iarnrod Eireann v Stephen Lynch UD/18/22.

The Complainant has argued that she “presents the complaints as a continuum of protected disclosures and consequential penalisations / victimisations suffered and the time extension application is made without prejudice to that”.

Section 41(6) of the Workplace Relations Act 2015 states “an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

As Lauren Kierans states in the Industrial Law Journal, 26 April 2023, “This time limit for presenting a claim to the WRC has been applied stringently, and in a penalisation claim, the WRC will not take into consideration any act or omission that occurred outside of the six-month period (or twelve months if an extension is granted) prior to the receipt of the claim”.

In Accounts Administrator v A University, the complainant argued that the alleged act of penalisation commenced when she was suspended on 12 June 2015 and had continued past this date as she remained on suspension from her employment. The complainant had submitted her complaint to the Workplace Relations Commission on 28 June 2016. However, the Adjudication Officer held that it had no jurisdiction to hear the complaint as it was submitted out of time and stated, “the date of contravention to which the complaint relates to, began over twelve months before the claim was submitted to the WRC”.

Consequently, the Respondent submits that the Protected Disclosures Act 2014, does not provide for a continuing time limit where there are an alleged series of similar acts or failures.

In addition, the language used in the relevant legislation is different to the language used in the Employment Equality Act 1998, as amended, which allows for a continuum of a breach under section 77(5)(a) and section 77(6A). It is, therefore, not open to the Adjudication Officer to rely on the case law that has developed from these sections of the Employment Equality Act 1998, as amended.

In conclusion, the Respondent submits that the Adjudication Officer does not have jurisdiction to consider the allegations of the acts of penalisation set out in the Complainant’s main submissions numbered 11 to 18 as they occurred prior to 29 May 2022. Notwithstanding the fact that the Respondent absolutely refutes the allegations, they are nevertheless out of time as no objective logical explanation has been put forward by the Complainant that affords an excuse for the delay or a causal link between the delay and the alleged incidences that she has set out in her supplementary submissions.

The first matter I must decide is if reasonable cause has been shown to empower me to extend the cognisable period for this complaint as requested by the Complainant. In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

Therefore, in order to achieve an extension to the time limit the Complainant must be able to show that there are reasons which both explain and excuse the delay.

In this regard, I note the Labour Court Determination in Clint Maguire v P J Personnel Ltd AWD201 where the Labour Court held that:

“The test formulated inCementationSkanska (Formerly Kvaerner Cementation) v Carrolldraws heavily on the decision of the High Court inDonal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

“The phrase “good reasons” is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

The Complainant attributed the delay in submitting a complaint to the WRC to the length of time it took her to figure out what exactly was happening to her. The Complainant asserts that she only came to the belated realisation that she was being penalised for making protected disclosures after a considerable length of time. The Complainant argues that if she had realised sooner what was happening to her, she would have submitted a complaint at a much earlier stage. The Complainant relies on the continuum of prohibited behaviour on the part of the Respondent to ground her application for an extension of time.

The Complainant is a very experienced Trade Union official. She spent eight years working in the Respondent’s Workers Rights Centre which is tasked with referring complaints to the Adjudication Services of the WRC on behalf of the Respondent’s members. In that role, the Complainant was required to be fully conversant will all relevant employment rights legislation including the Protected Disclosures Act 2014 and the Workplace Relations Act 2015. In this regard, I note that in her submission the Complainant alleged that she was penalised by the Respondent for representing a colleague who had made a protected disclosure. Given her level of experience, I find it difficult to accept that the Complainant would not recognise that she was being penalised as a result of making a protected disclosure.

I further find that the Complainant’s reliance on the notion of a continuum is misplaced as this concept does not exist under the Protected Disclosures Act 2014 in the same way as it does under the Employment Equality Act 1998, as amended.

Accordingly, I find that no reasonable cause was shown to empower me to extend the cognisable period in relation to this case.  I find, therefore, that the cognisable period for the purpose of my investigation is the six-month period from 31 May 2022 to 30 November 2022, the date on which the complaint was referred to the WRC. Consequently, I find that I do not have the jurisdiction to investigate the alleged acts of penalisation which fall outside the cognisable period. I will, therefore, confine my investigation to alleged acts of penalisation 19 to 29 (according to the numbering system used by the Complainant in her submission) which are alleged to have occurred during the cognisable period.

Introduction

The Complainant submits that she had an exemplary record within the Respondent organisation. She was a well-respected member of staff. She was also well-respected as Chairman of the Staff Representative Council (SRC) since March 2013. The Complainant submits that she was held in very high standing until 2020 when she was met with immense hostility in many of the workplaces for which she was responsible.

The Complainant submits that she is a staunch trade unionist whose career has been sabotaged because she has been disclosing the wrongdoings that she has experienced and come across during the course of her work from 2020. The Complainant asserts that she has been repeatedly penalised as a direct result of disclosing these wrongdoings, despite the fact that she is employed by a trade union which trained her to do exactly what she has been doing.

The Complainant submits that she came across internal wrongdoings in her capacity as Chairman of the SRC. The Complainant further submits that she came across wrongdoings during her assignments in the community and local authority sectors in her role as an Industrial Organiser.

The Complainant submits that she made internal protected disclosures both verbally and in writing. These disclosures related to covert abuse; failure to deal with issues; covert diminution in terms and conditions; mental health issues; hiring practices; promotion practices; transfer practices; discriminatory practices; gender discrimination; political beliefs; structures; treatment of part-time staff; non replacement of administrative staff; the Staff Representative Council (SRC) and the constitution; the right to join an independent trade union; the right to independent dispute resolution; dignity at work processes and procedures; unfair grading structure; pension issues; transparency; and management style.

The Complainant submits that she came across external wrongdoings during the course of her work and she made efforts to disclose those. These alleged wrongdoings related to abusive treatments of workers; victimisation of activists; bullying; widespread non-compliance with the Organisation of Working Time Act and the European Directive; widespread non-compliance with legislation, procedures, national agreements; and ineffective dispute resolution processes.

The Complainant submits that she made public disclosures through a media outlet.

The Complainant submits that she made immense efforts to get support for the Respondent’s members and herself. She also made efforts to effect change for the better for colleagues and members.

The Complainant submits that management of the Respondent organisation has systematically penalised her. The Complainant submits that the disclosures that she made are of an extremely serious nature and that management of the Respondent organisation has stonewalled her from having these disclosures investigated and has done everything possible to silence her. The Complainant submits that the management of the Respondent organisation has repeatedly deliberately undermined her with the members and the management of the various workplaces for which she had responsibility. The Complainant submits that she has been systematically abused; humiliated; intimidated; and demoralised by insidious union busting tactics.

The Complainant submits that she was discriminated against as a female and as a trade unionist. She submits that she has been subjected to insidious demoralising since representing a staff member who made a protected disclosure. The Complainant submits that she has been threatened with litigation. She further submits that she has been threatened with disciplinary action.

The Complainant submits that “but for” representing the staff member who made a protected disclosure disclosures, she would not have been subjected to the penalisation to which she has been subjected.

The Complainant submits that management of the Respondent organisation has engaged in a campaign to ensure that she does not achieve anything for union members or staff and her successes are not publicised. The Complainant asserts that management of the Respondent organisation does not want her practicing trade unionism. She further asserts that management of the Respondent organisation has used insidious coercive tactics to psychologically harm her. The Complainant asserts that there is institutionalised, embedded gender discrimination within the Respondent organisation.

The Complainant asserts that the management strategy of the Respondent organisation is not about “fairness at work” but “coercive control” at work and that this is achieved through cronyism, “eyes and ears” and bullying.

The Complainant submits that the Respondent organisation is breaching her right to freely associate and is eroding her rights at work. She further submits that as a consequence of disclosing the wrongdoings, her career has been sabotaged, and her mental health has suffered. The Complainant asserts that she has, and continues to, experience detriment.

Employment History

The Complainant was a shop steward from 1988. She had a strong track record as a shop steward and worker.

The Complainant was elected to the National Executive Council (NEC) of the Respondent in 1999. She finished on the NEC when she took up the position of Assistant Branch Secretary with the Respondent in April 2002. The Complainant commenced working in the Wexford branch. In 2008 the Complainant transferred as an Assistant Branch Secretary to Waterford. In 2010, the Complainant opted to transfer to the start-up of the Workers Rights Centre. In March 2013, the Complainant took up the position of Chairman of the Staff Representative Council (SRC). The Complainant transferred to the Public Administration and Community (PAC) Division in November 2018

Protected Disclosures

The Complainant submits that she made 17 protected disclosures as follows:

Protected Disclosure One

The Complainant submits that the following represents a protected disclosure.

On 28 February 2020 the Complainant attended a meeting to represent a colleague who had made a protected disclosure after being informed that their employment was being terminated by way of the expiry of a fixed term contract.

The protected disclosure that was made was serious and significant in that it disclosed wrongdoings by a senior member of the Respondent’s management who had targeted and befriended the discloser and had offered them a job as their “eyes and ears”.

The termination was reversed, and the colleague was transferred to an alternative location.

Protected Disclosure Two

The Complainant submits that the following represents a protected disclosure.

Local Authority A would not accept the Complainant’s nominee as the Lead Worker Representative (LWR) during the pandemic. The Complainant had reached agreement with Trade Union A that her nominee would be the LWR. The Complainant had sent her Sector Organiser the details. However, he agreed that the position would be given to a smaller trade union, Trade Union B, which only represented about 1% of the outdoor staff. The Complainant confronted her Sector Organiser and accused him of doing a deal with the Local Government Management Agency (LGMA) because he did not want her nominee.

Following that there was a separate protocol agreed for local authorities which the Complainant considered was less favourable. She pointed out to her Divisional Organiser and her Sector Organiser that, what she saw as an agreed dilution of the safety protocol, was extremely serious for the members.

The Complainant disclosed that her Divisional Organiser that her Sector Organiser had given away the LWR position that she had agreed with Trade Union A. The Complainant had told her Sector Organiser that the LWR role was really important for ensuring that safety protocols were adhered to. She also pointed out to him that the LWR was a positive role as the walk around checks which were part of the role would provide her nominee with access to all of the members to reconnect and be there for them during the pandemic. The Complainant told her Divisional Organiser that she believed her Sector Organiser gave away the LWR position because Local Authority A did not want the Complainant’s nominee. The Complainant believes that by giving away the LWR position, her Sector Organiser was giving the go ahead to management in Local Authority A to continue to do as it pleased. Her Divisional Organiser said to her that he was not buying the theatrics. The Complainant told him she took offence at that.

The Complainant disclosed that the HR Manager in Local Authority A had told her that an agreement was made at a higher level that no checks would be carried out by the LWR unless written clarification was provided by the Respondent that walk around checks were to be done. The Complainant asserts that the Respondent did not provide her with the required written clarification.

Protected Disclosure Three

The Complainant submits that the following represents a protected disclosure.

On 28 August 2020 at a meeting with the Respondent’s Officers, the Development and Support Services Manager and the Personnel Officer, the Complainant asserted that it was evident that the modus operandi of the management of the Respondent organisation was “Control, Cronyism and Bullying”. She said that the practices applied by the management were inconsistent with the Respondent organisation’s ethos, values and principles. The Complainant disclosed that some staff were really struggling with mental health, and some were burnt out. The Complainant disclosed that the bullying that was going on had to stop. She asserted that the Respondent’s IR model was not fit for purpose, and void of independence. She disclosed that the management was engaging in anti-union practices and the result of their treatment of staff, particularly female staff, was disgraceful and contrary to what the Respondent purports to stand for. The Complainant disclosed that activists and members were being abused and that she and other staff were not getting support and were not trained or equipped to deal with such vicious hostility. The Complainant gave examples of where management in the community and local authorities were acting with impunity, and she gave examples where IR procedures and processes were ineffective and no longer fit for purpose. She asserted that the power had been stripped from the officials and activists and the IR landscape was all in favour of the employer. She disclosed that activists and members were angry, and many have no trust in the Respondent and that the Respondent organisation was on the verge of a “me too” moment.

Protected Disclosure Four

The Complainant submits that the following represents a protected disclosure.

The Complainant asserts that on 13 January 2021 she sent the following email to a Deputy General Secretary (AGS) and her Divisional Organiser to inform them that traffic wardens, who were non-essential workers, were required to attend work in person in contravention of the Government instructions to stay at home and that the Respondent did not do anything about this:

“The attached article was sent to me by a Shop steward a Traffic Warden in [Local Authority A] who along with a lot of our other members are extremely critical of us for not ensuring that the Government instructions to stay at home unless “essential” are being flouted in all of the Councils with workers having to be in work doing non-essential work such as Traffic enforcement. [Trade Union B] were also on Pat Kenny this morning. I’ve been inundated with calls from members who are furious at what they consider is their health and safety and that of their families being jeopardised and [the Respondent] haven’t uttered a word. The other problem with this is that members are linking it to the PSA proposals and suggesting that they won’t be accepting them as Councils don’t give a damn about them. 

I agree with them on the flouting of the restrictions, as far as I can see the LGMA are doing what they like. The list that we were sent of essential work bears no resemblance to the government’s instructions.”

Protected Disclosure Five

The Complainant submits that the following represents a protected disclosure.

On 12 February 2021, the Complainant sent the following email to the HR Manager of a charity whose staff she represented to raise a number of serious concerns. She copied the letter to a DGS and to her Divisional Organiser.

“Our members are at break point in the above [workplace location] and are insisting that we reactivate the Industrial Action which we paused earlier this year as they are convinced that Management of [the Charity] have no intention of addressing their issues.

During our meetings with members over the last few weeks, we heard member after member relaying their distress at the ongoing lack of resources and the consequential pressure and stress they are under and the detrimental effect it is having on residents. Members said how their pleas to management have been futile. One member described herself as being in a state of “perpetual anxiety” which received unanimous agreement. Consequentially members have no confidence in management dealing with their issues and are of the believe that the only way they are going to get their issues properly dealt with is to take Industrial Action.

They have instructed me to outline what types of measures are required to avoid such action and that I inform that they are not going to accept anything other than definitive proposals to deal with their bona fide issues.

1) Staffing levels:

Under this heading staff consider that staffing levels are seriously inadequate to provide the standards of care that the community residents require. We estimate at a minimum we are short 8 staff. The overuse of agency staff is playing havoc with the residents on multiple fronts, a) it is causing behavioural problems as residents react very badly to unfamiliarity, b) the agency workers do not have the competencies to deal with the complexities associated with many of the residents and the night shifts seems to be most problematic. We are not accepting lone working in future Nor are we accepting when the resident is “one to one” that members are responsible for more residents at the same time

We are looking to agree short term measures to alleviate the immediate problems and want to agree a recruitment plan with definitive realistic, reasonable timeframes. We also want a proper relief crew not exceeding 10% of total staffing levels with proper banded hours and a procedural mechanism to transition from being relief to permanent. We also want to agree Job descriptions

2) Grievance Procedures:

Feedback from members suggests that issues are just not dealt with, staff describe being ignored, fobbed off, inappropriate comments and intimidation as the usual types of responses We require agreed procedures to deal with both individual and collective issues We also require agreed procedure for management to follow when they require changes to terms and conditions of employment. Management are behaving as if terms and conditions are theirs to change whenever the mood takes them. Legally, procedurally and morally this is wrong. We are not accepting any further unilateral changes

3) 12 Hour Shifts:

Members are struggling with 12-hour shifts, night shift is particularly difficult, and breaks are of major concern We want to discuss having adequate supports for staff on night shifts. We also want to discuss the shift duration and require definitive arrangements for breaks to be included on the rosters and the possibility of setting up a breakout room for staff that are dealing with difficult behaviours for sustained periods

4) Rates of Pay and Terms & Conditions:

The rates of pay are the lowest within the Communities, this is outrageously unfair and inequitable, our members in [workplace location] are not accepting being the “yellow pack” of the group any longer. The members are providing exemplary care and attention to residents and can see no justification for [the Charity] to treat them less favourably. The rates are significantly below what the funders (HSE) pay to their staff for the very same work. Sick pay has been unilaterally reduced. Annual leave is not being calculated correctly, amount of annual leave days and all their T/Cs are well below other communities and the HSE T/C’s. We seek to be aligned to the HSE.

We are looking for definitive proposals to deal with the rates and t/c’s. The above represents the issues that staff are no longer prepared to endure. Members are not going to accept that the above issues are not dealt with. In fact, many of the members consider that we should not engage with Management because they are of the firm belief that the only purpose it will serve is to prolong the agony being experienced by residents and staff.

The [Workplace Location] Representatives are …

We offer a meeting with the full [workplace location] Committee on Tuesday December 22nd at 4.00pm to meet via Teams to hear Managements proposals to deal with the above. We request that you make arrangements for the representatives that are scheduled to work to be facilitated with email address, time off and access to a room/s to participate in the meeting.

Let me know if you want me to set up the meeting.

We look forward to constructive and productive engagement.”

Protected Disclosure Six

The Complainant submits that the following represents a protected disclosure.

The Complainant submits that she sent the following email to the HR Director of Services in Local Authority B in relation to members’ intention to ballot for industrial action:

“The members in the Water Services Section have decided to ballot for Industrial Action and Strike Action following the ongoing unilateral changes and diminishing of terms and conditions of employment and the ongoing failures of [Local Authority B] to comply with the national agreements.

The failures have been said many times to you, the HR Director of Services and more recently the CEO.

For the sake of clarity, the issues are;

1) Members have no confidence in Management in Water Services or HR to deal with their issues

2) Work practices and terms and conditions of employment being interfered with by Engineer approaching individuals on one-to-one basis. In some cases, has unilaterally changed terms, some of which have existed for well over a decade and are in place because that is what was agreed. This is a direct breach of our National Public Service Pay Agreements and the Service Level Agreement

3) Approaching looking to change Contractual terms whilst status quo prevails. As above, this is a breach of National Agreements

4) Travel Allowances withheld for some Caretakers for not changing wording and description of routes but is being paid to others, i.e travel from home changed to other route or Kilometres expressed in another trip instead of home (route 1 route 2) again breach of National Agreements

5) Time and attendance – regular rostered overtime with Caretakers being asked what they were doing during that period

6) Travel expenses for Public Holidays, was paid previously, not being paid to all now, this was unilaterally ceased for some, breach of National Agreements

7) Landline phone allowance – ceased unilaterally with no consultation, breach of National Agreements

8) Availability allowance- not paid at all, despite members being available and providing out of hours service, breach of National Agreements

9) The right to disconnect, texts and emails after normal hours to cease, this is the law now

10) Blurred lines of authority, communication between management and both water/sewage to come through the line management the GSS’s, which is a breach of agreed authority structure.

All the above issues have been ongoing for years, we have on numerous occasions attempted to progress these matters through the agreed dispute resolution procedures, which has been a complete waste of time. Consultation with the Respondent prior to any change to work practices and or terms and conditions is a requisite under the terms of National Agreements and is an integral linked condition of the peace clause and compliance with the dispute resolution mechanisms.

When dealing with employee issues in [Local Authority B], it is akin to being on an endless roundabout. i.e We issued notice of Industrial Action on May 31st 2019 for very similar issues, we deferred the action on June 14th and accepted an invitation by the Workplace Relations Commission conciliation services, we attended about 5 conciliation conferences, got a lot of promises and achieved nothing.

In fact, the members consider that the situation has deteriorated especially the treatment of them by Engineers and others in authority, and many have expressed that they think it may constitute “institutionalized bullying” and that view is not confined to the Water Section, it is very strongly expressed by other outdoor members notably in [County A] Town.

The employee grievance, support and welfare systems are dysfunctional in [Local Authority B].

The members are extremely distressed about all of this. And are angered to be treated with such contempt most particularly when they have been working away throughout the pandemic providing essential services to the public. They perceive being a Frontline Worker is meaningless to management of [Local Authority B]. They are all at break point and are adamant that they are not prepared to endure this situation any longer. The ballot will be conducted over the coming week or 10 days.

The members consider they have been left with no option to balloting as all normal resolution procedures have been proven to be futile.

We as always will make ourselves available to meet if you are serious about immediate remedial and reversing measures.”

Protected Disclosures Seven

The Complainant submits that the following represents a protected disclosure.

On 10 July 2020, the SRC Officers had a meeting with the Respondent’s Organisational Development and Support Services Department at which they elaborated on the issues affecting them and asserted that the Respondent organisation was in trouble with its practices and suggested that they were all afraid to discuss the real issues. The Complainant attended in her role as Chair of the SRC.

It was agreed that the SRC Officers would meet the Officers of the Respondent organisation and bring the matters to them.

The Complainant disclosed everything that is in the letter of 1 November 2021 to the management of the Respondent organisation (see Protected Disclosure Eight below). She provided personal examples from September 2020 to July 2021.

Protected Disclosure Eight

The Complainant submits that the following represents a protected disclosure.

On 6 October 2021, the Secretary of the SRC sent an email to the NEC seeking a meeting to discuss a range of staff matters.When no response was received, the SRC unanimously decided that a letter with specific details of the matters of concern be sent to the NEC.

In the days preceding 1 November 2021, the Complainant drafted a letter, sent it to the other two SRC Officers for amendment and agreement. When the letter was finalised on 1 November 2021 she sent it to the National Executives. It stated:

“In the following letter, the SRC Committee have set out our concerns, and we want to make it clear that we can support and stand over all these matters, many of which have been discussed at length during our engagements with management. The SRC are requesting an opportunity to meet with you to discuss the contents of this letter and set out our rationale for an Independent Review of the current structures and practices in the Respondent. Our preference is to commission this time-framed review as soon as possible, and we are seeking your support for same.

Following on from the email we sent to each of you on October 6th, 2021, it is regrettable that we find ourselves having to write to you again to request a meeting.

Having reflected on our previous email, we can only assume that the reasons for not receiving a response is attributed to us not providing enough information to convince you of the necessity to meet with us.

Therefore, we have unanimously decided to repeat our request to meet and provide a summary of our rationale for such.

We are extremely concerned about the direction that this Union is going in. Our virtues, values or principles are not being reflected in the practices, processes, activities, or structures within the Union.

·       Solidarity has been replaced with, individualism, and careerism.

·       Equality has been replaced with widespread discrimination, the two most prominent grounds being gender, and political beliefs

·       Democracy replaced with autocracy and secrecy.

·       Dignity at work issues.

·       Rules and procedures are frequently broken when they don’t suit Management.

·       There is a complete absence of transparency.

·       Recruitment and promotions are a mystery, there is no known rationale but there are definite trends. In fact, jobs have been created for some and promotional posts are frequently suppressed or held until the favoured person has been placed in a position that will enable them to take it.

·       Staff are being demoted by stealth.

·       Staff displaying trade union values are not wanted and life is being made extremely difficult for them.

·       Expressing an alternative view, or progressing a grievance, is not welcome and may result in reprisal.

·       Power is being stripped from many of us on the frontline including activists.

·       And many of these features are mirrored in our members’ workplaces

 Sadly, for us, fairness at work is a fallacy and is fast becoming so for our members.

We have for many years attempted to deal with these issues in a collaborative and constructive manner, only to find ourselves in endless, meaningless processes that go nowhere, or result in aspirational documents that Management cherry-picks what they want from, and our agenda is forsaken, the most recent being the Brainstorming process. We entered this process with the expectation that finally we were going to be listened to and taken seriously. However, whilst in this process, the errant practices continued unabated, which led us to conclude the Brainstorming process was in fact futile, as there appeared to be no willingness on the part of the Management to engage in any reforms of practices or processes.

We have an unbelievably deficient Industrial Relations model which we inherited. It is inferior to that of the Ryanair model. It consists of a staff association, the “Staff Representative Council” and every member of staff, from the General Secretary to the Porters, is a member. There is an “agreed” “constitution” governing how the SRC functions, setting out the objectives and standing orders. Each member has full voting rights, with, incredulously, the general officers and senior management get to vote on everything, even down to who the officers of the Committee will be when contested. We have no independence, a fundamental reason for the existence of trade unions.

The staff are forced to comply with the SRC Constitution, yet Management comply only when it suits their ends. This current scenario being a classic example, point 2 of the constitution under the heading “Objectives” states:

“To advise the National Executive Council (NEC) on all staff matters and to put forward the staff’s viewpoint whenever necessary.”

As a condition of our employment, we must be members of the Respondent. However, we have none of the usual benefits, we have no say or voting rights, we have no rights to participate in divisional or sectoral committees, nor do we have any rights to attend as delegates to conferences. We have no right to access expert assistance. We pay in the region of €75,000 per annum in contributions and get none of the normal benefits. Our dispute resolution procedures are never complied with by Management.

How many of you consider that you could function effectively on behalf of your members, dealing with your own management, if you did not have the right to get an independent official involved?

In summary, the effects of all of this on our staff, members, and the organisation are unquantifiable and vast. We are losing irreplaceable, experienced staff, many with over 20 years” service and not even a goodbye for some when they are leaving, staff are not being replaced, causing even more pressure on many already overburdened staff. Data systems are not being maintained properly, which again is putting pressure on staff. We have about 40 less staff than we had in late 2018 and work distribution is grossly unfair. Many staff have suffered mental illness due to work related stress and burnout, morale is on the ground, trade union values are non-existent, our power is being diminished, the membership is only going one way - down.

All the above is a mere snapshot of our concerns, we have a lot more to say on all of this.

This is a crisis. Not only for our staff but for our members and our Union, therefore we need to meet with all of you to discuss agreeing to an Independent Review, the terms of which will be mutually agreed. All these matters have been going on in the background now for almost 2 years and during that period, the practices have gotten worse as have the effects. We have outlined all the above to the General Officers at face-to-face meetings on previous occasions. 

For the sake of our Union, we cannot stand by and allow this to continue.

We repeat our request for a meeting with you as a matter of urgency. We request that you meet with us before your next scheduled NEC meeting.”

Protected Disclosure Nine

The Complainant submits that the following represents a protected disclosure.

On 25 May 2022, the Complainant sent the following email to the General Secretary (GS) and a DGS to provide them with a synopsis of the issues that she and members were facing in Local Authority A. The email finished with a request for advice.

“I am writing to both you to give you an insight into what our activists, members and myself are enduring at the hands of management in [Local Authority A] so that you can advise and support us in remaining on the pitch there. This is a brief synopsis of the issues; it is by no means the full picture. I can give you the full picture but will need a lot of time to put it all together.

I attach a copy of the most recent complaint that I have sent to the CEO, in that you will see the most recent attack on [named member] one of our Shop Stewards, and myself.

 In summary we went into an office to speak to his foreman about his timesheet being falsified to “unauthorised absence” for May 3rd, which he had booked and had approved by his foreman, when we got in there we were shouted at to get out, the engineer went on a rant that [named member wasn’t a representative, I asked the manager had he interfered with [named member’s] time sheet and he accused me of insulting him and threatened he was calling the Guards, then he addressed me as girly. The reason why [named member’s] time sheet was falsified is because management have adopted a tactic to force the 2 Shop Stewards in the town to interact with the manager that abused us last week, whom Management know neither of them will interact with and have not had to interact with him for over 5 years. So, over the last few months whenever the stewards take any type of leave, they are not paid for it or and their attendance records are falsified by the manager who completes the attendance records by entering them as unauthorised absence, and not even telling them, no doubt to use against them in the future. The Foreman told me that the only 2 that the manager is insisting on doing this to is the 2 stewards. That also means that the representatives cannot do any union business without the prospect of being disciplined, dismissed, or not paid. I had to attend a labour court hearing without them last Friday and the issue before the court was victimisation of the stewards. There has been a union bashing campaign ongoing since February 2020.

 I have had [Divisional Organiser] and [Sector Organiser] down to meet the stewards in [Local Authority A] twice, they are fully briefed on all of this, their advice was to refer the complaints to the WRC. I referred 3 sets of complaints to the Labour Court, under section 20, 1 Frustration of procedures, bullying and abuse of members, their rights and abuse of dispute resolution procedures, looking for an independent investigation into the abuses, 2. For payment of regular and rostered overtime that was unilaterally ceased for 15 months during covid and 3. Victimisation of 4 Shop Stewards and a brother of one and sought an External Independent Investigator to Investigate their multiple complaints. The Labour Court were critical in the extreme, contending that I had bypassed the agreed procedures and I pointed out that [Local Authority A] had not complied with any of the provisions of the national agreement apart from paying the 1% and had not dealt with one single issue in over 2 years and provided the evidence of that.

This all started in 2020, from November 2018 to December 2019, we were dealing with a different HR Manager and making slow but steady progress, she was reassigned in January 2020 and a new HR Manager replaced her.

The first situation arose in March 2020, when the new HR Manager refused to recognise [named member] as the Lead Worker Representative and sought to diminish the role, that went on for all of 2020, I followed the dispute procedure in the protocol internally and externally, including referral to the Health and Safety Authority who contended they investigated it, they found against us and informed that they were not obligated to furnish any further details.

In August 2020, the council arranged to commission a WRC Adjudicator to investigate a complaint of “verbal abuse” against [named member] under the Disciplinary Procedures and the Local Government Code of Conduct, they had agreed the Terms of Reference with him limiting the scope so that the “set up” could not be uncovered, without even informing [named member] that there was a complaint made against him 2 weeks earlier. The incident itself an absolute set up. This was positioned by management to dismiss [named member] for gross misconduct. We met the investigator and at the first meeting, he informed us that there was “Dashcam” footage and he was reserving the right to look at it if he considered he needed to verify testimony! I objected immediately and asked him had the council a dashcam policy, to which he answered he didn’t know and refused to ask the council, it turned out it was the individuals personal dashcam, completely illegally captured data of our shop steward. Then we got the transcripts where it was quite clear that the investigator was leading and prompting the complainant. It was blatantly obvious from the evidence that this was a set up and I have all the evidence to show that. This went on until January 2021.

[Named member] contracted covid 19 in early January 2021, his father-in-law died on December 27th 2020, [named member] applied for compassionate leave from December 28th to 31st. he and his family attended the funeral and stayed overnight in a house in Meath, they all contracted covid 19, his wife presented with symptoms first and received her positive test result on January 4th, this was sent to the council. [Named member] got really sick and was hospitalised on January 13th, he was tested positive and given a medical cert stating that he was positive since January 2nd, 2021, his wife phoned the council informed them. [Named member] got long covid and was hospitalised numerous times for pneumonia and sepsis. In March 2021, he received a letter from HR requesting his positive test result, to avoid his sick pay being affected, he sent it in and was continued on sick pay instead of special covid leave with pay. We took issue to be told that he did not meet the criteria for covid pay because he had not been on the premises 14 days before he tested positive, again I have pages of correspondence pointing out all of the issues with that. [Named member] was left on sick pay; it was reduced to half pay in April and he was cut off completely in August 2021. [Named member] remained unfit to work until February 2022, he returned, was not paid for the first 2 weeks because they had not put him on covid until January 13th, instead used his two weeks in hand, which is unheard of. He attended an Adjudicator hearing in April 2022 and when he received his next wage, he had been paid 4 hours annual leave, he wasn’t even told they were allocating holidays, which as you know is illegal anyway.

Here’s further examples of the victimisation of Shop Stewards

[Named member’s] regular and rostered overtime unilaterally ceased for 15 months.

[Named member”], regular and rostered overtime unilaterally ceased after he rejected an on call allowance, the overtime was to read the meters early in the morning, those 8 meters were the only meters out of a couple of hundred that were not being read, 3 days before the labour court hearing the meters were automated, his buy out figures were given to him prior to the hearing, he was entitled to over €11,000. We referred the issues to the WRC, I had to put in 2 complaints against the conciliation officer as it took 4 or 5 months to have the issues referred into the court. the labour court put the wrong year for the calculation of the losses for the buyout in the recommendation, resulting in the buyout sum being €2,500, the court has been written to 4 times since last July looking for clarification, we haven’t received it

[Named member], prohibited from doing overtime, threatened with disciplinary numerous time for refusing to issue parking fines where there was no bye laws, tried for months to progress grievances to no avail, got quite sick, resigned in December 2021

[Named member], [named member’s] brother, was asked to work overtime one Saturday in February 2020, he went in and during the shift was told that the manager did not want him in and suggested that he had not been asked. He wasn’t paid for the overtime, he took issue, he attended a meeting with [named member] as his representative, [named member] was not allowed into the meeting with him despite the fact that there were 2 managers there, eventually an investigation commenced, the foreman’s evidence showed that he had asked [named member] to work on the Saturday, then management sent [named member] a letter stating that some very serious issues had arisen which were potentially disciplinary and they would have to be investigated, he sought the details, he was never given them. We have attempted to get the details released under GDPR, again we hit a brick wall. Using the vehicle GPS to locate members is widespread, again breaching human rights. There is widespread breaching of human, European and constitutional rights.

And the list goes on and on. (see victimisation submission attached)

What I see going on here is union bashing at a premier league level, I am spending most of my time reacting and responding to absolute abuse and bullying. Our members resources are being wasted on chasing management, trying to stop them de-unionising, there is widespread avoidance of European obligations in all the councils. Contractors are everywhere, the depot in [Local Authority A] has been taken over by contractors, I cannot get the details as provided for in the national agreement, there is a WRC agreement from 2018 committing to complying with the agreement and to look at insourcing the work that was lost. The council have not complied. It took me 2 years to get it to the labour court, [Sector Organiser] attended the hearing because I wasn’t available due to the dispute in [named charity organisation] in 2020, the court recommended we go back to local level, again that’s gone nowhere. In the meantime, contractors are doing our work, taking over our members yard and [Trade Union C] have identified some contractors are not complying with the SEO.

We are currently being asked by the Sector Organiser to get the numbers of how many are working in the outdoor grades in each council, no doubt to lead a recruitment drive. My question is what are we recruiting new members into? I am in a scenario whereby I cannot protect the members that I have, my Shop Stewards are under attack as am I. I cannot get new Shop Stewards because I know they will be targeted for adverse treatment. The Stewards and I are at break point, our stress levels are through the roof. There are serious mental health and well-being issues here, I have one member who has attempted suicide over bullying, I have lost one shop steward who resigned over it all, another is currently out with very high blood pressure and other issues, and I don’t know how much more any of us can take.

We cannot recruit or organise unless these issues are dealt with.

[Local Authority B] are not far behind, they have not hired any outdoor workers in over 10 years, they deal with nothing, the whole system is broken.

I am available to meet, in fact you can meet these Shop Stewards with me, all of whom will elaborate on their own situation.

I want to know what you advise me to do here.”

The Complainant attached the complaint sent to the CEO disclosing abuse that she and the shop steward had been subjected to. She also attached two submissions disclosing further illegal treatment that the activists and members were being subjected to.

Protected Disclosure Ten

The Complainant submits that the following represents a protected disclosure.

The Complainant sent the following email to a DGS on 14 June 2022 in response to, what she viewed as a feeble response to her request for advice and support:

“I had drafted a response on the day I received your response but had not sent it, it was in drafts and yesterday I was redoing it and got interrupted and must have hit send instead of saving.

In response to your email, I consider it wholly inadequate, and it just serves to compound the conflict that exists between what we purport to stand for and the actual practices. The reality here is that [Local Authority A] are abusing the members, Shop Stewards, and myself, I have reached out to you and the General Secretary and have yet to get tangible assistance. If assistance is offered, I will embrace it, if not I will continue to do all in my power to serve the interests of the members in my counties and beyond by whatever means available to me.”

Protected Disclosure Eleven

The Complainant submits that the following represents a protected disclosure.

On 2 June 2022, the Complainant disclosed to the Sector Committee that Local Authority A were systematically victimising the shop stewards. The Complainant gave examples of the refusal to accept her chosen and agreed Lead Worker Representative; how reps were stressed out; and how she had lost very good shop steward who could not stick the abuse. The Complainant detailed how management frequently unilaterally deduct wages; set members up to be dismissed; do not pay members for leave; follows members; and gives unreasonable instructions, etc. The Complainant explained that management were refusing to agree to an independent investigator and that she needed help, and that management of the Respondent organisation were not giving her any support.

Protected Disclosure Twelve

The Complainant submits that the following represents a protected disclosure.

On 21 June 2022, the Complainant disclosed to the Head of Legal Rights in the Respondent organisation that she was formulating a petition to send to the councillors in Local Authority A which outlined multiple wrongdoings as follows:

“As employees of [Local Authority A], we the undersigned are disturbed and deeply concerned about the treatment of employees within this Council. Shop Stewards and individuals that have raised grievances are being victimised and bullied, [Local Authority A] are systematically breaching, human, European, constitutional, and contractual rights along with breaching national and local agreements. [Local Authority A] are attempting to de-unionise and are contracting out work that is proper to direct labour. Some of the contractors are not meeting their obligations under the Sectoral Employment Order which [Local Authority A] are obligated to ensure that they are. Many of us that have and are being subjected to such treatment are suffering with detrimental levels of stress and associated illnesses as are many of us that are witnessing such. We call on you to urgently commission an independent investigation into these abhorrent practices.

She sent a similar email to the Head of Legal Rights the following day.

“As employees o f [Local Authority A], we the undersigned are disturbed and deeply concerned about the treatment of employees within this Council. Shop Stewards and individuals that have raised grievances are being victimised and bullied, [Local Authority A] are systematically breaching, human, European, constitutional, and contractual rights along with breaching national and local agreements. There is widespread discrimination. Health and Safety practices are substandard. [Local Authority A] are attempting to de-unionise and are contracting out work that is proper to direct labour. Some of the contractors are not meeting their obligations under the Sectoral Employment Order which [Local Authority A] are obligated to ensure that they are. Many of us that have and are being subjected to such treatment are suffering with detrimental levels of stress and associated illnesses as are many of us that are witnessing such. We call on you to urgently commission a Public Inquiry into these corrupt practices.”

 On 24 June 2022, following feedback from the Head of Legal Rights, the Complainant sent the following disclosures to her:

“As employees of [Local Authority A], we the undersigned are disturbed and deeply concerned about the treatment of employees and the abhorrent practices within this Council.

·       The fact that 4 Shop Stewards and a brother of one of the Stewards have made complaints of victimisation and bully citing 42 different complaints and [Local Authority A] are refusing to agree to an independent investigator investigating their complaints

·       The fact that Article 11, Freedom of Association is being breached

·       The fact that the requirements of E.U and national procurement law are not being complied with

·       The fact that the Information and Consultation Act of 2006 is not being complied with

·       The fact that the Working Time Directive 2003/88/EC is being breached, with annual leave pay being calculated incorrectly

·       The fact that the Code of Practice for the right to disconnect is not being complied with for all workers

·       The fact that the national agreement is not being complied with, section 3.3.5 the direct labour provisions are being breached, contractors are doing work proper to directly employed council workers and contractors are using the council’s machinery

·       The fact that the obligation on the council to ensure that contractors are complying with the construction Sectoral Employment Order is not being complied with

·       The fact that there is no transparency regarding the costs of contractors

·       The fact that 26 Water Caretakers are in dispute over being treated less favourably than their supervisors and craft personnel relating to an availability allowance

·       The fact that a Labour Court recommendation issued over a year ago remains unimplemented

·       The fact that the GPS system on vehicles is being abused and Article 8 of the human rights act is being breached

·       The fact that not one of the workers formal grievances has been resolved in over 2 years

·       The fact that there are numerous examples of discriminatory practices

·       The fact that there are numerous grievances outstanding

·       The fact that there are numerous complaints of bullying

·       The fact that the HR department is dysfunctional when it comes to dealing with collective and individual grievances

·       The fact that many workers have been left in an acting position for over 5 years, some cases 10 years

We are not accepting such practices any longer and are demanding that a public Inquiry is commissioned without delay.”

Protected Disclosure Thirteen

The Complainant submits that the following represents a protected disclosure.

The Complainant submits that on 27 July 2022, she disclosed to the General Secretary that she was seeking approval to appeal two Labour Court determinations:

“I attach two determinations from the Labour Court which I am seeking appeal approval for.

The first attachment relates to a case regarding the calculation of annual leave, there are 40 more case in the system mainly from [Local Authority B] workers, but this issue is far more widespread within Local Authorities.

 In the attached determination, which is clearly legally wrong, the Labour Court have blatantly disregarded “Direct Effect” of the jurisprudence from European. This cannot be accepted; these rights carry the same legal value of a treaty and cannot be extinguished.

 There is another case the same, which was taken by a member in [Local Authority D], [a colleague] has the determination but is on leave this week.

This must be appealed within 42 days from the date on the decision.

 The second case attached is not as straight forward as it relates to Public Holidays which are not covered by the directive or charter.

 Please let me know your response as the members are querying where to from here.”

Protected Disclosure Fourteen

The Complainant submits that the following represents a protected disclosure.

The Complainant submits that on 16 August 2022, she disclosed to her Divisional Organiser, and copied to the General Secretary, a DGS, the Head of Legal and her Sector Organiser, that she did not agree with the Union’s decision not to appeal the Labour Court determinations to the High Court:

“I refer to the email below and the attachment. I was aware that it was not the policy of the union to make appeals to the High Court but I was under the impression that the union had previously financially supported appeals that were important precedents for members which stemmed from the former General Secretary who some years ago informed me in my SRC chairman capacity that a significant amount was being spent on the Nano Nagle Equality case which was appealed to the higher courts and the rationale that he gave me at the time for that was due to the important legal principles that were at stake for workers with disabilities and the right to meaningful reasonable accommodation. Furthermore, I went through the established practice of conversing with the Legal Rights Unit adviser [named employee of the Respondent] throughout the various progression stages of the case and had predicted the outcome to him based on the treatment that I was subjected to in the Labour Court hearings because the chairman spent most of the hearing time attempting to put words in my mouth that the court were creatures of statute bond by the domestic legislation to which I repeatedly disagreed pointing out that the court were obligated to interpret domestic legislation to comply with the directive and jurisprudence from Europe. When I received the outcome I spoke again to [named employee of the Respondent] and sent him the determinations and he phoned me back and advised me that it was not for him to decide what could or couldn’t be done, that it was a matter for the General Secretary and he advised that the time limits for doing so were 42 days from the date of the determinations, which was consistent with my understanding of progressing cases that had potentially significant costs so that is what I did and copied the DGS.

The G.S did not inform me to that such requests should be said through my line management, he stated “In the first instance this is a matter that needs to be discussed with the Head of Legal Rights, …, in conjunction with the Sector Organiser, and the Divisional Head of the PAC Division.” and that is what I did, I met through Teams with [the Legal Advisor] and [the Sector Organiser] as you were absent and I was conscious of the time limits. At that meeting I was informed that it was a decision of the Division which confused me somewhat and I asked what that meant was it for the entire division or what, it was clarified that it was a decision of the Divisional Head. I sent another email to the G.S on the 9th August as you did not return as I thought you were on the 8th and I was concerned about the time limits and said that. For the record, I followed the procedures that have been in place since restructuring in the execution of this case and briefed all staff within the division of developments throughout.

 Here are a few facts about this case.

The first meeting that I went to in [Local Authority B] in October 2018, the HR Executive held his hands up and acknowledged that they were miscalculating the annual leave and public holiday pay and he wanted to resolve matters and offered 2 years retrospection which was rejected by the members who rightly wanted what they were entitled to.

We spent 2 years in and out of conciliation arguing over the retrospection. When it was evident that this matter could not be resolved through conciliation, I referred individual cases to the Adjudication Services.

The LGMA did not attend the Adjudication hearing with the HR Executive and he accepted completely that he was not calculating the annual leave correctly and that the regular rostered overtime should be included but restricted to two years retrospection. We got a competent Independent Adjudicator who stayed strictly within the legal precedence and legal instruments available to him and based on those he set out detailed rationale for rightly determining that regular and rostered overtime MUST be included. That is indisputable. He then set out his rationale based on the jurisprudence from Europe and awarded the member the full amount that he had been left short for the 21.5 years, confining it to the 20 days covered by the act.

[Local Authority B] appealed the determination on September 10th 2021 and we appealed on the 15th September again consistent with what we were trained to do in such circumstances.

[Local Authority B] rectified the calculation in October 2021.

We were made further offers of retrospection by the HR Executive and subsequently by the LGMA, all of which were rejected.

At the Labour court hearings, the LGMA changed tack and were left do so without any real challenge from the Chairman. 

Legally, regular rostered overtime must be included in the calculation of annual leave and everyone knows it.

Irrespective of what the Labour Court or the Solicitors have stated, Europe has stated otherwise, and this outcome has mammoth implications for members and all workers in this country and is a case that needs to be challenged if not we are accepting that the Labour Court can extinguish European rights. In fact, the Government are in breach of their European obligations as they have not transposed the directive correctly by excluding overtime.

 One does not need to be a rocket scientist or anything like it to see that this is an attack on workers’ rights, and I consider that I am not only contractually bound but also morally bound to continue to fight for justice for those that have cases in the system but probably more significantly for all workers particularly the implications of losing rights that derive from Europe because without those rights workers in this country are doomed.

 I also attach another determination which is the same case for inclusion of regular rostered overtime in the calculation of annual leave, public holidays were not included. I assume this is not being appealed either and another one which was for Full Time Firefighters who are only paid 39 hours basic for Public Holidays when they are off even though they work a 4-shift system averaging 42 hours a week, and have night shift premium, weekend allowance, Sunday allowance and meal allowance. The Adjudicator found half in favour and awarded €1,000 compensation. The Court have decided that is not correct, which is clearly contravening the act. I assume that I am to inform the member and stewards that our policy is not to appeal. If you want any further information on that, I will provide it.

If I am missing something here, let me know.”

Protected Disclosure Fifteen

The Complainant submits that the following represents a protected disclosure.

On the day of the Local Authority A protest, 26 July 2022, the Complainant gave a lengthy speech in which she said how the activists had 42 complaints that the Council was refusing to investigate relating to bullying; the nonsense Code of Practice; the detrimental effects on person and family; the discrimination; the endless “get out of jail free cards” that the council had available; the inadequate dispute resolution processes; the effects on workers; the union bashing; and the worldwide trends from the International Trade Union confederation etc.

The Complainant believes that her speech constitutes a protected disclosure. She is relying on the Supreme Court judgment in Baranya v Rosderra Irish Meats Group Ltd [2021] IESC 77 where the employee was found to have made a protected disclosure when he disclosed that the safety of colleagues and the welfare of animals had been compromised. The Complainant asserted that, likewise, there was a public interest element to her speech as she had disclosed that workers were not being treated properly by Local Authority A.

Protected Disclosure Sixteen

The Complainant submits that the following represents a protected disclosure.

The Complainant disclosed that Local Authority B had not hired any outdoor direct labour staff since 2008, despite the fact that section 3.3.5 of the National Agreements obliged them to do so; to provide details of contractors; and to consult with unions prior to doing so. She also disclosed that bullying was a strategy designed to divide and conquer enabled by an inadequate Code of Practice, which provides for no protection, no accountability, no impartiality and no proper remedies.

Protected Disclosure Seventeen

The Complainant submits that the following represents a protected disclosure.

On 10 November 2022, four activists and the Complainant did interviews with Gript Media. In her interview, the Complainant disclosed that some members had confided in her that they had contemplated suicide.

Acts of Penalisation within the cognisable period of the complaint

Act of Penalisation Nineteen

The Complainant asserts that the following constitutes an act of penalisation which involved covert abuse and resulted in her being demoralised, ostracised, suffering psychological harm and her professional standing being eroded.

On 25 May 2022, the Complainant sent an email to the General Secretary and a Deputy General Secretary which was not acknowledged by the General Secretary. The purpose of the email was to “provide insight into what our activists, members and myself are enduring at the hands of management in [Local Authority A] so that you can advise and support us in remaining on the pitch there.”

The DGS responded as follows on 1 June 2022:

“I acknowledge receipt of the email below. I am fairly booked out for the next week or so. I would like to have an opportunity to talk with you in relation to its contents. I will give you a call over the next few days to arrange something if that’s in order.”

On 2 June 2022, the Complainant attending a Sector Committee meeting at which the DGS was present. The DGS gave an update on the review talks and then made a presentation to a shop steward who was retiring. When the DGS had finished and was leaving, the Complainant stopped him and asked him would he stay for a few minutes as she was going to give a report on the union bashing that was continuing in Local Authority A. The DGS said that he was unable to stay as he had other appointments.

The Complainant gave an impassioned overview of the situation in Local Authority A and explained what she and the shop stewards were enduring. The Complainant informed the Sector Committee that she was getting no support from the management of the Respondent organisation.

The Complainant’s Sector Organiser said he agreed with everything except her assertion that she wasn’t getting support. He said she was. The Complainant responded saying she wasn’t and asked what support she had been given. Her Sector Organiser brushed her off saying it wasn’t the forum to discuss.

The Chairman proposed that the next Sector Committee meeting be held in County A to show support. His proposal was unanimously carried.

The Complainant asserts that she was screaming for help. She felt that the response from the Respondent was slow and inadequate. She asserts that despite his undertaking to meeting with her, the DSG did not arrange a meeting when he met her at the sector committee meeting.

Act of Penalisation Twenty

The Complainant asserts that the following constitutes an act of penalisation which involved concealing the truth and resulted in her suffering psychological harm and her professional standing being eroded.

On 28 June 2022 after five attempts the following was approved by the Respondent’s Head of Legal as the wording on the petition for the protest in County A.

“As employees of [Local Authority A], we the undersigned are disturbed and deeply concerned about the treatment of employees, the failures relating to the use of contractors, and the practices within this Council. In particular:

·       The fact that 4 Shop Stewards and a brother of one of the Stewards have made complaints of victimisation and bullying citing 42 different complaints and [Local Authority A] are refusing to agree to an independent investigator to investigate complaints.

·       The fact that the national agreement is not being complied with - section 3.3.5 dealing with the direct labour provisions is being breached. This is even though agreement was reached with the conciliation offices of the Workplace Relations Commission in 2018 and was heard by the labour court in 2020

·       Complaints have been raised by both the Respondent and BATU with the Council that the obligation on the council to ensure that contractors are complying with the construction Sectoral Employment Order is not being complied with

·       The fact that [Local Authority A] have not paid members the 1% due under the national agreement

·       The fact that there are numerous grievances outstanding

·       The fact that there are numerous complaints of bullying

·       The fact that there are numerous complaints of discrimination

·       The fact that the Working Time Directive 2003/88/EC is being breached, with annual leave pay being calculated incorrectly

·       The fact that 26 Water Caretakers are in dispute over being treated less favourably than their supervisors and craft personnel relating to an availability allowance

·       The fact that a labour court recommendation issued over a year ago remains unimplemented and industrial action is ongoing

·       The fact that many workers have been left in an acting position for over 5 years, and in some cases 10 years

·       Complaints have been raised with the Council that the HR department is not functioning when it comes to dealing with collective and individual grievances

·       The fact that we have raised multiple complaints of workers’ rights being breached under GDPR relating to the misuse of the GPS system in vehicles

The above was changed by the Communications Department and other management and diluted completely. Likewise with the flyers.

The Complainant felt that the changes represented an attempt on the part of the Respondent to downplay the victimisation and she responded as follows:

“Dear all

That response is just crushing. The wording that is now proposed is diluting the degree of victimisation that is occurring in [Local Authority A] and they are complaints not allegations. Moreover, by using those words that are diluting the degree of victimisation that is occurring, we are doing the activists involved and myself an injustice and with that weak message on the flyers the call for support is undermined. The legal rights department have already approved the wording I requested, it is consistent with the facts and the wording on the petition.

 I am putting on record that I consider that the new wording is imposing further injustice on the activists, members, and I. It is most distressing.”

Act of Penalisation Twenty-One

The Complainant asserts that the following constitutes an act of penalisation which involved gaslighting and resulted in her being undermined, suffering psychological harm and her professional standing being eroded.

On 14 July 2022, the Complainant sent an email to her Sector Organiser asking if the Sector Committee meeting was going to be held in County A. Her Sector Organiser replied to say that Water Services was being prioritised.

The Complainant asserts that the Sector Committee has still not met in County A despite promises to the contrary.

Act of Penalisation Twenty-Two

The Complainant asserts that the following constitutes an act of penalisation which involved sabotage, concealment, covert abuse, manipulation, intimidation and resulted in her suffering psychological harm and her professional standing being eroded.

On the morning of 25 July 2022, the day before the scheduled protest in County A, the Complainant got a call from the Premises Manager of the Respondent organisation who informed her that he had arranged for the order she had made to him two weeks earlier of 200 high vis vests with “Solidarity” on the back, a megaphone and a box of whistles to be couriered to her home address. He said he didn’t know exactly what happened the previous Friday as he was on leave, but the Complainant’s Sector Organiser and the Head of Communications had sent the courier away, so her order was still in Dublin. The Premises Manager apologised because he had guaranteed the Complainant that she would have her order before the protest.

The Complainant immediately phoned her Sector Organiser and asked him why he had stopped her delivery. He said that it wasn’t him, it was it was the Head of Communications because he said it was too expensive.

The Complainant then phoned the Premises Manager and asked him how much the courier cost. He replied that it did not matter because the courier had to be paid anyway because he wasn’t cancelled properly or with notice, so the delivery had to be paid for.

While the Complainant was on the phone to the Premises Manager, her Sector Organiser emailed her saying

“Further to our earlier discussion regarding the flags/banners etc for the [County A] demo, please be advised that I was contacted by [the Head of Communications] last Friday afternoon to say the pieces were ready and you had sought to have them couriered to [County A]. [The Head of Communications] indicated these costs were significant, I indicated I am also attending the demo and could transport the items.

 I tried to call you Friday afternoon to advise you of this, however you didn’t answer your phone. I did text you to advise the situation and heard nothing till your call this morning.

 As stated, I’ll be in [County A] well in advance of the demo and all of the items will be there as planned.”

Within minutes the Complainant emailed him back

“I had arranged for the vests and speaker to be couriered to my home address for this morning. The courier arrived and was sent off, the costs had to be paid anyway so cost had nothing to do with cancelling. 

I phoned you back twice on Friday afternoon, you left me no message to inform that you cancelled my arrangements nor did you phone me to inform this morning.” 

Her Sector Organiser emailed back “We’ll leave it at that so”.

Later that evening, the Complainant contacted the Communications Department to establish where the microphone and stage were. She was informed that the request had been sent weeks ago to her Divisional Organiser, and he had not responded so neither were ordered.

The Complainant then emailed her Sector Organiser as follows:

“Sorry to bother you after normal working hours, I got your message, thanks.

 I was in contact with [a member of staff of the Communications Department] about the microphone and stage, and he informs that it hasn’t been ordered and would need authorisation to fund it, he had requested it from [Divisional Organiser] but he didn’t get back to him, so will you arrange the funding and sanction or will I go to [a DGS]. 

I need an answer for first thing.”

He emailed back

“No probs. Regarding PA gear, all of your stuff was in Liberty Hall for collection. I asked the lads on the desk what the story was about PA gear and they said one of the packs is a loudspeaker with microphone, which they’ve charged the battery for. None of them mentioned anything about a stage, nor did [Divisional Organiser] or [a member of staff of the Communications Department] mention anything about it to me last week.”

The were a few other exchanges between the Complainant and her Sector Organiser and it transpired that there was no microphone or stage.

The following morning the Complainant had to chase the Communications Department to get sanction to hire one. She got to the hire shop at 12.59pm which was closing at 1.00pm. She had to pay for it herself.

The Complainant asserts the following acts of penalisation:

·       her Sector Organiser ordered nothing for the protest despite declaring that he did

·       her Sector Organiser did the minimum to publicise the protest

·       her Sector Organiser did nothing about arranging buses from other counties

·       her Sector Organiser created the illusion of support

·       her Sector Organiser was a participant in sabotaging the equipment the Complainant had ordered for the protest

·       her Sector Organiser did his best to silence the Complainant, undermine her, intimidate her, humiliate her and block her from speaking

·       the Communications Department did not send anybody to cover the protest

·       there were no agreed procedures in place for her to seek sanction for the supply of equipment

The protest was a great success so much so that the Local Authority B members wanted to do the same.

Act of Penalisation Twenty-Three

The Complainant asserts that the following constitutes an act of penalisation which involved undermining, lack of support, psychological harm and her professional standing being eroded.

On 22 July 2022, a shop steward emailed the Complainant’s Sector Organiser after the Labour Court had issued its recommendation on the on-call allowance parity claim by Water Services Caretakers which was heard by the Labour Court in May 2022. The Labour Court recommended that the matter be dealt with immediately as a national issue.

The shop steward emailed the members in Water Services, the Complainant and her Sector Organiser, as follows:

Lads just to let you know that as because of a disappointing result from the Labour Court regarding availability caretakers are now under no obligation to attend out of hours call-outs or answer any phones after hours, it’s up to each caretaker if he wants to attend or not. as per LGMA submission document this is voluntary. If you feel like going for a pint at anytime don’t worry about call-outs the people who are getting paid availability let them look after it. Also don’t be obliged to pass on any information regarding your plants or networks after hours to anyone. 

The Complainant submits that the shop steward was perfectly right, as there is a national agreement in place which provides for a payment of €85.00 per week for being on call and there is an agreement that provides for local authorities to do local agreements to suit local requirements. Local Authority A has an arrangement to pay supervisors and craft personnel four hours pay per week to be available, yet neither supervisors nor craft personnel actually fix the problem. Only a few months earlier, the Labour Court recommended payment of €2,000 per year for two caretakers for the out of hours service they had provided for free. The Complainant further submits that the contract of employment obliges the members to be on call 24/7 which breaches the Working Time Act; the Safety, Health and Welfare at Work Act; and the Right to Disconnect and the largest union in the country could not do anything about that.

Yet again, the Complainant was left trying to deal with what management called “unofficial” industrial action because the members decided, based on the LGMA submission to the Labour Court, that the on-call was voluntary. As the members said to her “what are we paying [the Respondent] for here”. The Complainant felt that the Respondent was unable to do anything for its members.

The Complainant asserts that she was left ostracised by this act of penalisation. The Respondent had let her down and had not supported her.

Act of Penalisation Twenty-Four

The Complainant asserts that the following constitutes an act of penalisation which involved concealment and resulted in her being demoralised, suffering psychological harm and the erosion of her professional standing.

The Complainant sent an email to the Communications Department, specifying the following contents of a flyer she wished to have printed in advance of a protest in County B:

“Demands”

1.       Independent investigation into complaints of Bullying/Victimisation and systematic violations of workers’ rights

2.       Independent investigation into the outsourcing of Community Services and the loses of Community Jobs

3.       Independent investigation into the systematic breaches in national and local agreements

4.       Call for immediate action on members grievances”

On 16 August 2022, her Sector Organiser asked the Communications Department to revise the flyer as follows:

1.       Stop disregarding Public Service Agreement requirements to maximise the use of direct labour jobs

2.       Use direct labour to end the privatisation of Council jobs.

3.       End the Councils moratorium of direct jobs in place since 2008.

4.       Restore the direct labour numbers to their previous levels

5.       Return Council services to direct labour.

6.       Listen to the workers concerns/grievances and address them immediately

The Complainant was sent the amended flyer on 16 August 2022. She contacted the Communications Department and told them that she did not want the amended flyers.

The protest went ahead on 19 August 2022. There was no stage and no mic, despite the Complainant ordering them. The Complainant had anticipated this, so she borrowed an outdoor speaker system, and she stood on a wall to make her speech. She spoke about the bullying and said it was a strategy and a very effective one. She explained the detrimental effects that it was, and is, having on victims and their families. She disclosed that she had 21 different cases of that nature within the four counties in which she operated.

The protesters marched to the County Hall where her Sector Organiser made a speech with the megaphone, shouting that the highest officers in the Respondent organisation were supporting the action, and that Local Authority B had better get its act in order and start dealing with matters. He roared that there would be no more breaking agreements and procedures and that this was only the start.

The protest finished at about 4.20pm. At 5.54pm, the Complainant’s Sector Organiser sent the following email to all staff in the Sector

“A number of you have advised me that you have a significant number of individual cases, along with the collective issues. The net effect of this is that workloads are becoming unmanageable and diminishing the time that should be set aside for organising and density building.

For clarity and for the benefit of colleagues who have recently joined the Sector, the Sector Industrial Officials are responsible for handling collective issues and to progress these through the agreed channels. Organising and Density Building is a priority responsibility for the Sector Officials.

Individual cases should be referred to our Workers Rights Centre, which was established to allow the industrial staff the space and time towards organising, recruitment, retention and density building.

The one current exception to individual cases, are the Matzak cases, which we’ve asked the Sector Officials to submit on behalf of our Retained Firefighter members. Preparation for those cases should be done in conjunction with our colleagues in the Legal Rights Unit, who will assist in preparation of submissions etc.

Given where we are currently and the requirement to rebuild the Union following the last number of difficult years, it is now imperative that our Industrial Officials prioritise organising and recruitment.

Accordingly, I am directing that you commence arrangements to forward any (non Matzak) individual cases to our Workers Rights Centre with immediate effect.”

The Complainant’s Sector Organiser followed on from his email by putting the matter on the agenda for the next Staff Sector meeting. Her Sector Organiser also phoned the Complainant, and she told him that she was not passing over her cases.

The Complainant asserts that she had been leading on the Matzak cases which related to on-call payments for retained firefighters. She did all the work on these cases. However, somewhere along the line it seemed that she was no longer leading on the Matzak cases, and she was not involved in the Labour Court hearing despite the fact that she had spent three years working on the cases.

The Complainant asserts that her Sector Organiser was attempting to get her cases as part of an attempt to conceal the truth relating to the treatment of her and members within Local Authorities.

Act of Penalisation Twenty-Five

The Complainant asserts that the following constitutes an act of penalisation which involved gaslighting; group abuse; blocking of the Complainant; concealment; threatening, public disciplining, humiliation and ostracisation of the Complainant; psychological harm; and erosion of the Complainant’s professional standing.

On 27 July 2022, the Complainant emailed the General Secretary (GS) and a Deputy Secretary seeking support to appeal a number of Labour Court determinations to the High Court and setting out her rationale for doing so. The GS referred her to the Head of Legal Rights and her Divisional and Sector Organisers. The Complainant submits that it is the role and function of the GS in conjunction with the NEC to decide whether to appeal a Labour Court determination because he is responsible for finances and staff. However, the Complainant was led to believe that it was a decision of the Divisional Organiser which the Complainant believes is simply not true.

The Complainant received the following email from her Divisional Organiser:

“I refer to my previous email where I, inter alia, outlined to you your contractual obligations, specifically in relation to compliance with and defence of Union policy. It is not for you to decide which parts of union policy which you will “consider” to comply with and defend.

Your appeal to the Labour Court was misjudged in all the circumstances. Your grounds of appeal (as set out in the Labour Court decision) were clearly outside the remit of the legislation and there was an offer made to settle the case. You have not indicated whether you took any advice on the settlement terms.

In relation to whether the case had collective implications this position should have been determined in consultation with your sector organiser. It appears that you never consulted with your Sector Organiser in respect of this matter also.

You state that you were aware that it was Union policy not to make High Court appeals, yet you do not appear to have informed the member and stewards of this policy as you write in your email to me of Aug 16 that “I assume that I am to inform the member and stewards that our policy is not to appeal.

This strongly indicates to me a lack of regard for union policy on your part. This is a very serious matter and I am obviously losing confidence in your ability to carry out reasonable instruction. Should you continue to disregard union policy I will have no option but to escalate this matter.”

There was legal opinion attached which the Complainant’s Divisional Organiser stated “was not for circulation” which did not surprise the Complainant because she believes that the reality about this case is that she is correct and the jurisprudence from Europe shows that. The Complainant asserts that the Respondent’s legal advisor never even spoke to her before giving his opinion. The Complainant believes that if he had, his response would have been different because he too wrongly referred to retrospection when the case was not about retrospection, it is about effective remedy and Europe have said that an “employer cannot be unjustly enriched for their failings to the detriment of the directive”.

The Complainant takes exception to the tone and content of her Divisional Organiser’s email because she was doing what she was supposed to do by attempting to ensure members’ rights from Europe were not illegally extinguished.

The Complainant asserts that the legal opinion represented a Strategic Lawsuit against Public Participation (SLAPP) aimed at her representing unwarranted criticism of her which was copied to other officials.

Act of Penalisation Twenty-Six

The Complainant asserts that the following constitutes an act of penalisation which involved gaslighting; oppression; demoralising, humiliation, undermining, gender mobbing of the Complainant; psychological harm; and erosion of the Complainant’s professional standing.

After the protest march on 19 August 2022, the Complainant had booked two weeks annual leave to return on Monday 5 September 2022. During her leave she was contacted by one of the shop stewards and informed that her Sector Organiser had arranged to meet with the management of Local Authority A on 2 September 2022. On 30 August 2022, the Complainant texted her Sector Organiser “Hi [Sector Organiser], please phone me, I’ve been informed that you have arranged to meet management in [Local Authority A] on Friday about the Water Services dispute and I want to discuss same. Thanks”. She also left a voice message requesting a call back.

Her Sector Organiser texted back, “just got your messages. Further to the conversations with the lads at the recent demo and their request to me to talk to [Local Authority A] mgt, I’ve arranged to meet this Friday in relation to the non-implementation of the labour Court recommendation. I want to meet these people myself and I’ll have a couple of lads with me. I don’t want to be interrupting your leave and we will have a full discussion next week. Enjoy the break and switch off your phone and emails”.

The Complainant arrived for the meeting. She met with the reps from Water Services and asked them who had asked her Sector Organiser to come down. They replied that it was not any of them and that the Sector Organiser had told them that a named shop steward had asked him (this shop steward had nothing to do with Water Services).

When the Complainant’s Sector Organiser arrived, he said that all he was there for was to get the two lads who had won their Labour Court case their outstanding money and that the LGMA was also going to be at the meeting.

The LGMA started by taking out one of the flyers from the County A protest and started waving it in the air saying this is unofficial action. The Complainant said it wasn’t and then the LGMA started walking out. Her Sector Organiser said that he was only there to sort one thing and that is the full implementation of the Labour Court recommendation. The LGMA said that they would pay it if there was a commitment to cease the industrial action relating to Water Services.

The membership received that news very badly because they considered that the Respondent was compromising on their rights and forcing them to be on call for free in return for payment to a shop steward.

The Complainant asserts that the action of her Sector Organiser undermined and humiliated her. He did not go into anyone else’s patch. She felt there was collusion behind the scenes.

Act of Penalisation Twenty-Seven

The Complainant asserts that the following constitutes an act of penalisation which involved gaslighting; obstruction for promotion; ostracisation of the Complainant; psychological harm; and erosion of the Complainant’s professional standing.

During August 2022 the Complainant was nominated for the position of staff representative on the National Executive Council (NEC) of the Respondent organisation.

On 7 October 2022, she sent the following email to the Returning Officer:

“Please inform as to what is happening with the above and the details and timelines of the balloting arrangements. Also please provide the procedure that you are following because this has not been agreed with the SRC.”

The Complainant did not receive any response to her email.

On 24 October 2022, the Returning Officer sent the following email to all staff:

“We wish to advise that the following members of staff have been nominated for the position of staff representative on the National Executive Council.

[Other candidate]

The Complainant

As more than one valid nomination has been received for the staff representative position, there will be a postal ballot of all eligible staff.

The following election arrangements will apply:

Staff will have up to Monday 7th November to ensure that their address on the SIAS system is correct.

Ballot papers will be posted out Monday 14thNovember to all eligible staff. Only ballot papers returned sealed in the addressed envelope provided will be deemed valid.

Ballot papers must reach the Returning Officer by 4p.m. on Wednesday 14th December.

Envelopes will be opened, and votes counted in the presence of Union trustees on Thursday 15thDecember at 9.30 a.m. in Liberty Hall, Dublin. Candidates are welcome to attend in person.

The names of the nominated candidates will appear in alphabetical order on the ballot paper.

On 24 October 2022, the Complainant sent the following to the officers and committee of the SRC:

“Please provide a copy of the protocol that the returning officer is following as I requested same from him on October 7th and to date, I have not received either acknowledgment or response.

 Also, I request that the SRC insist on the ballot being done online, as that is now the established mechanism when voting on staff related matters that involve secret ballot, the 2 most recent being the pay proposals and the SRC. There is absolutely no justification for this ballot to be conducted by post, the on line has proven to be staff’s preference with unprecedented levels of participation and to date no challenges to the integrity of the ballot with zero cost or wasted paper or time.”

The Complainant did not receive any response to her email.

On 17 November 2022, the Complainant sent an email to the President and Vice President of the NEC:

“I am writing to you both to raise serious concerns relating to the conduct of the election for the staff position on the NEC.

 I emailed the Returning Officer on October 7th requesting the details of the balloting arrangements and a copy of the procedures that he was following, to date I have not received a response.

 I further emailed the Staff Representative Council (SRC) on October 25th, seeking a copy of the procedures that were being followed and also seeking to have the ballot conducted online as has been done for the SRC elections and the pay proposals. I received no response to that either. The ballot papers were received by staff yesterday. As a candidate for this important position, I do not even know the procedures that are being followed.

My other concern relates to the gender balance rule.

As the NEC are responsible for this election, I am requesting a meeting with both of you to discuss further.”

On 18 November 2022 at 9.12am, the President responded with“Thank you for your email. I will follow up with you”.

At 9.17am, she sent“Sorry [Complainant] hit the respond button too soon. I was not at the meeting yesterday but I will check it out.

In relation to ballots, there is an issue with conducting online ballots, that has not been resolved. The old GDPR hence while it is still a manual ballot.”

On 18 November 2022, the Complainant emailed the Returning Officer as follows:

“Please send me on the protocol that you are following for the NEC staff representative position and a copy of the names of those that are eligible to vote and have been sent ballot papers.”

On 22 November 2022, the Returning Officer emailed the Complainant as follows:

“Further to your queries relating to the NEC Staff Representative election I advise as follows.

 Procedures for the election of staff representative to the NEC were agreed at the October NEC meeting and circulated to all staff on 24th October 2022, these were also included with the ballot papers. Attached for your information is the relevant excerpt from the minutes of the October NEC meeting, a copy of the communication to all staff on the 24th October and a copy of the cover letter included with the ballot papers dated 14th November 2022.

 Also attached are the relevant rules regarding NEC elections.

 In respect of your request for a copy of the names of those eligible to vote I consulted with our Data Protection Officer who advised as follows:

 Having consulted with our privacy advisors we cannot establish a legal basis for sharing the Respondent employee data with candidates in a Respondent organised election.

In my experience candidates have sought such information in the past in order to communicate their campaign material / platform with eligible voters, my advice in such instances has been to afford candidates an opportunity to put forward a bio which the Respondent will communicate on their behalf.

 Should you want us to arrange a communication to voters on your behalf please advise asap as in the interest of fairness and transparency we will need to make the same opportunity available to the other candidate.”

The Returning Officer appended three attachments to his email as follows:

1)      Rules and Procedures, approved by the National Executive Council

2)      The letter to all staff as above

3)      Section 80 of the Rules, which states “A staff member shall be elected as a member to the National Executive Council. The staff member elected must have been a member of staff for at least 5 consecutive years previously. The election will be held in accordance with the procedures laid down by the National Executive Council”

The Complainant submits that there were three recommendations ratified by the Biennial Conference in 2017, one of which was for the Partnership Forum to provide the Protocol to the NEC which was done. Clearly that was not followed. The Complainant submits that the whole process was deliberately stacked against her and tainted with illegality.

On 9 December 2022, the Complainant emailed and sent a letter to the Honorary President and the Honorary Vice President of the NEC outlining two pages of concerns and requesting that the ballot would be paused until the issues were resolved.

The Complainant did not receive any response to her email.

On 15 December 2022 at 9.06am the Complainant emailed the Returning Officer and the other candidate, who was already on the NEC as the staff rep as follows:

“I have requested that this election be suspended immediately to remedy the reasonable and justified concerns that I have raised. I have reserved the right to seek injunctive relief in the High Court. If these matters are going to be ignored and the count is going to proceed, I request that I am sent a TEAMS link so that I can observe such proceedings. I also request that all envelopes and ballot papers are kept for examination.

The Returning Officers responded at 12.37pm as follows:

“I refer to your email below.

You were previously notified by my correspondence of 14th November 2022 of where and when the ballot was to take place. At no time following this correspondence did you request a teams meeting. did not open your email below until 11.45.

The ballot has now concluded.

 189 votes were cast. 120 in favour of [the other candidate] and 69 in favour of you.

The Complainant asserts that this act of penalisation was a reaction to all the protected disclosures she had made. She asserts that the election was not carried out in line with protocol and procedure. Voters did not have the option of casting their vote in person which they should have had. The Complainant also understood that 17 or more staff with less than one year’s service were permitted to vote which was contrary to the agreed procedure.

The Complainant further asserted that the gender rule had not been complied with. The gender target of 40% would have been met if she had got the position. Instead, women only held 38.9% of the positions on the NEC after the disputed election. The Complainant recalled that previously the holder of a position on the NEC had to relinquish it so that it could be given to a woman.

The Complainant also asserted that a scrutineer had not been appointed even though one was required.

The Complainant asserts that the Respondent was planning to get rid of her, so the protocol was abandoned. There was no realistic chance that she would get onto the committee. The Complainant asserts that she would have been elected if there had been an opportunity to vote in person. The Complainant submits that the election does not stand up to legal scrutiny. The Complainant contends that everything that was done was done to ensure that she did not get elected.

Act of Penalisation Twenty-Eight

The Complainant asserts that the following constitutes an act of penalisation which involved gaslighting; disciplinary action against the Complainant; intimidation of the Complainant; psychological harm; and erosion of the Complainant’s professional standing.

On 18 November 2022, the Complainant’s Sector Organiser sent the following email:

“Can I remind people to make sure you make cover arrangements when you’re taking leave. We’ve had a few instances lately where people are going on leave without making cover arrangements resulting in members calls either going un-responded, or your colleagues being bounced into making last minute arrangements to represent members because proper cover arrangements weren’t put in place beforehand.”

 The Complainant emailed back as follows:

“I have never had to get cover for annual leave, nor do I consider it reasonable to ask a colleague because most that I know are to the pin of their collar with their own work. And the other problem with asking a colleague is that I would have to be able to reciprocate the favour and I am not in a position to do that due to my own workload. Furthermore, I think it unreasonable to attempt to put additional pressure on staff before taking holidays to expect such. I currently have 25 days annual leave that I am required to take before January, and the reason I have so many is because the demands of the job over the last few years did not lend itself to taking leave. Unfortunately, [Sector Organiser] I don’t have anyone that I could ask.”

The Complainant’s Sector Organiser responded as follows:

“We have always worked in a collegiate manner by covering for colleagues, when they take leave etc.

I am concerned however, that despite significantly reducing your workload, to the point where you have now by far the lightest workload of the industrial staff in the Sector, you still feel your workload is too onerous and that you have not taken your leave as a result.

I do not believe that this is a sustainable position and obviously raises concerns about your ability to perform the duties assigned to you in the Local Authority Sector. I will obviously be obliged to bring this matter to the attention of the Divisional Organiser.”

The Complainant had worked in the PAC Division since 2018. She had previously informed her Sector Organiser that she would not be getting cover for absences. She was responsible for four local authorities and did not have the capacity to cover for anyone else.

The Complainant submitted that she informed employers and members when she was going on leave. When she was working in the Workers Rights Centre, she took all her leave. However, when she was working in the PAC division, she gave back leave.

The Complainant felt that she had been threatened and gaslit. The Complainant felt that her Sector Organiser was imposing on her when it was none of his business. She was responsible for more local authorities then her colleagues. She felt that she was being attacked. The Complainant asserted that it was not up to an individual official to arrange cover.

Act of Penalisation Twenty-Nine

The Complainant asserts that the following constitutes an act of penalisation which involved gaslighting; disciplinary action against the Complainant; intimidation of the Complainant; psychological harm; and erosion of the Complainant’s professional standing.

On 17 November 2022, after a discussion and agreement with her Sector Organiser, the Complainant sent a letter of notice to the HR Manager in the Local Authority B as follows:

“Following on from our meeting with you and the Engineers on Thursday November 3rd 2022, we have said and discussed your responses with the members who have decided that they are not willing to provide out of hours service free gratis from November 28th 2022. We have said to members that we had raised with you that members within Water Services do not consider it legal or appropriate that they are being compelled to be available 24/7 free gratis, and that we explained that on any given night Caretakers can receive between 100-120 texts. We said that we explained that Caretakers must edit these during the night and decide whether it necessary to attend site or not, depending on the urgency. We said that we had informed you how this is seriously adversely affecting their ability to dispose of their time as they please. We said that we explained to you that this is also adversely affecting their families and a source of stress and torment for them also. We said that we have sought an availability allowance for this going forward and indeed retrospectively to day one.

We said that we pointed out to you that others, i.e Engineers, GSS’s, Drivers and others within the organisation [Local Authority B] are in receipt of an out of hours allowance when they hold an assigned “out of hours phone” in rota and pointed out that many of those in receipt of an allowance rarely if ever, possibly never have to attend site. We pointed out that this is really “armchair availability” as they are calling someone else who is not being paid to be available to go to site to attend the fault. We said that Water Services workers are on-call 24 hours a day 340 days per year and are not receiving any allowance whatso ever for the constant disruption and having to be ready to attend a call out at any time during their time off. We said that we pointed out that this treatment is blatantly discriminatory. We said that it is illegal on multiple fronts. We cited the National On-Call/ Availability Allowance that was agreed in 2005 that covers all local authority workers and pointed out that CCC were in breach of same. We cited the Labour Court recommendation that issued last year relating to two Caretakers in Kilkenny in which the Labour Court acknowledged that out of hours service was not free by awarding €2,000 for every year that out of hours service was provided. We said that we cited the Right to Disconnect legislation that passed through the Oireachtas earlier this year.

We said that we had informed you that members are not prepared to continue to provide this out of hours service free gratis and do not see why they should. We said your responses, that this is a “National” issue and that we should raise accordingly.

Our members debated the situation and collectively decided that they will not provide out of hours service free gratis from November 28th 2022 and will not be tending to any text messages or answering the phone. They will be disposing of their personal time as they choose as they are entitled to do.

Should you wish to engage in any meaningful way regarding these most serious issues, we will make ourselves available.”

On 24 November 2022, the Complainant received the following email from her Sector Organiser:

“Further to your notice letter to [Local Authority B] copied to me 17th November (attached), I note that you did not forward me the draft letter prior to issuing as requested during our conversation on Wednesday 16th November. This is not an acceptable position as I had made it clear I wanted to see the draft before it issued. I am also concerned that this notice has been issued by you without exhausting the agreed procedures.

 You received approval to ballot members in August 2021, following which it appears there were some local discussions on the disputed issues with management, then nothing for the last number of months. Given the time that has elapsed since the original ballot in 2021 and the subsequent hiatus in discussions, you should have at the very least exhausted procedures at local level, (ie conclude the local discussions you previously initiated and refer matters to the appropriate third party etc as per procedure), prior to serving notice as you have done.

You need to advise members that this notice has not been issued in accordance with procedure and that this dispute needs to be progressed in accordance with those established procedures with the appropriate approvals for same.

The above referenced issues are of serious concerns in relation to your ability to properly strategize and navigate collective trade disputes.”

Burden of proof

The initial burden of proof is on the Complainant to establish the existence of a protected act and a detriment. If, and only if the Complainant establishes a protected act and a detriment does the burden shift to the Respondent to put forward evidence that the detriment suffered was not due to the protected act being the operative cause. The Complainant submits that she has established a detriment due to making the disclosures such that the burden of proof should shift to the Respondent.

In Paul O’Neill -v- Toni & Guy Blackrock [2010] 21 E.L.R. 1 which concerned a penalisation case under the Safety, Health and Welfare at Work Act, it was stated that the burden of proof is on a complainant to establish that on the balance of probabilities (a) she/he committed a protected act, and (b) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed. The Labour Court held that if both limbs were satisfied, the burden shifted to the employer to show, on credible evidence, on the balance of probabilities, that the protected act did not influence the detriment imposed. The Complainant submits that she has been disclosing wrongdoings of an extremely serious nature which have led to her experiencing detriment, thereby meeting the established test.

Toni & Guy also established the “but for” test in penalisation cases where the Court found that:

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a Complainant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Section 27(3) of the Safety Health and Welfare at Work Act 2005. 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 suggestion that where there is more than one causal factor in the chain of events leading to the detriment complained of, then the commission of the protected act must be the operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

Protected disclosure

For the purposes of the Protected Disclosures Act 2014 (“the Act”), information is “relevant information” if –

(a) In the reasonable belief of the worker, it tends to show one or more relevant wrongdoing.

(b) It came to the attention of the worker in connection with the worker’s employment.

The Complainant submits that “relevant information” requires, inter alia, that there must be reasonable belief on the part of the worker that it shows one or more relevant wrongdoings. The issues raised need not be correct. The only requirement is that the person making a disclosure should have reasonable belief as to the veracity of the facts as he or she understands them.

Section 3(a) of the Act requires that for an act to fall within the definition of a protected disclosure, it is necessary to show that that an offence has been or is being or likely to be committed. The Complainant submits that this criterion has been met.

The Complainant has shown how, in the course of her work, she represented a person who had disclosed wrongdoings that they had encountered during the course of their work and made a protected disclosure of a very serious nature related to the activities of a senior manager.

The Complainant has evidenced the multiple protected disclosures that she has made to every level of management and the National Executive Council, all of which have been evaded.

Penalisation

Section 12 of the Protected Disclosures Act of 2014 prohibits employers from penalising or threatening to penalise an employee for having made a protected disclosure.

“Penalisation” for the purposes of the Act includes (but is not limited to) suspension, lay-off, demotion, termination, transfer of duty, imposition of discipline or penalty or reprimand - as well as coercion or intimidation. The penalisation will usually be an identifiable act or omission on the part of the employer which affects, to his or her detriment, the employee. The word “detriment” is given its ordinary and natural meaning of causing harm or manipulation (per Hyland J. in the case of Conway -v- Department of Agriculture 2020 IEHC665).

The Complainant submits that that systematic penalisation occurred for the following reasons:

a)       There was a continuum of penalisation. The Complainant has had a management led campaign against her to remove her from the position of Chairman of the Staff Representative Council (SRC). This was achieved by the most insidious of means. The Complainant submits that there has been a campaign of destruction launched against her. It is no coincidence that she is female, there is embedded gender discrimination, and all of the perpetrators are men who have been conspiring together to sabotage the Complainant’s career.

b)      The Complainant has been subjected to unquantifiable mental manipulation causing her to suffer work related anxiety to such an extent that she can hardly function. Her family have suffered unquantifiable mental anguish and fear.

c)       Further penalisation is the blocking of her to progress to the position of staff representative on the National Executive Council (NEC). The “but for” test is clearly met in this instance.

Detriment

The Complainant submits that it is settled in law that a detriment does not require some physical or economic consequence. In this particular case, the detriment is that the Complainant’s career has been sabotaged and her 30 years of exemplary work on behalf of workers has been destroyed by those who want to keep doing wrong.

The Complainant refers to a UK case, Shamoon V Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, where the Court found that while the Complainant did not suffer financial or physical loss, the penalisation was “likely to remove her standing amongst her Colleagues”. The Labour Court has cited this case when providing a definition of detriment.

The Complainant relies on the Labour Court case of Mc Grath Partnership V Monaghan PDD162, where found that, “but for the complainant having committed the protected Act he or she would not have suffered the detriment”. The Complainant submits that she has adopted the correct procedures in raising these wrongdoings and has shown how she has been penalised as a result.

In A psychiatrist and A health service provider ADJ-00017774, the Adjudication Officer noted that “the alleged acts of penalisation relate to the Respondent’s handling of the Protected Disclosure”. The Complainant submits that her case is similar, as the manner in which the Respondents reacted to the protected disclosure falls short of what is acceptable. The Complainant submits that the disclosures she made go to the centre of trade unionism and the conflicting and abhorrent practices of those in positions of power within the Respondent organisation.

In ADJ-00017774, the Adjudication Officer further stated “The Act protects an Employees who raise concerns about issues in their workplace. This may include how colleagues carry out their duties. In such a case a protected disclosure may or may not lead to a finding of wrongdoing against the colleague about whom it is addressed….” in his deliberation he goes on to state “…. it follows that there has been unfair treatment in how the respondent addressed the protected disclosures raised by the complainant. I find that the disclosures were an operative cause for this treatment. Applying the objective test set out above, the complainant incurred detriment ….”

The detriment the Complainant endured was having her whole value and belief system shattered. Her ideals, sacrifices and hard work on behalf of members and workers spanning of 35 years have been shattered. Her career has been shattered by the perpetrators of significant wrongdoings. She believed she was doing the right thing by making these protected disclosures at the time and that is what a real trade unionist would do. The disclosures were made in good faith and were made to stop the damage that these practices were and are having on staff and members. They were also made to effect change for the better for members who are paying for the development and growth of trade unionism. Most importantly, the Complainant made those disclosures as a deterrent to such behaviours in the future.

The detriment extends to the Complainant’s wellbeing and mental health. In addition, there is the very significant financial costs relating to having to take this case.

Redress

The Complainant is seeking compensation in the amount of 260 weeks salary, the maximum that can be awarded, to reflect the severity of the penalisations and the distress caused over a significant period.

Legal submission

The Complainant asserts that the Respondent has not discharged the burden of rebuttal in any of the protected disclosures.

The Complainant refers to section 6.1 of the Act which provides for the making of a disclosure to the employer or other responsible person. In this regard, the Complainant asserts that she disclosed relevant wrongdoings to the employer verbally in July and August 2020, which she maintains is accepted by the Respondent. The Complainant also asserts that she further disclosed verbally the wrongdoings that she had encountered both internally and externally from July 2021. The Complainant asserts that she made written protected disclosures to the National Executive Council (NEC) in her capacity as Chairman of the Staff Representative Council (SRC) in November 2021. She asserts that she continued to make protected disclosures to the Respondent both verbally and in writing throughout 2022.

The Complainant asserts that she disclosed wrongdoings relating to the conduct of the employers she dealt with to her employer from 2020. The Complainant further asserts that, from 2020, she disclosed to the Respondent that the employers were violating the rights of activists and members under multiple headings such as freedom of association; dignity at work; statutory minimums; and the provisions of the Organisation of Working Time Act.

The Complainant asserts that the Respondent had not appointed a prescribed person as required under the Act and that the Respondent had no protected disclosure procedure in place in 2021 and 2022.

The Complainant asserts that she repeatedly disclosed relevant wrongdoings which were ignored by the Respondent. The Complainant asserts that she then made protected disclosures at a protest and in the media.

The Complainant asserts that the Respondent has a proactive and absolute duty under the Employment Equality Acts and the Safety, Health and Welfare at Work Act 2005 to protect a whistleblower with extreme and special protections from any adverse treatment. The Complainant submits that there is no requirement under the Act to lodge claims under employment equality or industrial relations legislation and that discrimination and/or unfairness; bullying; intimidation; and manipulation are all acknowledged acts of penalisation within the meaning of the Act. 

With regard to the Respondent’s position that it is the function of the Complainant and the Respondent organisation to detect, investigate and prosecute, the Complainant submits that this is the same position that was argued by the respondent in the High Court case John Clarke v CGI Food Services Limited and CGI Holding Limited [2020] IEHC 368 where Humphreys J at para 14 pointed out:

The employer’s argument in para. 35 of written submissions is that “the financial matters which the plaintiff attempts to portray as constituting protected disclosures do not fall within the definition of protected disclosures [for] the purpose of the Act”. The submissions go on to say at para. 38 “under s. 5(5) of the Act a matter is not a relevant wrongdoing if it is a matter which it is the function of the plaintiff to detect or investigate”. That unfortunately is a complete misquotation of s. 5(5) which states that “A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.” The employer’s submission totally ignores the crucial word “and”, thus fundamentally mischaracterising the meaning of the provision. Where a person such as a group financial controller discovers fraud or wrongdoing by the employer, that is a relevant wrongdoing; and drawing attention to that is making a protected disclosure.

The Complainant, who is a Trade Union Official, was raising concerns with the Respondent in two capacities:

1.       as an Official tasked with servicing the members within the local authorities and community sectors in the Southeast where she was coming across systemic abuses of activists and multiple examples of members’ rights being violated. The Complainant asserts that she also disclosed violations in the administering of justice and deficiencies in codes, acts and processes.

2.       as the Chairman of the SRC, whereby she disclosed that there were repeated conflicts between what management purport to espouse and their actual actions, practices and structures and the damage and illegalities consequent to that.  

The second part of section 5(5) of the Act states “and does not consist of or involve an act or omission on the part of the employer”. The Complainant asserts that she has evidenced that the Respondent has acted contrary to the Act with reference to acts and omissions. The Complainant asserts that the Respondent’s argument that she did not make any protected disclosures but that she was “refusing to accept and follow the direction that she had received … from management” is completely untrue, and represents, in her view, a mischaracterisation of her in order to conceal the Respondent’s wrongdoing.

The Complainant asserts that all the information which she disclosed came to her attention in connection with her employment as a trade union official, servicing members and using public services to remedy issues.

With regard to “acts and omissions” on the part of the Respondent, the Complainant relies on the High Court case Conway vs The Department of Agriculture, Food and the Marine [2020] IEHC 665, where Hyland J looked at two questions arising from an appeal of a Labour Court determination:

1.       whether the Labour Court acted lawfully in holding that a failure by an employer to act upon a protected disclosure under the Protected Disclosures Act 2014 did not constitute penalisation within the meaning of the Act, and

2.       whether the Labour Court erred in failing to take account of the respondent’s compliance with its obligations pursuant to the 2014 Act, the guidance to employers adopted pursuant to s.21(1) of the Act in determining penalisation and the respondent’s own policy.

The Complainant cites para 71 of the judgment where Hyland J proposed the following three-step approach in reaching a decision as to whether action has been taken against a person who makes a protected disclosure:

Unlike in the UK legislation, there is no separate obligation in the Act to inquire into detriment – rather the obligation is to consider whether penalisation has taken place and the cause of same. That exercise sometimes takes place in a number of steps i.e. to identify the act or omission, to consider whether it constitutes detriment and then to examine whether the cause of such detriment was the making of a protected disclosure. But the wording of the Act identifies that what is prohibited is penalisation for having made a protected disclosure. To reach a conclusion as to whether s.12(1) has been breached, all three concepts identified above must be considered.

The Complainant has applied the proposed approach outlined above to the disclosures made to the National Executive Council (NEC) on 1 November 2021 as follows:

Step 1 – identify the act or omission

Acts

1.       The act of the Sector Organisers attempting to have the Complainant retract the letter to the NEC.

2.       The act of stopping the NEC from being provided with a mechanism and resources to deal with the complaints

3.       The act of leaking the protected disclosure to the Sunday Independent

4.       The act of planning to destroy the Complainant’s credibility by weaponising the protected disclosure against her by causing a fear frenzy about the damage the article was going to do to staff and members

5.       The act of management declaring that they vehemently denied all the protected disclosures made 

6.       The act of not trying to stop the article being published

7.       The act of allowing the Complainant’s Sector Organiser to publicly lambast the discloser, who was in a subordinate position to him, in her capacity as Chairman of the SRC

8.       The act of planning with the management group to lead out with a call for a Special General Meeting (SGM)

9.       The act of planning with the management group a call for an election of all SRC positions

10.   The act of two General Officers sending a biased email to all staff

11.   Not dealing with the protected disclosures

12.   The Officers giving the staff the impression that they were going to deal with the protected disclosures

Omissions

1.       Omitting to protect the discloser

2.       Omitting to investigate

3.       Omitting to engage

Step 2 – consider whether the acts and/or omissions constitute detriment

The Act defines penalisation at section 3 as follows:

“penalisation” means any act or omission that affects a worker to the worker’s detriment, and in particular includes—

(a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal;

The Complainant asserts that she suffered all the penalisations listed in section 3 of the Act, except dismissal.

Section 12 of the Act which is entitled “Other protection of employees from penalisation for having made protected disclosure” 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”.

Th Complainant contends that she was penalised for making protected disclosures and the Officers of the Respondent organisation caused and permitted other staff to penalise her.

The Complainant submits that based on the test set out by Hyland J, there can be no doubt that she has been penalised with dismissal the only form of penalisation that was not formally invoked. 

The Complainant relies on Baranya and Rosderra Irish Meats Group Limited [2021] IESC 77 where Charlton J considered at para 4 what qualifies as a protected disclosure:

Normally, and on any use of what has now become an ordinary term of speech, a whistleblower is someone who, despite not being authorised and perhaps despite being expressly prohibited, or actively bullied, makes public some significant information about an organisation which discloses wrongdoing within its confines that impacts on public safety or on the public interest in matters of safety or compliance or tax paying. While whistleblowers are seen in the public mind as being motivated by the noblest sentiments, what matters more is that their point of view is reasonably held, whether what impels their revelation is bitterness or genuine selflessness.

The Complainant asserts that she has evidenced that she is a whistleblower and is someone who, despite not being authorised and perhaps being expressly prohibited and actively bullied, made public disclosures about her organisation and other organisations which she was tasked with servicing or using.

The Complainant further relies on paras 27 and 28 of Baranya where Charlton J commented on complaints relating to workplace safety:

27. The point nevertheless is that many complaints made by employees which are entirely personal to them are nonetheless capable of being regarded as protected disclosures for the purposes of the 2014 Act. This is also true of complaints regarding workplace safety under s. 5(3)(d), a point clearly illustrated by the sheer breadth of the language contained in the sub-section: “health or safety of any individual” … “has been, is being or is likely to be endangered.”

28. It is perfectly clear from these words that the complaint does not have to relate to the health or safety of other employees or third parties: a complaint made by an employee that his or her own personal health or safety is endangered by workplace practices is clearly within the remit of the sub-section. Nor does the conduct in question necessarily have to amount to a breach of any legal obligation (although it would generally probably do so): it is sufficient that the employee complains that his or health or safety has been or is being or is likely to be endangered by reason of workplace practices, as this amounts to an allegation of “wrongdoing” on the part of the employer in the extended (and slightly artificial) sense in which that term has been used by s. 5(2) and s. 5(3) of the 2014 Act. It follows that a complaint made by an employee that his or her own personal health was being affected by being required to work in a particular manner or in respect of a particular task can, in principle, amount to a protected disclosure.

The Complainant asserts that in her case, health, safety, freedoms and rights of activists and members have been, are being and are likely to be endangered. She further asserts that the majority of the wrongdoings related to staff, activists, and members being endangered by the unbalanced practices internally and externally in workplaces that she serviced or services she used.

The Complainant submits that where a trade union official discovers serious safety practices and violations in members’ human; European; constitutional and local rights relating to their terms and conditions of employment drawing attention to them is a protected disclosure.

Cross-examination of the Complainant by Ms O’Loughlin on behalf of the Respondent

Protected Disclosure One

The Complainant confirmed that she was the representative of a colleague who had made a protective disclosure. She further confirmed that she did not make the protected disclosure – it was her colleague who made it.

Protected Disclosure Four

Ms O’Loughlin referred to the Complainant’s email of 30 January 2021 to a Deputy General Secretary of the Respondent organisation alleging that the Respondent had not said anything about the status of traffic wardens under the COVID-19 regulations as to whether they were essential workers. In her email the Complainant wrote as follows:

"I have been inundated with calls from members who are furious that what they consider their health and safety and that of their families being jeopardised and [the Respondent] haven't uttered a word."

Ms O’Loughlin asked the Complainant what steps she took to establish the veracity of her claim that the Respondent had not said a word.

The Complainant said that she “was passing on a message that has been relayed to me and I have not seen anything or heard anything to the contrary from [the Respondent]”.

Ms O’Loughlin produced copies of communication from the Respondent to its members concerning COVId-19 regulations.

The Complainant asserted that none of the referenced documents related to traffic wardens, so her assertion as stated in her email was correct.

Protected Disclosure Nine, Ten and Eleven

The Complainant confirmed that after she wrote to the General Secretary and a Deputy General Secretary (DGS) of the Respondent organisation on 1 June 2022 seeking their assistance, she was upset and distressed because neither of the senior officers could take a minute to contact her.

Ms O’Loughlin asked if the Complainant’s evidence was that when the DGS emailed her within five working days and offered to talk further and to set up a meeting, this was a provocation.

The Complainant responded that it was a putdown to her. She could not understand how when she was raising concerns about the treatment of five activists, an officer of the largest trade union in the country could not take a minute talk to her.

The Complainant said that she was due to attend the same sector meeting as the DGS on the 2 June 2022 but that he did not make any time to catch-up with her at that meeting.

Protected Disclosure Twelve

The Complainant confirmed that at the time when that the disputed wording for the flyers was finalised, she did not like it; she did not agree with it; and she still did not have a meeting with the Head of Legal and other members of the management team to express her dissatisfaction.

Protected Disclosures Thirteen and Fourteen

The Complainant said that when she asked the Respondent to appeal a decision of the Labour Court, with which she did not agree, the Respondent sought external legal advice. She was not given the opportunity to provide the external legal advisor with her perspective on the case even though she was the expert on the case. She was confident that an external legal advisor was brought in to protect the Respondent organisation and to silence her.

The Complainant asserted that there was sufficient legal expertise available in-house which should have been used in this case. She referred to a particular internal legal advisor who would have been her preference.

Protected Disclosure Sixteen

Ms O’Loughlin asked if it was really credible that the Complainant’s Sector Organiser had told her that she couldn’t take industrial action because it was already sanctioned by the Respondent organisation.

The Complainant asserted that sanction for industrial action had been refused by her Sector Organiser.

Protected Disclosures Three and Seven

Ms O’Loughlin referred to the Complainant’s evidence in which she stated that she had disclosed dysfunctionality around what she claimed to be bad practices within the Respondent organisation. In response, it was proposed that the matter would progress to a meeting with the General Officers. This meeting led to the establishment of the brainstorming process. The Complainant confirmed that she was very happy to go into the process. However, the SRC ultimately withdrew from the brainstorming process.

Protected Disclosure Eight

Ms O’Loughlin referred to the letter of 1 November 2022 from the SRC to the NEC which had 20 signatories and was, therefore, not a communication from an individual worker. 

The Complainant asserted that she was the author of the letter and the two other SRC officers had only made minor changes to her initial draft.

Act of Penalisation Twenty

Ms O’Loughlin reminded the Complainant that she had acknowledged in her evidence on 13 February 2025 that it was the prerogative of management to disagree with the proposed wording for a petition. She asked her to clarify what penalisation she was alleging.

The Complainant replied that “the penalisation is that there's agreement there to go out and to send the flyers and the petition and to expose the fact that this was victimisation of shop stewards and members in relation to bullying and not dealing with issues and all of that. But the wording in that removed the victimisation, and that in itself was diluting the mandate that we had and that was my issue with it”.

Ms O’Loughlin asked the Complainant how this penalised her personally.

The Complainant responded that “we had the meeting, the members decided, "Okay, well let's have it ", and here I am now going out there and it's not about victimisation now because it's all been watered down. That is the way I felt about it, that it was an attempt to conceal and protect the local authority, rather than to, I suppose, support me and go all out with this. That was the whole problem here, there was no support. And that in itself was an act of penalisation.”

Act of Penalisation Twenty-Three

Ms O’Loughlin said that this alleged act of penalisation concerned a shop steward’s email to the Complainant and her Sector Organiser about Labour Court cases and the on-call allowance.

The Complainant confirmed that the penalisation for her is that unofficial action arose as a consequence of the Labour Court not upholding the complaint and she was left to deal with the unofficial action on her own.

Act of Penalisation Twenty-Four

The Complainant confirmed that she was penalised when the wording on the county B flyers was changed because there seemed to be a desire to conceal what was going on.

Following the county B protest, her Sector Organiser emailed all the Industrial Organisers reporting to him, including the Complainant, and asked that they forward all the individual cases that they had on hand to the Respondent’s Workers Rights Centre. The Complainant asserted that the penalisation was by transferring individual cases to the Workers Rights Centre, the Respondent wanted to conceal the truth.

Act of Penalisation Twenty-Five

The Complainant asserted that she was penalised when the Respondent sought external legal advice regarding her request to appeal a decision of the Labour Court to the High Court. The Complainant asserted that the management adopted an unnecessary step by seeking external legal advice instead of using their expert internal legal advisors, and they did that to scare and threaten her.

The Complainant alleged that she was further penalised when she was not allowed to circulate a copy of the external legal advice and could not give it to the member concerned. The Complainant asserts that this was done because the legal advice was not correct.

The Complainant contended that the staff member who she was dealing with in a legal context and advising her was excluded from the process of seeking external legal advice. The Complainant further asserted that she was excluded from being able to persuade the external legal advisor of the reasons why there was merit in her request. She was the expert on the matter, yet she was deliberately excluded from the process of seeking external legal advice.

Act of Penalisation Twenty-Six

The Complainant asserted that by meeting with management of Local Authority A while she was on leave, her Sector Organiser was helping the management and penalising her by undermining her in public.

Act of Penalisation Twenty-Seven

The Complainant confirmed that she had asserted that the protocol that was agreed through partnership was not adhered to and that this amounted to penalisation.

Ms O’Loughlin suggested that in all the communications between the Complainant and staff members of the Respondent organisation in relation to this matter, the Complainant never actually sought the application of that particular protocol because her own evidence shows that she asked several times what protocol was being followed. Ms O’Loughlin suggested to the Complainant that the specifics of her request to the Respondent organisation were outside the parameters of the protocol. Ms O’Loughlin mentioned that the protocol does not allow for online voting but in her correspondence the Complainant was insisting that there be an online vote. Ms O’Loughlin also referred to the Complainant’s request for information which was not provided for in the protocol.

The Complainant asserted that she was looking for a copy of the protocol that the Returning Officer was following. The Complainant asserted that the Returning Officer penalised her by ignoring her.

Ms O’Loughlin pointed out that the Returning Officer had written to the Complainant and informed her that the arrangements for the election had been agreed at the October meeting of the NEC, and they were circulated on 24 October 2022 with the ballot papers. Ms O’Loughlin suggested that Complainant would have received this information as it was circulated to all staff. Ms O’Loughlin asked the Complainant how she had been penalised.

The Complainant responded that as a candidate she had the right to see the procedure and had a right to a response. The Complainant believed that there was a requirement that the Returning Officer should give the candidates the information in advance.

The Complainant asserted that she was penalised because there was a campaign to get her out.

Act of Penalisation Twenty-Eight

The Complainant asserted that her Sector Organiser’s act of emailing his staff to reminding them to put cover arrangements in place for annual was designed to provoke her.

The Complainant said that she responded in the same way as she had responded since 2018 when she joined the sector, that she would not be covered for annual leave. She asserted that her Sector Organiser’s response that he would have to bring the matter to the attention of the Divisional Organiser was penalisation.

The Complainant asserted that her Sector Organiser asked her about her annual leave because he knew what her answer would be and that’s why he sent it. He did it on purpose. The Complainant asserts that the email was sent deliberately to penalise her. She wasn’t getting cover for annual leave. Her managers were using it to build a case behind the scenes.

Act of Penalisation Twenty-Nine

The Complainant asserted that she did not send a draft of a letter she proposed to send to HR In Local Authority B to her Sector Organiser as had been agreed because she was protecting herself at that point in time and resisting being subjugated and demoted by stealth by somebody suggesting to her that she hadn't got the competence to write a letter to the management.

The Complainant said that she was confident that management of the Respondent organisation was trying to undermine her; they were breaking her confidence step, by step, by step, by step.

Witness for the Complainant

The Complainant put a witness into evidence in support of her complaint. As the evidence of this witness related to a period outside the cognisable period of the complaint, it is not relevant to my investigation. Therefore, I have not taken it into account in my decision making.

Conclusion

The Complainant asserts that she has presented over one hundred protected disclosures, the first of which dates from 28 February 2020. The Complainant contends that not one of those protected disclosures has been rebutted by the Respondent. The Complainant contends that despite the burden of proof in relation to the protected disclosures being on the Respondent, the burden of rebuttal has been placed on the Complainant in the course of these proceedings. 

The Complainant submits that she has presented 30 plus examples of penalisations all carried out because she has disclosed, challenged and exposed wrongdoing.

The Complainant asserts that, at the hearings the Respondent was represented by two senior managers and a solicitor while she, a fully paid-up member of the Respondent organisation for over 37 years had no right to have any kind of independent representation.

The Complainant submits that although the Respondent did not put witnesses into evidence and did not give evidence under oath it was relieved of the burden of rebuttal and, therefore, all of its contributions were hearsay.

The Complainant contends that the Respondent was allowed to present unsubstantiated details and some deliberate untruths without challenge, and she was prohibited from responding when the media was in attendance at the hearings so allowing the media to mis-portray her in the public domain without being afforded the opportunity to respond. Furthermore, she was not permitted to show the Gript video of her in public, nor were the five activists who also did interviews permitted to explain their personal experiences. The Complainant further asserts that she was prohibited from showing the speech at the Local Authority A protest where she disclosed multiple wrongdoings in the Respondent’s systems and which she had come across in the course of her work.

The Complainant also asserts that she was prohibited from giving evidence about the treatment she was subjected to between 2020 and November 2021 which was prior to the one-year timeframe, which in effect removes the background, context and setting which has prevailed for her from 2020 which is when all of this started.

The Complainant asserts that when she was permitted to respond to the Respondent’s submission, the transcriber was not in attendance seemingly because there was a disconnect between the schedulers and the Adjudicator.

The Complainant asserts that she has given sworn testimony, written evidence and videos all showing that she was disclosing multiple wrongdoings which meet the definition of “relevant wrongdoings” under the Act whether internally or externally.

The Complainant contends that the Respondent absolutely refutes the allegations she is making yet has never provided the Complainant with an opportunity to respond and elaborate. The Complainant asserts that she been deprived of her absolute right as a whistleblower, trade union official and Chair of the SRC to have her protected disclosures discussed, evaluated and considered.

The Complainant asserts that the Respondent’s position that it was/is the function of the Complainant to “detect”, “investigate” and “prosecute cases” is contrary to the findings of the higher courts.

The Complainant rejects the Respondent’s position that she has exposed it to defamation claims. The Complainant asserts that she was simply blowing the whistle after failing to stop the activists being brutally treated all day every day.

The Complainant rejects the Respondent’s position that what happens to activists or members in their own employment has nothing to do with the Respondent or this case. The Complainant asserts the Act is crystal clear that it is “an act to make provision for and in connection with the protecting of persons from the taking of action against them in respect of the making of certain disclosures in the public interest and for connected purposes”. The Complainant asserts that the Respondent most definitely has a duty of care to her and the activists.

The Complainant asserts that the Respondent has breached her entitlement to have her rights protected. The Complainant asserts that this case is about trade unionism and workers’ rights being extinguished and management holding the balance of power. The Complainant asserts that her superiors do not want to know about this.

The Complainant asserts that this has been one of the worst journeys of her life. The only way that she can really describe it is that it felt that she was being dehumanised, that management of the Respondent organisation was trying to brainwash her into forgetting what this great organisation was built on. The Complainant asserts that she has proved that she has repeatedly been penalised for attempting to get this ugly, ugly truth out there.

The Respondent is a trade union, employing 260 staff. The Complainant is an employee of the Respondent organisation.

Prior to the Complainant working in the Respondent organisation as a trade union organiser, the Complainant was a long-standing shop steward and elected member of the National Executive Council (NEC). The Complainant commenced employment with the Respondent organisation in 2002.

The Complainant’s role in the Respondent organisation is that of a trade union industrial organiser. Her role involves providing a service to the members of the union for whom she has been given responsibility. The core function of this service includes negotiating with the members’ employers, representing the members’ interests and addressing the members’ collective grievances at local level or at the relevant third-party forum including the Workplace Relations Commission and the Labour Court.

The position that the Complainant currently holds is that of an Industrial Organiser in the Public Administration and Community (PAC) Division. This is a promotional grade, and the Complainant has worked in this grade since 1 March 2018. The Complainant’s role in the PAC division includes responsibility for organising and recruiting members into the union and for protecting and advancing members’ interests on a collective basis. Representing members’ individual issues at a relevant third-party forum such as the Workplace Relations Commission and the Labour Court is the function of the Workers Rights Centre and the responsibility of the advocates who work in that department.

The Complainant’s promotional grade affords her the responsibility to lead and strategize in negotiations on behalf of members in line with established industrial relations procedures. The industrial relations procedures applied by the Respondent are shaped by the Industrial Relations Act 1990. The Respondent gives very serious consideration to the weight of the procedural requirements within this Act to afford the associated legal protections to the members of the union and to also maximise their opportunities for winning their collective disputes.

The Complainant is required, under her contract of employment, to report to her Sector Organiser and Divisional Organiser on all major developments and for the effective discharge of her duties.

The Complainant also held the position of Chair of the Staff Representative Council ("the SRC") of the Respondent organisation from 2013 until May 2022. During this time, the Complainant had the responsibility of engaging with senior management of the Respondent organisation to represent staff on individual and collective issues at local level, at the Joint Industrial Council, at the Workplace Relations Commission and at the Labour Court.

Collective negotiations between staff and management of the Respondent organisation took place through various initiatives during the above time such as the Membership Consultative Review of the Union; the Partnership Forum; and the Brainstorming Process.

One of the main collective grievances raised by staff throughout these initiatives was a desire to continuously improve the industrial relations procedures within the Respondent organisation. One of the main aims of management throughout these initiatives was to record, revise, update and implement workplace policies and procedures to continuously develop internal industrial relations procedures for staff. The Complainant, therefore, has full knowledge of the existing policies and procedures in the Respondent organisation and the efforts that have been made to record, revise, update, and implement them.

The Complainant has claimed that she has made protected disclosures in accordance with the Protected Disclosures Act 2014 (“the Act”), and she further claims acts of penalisation as defined in the Act were carried out against her.

The Respondent absolutely refutes that the Complainant has made protected disclosures in accordance with the Act (not including Protected Disclosures three, seven and eight as set out in the Complainant’s submission) and vociferously denies that any acts of penalisation as defined in the Act, or otherwise, were carried out against her.

The Complainant alleges in her complaint form that she has "been blowing the whistle internally and externally on wrongdoings that [she has] come across in the course of her work and that [she] has raised these wrongdoings verbally and in writing, with every level of management". The Respondent does not accept that this is the case.

Jurisdiction of Claim / Relevant Legislation

As the Complainant’s complaint was received by the Workplace Relations Commission on 30 November 2022, any alleged protected disclosures together with any alleged acts of penalisation only occurred prior to this date, if at all. The Respondent, therefore, submits that this complaint be heard under the Protected Disclosures Act 2014 as the Act was on that date, and not as amended by the Protected Disclosures Act 2022, which commenced on 1 January 2023. This is in line with Schedule 7 (10) of the Protected Disclosures Act 2014 (as amended by the Protected Disclosures Act 2022) which states the following:

"Notwithstanding the amendments of this Act made by the Act of 2022, and paragraphs 2 to 9, anything commenced under this Act but not completed before the commencement of those amendments may be carried on and completed after the commencement of those amendments as if those amendments had not been made."

The Complainant has set out several generalised allegations in her submission in relation to gender discrimination, political discrimination, bullying, unfair management practices and unfair industrial relations practices. These allegations are not evidenced in anyway throughout the Complainant’s submissions and no information is provided in relation to them that would amount to “a relevant wrongdoing”. The Respondent, therefore, submits that the Adjudication Officer does not have jurisdiction to hear these generalised allegations as no actual discrimination or evidenced industrial relations complaint has been lodged.

Alleged Protected Disclosures

The Complainant has set out seventeen alleged protected disclosures between the period 28 February 2020 to 10 November 2022.

The Complainant appears to be referring to issues she had raised "internally” (in her employment) and "externally” (at the relevant third party, with employers of our members, at protests and in the media).

These issues primarily relate to workplace grievances of the Respondent organisation’s members for whom the Complainant has responsibility. These issues also relate to the individual and collective grievances of the staff of the Respondent organisation for whom the Complainant was the advocate as Chair of the SRC.

Consequently, the Respondent submits that these alleged protected disclosures fall into two categories:

1.       Matters which were part of the role of the Complainant’s position as Chair of the Staff Representative Council to advocate upon. (Alleged protected disclosures 1, 3, 7 and 8)

2.       Matters that are the function of the Complainant and the Respondent organisation to detect but where the Complainant was refusing to follow normal procedures within the Respondent organisation and refusing to accept and follow the direction that she had received in relation to them from management. (Alleged protected disclosures 2, 4, 5, 6, 9-17)

Alleged protected disclosures number 2, 4, 5, 6, 9-17 of the Complainant’s submission concern issues that the Complainant was raising internally with the Respondent organisation and externally at third parties, protests and in the media that relate to the workplace grievances of the Respondent organisation’s members for whom the Complainant had responsibility.

The Respondent submits that these issues, therefore, do not amount to “relevant wrongdoings” within the definition of the Act as in accordance with section 5(5) of the Act "A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer."

As stated above, providing the service of a trade union organiser includes negotiating with members’ employers, representing members’ interests and addressing members’ collective grievances and / or employment rights issues at local level or at the relevant third-party fora including the Workplace Relations Commission, the Labour Court, and Conciliation Services.

It is, therefore, the core function of a trade union and a trade union organiser to detect, investigate and prosecute members’ workplace grievances. The Respondent submits that the work of a trade union and the industry itself would operate on a wholly impractical basis if every workplace issue that members of a trade union brought to their organiser attracted the protections of the Act for that organiser.

The Respondent submits that, as will be clear in the detail set out for each alleged protected disclosure below, the Complainant was fully aware of the established procedures for progressing matters on behalf of members and was refusing to follow these procedures. When the Complainant received explicit direction from management, she often resisted this direction and took a different course of action.

Alleged Protected Disclosure Number Two

The Complainant alleges that she made a protected disclosure on 26 June 2020. However, the Complainant refers to several interactions and conversations in this regard and it is not clear in which conversation, and on which date the alleged protected disclosure took place. The detail of these interactions and conversations and the background to them is set out in the following paragraphs.

The Labour Employer Economic Forum (LEEF), which was set up between the government, employer representative bodies and trade unions for the purposes of ensuring health and safety measures were implemented during the COVID-19 pandemic, issued the Return to Work Safely Protocol on 9 May 2020. This protocol implemented the role of worker representatives and lead worker representatives in each workplace across the country.

The Local Authority Group of Unions is a group of principal representatives for the Local Authority sector from the Respondent organisation, Trade Union B and Trade Union A. The Complainant’s Sector Organiser was a member of the Local Authority Group of Unions as he was the principal representative for the Respondent’s Local Authority Sector, with responsibility for discharging guidance from LEEF for the Respondent organisation. It was, therefore, his responsibility to engage with the Local Authority Group of Unions to agree the nominees for worker representatives and lead worker representatives in each local authority across the country.

The Local Government Management Agency (LGMA), the HR function of the Local Authorities, sent an email to Trade Union B on 4 June 2020 to start the appointment process of these representatives with the Local Authority Group of Unions. The trade union official sent this email to the Complainant’s Sector Organiser on 5 June 2020 to start discussions in relation to the nominees.

The Complainant’s Sector Organiser was aware that the Local Authority A shop steward was being proposed by the Complainant as the worker representative for that workplace and the lead worker representative for that county. The Complainant’s Sector Organiser agreed to nominate this individual to the Local Authority Group of Unions and had no issue or concern in doing so.

However, the Local Authority Group of Unions were concerned that the Local Authorities would nominate their own representatives if they did not receive the Local Authority Group of Union nominees in a timely manner and so to expedite the process and ensure the fair representation of each union in the group, the group agreed to nominate lead worker representatives on a membership density basis.

While Trade Union A only had 1% of the membership in Local Authority A, their density was higher there than in other local authority areas and so it was decided within the group to nominate a Trade Union A member as the lead worker representative.

The Respondent organisation did not, therefore, do “a deal with the LGMA because [Local Authority A] [didn’t] want [person 1] as the LWR”, as is alleged by the Complainant in her submissions. The Complainant is an experienced organiser who is fully aware of local nomination processes. The Complainant could not possibly have, therefore, held a reasonable belief at that time or since that “a relevant wrongdoing” had occurred on behalf of the Respondent organisation in relation to this.

The Return to Work Safely Protocol was then transposed by the LGMA into a Local Authority policy document in agreement with the Local Authority Group of Unions. At the time, the Complainant expressed the opinion that this agreed policy did not uphold the same standards as the Return to Work Safely Protocol as she said she was having trouble in its implementation with management in Local Authority A.

When the Complainant expressed her opinion to her Sector Organiser, he confirmed to her that the agreed policy did uphold the same standards as the Return to Work Safely Protocol and advised her to argue this point at local level. The Complainant accepted this confirmation, and her acceptance is evidenced in an email the Complainant sent to management in Local Authority A on 18 June 2020 which states:

“Following up on the commitment I made to establish from our side what the understandings between [the Respondent] and LGMA is in relation to the protocol agreed. I have spoken to [my Sector Organiser] who has confirmed that the protocol agreed is intended to comply fully with the Return to Work Safely protocol including the role of the Lead Work Representative.”

The Respondent organisation did not, therefore, agree “to a dilution of the safety protocol” as is alleged by the Complainant in her submissions. It is clear from the Complainant’s email on 18 June 2020 that she was aware of this. The Complainant could not possibly have held a reasonable belief that “a relevant wrongdoing” had occurred at that time or since on behalf of the Respondent organisation in relation to this.

Alleged Protected Disclosure Four

The Complainant alleges that she made a protected disclosure on 13 January 2021 when she emailed the Deputy General Secretary of the Public Sector (“the DGS”) and her Divisional Organiser in relation to issues affecting traffic wardens in Local Authorities.

The National Public Health Emergency Team (NPHET) published a List of Essential Services on 28 March 2020. The purpose of this was to maintain essential services during the COVID-19 pandemic. The list included public administration amongst the services that would remain operational.

In line with this guidance, the LGMA published a list of essential roles within the Local Authorities on 28 March 2020. This list was shared with the Complainant and her colleagues by her Sector Organiser in an email on 28 March 2020. Traffic wardens were not identified as essential roles by the LGMA at this time and they did not attend their workplace.

However, in May 2020, the government issued a roadmap for the phased easing of COVID-19 restrictions and outdoor workers were permitted to return to work on 18 May 2020. Traffic wardens returned to work on this date. On 21 October 2020, the LGMA published a list of services that were operational in line with the recent health and safety requirements and traffic wardens were included in this list.

The Respondent organisation’s members who work as traffic wardens, therefore, first raised their concerns about their work safety measures at the National Wardens’ Committee in September 2020. The Complainant’s Sector Organiser wrote to the LGMA on foot of these concerns on 16 September and 23 November 2020 and requested the following:

"The Road Traffic Act allows for Fixed Penalty Notices to be delivered by post and we are asking that a direction be given to all Local Authorities to implement this as a way of immediately removing Wardens from this blatant risk of catching this worrying virus. We also ask that consideration be given to the risk that a Warden may be asymptomatic and by handling Fixed Penalty Notices, all Wardens could be spreading this virus around every town in the country."

After level 5 restrictions were reimposed by the Government over the Christmas period in 2020, NPHET republished their List of Essential Services on 6 January 2021. On 7 January 2021, the LGMA published a further list of services that were operational in line with the most recent health safety requirements. However, despite the advice from NPHET to return to “essential services” only, the role of traffic wardens remained on the LGMA’s list.

The Complainant’s Sector Organiser wrote to the LGMA on 11 January 2021 to address this and requested:

"Further to my previous correspondence, can you also clarify the position in relation to Traffic/Litter/Community Wardens in light of the fact that their work frequently brings them into close proximity of the general public during the course of their duties. Given that they are not explicitly referenced in the [list issued by NPHET on 6 January 2021], can you clarify if the above-mentioned Wardens are included in the group of workers deemed as essential workers. If not, can you clarify what guidance has been issued to Local Authorities in respect of these grades during the ongoing pandemic."

The Complainant’s Sector Organiser sent another letter to the LGMA on 22 January 2021 stating:

"It has been brought to our attention that there is a lack of consistency across Local Authorities in relation to the application of COVID-19 measures, which we are concerned fall below the guidance toemployers being set out by NPHET. We have also been made aware of inconsistencies within counties. All Local Authorities have received the LGMA guidance note in relation to essential services, however NPHET’s advice to employers must also be considered and complied with. In this regard, Local Authorities must be in the first instance be certain that bringing these workers into work is necessary at all, particularly in light of the appeal by the Chief Medical Officer Dr Tony Holohan to employers to only have people in work where it is absolutely essential. "

The Complainant’s Sector Organiser then sent a third letter to the LGMA on 25 January 2021 stating:

"Further to our discussion last week in relation to a lack of consistency in application of COVID-19 measures, please see below examples of same. As stated in my earlier correspondence, the issues relate to the inconsistent application of NPHET’s message of "stay at home unless absolutely essential" when almost all of the work according to the attached can be interpreted as essential. Council workers are questioning if NPHET are advising people not to be circulating and requesting employers to take appropriate measures, then why is their employer not taking more steps to reduce the movement of those workers. There are also increasing fears relating to the increased transmissibility and reports of the potential increased mortality rates of the new strains. The attached essential services lists [Issued by the LGMA] are not specific enough as to what works can reasonably be rescheduled and should not be getting done currently. It would be helpful if the lists specified what is not essential and Councils complied consistently across the country."

When the Complainant’s Sector Organiser did not receive any response from the LGMA to any of his letters, he wrote to the Minister Daragh O’Brien TD on 28 January 2021 stating:

"We are notifying you of our deep concerns in relation to the lack of consistency in the Local Government sector in their adherence to the call by NPHET for employers to reduce the movement of workers. While the Local Government Management Agency has issued out their list of essential services, some Local Authorities have interpreted the list as a licence to maximise the numbers and duration of staff in work. We have provided examples of these inconsistencies to the LGMA to be addressed. We have requested that the LGMA issue out a clear message to Local Authorities to follow the appeals by NPHET and Government for employers to keep workers home and only bring in staff required for absolutely essential works, however this has not yet been done. We are now calling on you and your Department to also play your part and in the clearest terms, to reinforce NPHET’s message asking employers to prioritise the safety of staff and that operations should be limited to those activities that are critical to safeguarding the continuity of essential services which are vital for public health. "

The Minister’s office responded to the Complainant’s Sector Organiser on 1 February 2021 stating, "l have been advised by officials in the Department that an official from the Local Government Management Agency (LGMA) will be responding directly to your query."

The LGMA then responded to the Complainant’s Sector Organiser on 2 February 2021 stating:

"The guiding principle is that delivery of services should be limited to those activities that are critical to safeguarding the continuity of essential local authority services, and that attendance in the workplace is limited to those staff who are essential for the delivery of these essential services and who cannot do so from home. Local Authorities will continue to review their operational plans for the delivery of services so as to minimise the risk to staff. We will also continue to reinforce the key messages to staff to ensure that all staff are adhering to key health and safety advice for the prevention of spread of the virus."

It is, therefore, not the case that “[the Respondent] [hadn’t] uttered a word”when “government instructions to stay at home unless “essential” [were] being flouted in all of the councils” as is alleged by the Complainant in her email on 13 January 2021.

The Complainant was sent a copy of the correspondence referred to above on 25 January, 28 January, 29 January and 1 February 2021. The Complainant was, therefore, fully aware of the correspondence and dialogue that was taking place between the Respondent organisation, the LGMA and the Minister. Consequently, the Complainant could not possibly have held a reasonable belief that “a relevant wrongdoing” had occurred on behalf of the Respondent organisation in relation to this issue.

Alleged Protected Disclosures Five and Six

The Complainant alleges in her submission that she made protected disclosures to the DGS on 12 February 2021 in relation to a named charity and on 18 August 2021 in relation to Local Authority B. However, it is clear from the purpose in which these letters were forwarded to the DGS and the content of them, that the letters relate to matters which it was the Complainant’s role and responsibility as an Industrial Organiser to detect and represent the members upon.

The process of application for sanction for industrial dispute (ASID) within the Respondent organisation is to submit all appropriate documentation and ballot certification to the appropriate Deputy General Secretary for approval. The appropriate documentation would include correspondence relating to the trade dispute, the issues giving rise to the trade dispute and notice of intent to ballot members for industrial or strike action in furtherance of the dispute, if the dispute is not resolved.

The letters referred to by the Complainant in her submissions dated 12 February 2021 and 18 August 2021, which are addressed to members’ employers, was sent to the DGS by the Complainant as part of two separate ASIDs. The DGS dealt with these applications and approval for industrial action was sanctioned through the Complainant’s Divisional Organiser.

However, prior to any notice of intention to pursue industrial action being served on either the employers involved, the members represented by the Complainant and the Complainant herself agreed to invoke a process under an independent chair to resolve the issues in the named charity and to engage the Workplace Relations Commission Advisory Service to resolve the issues in Local Authority B.

The Respondent submits that these situations, therefore, do not fall within the definition of “relevant wrongdoing” set out in the Act as it is the Complainant’s responsibility as an Industrial Organiser to be informed of members’ collective disputes with their employer and to obtain sanction for industrial action from the DGS to further these disputes and reach a resolution. The Complainant is an experienced organiser and is fully aware of this responsibility. The Complainant is also not alleging any act or omission on the part of the Respondent organisation in relation to these letters. As a result, the Complainant could not possibly have held a reasonable belief that “a relevant wrongdoing” had occurred on behalf of the Respondent organisation in relation to these letters.

Alleged Protected Disclosure Nine

The Complainant alleges in her submission that she made a protected disclosure on 25 May 2022. The email was sent to the General Secretary of the Respondent organisation (“the GS”) and the DGS. The email gives insight into a very difficult working environment in Local Authority A. Local Authority B was also mentioned in this email which is referred to again by the Complainant in alleged protected disclosures six and thirteen. The detail and background to this environment is set out in the following paragraphs.

The members’ workplace issues in Local Authority A started in or around 2020 and involved four main allegations: that management was contracting out work; that management had not implemented a Labour Court recommendation; that regular and rostered overtime had not been paid; and that management was negatively targeting trade union members and shop stewards.

The email to the GS and the DGS primarily refers to the latter allegation that management was negatively targeting trade union members and shop stewards. In her email, the Complainant requests “advice and support” from the GS and DGS in relation to this issue.

The Complainant mentions in that letter that she has spoken to her Sector Organiser and Divisional Organiser in relation to this issue and “they are fully briefed”. The Complainant also mentions that these two individuals went down to meet the shop stewards in Local Authority A on two occasions and advised the Complainant to refer the complaints to the Workplace Relations Commission.

In fact, the Complainant’s Sector Organiser arranged a meeting on 6 December 2021 in the Respondent organisation’s offices in County A to discuss this issue with the Complainant and the shop stewards because of emails that he had received from the Complainant and the shop stewards on 25 and 30 November 2021 in which they expressed concerns about management’s behaviour towards staff in Local Authority A. The Complainant’s Sector Organiser and Divisional Organiser also arranged further meetings with the Complainant and the members in County A on 7 December 2021, 24 January 2022 and 2 February 2022.

The allegation of negatively targeting shop stewards and trade union members was discussed at all of these meetings, and it was agreed by all in attendance, including the Complainant, that any collective issues would be progressed through the collective procedures provided for by the Labour Court, up to and including industrial action if required, and any individual issues would be raised internally on an individual basis and then submitted to the Workplace Relations Commission and Labour Court if required.

The Complainant was, therefore, requesting different “support and advice” in her email to the GS and DGS to that which she had received from her Sector Organiser and Divisional Organiser. Approaching the GS and a DGS directly to seek direction on a matter when the direction that has been advised by your line manager has not yet been implemented, would not be normal procedure within the Respondent organisation. The Complainant should have spoken again to her Sector Organiser and Divisional Organiser in relation to this issue to obtain further direction on the next best appropriate steps particularly if the Complainant disagreed with the strategy / direction provided.

Despite this however, the DGS responded to the Complainant’s email on 1 June 2022 stating “l acknowledge receipt of the email below. I am fairly booked out for the next week or so. I would like to have an opportunity to talk with you in relation to its contents. I will give you a call over the next few days to arrange something if that’s in order”. Shortly after this email was sent, the Complainant was absent from work due to a family bereavement. The DGS did not, therefore, call her over the next few days to arrange a meeting.

The DGS received a further email from the Complainant on 13 June 2022 when she returned to work stating, “and victimised, but there you go”. The DGS responded to this email asking if this was intended as a response to his email on 1 June 2022 and the Complainant emailed back on 14 June 2022 stating “in response to your email, I consider it wholly inadequate.... I have reached out to you and the General Secretary and have yet to get tangible assistance. If assistance is offered, I will embrace it.”

The DGS further responded to the Complainant on 15 June 2022 reiterating his availability for support stating “l had suggested that perhaps we could meet to discuss your email on 25 May including the issue of assistance that you raised in the email, and perhaps you might reflect on this. In the meantime, if there is specific assistance that you are of the view would be helpful perhaps you might advise.” However, the DGS has never received a response.

The allegation laid out by the Complainant in her email on 25 May 2022 against Local Authority A does not, therefore, fall within the definition of a “relevant wrongdoing” as set out in the Act as it is the Complainant’s responsibility as an Industrial Organiser to be informed of member’s individual and collective disputes with their employer and to advise and represent these members on the best way of reaching a resolution to these disputes. The Complainant is an experienced organiser and is fully aware of this responsibility. The Complainant is also not alleging any act or omission on the part of the Respondent organisation in relation to these allegations.

The Complainant was also fully aware of the direction that she had been receiving since at least December 2021 from her Sector Organiser and Divisional Organiser and the agreement in strategy that had been made at the meetings in County A in December 2021 and January and February 2022. As a result, the Complainant could not possibly have held a reasonable belief that “a relevant wrongdoing” had occurred on behalf of the Respondent organisation in relation to her.

Alleged Protected Disclosure Ten

The Complainant alleges in her submission that she made a protected disclosure on 14 June 2022. This email forms part of the correspondence set out in the above heading and is, therefore, addressed above. As a result, the Complainant could not possibly have held a reasonable belief that “a relevant wrongdoing” had occurred on behalf of the Respondent organisation in relation to this.

Alleged Protected Disclosure Eleven

The Complainant alleges in her submission that she made a verbal protected disclosure on 2 June 2022 at a Local Authority Sector Committee meeting stating that “[Local Authority A] were systematically victimising the Shop Stewards” and “Management of [the Respondent] were giving no support”. These matters had been previously raised by the Complainant and direction and support had been given but had not been accepted or acted upon. The detail and background to this allegation of the systemic victimisation of shop stewards in Local Authority A is set out in the preceding paragraphs.

As is previously stated, the Complainant was given clear direction from her Sector Organiser and Divisional Organiser at meetings on 7 December 2021, 24 January 2022, and 2 February 2022. A strategy of how to progress these allegations and reach a resolution on behalf of the members concerned was agreed at these meetings but again was not acted upon by the Complainant.

The Complainant’s Sector Organiser also arranged further meetings with members around the country because of the discussions that took place at the Sector Committee meeting on 2 June 2022. The subsequent meetings took place in County A on 15 June 2022, in County B on 22 June 2022 and in County C on 23 June 2022.

At each of these meetings, the Complainant outlined the issues affecting the members in that area and it was again agreed that any collective issues would be progressed through the collective procedures provided for by the Labour Court, up to and including industrial action if required, and any individual issues would be raised internally on an individual basis in the workplace and then submitted to the Workplace Relations Commission and Labour Court if required.

Again, the allegations laid out by the Complainant at the Sector Committee meeting on 2 June 2022 against Local Authority A do not, therefore, fall within the definition “relevant wrongdoings” set out in the Act as it is the Complainant’s responsibility as an Industrial Organiser to be informed of member’s individual and collective disputes with their employer and to advise and represent these members on the best way of reaching a resolution to these disputes. The Complainant is an experienced organiser and is fully aware of this responsibility. The Complainant is also not alleging any act or omission on the part of the Respondent organisation in relation to these allegations.

The Complainant was also fully aware of the direction that she had been receiving since at least December 2021 from her Sector Organiser and Divisional Organiser and the agreement on strategy that had been reached at the above meetings. As a result, the Complainant could not possibly have held a reasonable belief that “a relevant wrongdoing” had occurred on behalf of the Respondent organisation in relation to this.

Alleged Protected Disclosure Twelve

The Complainant alleges in her submission that she made a protected disclosure on 21 June 2022 to the Respondent organisation’s Legal Rights Unit, again in relation to the allegation of mistreatment of employees by their employer in Local Authority A.

The Complainant sent an email to the Head of the Legal Rights Unit seeking legal advice on the wording of a petition which members in Local Authority A were submitting to their Councillors. There were several emails back and forth between the Complainant and the Legal Rights Unit in relation to this matter which will be addressed in more detail under the heading “Alleged Act of Penalisation Twenty”.

The procedure for seeking legal advice on the wording of any publication issued by the Respondent organisation is expected to be followed by every member of staff. The Complainant emailed the Legal Rights Unit seeking advice and the final wording of the petition was approved by the Legal Rights Unit on 19 July 2022.

The allegations laid out by the Complainant in her email to the Legal Rights Unit on 21 June 2022 against Local Authority A do not, therefore, fall within the definition of a “relevant wrongdoing” set out in the Act as it is the Complainant’s responsibility as an Industrial Organiser to be informed of member’s individual and collective disputes with their employer and to advise and represent these members on the best way of reaching a resolution to these disputes. The Complainant is an experienced organiser and is fully aware of this responsibility. The Complainant is also not alleging any act or omission on the part of the Respondent organisation in relation to these allegations.

The Complainant was also fully aware of the direction that she had been receiving in relation to Local Authority A since at least December 2021 from her Sector Organiser and Divisional Organiser and the agreement in strategy that had been made at the meetings set out above. As a result, the Complainant could not possibly have held a reasonable belief that “a relevant wrongdoing” had occurred on behalf of the Respondent organisation in relation to this.

Alleged Protected Disclosure Thirteen

The Complainant alleges in her submission that she made a protected disclosure on 27 July 2022 to the General Secretary (GS) in relation to issues that members in Local Authority B were experiencing with their employer.

The Complainant emailed the GS on 27 July 2022 and attached two Labour Court decisions on behalf of one member in Local Authority B. The Complainant states in her email to the GS that the issues involved in the decision are “widespread within Local Authorities”. The Labour Court decisions referred to two failed claims, one for the incorrect rate of pay for annual leave and one for the incorrect rate of pay for public holidays. Both claims were submitted under the Organisation of Working Time Act 1997.

The Complainant had originally lodged these two claims with the Workplace Relations Commission on 8 March 2021. The Adjudication Officer decision was issued on 10 August 2021. The member won his claim concerning the incorrect rate of pay for annual leave but lost his claim concerning the incorrect rate of pay for public holidays. Both decisions were appealed by the Complainant on 15 September 2021 and the Labour Court hearings took place on 21 April 2022.

The Labour Court found in favour of the employer because the Organisation of Working Time Act 1997 makes no provision for regular and rostered overtime to be included in the calculation of public holiday pay and explicitly excludes overtime in the calculation of annual leave pay. In addition, the Complainant and the member were seeking compensation as far back as 1999 and the Court held that its jurisdiction was limited to a 6-month retrospective period.

The Complainant wished to appeal both Labour Court decisions to the High Court and emailed the GS of the Respondent organisation on 27 July 2022 seeking authority to do so. This was a very unusual action to take. The Complainant had already been liaising with her Sector Organiser in relation to the issues affecting members in Local Authority B since the Sector Committee meeting on 2 June 2022 and her Sector Organiser had arranged a meeting with those members on 22 June 2022 at which the Complainant was in attendance.

The Complainant was, therefore, again directly seeking direction from the GS rather than going to her Sector Organiser and Divisional Organiser, which would be the normal procedure within the Respondent organisation. As a result, the GS referred the Complainant’s query back to her Sector Organiser, Divisional Organiser, and the Legal Rights Unit for consideration which is the normal internal process.

These individuals arranged a meeting with the Complainant on 29 July 2022 to discuss the matter. It was outlined to the Complainant that it is union policy to appeal Labour Court decisions to the High Court on an exceptional basis only. The Complainant would have been aware of this policy as an experienced Industrial Organiser.

In light of this policy and the Complainant’s request, the Complainant’s Sector Organiser and the Head of the Legal Rights unit discussed the matter with the GS, and it was decided to obtain external legal advice on the merits of appealing the decisions. This legal advice was received on 12 August 2022 and shared with the Complainant by her Divisional Organiser on 15 August 2022.

The legal advice received stated “the issue is whether or not I am prepared to recommend an appeal in this case and very simply I am not and I will set out my reasons below. The amount claimed is dated back to 1999 and I believe that there is no prospect of this sum being awarded. I am further instructed that after the WRC decision there was an offer made in excess of the 6 months by the County Council, which was rejected, and I believe that this was more than could be achieved in the Labour Court now or at any time in the immediate future.” As a result of receiving this advice, the GS did not authorise the appeal of these cases to the High Court.

The allegations laid out by the Complainant in her email to the GS on 27 July 2022 against Local Authority B do not, therefore, fall within the definition of a “relevant wrongdoing” set out in the Act as it is the Complainant’s responsibility as an Industrial Organiser to be informed of members’ individual and collective disputes with their employer organisation and to advise and represent these members on the best way of reaching a resolution to these disputes. The Complainant is an experienced organiser and is fully aware of this responsibility. The Complainant is also not alleging any act or omission on the part of the Respondent organisation in relation to these allegations.

Alleged Protected Disclosure Fourteen

The Complainant alleges in her submission that she made a protected disclosure on 16 August 2022 in an email to her Divisional Organiser, again in relation to the issues that members in Local Authority B were experiencing with their employer.

This email was the Complainant’s response to the email above which was sent to the Complainant by her Divisional Organiser on 15 August 2022 and attached the external legal advice that had been obtained in relation to the merits of appealing the two Labour Court cases she had sent to the GS.

In the first half of the Complainant’s email, she acknowledged that she is aware of the union policy to appeal cases to the civil courts on an exceptional basis only. The Complainant contested the policy and argued for an alternative decision to be made. In the second half the Complainant’s email, she set out “a few facts about this case” and contested the legal opinion of the Respondent organisation’s external solicitor and the Labour Court.

As previously stated however, the Complainant had already been liaising with her Sector Organiser in relation to the issues affecting members in Local Authority B since the Sector Committee meeting on 2 June 2022 and her Sector Organiser had arranged a meeting with those members on 22 June 2022 at which the Complainant was in attendance. The Complainant’s Divisional Organiser was, therefore, fully aware of the facts of these cases. In addition, the Respondent had also obtained independent legal advice in relation to these cases. The Complainant was aware of this and agreed with this approach. The Respondent accepted this advice, but the Complainant did not.

Therefore, the allegations laid out by the Complainant in her email to her Divisional Organiser on 16 August 2022 against Local Authority B do not fall within the definition of a “relevant wrongdoing” set out in the Act as it is the Complainant’s responsibility as an Industrial Organiser to be informed of members’ individual and collective disputes with their employer and to advise and represent these members on the best way of reaching a resolution to these disputes. The Complainant is an experienced organiser and is fully aware of this responsibility. The Complainant is also not alleging any act or omission on the part of the Respondent organisation in relation to these allegations.

Alleged Protected Disclosure Fifteen

The Complainant alleges in her submission that she made a further verbal protected disclosure during her speech on 26 July 2022 at a protest which was held in County A on behalf of members in Local Authority A. The content of the Complainant’s speech relates to the issues referred to in alleged protected disclosure nine, ten, eleven and twelve and the same points made in relation to those alleged protected disclosures also apply to this alleged protected disclosure.

Alleged Protected Disclosure Sixteen

The Complainant alleges in her submission that she made another verbal protected disclosure during her speech on 19 August 2022 at a protest which was held in County B on behalf of members in Local Authority B. The detail and background to the content of this speech is set out in the following paragraphs.

A meeting was held by the shop stewards in Local Authority B on 6 July 2021 and several issues were highlighted by them that they wished to be addressed with their employer. These issues included changes to contracts, travel allowances, regular rostered overtime, communication issues with management and general allowances.

As a result, a copy of the minutes of this meeting were emailed to the Complainant’s Sector Organiser by the shop steward and an ASID was submitted by the Complainant to the Deputy General Secretary (DGS) on 18 August 2021. The ASID was sanctioned by the DGS on 24 August 2021. (See Alleged Protected Disclosures Five and Six).

Prior to any notice of intention to commence industrial action being served on the employer, a meeting with the members took place on 8 September 2021. It was agreed at this meeting by the members, the Complainant, and the Complainant’s Sector Organiser that the issues would first be referred to the Workplace Relations Commission Advisory Service for resolution on a collective basis. An early date to meet would also be requested.

The date to meet was confirmed with the Workplace Relations Commission Advisory Service for 23 September 2021 and a further meeting took place between the Complainant’s Sector Organiser and the members on 14 September 2021 to prepare for this. The Complainant was not in attendance at this meeting due to a prior booking, but she was aware that the meeting was taking place and was updated on the strategy that was discussed and agreed with the members at that meeting. The Complainant was emailed a copy of the meeting minutes by the shop steward on 20 September 2021.

The Complainant and the Local Authority B union representatives attended the Workplace Relations Commission Advisory Service meeting on 23 September 2021 as arranged.

However, the Local Authority B shop steward wrote to the Complainant’s Sector Organiser on 20 October 2021 stating “we met with the advisory WRC on the 23/09/21. It was clear after this meeting it was the wrong forum to take our issues. WRC explained that it could take 6 to 18 months to get our concerns listened to and addressed. Our members were extremely disappointed. We reluctantly met with management on 3 separate occasions since and we are no nearer to resolving our problems.”

On receipt of this email, the Complainant’s Sector Organiser spoke to the Complainant, and she told him that “discussions hadn’t reached an impasse as indicated”. She said that she would speak to the Local Authority B shop steward to progress the matter. The Complainant’s Sector Organiser was then informed by the Complainant that the members wished to continue to address the issues locally and this was the strategy that the Complainant was going to follow.

The Complainant’s Sector Organiser did not hear anything further in relation to this for over seven months until the Sector Committee meeting on 2 June 2022 and, as is stated previously, when the issues were raised again the Complainant’s Sector Organiser arranged a meeting with the members in Local Authority B on 22 June 2022 to discuss them. These discussions resulted in the protest in County B on 19 August 2022.

The allegations laid out by the Complainant in her speech at the protest in County B on 19 August 2022, therefore, do not fall within the definition of a “relevant wrongdoing” set out in the Act as it is the Complainant’s responsibility as an Industrial Organiser to be informed of members’ individual and collective disputes with their employer and to advise and represent these members on the best way of reaching a resolution to these disputes. The Complainant is an experienced organiser and is fully aware of this responsibility. The Complainant is also not alleging any act or omission on the part of the Respondent organisation in relation to these allegations.

The Complainant was also fully aware of the direction that she had received in relation to this since September 2021 from her Sector Organiser. As a result, the Complainant could not possibly have held a reasonable belief that “a relevant wrongdoing” had occurred on behalf of the Respondent organisation in relation to this.

Alleged Protected Disclosure Seventeen

The Complainant alleges in her submission that she made a third verbal protected disclosure in relation to issues that members were facing in Local Authority A and Local Authority B during an interview with Gript Media on 10 November 2022. The detail and background to this interview is set out in the following paragraphs.

The Respondent organisation received an email from the LGMA on 11 November 2022 attaching a link to the interview stating, “can you confirm that the views expressed in the [interview] represent the views of [the Respondent]?”. This was the first time that the Respondent organisation, in particular the Complainant’s Sector Organiser, became aware that the Complainant had engaged in a media interview in relation to the Respondent organisation’s member issues. The Complainant did not notify the Respondent organisation nor seek permission to attend the interview in her capacity as an Industrial Organiser.

As set out previously, the Complainant’s Sector Organiser had been directing the Complainant in relation to how the issues facing members in Local Authority A and Local Authority B should be addressed since December 2021.

The most recent meeting in relation to Local Authority A prior to the Complainant’s interview, that had been held between the Complainant’s Sector Organiser, the Complainant, and the members in Local Authority A, was on 2 September 2022 where resolution had been reached in relation to the allegation that Local Authority A had not implemented a Labour Court recommendation. The Respondent organisation had also just organised and attended a protest in relation to the issues in Local Authority B on 16 August 2022. The Complainant had, therefore, bypassed her Sector Organiser by engaging in this interview without first obtaining his authority or notifying him that it was taking place.

Due to organisational concerns of potentially defamatory statements made by the Complainant against the Local Authorities in the interview, the Complainant’s Sector Organiser wrote to the Legal Rights Unit of the Respondent organisation on 24 November 2022 and requested a legal opinion on the interview prior to responding to the LGMA. The Respondent’s external solicitor provided legal advice on 25 November 2022 and stated that “having seen the video, I am satisfied that therecording is defamatory of the two local authorities concerned. It is my view that because of the apparent [Respondent] involvement the video should be taken down if this is possible.”

On foot of this advice, the Complainant’s Divisional Organiser wrote to the Complainant on 28 November 2022 stating that legal advice had been sought in relation to the interview and due to the legal advice received, he was instructing the Complainant to contact the media outlet immediately and request that the video be taken down from their website.

The Complainant wrote the media outlet on 29 November 2022 stating, “please remove the above from [your] media sources as concerns of defamation have been expressed”. The media outlet agreed to remove the Respondent’s logo from the interview but did not remove the interview.

The Respondent’s external solicitors also raised the following questions in their advice on 25 November 2022 and asked “how did this situation arise where these members are expressing serious work-related issues? When did these matters first arise? What was going on since these matters first arose? Why has apparently nothing happened to process these serious issues through the normal industrial relations channels.”

To address this, the Complainant’s Divisional Organiser had requested a meeting with the Complainant in his email on 28 November 2022 and this meeting took place with him, the Complainant, a colleague of the Complainant’s and the Head of the Legal Rights Unit on 18 January 2023. The purpose of this meeting was to assess the number of individual complaints which were outstanding in Local Authority A and Local Authority B and to ensure that these issues were being processed in line with the direction that had been given to the Complainant at the meetings referred to above.

The Complainant’s Divisional Organiser summarised this meeting in his email to the Complainant on 23 January 2023 stating that “the possibility that this was not occurring was raised by our solicitors when we sought advice on the content of [the interview]. The argument that you have advanced i.e. they are collectivist in nature because of the prevalent pattern of intimidation from management cannot be maintained to keep these members outside of the normal processes. We are advised that this course of action is exposing our members and potentially the union. Considering this, the 42 outstanding cases in [Local Authority A] in respect of 5 different members, referenced in the videos and referred to by you at our meetings need now to be processed as individual grievances and to this end I would be obliged if you could liaise with our own Workers Rights Centre, who will assist you in this regard.”

The Complainant did not contact the Workers Rights Centre in relation to these cases and they were only received by the Workers Rights Centre after the Complainant went on sick leave in May 2023. Even then, the Complainant had to be repeatedly asked for the information and all the information was not forthcoming.

The allegations laid out by the Complainant in her interview with the media outlet on 10 November 2022 against Local Authority A and Local Authority B do not fall within the definition of “relevant wrongdoing” as set out in the Act as it is the Complainant’s responsibility as an Industrial Organiser to be informed of member’s individual and collective disputes with their employer and to advise and represent these members on the best way of reaching a resolution to these disputes. The Complainant is an experienced organiser and is fully aware of this responsibility. The Complainant is also not alleging any act or omission on the part of the Respondent organisation in relation to these allegations.

The Complainant was also fully aware of the direction that she had been receiving since December 2021 from her Sector Organiser and the agreement in strategy that had been made at the meetings set out above. As a result, the Complainant could not possibly have held a reasonable belief that “a relevant wrongdoing” had occurred on behalf of the Respondent organisation in relation to this.

Matters which were part of the role of the Complainant’s position as Chair of the Staff Representative Council (SRC) to advocate upon.

Alleged protected disclosures number 1, 3, 7 and 8 of the Complainant’s submission relate to issues that the Complainant was raising internally with the Respondent organisation on behalf of staff members for whom the Complainant was their representative as she held the position of Chair of the SRC at these times.

Alleged Protected Disclosure One

The Complainant alleges in her submission that she made a protected disclosure on 28 February 2020 when she attended a meeting to represent a colleague who had made a protected disclosure. The Complainant attended this meeting in her capacity as Chair of the SRC and as a support person of the colleague concerned. The Complainant did not disclose any information herself during this meeting.

The Respondent, therefore, submits that the Complainant does not have the protection of the Act in this situation as she did not make an alleged protected disclosure on this date. She was simply in attendance at a meeting where a third party disclosed information that is now being alleged to be a protected disclosure.

The Respondent, therefore, submits that the Adjudication Officer does not have jurisdiction to consider this alleged protected disclosure as set out in the Complainant’s submissions as the Complainant did not make it.

Alleged Protected Disclosure Three, Seven and Eight

The Complainant alleges in her submission that she made protected disclosures on the following dates:

·       on 28 August 2020 at a meeting with the General Officers of the Respondent organisation which she attended as part of her role as Chair of the SRC,

·       on 10 July 2020 at a meeting with the organisational Development and Support Services Department which she attended as part of her role as Chair of the SRC, and

·       on 1 November 2021 in a letter that she sent to the National Executive Committee as part of her role as Chair of the SRC.

As stated previously, collective negotiations between staff and management of the Respondent organisation took place through various initiatives during the Complainant’s time as Chair of the SRC, such as the Membership Consultative Review of the Union, the Partnership Forum, and the Brainstorming Process.

The Complainant’s account of these negotiations in relation to the collective grievances is very different to the Respondent’s account. The details of the allegations put forward by the Complainant in her submissions in relation to each of these alleged protected disclosures is, therefore, vociferously disputed.

One of the main collective grievances raised by staff throughout these initiatives was a desire to continuously improve the industrial relations procedures within the Respondent organisation and one of the main aims of management throughout these initiatives was to record, revise, update and continuously develop the workplace policies and procedures of the union to help improve internal industrial relations procedures for staff.

However, despite the Complainant’s contrary account of these negotiations, the Respondent accepts that these allegations, disputed as they are in fact, fall within the broad parameters of the Act. Consequently, the Respondent accepts that the Complainant made protected disclosures number three, seven and eight as set out in her submissions.

Alleged Acts of Penalisation

Penalisation is defined in section 3(1) of the Act as “any act or omission that affects a worker to the worker’s detriment and in particular includes: suspension, lay-off or dismissal, demotion or loss of opportunity for promotion, transfer of duties, change of location of place of work, reduction in wages or change in working hours, the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty), unfair treatment, coercion, intimidation, or harassment, discrimination, disadvantage, or unfair treatment, injury, damage, or loss, and threat of reprisal. “

Alleged Act of Penalisation Nineteen

Alleged act of penalisation number nineteen first relates to an email exchange that the Complainant had with the DGS on 25 May 2022 and then refers to her interactions with him and her Sector Organiser at a Sector Committee on 2 June 2022.

The facts of the Complainant’s email exchange with the DGS from 25 May 2022 is detailed above. The discussions that took place at the Sector Committee meeting on 2 June 2022 are also detailed above.

The Complainant states that when the DGS finished speaking at the Sector Committee meeting “he was walking out [and she] stopped him and asked him would he stay for a few minutes as she was going to give a report on the union bashing that was continuing in [Local Authority A] he said no, he had other appointments.”

The DGS attended the Sector Committee meeting as an invited guest to address the Public Services talks and to make a presentation to a long-standing member who was retiring. Once the DGS had finished his presentation and answered the members’ questions, he departed the meeting as he had another meeting to attend.

Whilst the DGS was departing the top table and making his way out of the meeting room, the Sector President moved on with the next item in accordance with the agenda. On his way out the door, the Complainant stopped the DGS and asked him to stay to hear a report that she was going to give to the committee in relation to Local Authority A. The DGS responded to the Complainant explaining that he could not stay as he had a prior engagement. The Sector President interjected to the effect that it was in order for the DGS to depart as this was not in line with the agenda of the meeting.

It is normal process for members of senior management to be invited to committee meetings for specific reasons and not to stay for the full duration of the meeting. While it may be understandable that the Complainant would have liked the DGS to stay and listen to her report, the DGS was not available to do so. If the Complainant had, through the Sector Organiser or Sector President contacted the DGS prior to this meeting and asked him in advance to stay longer at the meeting, he may have been in a position to accommodate this request in his schedule.

In addition, the Complainant had just emailed the DGS setting out the issues in Local Authority A on 25 May 2022 and the DGS had responded to the Complainant on 1 June 2022, the day before this interaction, offering to meet with her to discuss the issues. The Complainant did not respond to this email until 13 June 2022 and never accepted the DGS’s offer to meet.

The Complainant also states that “she gave an impassioned overview of the situation in [Local Authority A] and.... [her Sector Organiser] agreed with everything except thatshe wasn’t gettingsupport, he said she was. The Complainant responded to say that she wasn’t and said what support had she been given to which he just brushed it off saying it wasn’t the forum to discuss”.

The support that the Complainant was receiving in relation to Local Authority A and Local Authority B is summarised above. In addition, further meetings were arranged with members in the Local Authorities after this committee meeting as set out above.

As a result, this alleged act of penalisation does not fall within the definition of penalisation set out in s. 3(1) of the Act. The Complainant has not set out the act or omission that is alleged to have occurred on behalf of the Respondent organisation at this meeting, nor has the Complainant set out the detriment that she is alleged to have suffered as a result of any act or omission.

Alleged Act of Penalisation Twenty

Alleged act of penalisation number twenty as set out in the Complainant’s submission relates to the wording for the petition and the flyer that was to be used for the protest in County A on 26 July 2022 that the Complainant sought legal advice on prior to publication.

The Complainant emailed the Head of the Legal Rights Unit on June 2022 seeking advice in relation to the wording of a petition which members in Local Authority A were submitting to their Councillors. The Complainant sent two versions to the Legal Rights Unit, one at 14.49 and one at 16.39. The Complainant then sent a third version on 22 June 2022 at 09.15 and a fourth version at 10.11.

At 15.39 that same day, the Head of the Legal Rights Unit responded saying “firstly, apologies for not getting back to you sooner but I have a lot on and I needed time to look at and seriously consider the petitions you sent on yesterday and today. As the petition is currently set out, I don’t believe we can ask members to sign it. The statements in it are inflammatory at best and at worst, potentially defamatory. Asking members to put their names to it would expose them and us”.

The Head of the Legal Rights Unit then provided alternative wording for the petition. She advised the Complainant to liaise with her Sector Organiser in relation to this and offered to look at any further changes or discuss the existing changes with the Complainant.

The Complainant responded with a further version of the petition on 23 June 2022 at 12.14 and the Head of the Legal Rights Unit responded at 13.14 saying “l have removed the following from the petition on the basis that they are opinion and not fact supported by evidence. If any of these issues have been determined by a third party, then they could be included but I am not aware of any. I have amended the document but again you must be able to support the facts stated in it through evidence before you can ask the members to sign it.”

The Complainant responded on 24 June 2022 stating “thanks, I am mulling it over at the moment”. The Complainant then sent a further version to the Head of the Legal Rights Unit on 28 June 2022 and the Head of the Legal Rights Unit responded saying “You should remove this — [Local Authority A] are breaching our rights on multiple fronts, and we believe that all these tactics have been adopted and aligned to achieve de-unionisation and privatisation of our community services and jobs”. This was the last email that the Head of the Legal Rights Unit sent to the Complainant in relation to the wording of the petition until 12 July 2022.

Despite the changes put forward by the Head of the Legal Rights Unit, the Complainant sent a different version of the petition to her Sector Organiser for approval on 30 June 2022 who sent it to the Divisional Organiser. The Complainant’s Divisional Organiser reviewed the wording and had concerns in relation to the reference to “a public enquiry”. The Complainant’s Divisional Organiser sent this version it to the Legal Rights Unit for review.

The Head of the Legal Rights Unit responded to the Complainant’s Sector Organiser and Divisional Organiser on the same day notifying them that she had already been liaising with the Complainant on the wording of the petition. She stated “please see attached all correspondence I have had with [the Complainant] on this matter. As you can see my primary aim was to remove anything defamatory or potentially defamatory from the petition to protect our members and the union. You will also see that I referred [the Complainant] to [her Sector Organiser] following her first correspondence with me. The last attachment contains the last version of the petition [the Complainant] sent to me.... the last paragraph of the last version I saw has since been expanded in the version you received today”. This is the last email that the Head of the Legal Rights Unit sent the Complainant’s Sector Organiser in relation to the wording of the petition until 11 July 2022.

In the meantime, on 4 July 2022, the Respondent’s Communications Department emailed a version of a flyer to the Head of the Legal Rights Unit, the Complainant’s Sector Organiser and Divisional Organiser. This is the first time that the Head of the Legal Rights Unit saw a copy of a flyer and she responded to this email on the same day stating “this attached flyer is not ok, in particular the following are not ok: Stop victimisation and bullying of Trade union Activists and Members. End Privatisation of Community Services and Community Jobs”.

The Communications Department notified the Complainant of this change on 6 July 2022 stating, “this leaflet has been changed to take account of possible legal problems with terms on the earlier one”.

The Complainant responded to the Communications Department on 7 July 2022 stating, “the flyers must include victimisation, so I suggest the following which has already been approved by [the Head of the Legal Rights Unit]: Demands, Independent Investigations into 42 separate complaints of victimisation and bullying made by 5 union activists. Equal Treatment for Water Caretakers. Stop the Privatisation of Community Services and Community Jobs. Call for Immediate Actions on Members Grievances”. As is evident from the emails between the Head of the Legal Rights Unit and the Communications Department on 4 July 2022, set out above, the Head of the Legal Rights Unit had not approved that wording.

Despite this however, because of the Complainant’s email, another version of the flyer was then sent to the Head of the Legal Rights Unit for approval by both the Communications Department and the Complainant’s Sector Organiser on 7 July and 8 July 2022. The Head of the Legal Rights Unit responded to these emails on 8 July 2022 saying, “can we change “42 separate complaints” to “allegations” and remove the number of activists”.

The Complainant then sent a further email on 11 July 2022 to the Communications Department, her Sector Organiser and her Divisional Organiser stating “can someone let me know what the delay in getting the flyers is? The wording sought by me has been approved by the legal rights unit over two weeks ago, it is all fact based. Whoever has the issue with the wording proposed, please contact me directly to discuss because at this stage, I do not know what the problem is, and the necessary preparatory work is stalled, and my professionalism is being undermined”.

Again, as is evident from the emails sent by the Head of the Legal Rights Unit to the Communications Department on 4 July and 8 July 2022, the Head of the Legal Rights Unit had not approved the wording that the Complainant was proposing.

When the Communication Department emailed the Complainant on 11 July 2022 at 13.54 attaching the final, legally endorsed wording for the flyer, the Complainant responded at 15.55 copying in the Head of the Legal Rights Unit and stating “That response is crushing. The wording that is now proposed is diluting the degree of victimisation that is occurring in [Local Authority A] and they are complaints not allegations...the legal rights department have already approved the wording I requested, it is consistent with the facts and the wording on the petition”.

The Head of the Legal Rights Unit had not been aware that the Complainant was misrepresenting advice from the Legal Rights Unit in relation to the wording of the flyer until she received this email from the Complainant. The Head of the Legal Rights Unit also became aware that same day of the Complainant’s other emails to the Communications Department, her Sector Organiser and Divisional Organiser that were sent on 7 and 11 July 2022, referred to above, that misrepresented the advice she had received. In addition to this, the Head of the Legal Rights Unit received another version of the petition from the Complainant’s Sector Organiser at 16.30 on 11 July 2022.

Consequently, the Head of the Legal Rights Unit emailed the Complainant’s Sector Organiser at 17.44 stating “attached is the last version of the petition that [the Complainant] sent to me and below is the last advice I gave on it. The one you sent me today is different and I have not seen it previously ... some of the points have been changed and there is additional text at the end. There is also a statement there ... I would not have agreed to this as I have no evidence it can be supported. I had not seen the latest version you sent me, yet it appears from the earlier email that “the legal rights department have already approved the wording I requested ... This is incorrect. If my advice on one document is to be used in support of another, I might at least be given the opportunity to see the document first. Any suggestion that the document I did see and the one you have sent me are broadly the same is also unacceptable. As you will be aware I need to see any and all changes before final sign off”.

The Head of the Legal Rights Unit also emailed the Complainant on 12 July 2022 stating:

“l did not approve the wording in the first flyer I received (on 4 July 2022 from the Communications Department), nor did I approve the wording in the second flyer I received (on 8 July 2022 from the communications department). It would appear to me and correct me if I am wrong, that because I approved a version of the petition you compiled you then believe that same language could be used in a flyer? If this is the case then it is a mistaken belief for several reasons, the context in which a publication is to be used is just one. I have taken this same approach across the divisions when reviewing ballot papers, notices and various other publications. In respect of the last version of the flyer I saw, I asked for the number of complainants to be removed from the flyer and the word allegation to be used instead of complaint. My only motive was to protect these members and this union, and I make no apologies for this....... On the petition, the latest version I have now seen is not the version I last signed off on with you. For everybody to be on the same page on this document, I am suggesting that yourself, myself, [your Sector Organiser] and the [Communications Department] meet on Teams to discuss and agree its content. This approach is common when working between this department, the divisions, and the Communications Department on an important matter … As it was me who suggested the new wording, I need to make it clear that I don’t ever work to impose any injustice on our members nor on colleagues in fact the opposite is the case. I am just sorry you interpreted it otherwise and didn’t try to work with me to resolve this.”

The Complainant responded to this email on 13 July 2022 stating:

“yes I did take it that because you had approved that wording that it could be used on the flyer.... Personally I think it is ridiculous that the truth cannot be exposed, I feel that is half the problem here. I was not questioning your motives. I am attempting to do my job to the best of ability ... and neither do I make any apologies for that. The petition has very little changes and I have already been collecting signatures, I attach the changes and if you want me to take out certain elements I will, I don’t think it necessary to have a meeting. Thanks for your help, this was never about you.”

The Head of the Legal Rights Unit responded on the same day stating “Thanks for coming back to me. I do understand that you are frustrated. I’m not trying to downplay anything though I must be risk adverse. I’ll work on the petition, but I also need to send it to [the Communications Department] and [your Sector Organiser] for sign off before you use it. Do you want amended flyers with the word “complaints on it?”

The Complainant responded later that day stating, “no bother... yes I do want the flyers amended if I am ordering more, which will be next week if necessary.”

As the Complainant had blankly refused to engage in a cross departmental meeting to resolve the issue, the Head of the Legal Rights Unit, the Communications Department and the Complainant’s Sector Organiser and Divisional Organiser continued to finalise the wording of the petition in the Complainant’s absence after this email exchange. A final and approved version of the petition was issued to the Complainant on 19 July 2022.

It is clear from this chronology of emails that the Complainant misrepresented the advice that she had originally received from the Legal Rights Unit in relation to the wording of petition when she sent alternative versions to her Sector Organiser and Divisional Organiser on 30 June and 11 July 2022. The Complainant also bypassed the normal process of approval for publications from the Respondent organisation by collecting signatures on a version of the petition that had not yet been signed off.

It is also clear from this chronology of emails that the Complainant bypassed the Legal Rights Unit entirely in relation to the wording of the flyer and misrepresented this fact by saying that the Legal Rights Unit had approved wording for the flyer when she had not contacted the unit at all in relation to it.

This alleged act of penalisation does not, therefore, fall within the definition of penalisation set out in s. 3(1) of the Act. The Complainant has not set out the act or omission that is alleged to have occurred on behalf of the Respondent organisation, nor has the Complainant set out the detriment that she is alleged to have suffered as a result of any act or omission.

Alleged Act of Penalisation Twenty-One

Alleged act of penalisation twenty - one as set out in the Complainant’s submission relates to an email that was sent to her Sector Organiser on 14 July 2022 asking, “is the local authority sector meeting being arranged for July 26 in [County A] as agreed?”. The Complainant has stated that her Sector Organiser responded to this email saying, “Water Services was being prioritised”. The Complainant states that the Sector Committee meeting has yet to meet in County A.

The previous Local Authority Sector Committee meeting had been held on 2 June 2022 in Liberty Hall. It had been agreed at this meeting that the next sector committee meeting would be held in County A on 26 July 2022 to show support to members in Local Authority A and to attend the protest that they were organising on that date.

However, after this meeting took place, the Respondent organisation was involved in discussions with the Government in relation to the complete transfer of the delivery of water services in Ireland from local authorities to Uisce Éireann by 2027. The Framework for Future Delivery of Water Services was due to be issued by the Government in July 2022 and would affect approximately 3,000 the Respondent’s members across the entire Local Authority sector.

As a result, the date and location of the next Sector Committee at that time was dependent on the date of arrival of the Framework document. This was explained to the Complainant in an email to her from her Sector Organiser on 14 July 2022 which stated “on the Sector Committee meeting, I’m still awaiting the remaining Irish Water Documents and will be convening those meetings as soon as I get them. I’ve spoken to the Sector and Water Chairs to explain this, and they understand same. I’ve also explained we’ll try and accommodate a meeting in [County A], but the water talks meetings / briefings will take priority and this is also understood by both Chairs”. The remaining Irish Water Documents were received on 19 July 2022 and consequently, the Local Authority Sector Committee took place on 22 July 2022 online.

Whilst this meeting negated the requirement to meet again the following week on 26 July 2022, a reminder was given to the attendees at the sector committee meeting on 22 July 2022 to attend the protest in County A on 26 July 2022 and the Complainant’s Sector Organiser also attended this protest in support of the members.

This alleged act of penalisation does not, therefore, fall within the definition of penalisation set out in section 3(1) of the Act. The Complainant has not set out the act or omission that is alleged to have occurred on behalf of the Respondent organisation, nor has the Complainant set out the detriment that she is alleged to have suffered as a result of any act or omission.

Alleged Act of Penalisation Twenty-Two

Alleged act of penalisation twenty-two as set out in the Complainant’s submission relates to an order of equipment the Complainant said she made to the Premises Manager in the Respondent organisation for the protest in County A on 26 July 2022. The equipment included 200 high vis vests, a megaphone, and a box of whistles.

The Complainant says that she asked the Premises Manager to courier the order to her house from the Respondent’s head office in Dublin on Friday 22 July 2022. The Complainant says that her Sector Organiser stopped the delivery for cost reasons, even though the courier had to be paid anyway.

The staff of the Respondent organisation are required to clear anticipated expenditure with their Sector Organiser or Divisional Organiser. The Complainant had submitted a request to her Sector Organiser to order the relevant equipment for the protest in County A on 26 July 2022. This request was approved by her Sector Organiser and the Complainant proceeded to make arrangements.

The Complainant ordered the courier through the Post Room. She, therefore, did not seek and had not been granted the prior approval for courier costs of this equipment from her Sector Organiser. As a result, when the courier arrived at the Respondent’s head office on Friday, 22 July 2022, the Head of Communications contacted the Complainant’s Sector Organiser to clarify the position.

The Complainant’s Sector Organiser notified the Head of Communications that he was attending the protest on 26 July 2022 in County A and offered to bring this equipment with him to prevent the Respondent organisation from incurring unnecessary costs. The Head of Communications accepted the Complainant’s Sector Organiser’s offer and cancelled the courier.

The Complainant’s Sector Organiser called the Complainant on Friday, 22 July 2022 to notify her of this change and left messages on her phone. The Complainant did not respond to these messages and then called her Sector Organiser on Monday, 25 July 2022 asking “why he had stopped her delivery?”.

The Complainant’s Sector Organiser explained to the Complainant what had happened on Friday, 22 July 2022 and confirmed this shortly afterwards in an email stating “[the Head of Communications] indicated these costs were significant, I indicated I am also attending the demo and could transport the items as stated, I’ll be in [County A] well in advance of the demo and all of the items will be there as planned”.

The Complainant responded to this email shortly afterwards stating “l had arranged for the vests and speaker to be couriered to my home address for this morning. The courier arrived and was sent off, the costs had to be paid anyway so cost had nothing to do with cancelling.” The Respondent can confirm that the courier costs from Dublin to County A did not have to be paid in this instance.

The Complainant has also alleged in her submissions that she ordered a stage and microphone through the Communications Department, and the Communications Department informed her that they did not receive any response for sanction from her Divisional Organiser and, therefore, could not order them.

The Complainant emailed her Sector Organiser on 25 July 2022 at 19.22 stating “l was in contact with [the Communications Department] about the microphone and stage and he informs me that it hasn’t been ordered and would need authorisation to fund it, he had requested it from [the Divisional Organiser] but he didn’t get back to him, so will you arrange the funding and sanction or will I go to [the DGS]”.

This is the first time that the Complainant’s Sector Organiser became aware of a request for a stage and microphone. The Complainant’s Sector Organiser responded at 19.28 stating “no probs. Regarding [the microphone] all of your stuff was in Liberty Hall for collection. I asked the lads on the desk what the story was, and they said one of the packs is a loudspeaker with microphone, which they’ve charged the battery for. None of them mentioned anything about a stage, nor did [the Divisional Organiser or Communications Department] mention anything about it to me last week”. The Respondent organisation can also confirm that the Complainant’s Divisional Organiser did not receive a request from the Complainant or the Communications Department in relation to this.

The Complainant responded to this email at 19.36 stating “that’s fine didn’t know there was a mic etc”. The Complainant’s Sector Organiser then looked to hire a stage online and sent the Complainant a link at 19.53 to a supplier near his home where he might be able to pick one up the next morning on his way to County A. The Complainant’s Sector Organiser emailed the Complainant again at 20.12 stating “l might have an issue with that mobile stage, the website says its warehouse / delivery only, not sure if I’ll be able to drop over and collect, will ring first thing. You might put [the Communications Department] on standby if they have an option to hire same in [County A]”.

On the morning of 26 July 2022, the Communications Department ordered a stage from a supplier in County A. The Complainant, the Complainant’s Sector Organiser and the Complainant’s colleagues collected the stage and set it up. The Complainant’s colleagues returned the stage to the suppliers while the Complainant led the protest to the Local Authority A’s offices.

This alleged act of penalisation does not, therefore, fall within the definition of penalisation set out in s. 3(1) of the Act. The Complainant has not set out the act or omission that is alleged to have occurred on behalf of the Respondent organisation, nor has the Complainant set out the detriment that she is alleged to have suffered as a result of any act or omission.

Alleged Act of Penalisation Twenty-Three

Alleged act of penalisation twenty-three as set out in the Complainant’s submission relates to an email that was sent to the Complainant, her Sector Organiser, and other members on 22 July 2022 from a shop steward in Local Authority A.

This email stated “Lads, just to let you know that as because of a disappointing result from the Labour Court regarding availability, caretakers are now under no obligation to attend out of hours call — outs or answer any phones after hours, it is up to each caretaker if he wants to attend or not, as per LGMA submission document this is voluntary. If you feel like going for a pint at any time don’t worry about call — outs the people who are getting paid availability let them look after it. Also don’t be obliged to pass on any information regarding your plants or networks after hours to anyone”.

The background to this email is as follows. The Complainant had lodged three separate claims to the Workplace Relations Commission and the Labour Court in 2021 relating to payment for on-call hours for members who work in water services in Local Authority A. Two of these claims were individual claims and the third claim was a collective claim on behalf of twenty-six members.

In the individual cases, the Court awarded €2,000 per annum to be paid for on-call going forward. However, in the collective case, the Court recommended for it to be referred to local discussions as it had national implications. The email sent by the shop steward on 22 July 2022 was, therefore, in response to the recommendation in the collective case.

This situation can often occur amongst the Respondent’s membership who work in difficult environments. It is the role and responsibility of the Industrial Organiser assigned to them to manage this situation and ensure the correct industrial relations processes are followed when seeking a resolution to the disputes.

A refusal to engage in on-call work that an employee is contractually obliged to do, without a formal ballot for industrial action having taken place, would be considered unofficial industrial action by the Respondent organisation and by the Court. This is due to the requirements contained in the Industrial Relations Act 1990. The Complainant is fully aware of these requirements.

To resolve the matter of the collective claim, the Complainant was advised by her Sector Organiser to arrange for a ballot on the acceptance or otherwise of the Labour Court recommendation and if it was not accepted by the members in Local Authority A, to submit an ASID to the DGS for approval. As far as the Respondent organisation is aware the Complainant did not ever follow this instruction to ballot on the Labour Court Recommendation and the dispute remains unresolved.

This alleged act of penalisation does not, therefore, fall within the definition of penalisation set out in section 3(1) of the Act. The Complainant has not set out the act or omission that is alleged to have occurred on behalf of the Respondent organisation, nor has the Complainant set out the detriment that she is alleged to have suffered as a result of any act or omission.

Alleged Act of Penalisation Twenty-Four

Alleged act of penalisation twenty-four as set out in the Complainant’s submission relates to wording for a flyer that the Complainant wished to distribute for the County B protest on 19 August 2022; equipment that the Complainant says she ordered for this protest; and an email that the Complainant’s Sector Organiser sent on the same day as the protest.

The Complainant emailed the Communications Department, not her Sector Organiser or the Legal Rights Unit as per normal procedure, on 9 August 2022 requesting a flyer to be created with the following wording:

"Demands

·       Independent investigations into complaints of bullying / victimisation and systemic violations of workers’ rights.

·       Independent investigations into the outsourcing of Community Services and the losses of Community jobs.

·       Independent investigations into the systemic breaches in national and local agreements.

·       Call for immediate action on members grievances."

The Communications Department sent this to the Legal Rights Unit on 12 August 2022 for advice before it was approved, and the Legal Rights Unit sent it to the Complainant’s Sector Organiser, Divisional Organiser and DGS that same day seeking direction.

The DGS responded on 16 August 2022 stating:

“Independent investigations have no role in compliance issues with outsourcing provisions or national and local industrial relations agreements. The dispute resolution process for disputes of this nature is provided within those agreements i.e., the WRC and Labour Court. So, if we are holding a protest on these points, it should be that we call on this employer to comply with these provisions, if they don’t or not in compliance, we should have them referred into procedures and deal with them in line with normal collective industrial issues.”

The final wording was then sent back to the Communications Department and the Complainant from the Complainant’s Sector Organiser on 16 August 2022 and stated the following:

·       “Stop disregarding Public Service Agreements requirements to maximise the use of direct labour jobs

·       Use direct labour to end the privatisation of council jobs

·       End the Councils moratorium of direct jobs in place since 2008.

·       Restore the direct labour numbers to their previous levels

·       Return Council services to direct labour

·       Listen to the workers concerns / grievances and address them immediately”

The Complainant informed her Sector Organiser on the phone that day that she did not wish to use this amended flyer. The Complainant has restated this in her submissions. The Complainant has never explained why she did not wish to use this amended flyer.

The Complainant has stated in her submissions that “there was no stage and no mic, despite ordering one. [The Complainant] anticipated as much so she borrowed an outdoor speaker system and stood on the wall.... to make her speech”. As stated previously, the process for ordering such equipment is to submit a request to the appropriate Sector Organiser for approval. The Respondent can confirm that the Complainant’s Sector Organiser did not receive such a request.

Later that day, the Complainant’s Sector Organiser sent an email to his team stating:

“Colleagues, a number of you have advised me that you have a significant number of individual cases, along with the collective issues. The net effect of this is that workloads are becoming unmanageable and diminishing the time that should be set aside for organising and density building. For clarity and for the benefit of colleagues who have recently joined the Sector, the Sector Industrial Officials are responsible for handling collective issues and to progress these through the agreed channels. Individual cases should be referred to our Workers Rights Centre, which was established to allow the industrial staff the space and time towards organising, recruitment, retention, and density building...... Given where we are currently and the requirement to rebuild the Union following the last number of difficult years, it is now imperative that our Industrial Officials prioritise organising and recruitment, Accordingly, I am directing that you commence arrangements to forward any individual cases to our Workers Rights Centre with immediate effect”.

There is no correlation between the protest that took place on 19 August 2022 (which the Complainant’s Sector Organiser attended in support) and the email that the Complainant’s Sector Organiser sent to all staff in his team on that same day. The information that the Complainant’s Sector Organiser set out in his email is an established practice in the Respondent organisation since 2010 when the Workers Rights Centre was established.

The purpose of sending this email was because it had recently come to the Complainant’s Sector Organiser’s attention that staff in his team were not referring all their individual cases to the Workers Rights Centre anymore and as his email states “their workload was becoming unmanageable”.

The Complainant’s Sector Organiser checked the formal position of the union in relation to individual and collective cases with the Legal Rights Unit and on receipt of this clarification he issued the above note to his team to resolve the issue.

The Complainant’s Sector Organiser followed up on this email at a meeting with his team and as the Complainant was not in attendance at this meeting due to annual leave, he met with the Complainant on her own when she returned to work on 6 September 2022. At this meeting, the Complainant requested to finish some individual cases that were at an advanced stage and agreed to transfer the remainder to the Workers Rights Centre. The Complainant’s Sector Organiser agreed with this request.

This meeting took place prior to the meeting that the Complainant had with her Divisional Organiser and the Head of Legal Rights Unit on 18 January 2023 in relation to the same issue.

The Complainant never referred these individual cases into the Workers Rights Centre. Some of these cases were only received by the Workers Rights Centre when the Complainant went on sick leave in May 2023 as previously described.

These alleged acts of penalisation do not, therefore, fall within the definition of penalisation set out in s. 3(1) of the Act. The Complainant has not set out the acts or omissions that are alleged to have occurred on behalf of the Respondent organisation, nor has the Complainant set out the detriment that she is alleged to have suffered as a result of any act or omission.

Alleged Act of Penalisation Twenty-Five

Alleged act of penalisation twenty-five as set out in the Complainant’s submission relates to an email that her Divisional Organiser sent her on 19 August 2022 in relation to two Labour Court decisions that the Complainant wished to appeal to the High Court. The background to this correspondence is set out in the following paragraphs.

As stated above, the Complainant’s Divisional Organiser sent the Complainant an email on 15 August 2022 attaching the external legal advice that had been obtained on the merits of appealing these cases. This email said “As you are aware, it is not the policy of the union to make appeals to the High Court however, notwithstanding the union policy an opinion was sought in relation to the matter. In light of the unions policy and the opinion received, there is no basis for an appeal to the High Court.”

The Complainant responded to this email on 16 August 2022. In the first half of the Complainant’s email, she acknowledged that she is aware of the union policy not to appeal cases to the civil courts but contests this policy and argues for an alternative decision to be made. In the second half the Complainant’s email, she sets out “a few facts about this case” and contests the legal opinion of the Respondent organisation’s external solicitor and the Labour Court.

The Complainant’s Divisional Organiser, therefore, responded to this email on 18 August 2022 to remind the Complainant that she “did not follow the appropriate procedure in respect of individual cases” as she did not refer them to the Workers Rights Centre for representation and that she is “contractually obliged to comply with and defend the union policy”.

However, the Complainant further responded to her Divisional Organiser that same day stating “l am contractually obliged to serve the interests of the members and where I consider union policy has the scope to do that, I will try to avail of that and it seems to me based on the rationale given to me by the former GS and the presence cited, there very much is scope. I believe that not appealing this case is wrong and the defending of that rests with the decision makers. If this is your decision, please appeal it.”

As a result, the Complainant’s Divisional Organiser further responded again to the Complainant on 19 August 2022 stating “it is not for you to decide which parts of union policy which you will consider complying with and defend. Your appeal to the Labour Court was misjudged in all the circumstances. Your grounds of appeal … were clearly outside the remit of the legislation and there was an offer made to settle the case. You have not indicated whether you took any advice on the settlement terms … You stated that you were aware that it was union policy not to make High Court appeals, yet you do not appear to have informed the member and stewards of this policy … this strongly indicates to me a lack of regard for union policy on your part. This is a very serious matter, and I am obviously losing confidence in your ability to carry out a reasonable instruction”.

The Complainant has alleged in her submissions that her Divisional Organiser sent her this email only because she was “doing what she was supposed to do to ensure members rights from Europe are not illegally extinguished”. As can be seen from the correspondence between the Complainant and her Divisional Organiser above, this is not the case.

The Complainant had taken it upon herself to represent the member in Local Authority B in his individual employment rights claims instead of referring the cases into the Respondent’s organisations Workers Rights Centre as she was required to do. When the Complainant was involved in the settlement negotiations of these claims, she further decided not to seek any legal advice in relation to them from the Respondent’s Legal Rights Unit. When the Complainant received the two unfavourable Labour Court decisions, she then decided to ignore normal reporting procedures within the Respondent organisation and go directly to the GS for approval to appeal. And finally, when the Complainant was informed of management’s decision in relation to these cases and the external legal advice that had been obtained, she repeatedly contested this and refused to follow established union policy.

This alleged act of penalisation does not, therefore, fall within the definition of penalisation set out in section 3(1) of the Act. The Complainant has not set out the act or omission that is alleged to have occurred on behalf of the Respondent organisation, nor has the Complainant set out the detriment that she is alleged to have suffered as a result of any act or omission.

Alleged Act of Penalisation Twenty-Six

Alleged act of penalisation twenty-six as set out in the Complainant’s submission relates to a meeting that the Complainant’s Sector Organiser allegedly arranged with Local Authority A and the Local Authority A members while the Complainant was on annual leave.

After the protest in County B on 19 August 2022 several members from Local Authority A asked the Complainant’s Sector Organiser to try to resolve the outstanding dispute with Local Authority A which related to the non-implementation of the Labour Court recommendation for two members.

The members were aware that the Complainant was going on annual leave for two weeks that evening and were anxious to have the dispute resolved in the meantime. The Complainant’s Sector Organiser spoke to the Complainant at the protest advising her of the members’ request. The Complainant told her Sector Organiser in response that she had no issue with him representing the members while she was on annual leave.

The Complainant’s Sector Organiser organised the meeting for 2 September 2022 and the Complainant was notified of this by one of the Local Authority A Shop Stewards. The Complainant texted her Sector Organiser stating, “please phone me, I’ve been informed that you have arranged to meet management in [Local Authority A] on Friday about the water services dispute and I want to discuss same, thanks”.

The Complainant’s Sector Organiser responded to the Complainant saying “Just got your messages. Further to the conversations with the lads at the recent demo and their request to me to talk to [Local Authority A] mgt, I’ve arranged to meet this Friday in relation to the non implementation of the labour court recommendation. I want to meet these people myself and I’ll have a couple of lads with me. I don’t want to be interrupting your leave and we’ll have a full discussion next week. Enjoy the break and switch off your phone and emails.”

Despite this message from her Sector Organiser, the Complainant decided to return from her annual leave to attend this meeting. The Complainant’s Sector Organiser did not prevent the Complainant from doing this. The meeting was very successful as an agreement was reached for the full implementation of the two individual Labour Court decisions.

This alleged act of penalisation does not, therefore, fall within the definition of penalisation set out in s. 3(1) of the Act. The Complainant has not set out the act or omission that is alleged to have occurred on behalf of the Respondent organisation, nor has the Complainant set out the detriment that she is alleged to have suffered as a result of any act or omission.

Alleged Act of Penalisation Twenty-Seven

Alleged act of penalisation twenty-seven as set out in the Complainant’s submission relates to the Complainant’s concerns about the fairness of the election process for the position of staff representative on the Respondent’s National Executive Council.

This position of staff representative was proposed in April 2017 because of recommendations from the Membership Consultative Initiative 2016 — 2017. The report set out the following “we recommend that provision be made to enable the staff to elect a representative to sit on the NEC. This will entail a rule change. Accordingly, we recommend that the Partnership Forum should develop a protocol to govern the way in which this recommendation would be implemented in sufficient time to enable it to be considered by the Rules Revision Committee with a view to submitting a proposal for consideration by the delegates at Biennial Delegate Conference 2017.”

The draft protocol which was agreed at the Partnership Forum of which the Complainant was part, was submitted to the NEC and approved by them at their executive meeting on 14 September 2017 and the Rules Revision Committee proposed the following rule change which was passed by the delegates at the Biennial Delegate Conference in October 2017. The rule change states “a staff member shall be elected as a member to the NEC. The staff member elected must have been a member of staff for at least five consecutive years previously. The election will be held in accordance with the procedures laid down by the NEC”.

The protocol laid out various provisions which can be summarised as follows:

·       The staff representative will have full voting rights except in respect of staff matters involving pay or discipline.

·       The election will be held in accordance with procedures laid down by the NEC.

·       The Returning Officer will be appointed by the NEC at least two months in advance of an election taking place.

·       The Returning Officer will give advance notice of the election and the necessary information about the arrangements.

·       On the stated “election date”, candidates must have been employed by the union for not less than 5 years.

·       The Returning Officer may allow votes to be cast either in person only on a specified “polling day” or by post during a specified “polling period”.

·       The Returning Officer will make such arrangements as are necessary for the counting of the ballots cast.

·       A Scrutineer will be nominated by the Standing Orders Committee.

·       Candidates will be facilitated in attending the counting of the ballots.

·       Any staff member who is 18 years of age or over and has been employed by the union over a continuous period of not less than one year may vote at an election.

·       Eligibility to vote is determined by reference to the position on the “stated election day” which is fixed at each election by the Returning Officer.

·       The name of every staff member entitled to vote at elections will be entered on a single list of electors, which will be prepared and maintained by the Returning Officer. On request, members of staff may inspect the list to enable any errors or omissions which may occur to be detected and rectified before polling takes place.

The Complainant was Chair of the SRC in 2017 and was a member of the Partnership Forum. The Complainant was, therefore, involved in the drafting of this protocol and finalised it with the Head of Organisation and Development in September 2017.

The Complainant was then nominated for the position of staff representative on the NEC in August 2022 along with another colleague after she had ceased being Chair of the SRC in May 2022. The term of the existing staff representative on the NEC was due to expire on 11 November 2022, which was the concluding date of the Respondent’s last Divisional Conference.

The Complainant emailed the Returning Officer on 7 October 2022 stating “please inform as to what is happening with the above and the details and timelines of the balloting arrangements. Also, please provide the procedure that you are following because this has not been agreed with the SRC”.

As stated above, the Complainant was involved in the drafting of the protocol that the NEC considers when issuing the arrangements for each staff representative election so was already in possession of information that she was seeking. The Complainant was also no longer an executive member of the SRC so could not have known whether these arrangements had been agreed with the SRC at this time but was fully aware that the protocol did not provide for this requirement as it had been agreed through the Partnership Forum of which the Complainant was a member.

The Returning Officer wrote to both the Complainant and the other candidate on 24 October 2022 after the NEC meeting on 20 October 2022 to confirm the details and timelines of the balloting arrangements as these had only been agreed at the recent NEC meeting.

Despite receiving this clarification and already being in possession of the protocol that is followed by the NEC, the Complainant wrote to the President of the NEC on 17 November 2022 incorrectly asserting that she had not received any response from the Returning Officer since her email on 7 October 2022 and again requesting a copy of the procedures.

The Complainant also raised her concerns in relation to the ballot being done by post and the gender balance of the NEC. As the Complainant was aware, the protocol submitted to the NEC in 2017 set out provisions for a postal vote or in person vote only and that the gender balance on the NEC is provided for under Rule 79 of the Respondent Union.

The Complainant’s email of 17 November 2022 was forwarded to the Returning Officer to respond to which he did so on 22 November 2022 stating:

“Further to your queries relating to the NEC Staff Representative election, I advise as follows. Procedures for the election of staff representative to the NEC were agreed at the October NEC meeting and circulated to all staff on 24 October 2022, these were also included with the ballot papers. Attached for your information is the relevant excerpt from the minutes of the meeting of the October NEC meeting, a copy of the communication to all staff on 24 October 2022 and a copy of the cover letter included with the ballot papers, dated 14 November 2022.

Also attached are the relevant rules regarding the NEC elections.

In respect of your request for a copy of the names of those eligible to vote I consulted with the Data Protection Officer who advised as follows: “Having consulted with our privacy advisors we cannot establish a legal basis for sharing [the Respondent’s] employee data with candidates in a [Respondent organisation] organised election.” In my experience candidates have sought such information in the past in order to communicate their campaign material / platform with eligible voters, my advice in such instances has been to afford candidates an opportunity to put forward a bio which [the Respondent] will communicate on their behalf. Should you want us to arrange a communication to votes on your behalf please advise asap.”

The Complainant did not avail of this offer and again, despite this further clarification from the Returning Officer in relation to arrangements for the election and the authority of the NEC to established them (Rule 80 above), the Complainant wrote to the NEC a further time on 9 December 2022 raising further concerns which are summarised below:

1.       “l believe that the election process for the staff representative for the NEC is proper to the SRC to be decided and agreed in collaboration with staff and following that a ratification by the NEC.

2.       I have searched the rules and can find no procedures for staff elections. Nor is there a procedure referred to.

3.       Staff have previously been balloted on whether their preference is for postal or online balloting, and it was decisively in favour of online. That would provide full transparency and secure the integrity of the process.

4.       The arrangements state “all staff employed by the union on 1st November 2022 are eligible to vote”, is that really appropriate and how does it fit with the rules.

5.       I have requested a list of those eligible to vote, I have not even been told who is eligible or ineligible to vote. Do the officers and the national executive have a vote.

6.       The Returning Officer is a Senior Manager, and he has a vote, that is not appropriate. He is not independent. Under no circumstances should a senior manager who has a vote be the Returning Officer.

7.       What about the gender balance for the NEC? Is the rule being complied with?

8.       The ballot papers have no proper security, then can easily be replicated. Why must the envelope be the one enclosed?

9.       We have had no say about who the scrutineers are.”

The Respondent submits that each of the above issues raised by the Complainant in her letter to the NEC on 9 December 2022 is addressed in the protocol that the Complainant herself was involved in drafting and which she submitted to the NEC in September 2017 in conjunction with the Head of Organisation and Development.

A compare and contrast exercise of these issues with the summary of the protocol evidences that the provisions of that protocol were adhered to by the NEC and the Returning Officer in the staff election is question. Therefore, the Complainant’s assertion in her submissions that “it clearly was not followed and the whole process was deliberately stacked against the Complainant and tainted with illegality” is untrue.

Rather than being concerned about the fairness of the election process for all staff members, the Complainant was trying to undo the work of the Membership Consultative Initiative 2016 — 2017, the Partnership Forum and the Biennial Delegate Conference 2017. This became evident when she sent the following correspondence to the NEC and the Returning Officer on the day of the count.

The Complainant emailed the NEC on 15 December 2022 at 08.50 stating:

“Due to the fact that my [correspondence] regarding my reasonable and justified concerns as to the administration of this election have been ignored, I have taken legal advice of the matters complained of. I again call on you to suspend the election immediately and remedy these matters. I reserve the right to seek injunctive relief in the High Court should you fail to do so forthwith. Further I reserve the right to seek an order of certiorari quashing any election result that you may purport to certify in this election.”

The Complainant emailed the Returning Officer on 15 December at 09.06 stating:

“l have requested that this election be suspended immediately to remedy the reasonable and justified concerns that I have raised. I have reserved the right to seek injunctive relief in the High Court.”

Upon receipt of this correspondence, the Respondent sought external legal advice on the legality of the election in relation to the protocol, Rule 80, the arrangements of the ballot that were agreed by the NEC at the NEC meeting on 20 October 2022 and the carrying out of these arrangements by the Returning Officer. The Respondent’s external solicitors advised the following:

“l have read the suite of papers that you have sent to me. However, I am of the view that the NEC should this afternoon ratify the result if that is what they wish to do. I see no reason why this should be delayed because of the correspondence received from the disappointed candidate.”

This alleged act of penalisation does not, therefore, fall within the definition of penalisation set out in s. 3(1) of the Act. The Complainant has not set out the act or omission that is alleged to have occurred on behalf of the Respondent organisation, nor has the Complainant set out the detriment that she is alleged to have suffered as a result of any act or omission.

Response to clarifications sought be the Adjudication Officer

At the hearing of this complaint in December 2024, the Adjudication Officer sought a number of clarifications concerning the alleged act of penalisation twenty-seven. The Respondent’s response is as follows:

SRC Nominees

In line with the protocol and Rule 80, the Staff Representative Council (SRC) sent an email to all staff on 26 August 2022 requesting that nominations from all grades for the Staff Representative position on the NEC be received by noon on 21 September 2022.

The fact that a ballot would then be conducted if there was more than one nomination was confirmed between the SRC and the Returning Officer on 25 August 2022. These nominees were properly proposed and seconded in writing. These names were then provided to the Returning Officer by the SRC at that time.

Request for List of Voters

On 18 November 2022, the Complainant wrote to the Returning Officer asking for a “copy of the names of those eligible to vote and that have been sent ballot papers”.

As set out in the Respondent's original submissions, the Returning Officer replied to the Complainant on 22 November 2022 explaining that the Respondent’s Data Protection Officer had advised that ”we cannot establish a legal basis for sharing [the Respondent’s employee data with candidates in a [Respondent] organised election”.

While the protocol does provide for members of staff to “inspect” the list of eligible voters on request, this is not what was requested by the Complainant and if it had been requested, the Returning Officer could have facilitated it.

In any event, the purpose of this provision, as set out in the protocol, is to enable eligible voters to identify any errors or omissions which may occur so that they can be rectified before voting takes place. However, as stated in the Respondent's original submissions, this was not the intention of the Complainant's request. The Complainant was trying to undo the work of the Respondent’s Membership Consultative Initiative 2016–2017, the Partnership Forum and the Biennial Delegate Conference 2017.

Eligible Voters

By inspection of the election records, on request of the Adjudicator, the Respondent organisation can confirm that three staff members were hired by the Respondent organisation on a permanent basis during the period of 14 December 2021 to 1 November 2022 (14 December 2021 being the 12 months retrospective period from the election date and 1 November 2022 being the date of employment for eligibility to vote as utilised).

One staff member had been working with the union since 2018 on a secondment arrangement and therefore had more than 12 months service with the Respondent organisation at the time of the election and the other two individuals were hired from an external panel commencing employment on 1 January 2022.

Postal Ballot

The Biennial Delegate Conferences for each division of the union take place throughout October and November of every second year. There are five conferences, one for each division. New NEC members are voted for at these conferences every six years for a six-year term. The first meeting of the new 2022 NEC was therefore due to take place on 15 December 2022 after the last conference had taken place on 11 November 2022.

As stated in the protocol, “the first election [of the Staff Representative position] will take place in 2017 and will subsequently take place at the commencement of the term of office of each future NEC”. As a result, the election for the position of Staff Representative on the NEC had to take place on 15 December 2022 when the new NEC were scheduled to meet. The agenda item of the Staff Representative position on the NEC was therefore scheduled for the October NEC meeting which took place on 20 October 2022.

Due to the short time frame between 20 October 2022 and 15 December 2022, and under Rule 80 which states that “the election will be held in accordance with the procedures laid down by the NEC”, the NEC approved a postal ballot at the NEC October meeting which was to take place between 14 November 2022 and 14 December 2022. It was decided that the requirement of “one day on which votes may be cast in person” would not take place.

This “one day” would have required the Returning Officer to write to all staff members who were eligible to vote and request confirmation from them as to whether they wished to vote in person or by post. The Returning Officer would then have had to wait for these responses and then arrange for the postal votes for one group and a one day in person vote for another group. Given that there was only an eight-week period from the October NEC meeting to the day on which the vote had to take place, this was not logistically possible.

Appointment of a scrutineer

The postal ballot took place as approved by the NEC from 14 November 2022 to 14 December 2022 and the votes were counted in the head office of the Respondent organisation on 15 December 2022. The Returning Officer appointed the five trustees of the Respondent organisation as the scrutineers and invited both nominees and the officers of the Staff Representative Council to the count.

Gender Balance

The Adjudicator also requested the Respondent to confirm what the gender balance of the NEC was prior to and after the election for the position of Staff Representative on the NEC in 2022 as the Complainant has claimed that the gender balance requirements set out in Rule 79 have not been adhered to by the Respondent organisation in conducting the ballot.

Prior to 2019, the rules of the union required that 33.3% of the NEC were to be female. The Respondent organisation can confirm that the percentage of female NEC members at this time including the Staff Representative position, which was introduced in 2017, was 39.3%.

In 2019 there was a rule change and Rule 79 now states that “the number of members on the NEC shall be inclusive of gender balance which would be no less than 40% female and no less than 40% male members”. The Respondent organisation can confirm that after the elections for NEC members took place at the Biennial Delegate Conferences in October and November 2022, the gender balance percentage was 42.31% female. The Respondent organisation can also confirm that after the Staff Representative election on 15 December 2022, the gender balance percentage was 40.74%.

Therefore, the allegation made by the Complainant that the Respondent organisation did not adhere to this rule in the conduct of the ballot for the Staff Representative position on the NEC is clearly unfounded.

The gender balance requirement was achieved prior to the election for the staff representative position on the NEC taking place. This is achieved because of the following procedures.

When a new term election of the NEC is due to take place, the Sector Committees of the Respondent organisation put forward nominees for the NEC and trustee positions to the Divisional Committees. The Divisional Committee then submit these names to the Returning Officer and the elections take place at the Biennial Delegate Conference for that division. At each stage of this nomination process, consideration is given to Rule 79 and the requirement for gender balance.

A good example of how this works in practice relates back to the Complainant's allegation that a particular member was specifically asked to step back from his nomination in 2022 to allow for a female candidate to be uncontested. The facts of this allegation are as follows.

The Local Authority Sector Committee held a meeting on 22 July 2022 and nominees for the NEC positions and trustee positions for this sector were discussed at this meeting. In these discussions, two males were suggested as possible nominees for the positions. It was highlighted by the Sector Organiser at this meeting that they had to be mindful of the gender balance requirement under Rule 79. As a result, he suggested that the name of one male and one female be put forward to Divisional Committee instead.

This suggestion and requirement for gender balance under Rule 79 was discussed by those in attendance and it was agreed to do as the Sector Organiser suggested. One male nominee and one female nominee was then formally put forward by that sector to the Divisional Committee.

The Sector Organiser did not therefore ask one specific individual to step back from his formal nomination to allow for a female candidate to be uncontested. He simply reminded the Sector Committee of their duty under Rule 79 as he is required to do.

Conclusion

As can be seen from the information provided above, the provisions of the protocol and Rule 80 were adhered to by the NEC and the Returning Officer in the election of the Staff Representative position to the NEC in 2022.

Should the Adjudicator find that any specific provisions of the protocol were deviated from, the Respondent organisation has provided clear explanations as to why any alternative provisions may have taken place. These explanations demonstrate that other objective factors played a role in the conducting of the election of the Staff Representative position to the NEC in 2022.

Therefore, the Complainant's assertion in her submissions that “it clearly was not followed and the whole process was deliberately stacked against the Complainant and tainted with illegality” is untrue.

Alleged Act of Penalisation Twenty-Eight

Alleged act of penalisation twenty-eight as set out in the Complainant’s submission relates to an email that the Complainant’s Sector Organiser sent to his team on 18 November 2022.

This email stated “Can I remind people to make sure you make cover arrangements when you’re taking leave. We’ve had a few instances lately where people are going on leave without making cover arrangements resulting in members calls going either un-responded or your colleagues being bounced into making last minutes arrangements to represent members because proper cover arrangements weren’t put in place beforehand”.

The Complainant responded the same day stating “l have never had to get cover for annual leave, nor do I consider it reasonable to ask a colleague because most that I know are to the pin of their collar with their own work. And the other problem with asking a colleague is that I would have to be able to reciprocate the favour and I am not in a position to do that due to my own workload. Furthermore, I think it is unreasonable to attempt to put additional pressure on staff before taking holidays to expect such, I currently have 25 days annual leave that I am required to take before January, and the reason I have so many is because the demands of the job over the last few years did not lend itself to taking leave. Unfortunately, I don’t have anyone that I could ask”.

It is a well-established practice in the Respondent organisation that when members of staff are taking annual leave, they note the stage at which each of their collective disputes are and notify the members who have been assigned to them accordingly. Members of staff would also notify the employers of the members if necessary and ensure that everybody was aware that they were going to be unavailable for a specific period.

Therefore, cover arrangements for periods of annual leave are for the purpose of urgent and unforeseen situations that might occur amongst the members in a staff member’s absence. These arrangements include staff members briefing a colleague on their collective disputes prior to going on leave and setting an out of office message that details the colleague’s number and email address should an urgent matter arise.

Cover arrangements do not include a colleague taking over a staff member’s entire workload in addition to their own while the staff member is on annual leave. If a certain collective dispute requires specific attention or attendance at meetings during the staff member’s planned annual leave period, the staff member is encouraged to rearrange their annual leave to be available for these meetings and if this was not possible, a more formal arrangement of cover would be organised.

When sending this email, the Complainant’s Sector Organiser was, therefore, simply reminding his team of this well-established practice as there had been several recent incidences where staff had taken annual leave and not put in place the necessary cover arrangements. The Complainant’s response to her Sector Organiser on 18 November 2022 was, therefore, a clear refusal to abide by the direction that he had given.

The Complainant’s Sector Organiser was aware that the Complainant’s workload had recently been significantly reduced on two occasions. The Complainant first requested a reduction herself in mid-2021 because of her role as Chair of the SRC. A 50% reduction was facilitated, and this had not yet been increased since her departure from this role in May 2022. The Complainant had also been directed to refer her remaining individual cases to the Workers Rights Centre in September 2022 at her meeting with her Sector Organiser to allow her to focus on her core duties of collective bargaining, density building and organising.

As a result, he responded to the Complainant on 24 November 2022 stating “We have always worked in a collegiate manner by covering for colleagues, when they take leave etc. I am concerned that despite significantly reducing your workload to the point where you have now by far the lightest workload of the industrial staff in the Sector, you still feel your workload is too onerous and have not taken your leave a result. I do not believe that this is a sustainable position and obviously raises concerns about your ability to perform the duties assigned to you in the Local Authority sector. I will obviously be obliged to bring this matter to the attention of the Divisional Organiser”.

In and around this time, the Complainant had also engaged in the unauthorised interview with a media organisation and the Respondent had received legal advice which questioned why there were several unresolved grievances amongst the membership in Local Authority A.

As a result of this and the Complainant’s email on 18 November 2022 to her Sector Organiser stating that she was having difficulty taking annual leave, the Complainant’s Divisional Organiser arranged a meeting with her to discuss any individual cases that she had on 18 January 2023.

This alleged act of penalisation does not, therefore, fall within the definition of penalisation set out in section 3(1) of the Act. The Complainant has not set out the act or omission that is alleged to have occurred on behalf of the Respondent organisation, nor has the Complainant set out the detriment that she is alleged to have suffered as a result of any act or omission.

Alleged Act of Penalisation Twenty-Nine

Alleged act of penalisation twenty-nine as set out in the Complainant’s submission relates to an email that the Complainant’s Sector Organiser sent to her on 24 November 2022 in response to a letter that the Complainant sent to the HR manager in Local Authority B on 17 November 2022.

Following the protest in County B on 19 August 2022, that took place on behalf of members in Local Authority B, local discussions between the members and their employer commenced again to try to resolve the long outstanding issues.

The Complainant liaised with her Sector Organiser in relation to this and during a conversation with him on 16 November 2022, given the significance that the Complainant had attributed to previous events, the Complainant was asked to send him a draft of the letter that she intended to send to Local Authority B.

However, on 17 November 2022, the Complainant sent a final version of the letter to the HR manager in Local Authority B without ever sending the draft of the letter to her Sector Organiser as requested. The Complainant, therefore, blatantly ignored this request from her line manager.

In the letter that the Complainant sent on 17 November 2022 she stated “our members debated the situation and collectively decided that they will not provide out of hours service free gratis from November 28, 2022, and will not be tending to any text messages or answering the phone. They will be disposing of their person time as they chose as they are entitled to do so”.

As already explained, a refusal to engage in on-call work that an employee is contractually obliged to do without a formal ballot for industrial action having taken place, would be considered unofficial industrial action by the Respondent organisation and by the Court. This is due to the requirements contained in the Industrial Relations Act 1990.

The Complainant is fully aware of these requirements, and it is her role and responsibility to ensure that the correct industrial relations processes are being followed when seeking a resolution to the disputes.

As a result, the Complainant’s Sector Organiser sent her the following email on 24 November 2022 “l note that you did not forward me the draft letter prior to issuing as requested … l am also concerned that this notice has been issued by you without exhausting the agreed procedures. You received approval to ballot the members in August 2021, following which it appears there were some local discussions then nothing for the last number of months. Given the time that has elapsed since the original ballot in 2021 and the subsequent hiatus in discussions, you should have at the very least exhausted procedures at local level prior to serving notice as you have done. You need to advise members that this notice has not been issued in accordance with procedure and that this dispute needs to be progressed in accordance with those established procedures with the appropriate approvals for same”.

This alleged act of penalisation does not, therefore, fall within the definition of penalisation set out in section 3(1) of the Act. The Complainant has not set out the act or omission that is alleged to have occurred on behalf of the Respondent organisation, nor has the Complainant set out the detriment that she is alleged to have suffered as a result of any act or omission.

Legal Submissions

Section 5 (1), (2) and (3) of the Act states the following:

“Protected disclosures

(1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.”

In terms of the meaning of “relevant information” for the purposes of the Act, Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436 held that:

“Information is capable of covering statements that might also be characterised as allegations but not every statement involving an allegation will constitute information. What is required for the disclosure to constitute a protected disclosure is that it has "a sufficient factual content and specificity such as is capable of tending to show" a relevant wrongdoing and this should be assessed in light of the particular context in which it is made.”

Baranya v Rosderra Irish Meats Group Limited [2020] IEHC 56 held that:

“Although the concept of a protected disclosure is effectively a term of art as defined by the 2014 Act, the word “disclose” has the ordinary meaning of to “reveal” or “make known”. In this context the statement that the communication did not disclose any wrongdoing on the part of the respondents, is fact, factually correct as the communication by the appellant, as found by the Labour Court did not reveal or make known any wrongdoing on the part of the Respondent. In those events it was not possible to read into the communication any reasonable belief of a relevant wrongdoing on the part of the employer.

Section 5 (2) defines relevant information as information in the reasonable belief of the worker, tends to show one or more relevant wrongdoings. That some information in the relevant communication must attribute some act or omission on the part of the respondent that the appellant might reasonably believe tends to show one or more relevant wrongdoings is clearly necessary. In the absence of any asserted act or omission, the concept of relevant information is not fulfilled.”

Clarke v CGI Food Services Limited and CGI Holding Limited [2020] IEHC 368 held that “complaints needed to be sufficiently informational in nature and not merely allegations unharnessed from any factual point”.

In terms of the meaning of “reasonable belief” for the purposes of the Act, Eiger Securities LLP v Korshunova [2017] ICR 561 held that:

“Actions may be considered to be wrong because they are immoral, undesirable or in breach of guidance without being in breach of a legal obligation. However, [the Court must not] fail to decide whether and if so what legal obligation the [worker] believed to have been breached. [This is] a necessary precursor to the decision as to the reasonableness of the believe that a legal obligation has not been complied with.”

In terms of the meaning of “tends to show” for the purposes of the Act, Bolton School v Evans [2006] IRLR 500 stated that “there may indeed be cases where a relatively detailed appreciation of the relevant legal obligations is required before an employee can establish that he reasonably believed that the information tended to show that a breach of a legal obligation was likely”.

In terms of a “relevant wrongdoing”, these are prescribed in section 5(3) of the Act as set out above. Kraus v Penna PLC [2004] IRLR260 held that “the information disclosed should, in the reasonable belief of the worker at the time it is disclosed, tend to show that it is probably or more probable than not that the employer will fail to comply with the relevant legal obligation”.

Throughout the Complainant’s communications during the cognisable period of the claim, the Complainant has made generalised allegations where pertinent information that could describe the full and factual series of events is omitted. As a result, the Complainant did not disclose at the time that she made these alleged protected disclosures the “sufficient factual content and specificity such as is capable of tending to show a relevant wrongdoing”.

The Complainant has not disclosed the specific acts or omissions that she alleges to have occurred on behalf of the Respondent organisation and has not identified the alleged relevant wrongdoings in line with section 5(3) of the Act that the Complainant believes took place.

As a result of this lack of clarity and the omission of relevant information, it is not possible to read into the Complainant’s communications any reasonable belief on her behalf that a relevant wrongdoing had occurred on behalf of the Respondent organisation at the time that the Complainant made the alleged protected disclosures. The Complainant’s focus is on general grievances that she herself holds and on grievances that it is her responsibility to detect and resolve on behalf of members. These are not “relevant wrongdoings” within the definition contained in the Act, nor could she reasonably have believed that they were at the time.

Section 5(5) of the Act states the following:

"A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.”

The Department of Public Expenditure and Reform, “Statutory Review of the Protected Disclosures Act 2014” (July 2018) 38 stated that “this subsection was included in order to prevent possible abuse of the Act, where employees have access to privileged information as a result of their duties. It does not apply where the employee has concerns that there is wrongdoing being perpetrated within the organisation itself. The advice of the Office of the Attorney General is that the intention and true effect of this provision is to exclude workers from those protections in relation to disclosures which consist of wrongdoings which it is the specific purpose of the worker or employer to detect, investigate or prosecute”.

In line with this, Donegal County Council v Liam Carr [2017] 28 E.L.R. 259 held that “the complaints which are alleged to be protected disclosures in the within case could not reasonably be argued to be outside of the function of a Station Officer in the Fire Service to detect and relate to matters other than an alleged omission of the Employer. On a plain reading of the Act, therefore, the Court finds that the complaint made by the Appellant in this case is misconceived”.

A General Manager v A Golf Club ADJ-00017277 also held that “it is only reasonable for me to infer that the issues in the alleged Protected Disclosure fall within the normal duties of a Club General Manager. Common cause and experience would have it that Premises and or Infrastructure issues are the normal remit of a General Manager”.

John Clarke v CGI Food Services Limited and CGI Holding Limited [2020] IEHC 368 held that “there are two requirements (an investigative function and misconduct other than the employer), which must both be present to exclude something from the definition of a relevant wrongdoing, and which are joined by the word “and””.

Nolan v Fingal County Council [2022] IEHC 335 held that:

“An obvious example maybe where a member of An Garda Siochána reports wrongdoing by a person outside of An Garda Siochána. Such wrongdoing will not be covered by the 2014 Act where it relates to wrongdoing which it is the function of the Garda to detect, investigate or prosecute and as the wrongdoing will not have been committed by the employer.

Another example might be a Revenue inspector who identifies wrongdoing during the course of an audit. A disclosure of relevant information in relation to such wrongdoing would not be a protected disclosure because it is the function of the Revenue to detect, investigate and prosecute revenue wrongdoings.

It seems to me that the language of "function to detect, to investigate or to prosecute" connotes either a public law role or at least an official role pursuant to a particular contractual obligation in detecting, investigating or prosecuting rather than a role which might be implied as arising from the general duties on an employer.”

As stated above, it is the core function of a trade union official and a contractual obligation of a trade union organiser to detect, investigate and prosecute members’ workplace grievances. The role of a trade union organiser consists of attending workplaces and identifying workplace issues that are either a dispute of interest or a dispute of right. The organiser will then work with the members to resolve these issues at local level or at a third party.

In the course of their duties, an organiser might identify a wrongdoing on behalf of the employer of our members. In line with the case law above, a disclosure of this information to the management of the Respondent organisation would not be considered a protected disclosure because it is the function of the organisation and the organiser to detect these issues and work with the Sector Organisers, Divisional Organisers and DGS’s to assist the members in resolving these issues.

As can be seen from the facts set out above in relation to the thirteen alleged protected disclosures made by the Complainant that are in dispute, all incidences involved either disputes of interests or disputes of rights on behalf of the members that the Complainant was responsible for. The Complainant did not allege any act or omission on behalf of the Respondent organisation in relation to these disputes at the time, her concerns lay solely against the employers of the members concerned or the legal infrastructure that surrounded their avenues of redress.

Section 12(1) of the Act states the following:

"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. "

Penalisation is defined in Section 3(1) of the Act as "any act or omission that affects a worker to the worker’s detriment, and in particular includes—

a)      suspension, lay-off or dismissal,

b)      demotion or loss of opportunity for promotion,

c)       transfer of duties, change of location of place of work, reduction in wages

d)      change in working hours,

e)       the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

f)        unfair treatment,

g)      coercion, intimidation or harassment,

h)      discrimination, disadvantage or unfair treatment,

i)        injury, damage or loss, and

j)        threat of reprisal;

In Andrew Conway v The Department of Agriculture, Food and the Marine [2020] IEHC 664 held that “The appellant bears the evidential burden of establishing detriment and penalisation”.

It is, therefore, the Complainant’s burden to prove in the first instance that penalisation took place and in the second instance that there is a causal link between the alleged penalisation and the reporting of any alleged protected disclosure.

Similarly, to the generalised allegations that the Complainant has made in relation to her alleged protected disclosures, the Complainant has made generalised allegations in relation to the alleged acts of penalisation throughout her submissions, where pertinent information is omitted. The Respondent has set out this missing information in the facts above. When this information is considered it its entirety, it is clear that no penalisation took place.

The Complainant has not identified the acts or omissions that she is claiming to have occurred on behalf of the Respondent organisation that caused her a detriment and the Complainant has not set out the detriments that she is alleged to have suffered. In addition, the Complainant has not put forward the causal links between these alleged incidences of penalisation and the reporting of the alleged protected disclosures.

As a result, the Complainant has not discharged her burden of proof in this regard and her submissions can only be interpreted as a scatter gun approach of allegations against the Respondent organisation.

Conclusion

The Respondent submits that the Complainant’s protected disclosures can be divided into three categories as follows:

Category one – Issues raised in respect of members’ employers

This refers to matters specifically excluded under section 5.5 of the 2014 Act – protected disclosures 2, 4, 5, 6, 9, 10, 11, 12, 13, 14, 15, 16 and 17.

Section 5.5 – “A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.”

It is clearly the job of a trade union official to detect, investigate or prosecute the matters identified in respect of Local Authority A, Local Authority B and a Charity. As serious as these matters were, the fall into section 5.5 for good reason.

If workplace grievances detected by a trade union official were to be considered to be protected disclosures, then there would be consequences for the entire trade union movement, for employer/employee relationships and for industrial relations structures in general. Trade unions would just not be able to go about their normal business.

It is clearly not the intention of the act to have the purpose of a person’s role, however significant matters may be, considered to be protected disclosures, which is why it is specifically identified in section 5.5. 

Also, section 6.1 of the Act captures these disclosures as being to persons other than the Complainant’s employer, such as the County Councils and a Charity – the Respondent has no legal relationship with these entities and is not responsible for and has no control over their actions – albeit it does seek, through the work of union officials, to detect, investigate or prosecute such actions.

Category two – SRC matters - alleged protected disclosures three and seven

At the outset the Respondent generally considered that these matters fell broadly within the parameters of the Act and could be considered to be protected disclosures. The full facts and context however, not outlined in the Complainant’s evidence but explained in detail in the Respondent’s submission show that no relevant wrongdoing under the Act has been identified. 

It is clear that the Complainant raised issues she considered pertinent to the terms and conditions of employment of her colleagues who were members of the SRC. On foot of protected disclosure seven, the Respondent actioned this by escalating the matter to a meeting with the general officers. On foot of protected disclosure three, the Respondent actioned that by agreement with the Complainant to enter a process (Brainstorming) to seek to jointly resolve the concerns around terms and conditions. It is clear that the Respondent has proven that these matters were dealt with and that no penalisation under the Act occurred and that no detriment under the Act occurred. 

Category three – alleged protected disclosures one and eight

In her own evidence, the Complainant has conceded that she did not make protected disclosure one, therefore that matter is dealt with. It should be noted however that in the Complainant’s own evidence, she has, on multiple occasions, said that “my whole life changed in 2020” – referring to what she claimed was the persecution of her by the Respondent after she made this disclosure. Given that it is now accepted by the Complainant in her own evidence, that she did not make this disclosure, this statement and any alleged penalisation that flowed from it, cannot be considered under the Act.

It is now proven in the evidence presented, and by the Complainant’s own acknowledgement, that there were multiple authors of the letter referred to in protected disclosure eight, that it was signed by twenty people and submitted on behalf of the NEC. It is not therefore the protected disclosure of the Complainant, and the Respondent has shown that there were objective reasons for actions taken at the time. Notwithstanding the fact that no relevant wrongdoing under the Act occurred, any matters that are alleged to flow from protected disclosure eight cannot be considered and it is now clear that this was not the Complainant’s disclosure.

The Respondent submits that the Complainant’s allegations of penalisation can be divided into three categories as follows:

Category one - alleged penalisations out of time - numbers one to eighteen

The Respondent has identified that many alleged penalisations are out of time. It is accepted that numbers one to ten are not being considered for this reason. The Complainant has put forward a request to have the time extended to have numbers 11 to 18 included for reasonable cause.

The Respondent has shown that the bar is to be considered high for such a matter. The Complainant has generally claimed that she was not well enough or not generally cognisant enough to make her claim before November 2022. The Complainant however has proffered no timeline in relation to when she was unwell, for what period of time etc. 

Neither has she proffered medical evidence in respect of what she says was her psychological state at the time. It should be noted that the Respondent has confirmed that the Complainant was at work for the relevant timeframe and was lodging numerous cases for members with third parties for a variety of issues. The Respondent’s submission on its objection to the extension of time refers to the above in greater detail.

Category two - alleged penalisations in time – numbers nineteen to twenty-nine

The Respondent has provided full context and background and identified objective factors as to how the events referred to transpired. Decisions were made by the Respondent on how the Respondent organisation was being run – on such matters as how annual leave is handled; circumstances for legal advice; media strategy; the use of normal industrial relations procedures and practices to protect members and the Respondent from being sued and from having disputes injuncted; and on the handling of individual cases etc. There is no link between these decisions and the Complainant.

When examined as a whole, it is clear that a pattern emerges of a person with strongly held views on how the Respondent organisation should be run and on what policies and practices should be in place, including IR strategy. When the Complainant meets opposition from the Respondent to her strongly held views the evidence shows that she starts to resist.

By her own admission in evidence, the Complainant clearly states that she has refused advice and direction – direction that the Workplace Relations Commission and the Labour Court would not consider to be unreasonable – from her line managers. Again, by her own evidence, the Complainant does not accept the principle of line management within trade union employment. The Respondent organisation is a normal employment with normal employee/employer expectations, line management and reporting relationships.

As can be seen from the evidence, this resistance contributed to a deteriorating IR environment whereby the Complainant complains in general about not getting help but refuses meetings and assistance when it is offered, claiming that these things are deliberate actions to undermine her, but she can’t have it both ways. This results in her placing herself in the position of becoming a go-between between the members and her line managers whereby she blames the Respondent for not doing enough while herself refusing meetings, refusing to provide information, refusing to move the individual cases to the Workers Rights Centre, etc. 

The Respondent is entitled to make decisions relating to matters arising in the day-to-day operational running of the Respondent organisation, including IR and media strategy without seeking the agreement of each member of staff. Any member of staff is free to be unhappy about what they don’t agree with (normal IR practices exist within the Respondent) but the policy must be implemented by all staff until such time as it changes (if indeed it does change). The Complainant’s response to such matters is inappropriate. 

Even the things that were within her control (SRC matters), she did not take control of but challenged the Respondent on them and blamed the Respondent instead.

The Complainant is very inconsistent with the perceived lack of support. All her evidence references complaints about not getting support or help. There is no evidence to demonstrate that she looked for any specific type of help or any specific type of support. In these circumstances her line managers were left to decide what support they considered appropriate. This was difficult as the evidence shows that the Complainant persistently refused meetings to further discuss these matters.

Having been left to identify what support could be considered to be useful, and having made efforts to provide that support, the Complainant then took the view, without any evidence, that the Respondent’s offers of support were disingenuous and were an attempt to undermine her. Again, she can’t have it both ways.

She is inconsistent also – by her own evidence – in what she claims is a conspiracy to “manage her out of the Respondent” – she claims this in her documents but gives evidence herself to say that “she has never, not once, been called in to be chastised” and she confirms that she has never been subject to any sort of performance management.

In conclusion, the Respondent submits that there is no causation between what the Complainant says are protected disclosures and what she claims are penalisations and detriments.

In fact, there is no evidence at all of penalisation or detriment whatsoever. The Complainant has never been counselled under the disciplinary procedure; the Complainant has never been disciplined, verbally or in writing; never suspended; and not penalised in any way either within the definition of the Act or without. She has not evidenced any actual detriment either within the Act or without. There is therefore no merit to this case.

At the outset of my decision, I wish to clarify that this complaint has been heard under the Protected Disclosures Act 2014 (“the Act”) as it was prior to amendment by the Protected Disclosures (Amendment) Act 2022 (“the amended Act”), which commenced on 1 January 2023. The reason for this is that the Complainant’s referral was received by the WRC on 30 November 2022, prior to the enactment of the amended Act.

Matters raised in the Complainant’s closing statement

Before I embark on my findings and conclusions in relation to the substantive issue, I will first address the remarks made by the Complainant in her closing statement which were directed at me in my role as an Adjudication Officer of the WRC.

During the course of the hearing, it became apparent to me that the Complainant expected me to investigate the conduct of the Respondent organisation, particularly the form of representation it makes available to its staff. I also got the strong impression that the Complainant expected me to investigate the conduct of a number of employers whose employees she represented. The Complainant was clearly very upset about the treatment she alleges that she and the activists were subjected to by those employers and wished that treatment to be investigated in the context of this hearing.

I repeatedly pointed out to the parties that my jurisdiction to investigate this complaint derives from the Act and that I am constrained in what I can and cannot investigate. I am obliged to conduct my investigation within the parameters of the Act.

I repeatedly drew the attention of the parties to the provisions of section 12 of the Act which provides that where a complaint of penalisation as a result of making a protected disclosure is referred to the WRC, the Adjudication Officer shall “give the parties an opportunity to be heard by the adjudication officer and to present to the adjudication officer any evidence relevant to the complaint” (emphasis added).

I continuously emphasised that all evidence presented to me must be relevant to the case and that I was the final arbiter as to whether evidence was relevant. Where the relevance of evidence was unclear, I asked the Complainant to outline the gist of the evidence she proposed to present to me, and I made a decision as to its relevance. If I was unable to make a decision as to the probative value of the proposed evidence, I permitted the evidence to be presented to me in order to safeguard the right of the Complainant to a fair hearing.

The Complainant contends that, despite the burden of proof being on the Respondent, the burden of rebuttal has been placed on her. Throughout the hearing, I clarified the provisions of the Act and the burden of proof arising therefrom.

The Complainant expressed her dissatisfaction with the fact that she had no right to be represented at the adjudication hearings. All parties have a right to be represented at adjudication hearings. However, representation is a matter for the parties and does not come within the remit of the WRC. At no stage in proceedings did the Complainant seek a postponement or adjournment in order to secure representation.

Repeatedly, during the course of the hearing, the Complainant expressed her dissatisfaction with the fact that the Respondent did not put any witnesses into evidence. Each time this matter was raised, I explained to the Complainant that the manner of the Respondent’s defence was a matter for the Respondent.

In this regard, I note the finding of Hyland J in Conway that “the respondent was entitled to decide not to call witnesses, and to rely upon the documents in its appeal before the Labour Court. I am not aware of any obligation upon the Labour Court to compel a party to call a witness and none was identified to me”. In the absence of any precedent to the contrary, I must assume that this finding also applies to a party at a first instance hearing in the WRC.

The Complainant expressed difficulty with the media being present only at certain parts of the hearing. While adjudication hearings before the WRC are public hearings, the WRC does not have any role regarding the attendance of the media at hearings nor is media coverage a factor in the structure and conduct of a hearing.

The Complainant and five activists gave interviews to Gript Media in which they presented their perspective on the industrial relations situation in Local Authority A. The Complainant wished to show me a copy of the interviews at the hearing. I agreed to watch the Complainant’s interview. The Complainant confirmed that there was no material relevant to her complaint in the activists’ interviews, so I declined to watch them as I did not believe that they were relevant to my investigation.

The Complainant has asserted that she was not allowed to show the Gript interviews in public at the hearing. I would remind the Complainant that the Respondent objected to the Gript interviews being shown in public due to concerns about defamation. On that basis, I decided to watch the video in private in the company of the Complainant and the Respondent’s representative. The Complainant did not object to this arrangement at the time.

The Complainant further asserted that she was prevented from showing a video recording of her speech at the Local Authority A protest. At the hearing, I asked the Complainant if she had made any reference to the Respondent in her speech. In response, she confirmed that she had not. I, therefore, declined to watch the speech as I did not believe that it was relevant to my investigation.

The Complainant asserted that she was not permitted to give evidence about the treatment she was allegedly subjected to prior to the cognisable period of this complaint. As I have explained elsewhere in this decision, my jurisdiction is confined to investigating the alleged acts of penalisation which occurred during the cognisable period of the complaint.

The Complainant requested, and was granted, reasonable accommodation in the form of a stenographer at a considerable cost to the WRC. The application for reasonable accommodation was not made to me but to the WRC’s Access Officer. It is incorrect for the Complainant to state, therefore, that I had any involvement in the unavailability of a stenographer on one of the hearing days. At the outset of that day’s hearing, I sought confirmation from the Complainant that she was willing to continue in the absence of a stenographer. The Complainant confirmed that she was willing to proceed with the hearing.

I most strongly refute the Complainant’s assertion that she did not receive a full and fair hearing into this case. As can be seen in the heading to this decision, this hearing was conducted over eleven days which is far in excess of the typical length of time assigned to an adjudication hearing, regardless of the complexity of the issues referred.

Substantive matter

The purpose of the Act is to provide protection for individual workers who make one or more protected disclosures from penalisation as a result of making the disclosure(s).

In investigating this complaint, I must first establish whether the Complainant made one or more disclosures which attract the protections of Act. If I establish that she did, I must then investigate whether she was penalised for making the disclosure(s), contrary to the provisions of the Act.

What is a protected disclosure?

The definition of “protected disclosure" is set out at section 5(1) of the Act:  

“For the purposes of this Act “protected disclosure” means, subject to subsections (6) and (7A) and sections 17 and 18, a disclosure of relevant information … made by a worker in the manner specified in section 6, 7, 8, 9 or 10.”

Sections (6) and (7A) respectively address the disclosure of trade secrets and legally privileged information and these are not relevant for this complaint.  Sections 17 and 18 refer to law enforcement and international relations and are also not relevant here.  Sections 6 to 10 set out a tiered disclosure process and provides that information related to wrongdoings may be provided to a prescribed person, an employer, a government minister, a legal advisor or to another person.

A “protected disclosure” therefore, is the disclosure by an employee to his or her employer, or another person, of relevant information.  Section 5(2) of the Act provides 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.”

In Barrett v Commissioner of An Garda Síochána [2023] IECA 112, the Court of Appeal emphasised that in order for something to amount to a protected disclosure, the worker must have a ”reasonable belief” that it tends to show relevant wrongdoing; this introduces an objective standard, requiring that “a reasonable person would have held the belief if he or she had the same information as the worker”.

Section 5(3) of the Act provides that the following are relevant wrongdoings for the purposes of the Act:

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

Section 5(5) of the Act provides that “a matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer”.

Section 5(7) of the Act provides that “the motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure”.

Section 5(8) of the Act provides “in proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is”.  The effect of this provision is to place the burden of proof in relation to a protected disclosure on the Respondent.

Section 6 of the Act sets out the way a disclosure is to be made in order to come within the ambit of the Act:

6. (1) A disclosure is made in the manner specified in this section if the worker makes it—

(a) to the worker’s employer, or

(b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly—

(i) to the conduct of a person other than the worker’s employer, or

(ii) to something for which a person other than the worker’s employer has legal responsibility,

to that other person.

(2) A worker who, in accordance with a procedure the use of which by the worker is authorised by the worker’s employer, makes a disclosure to a person other than the employer is to be treated for the purposes of this Act as making the disclosure to the employer.

I must now establish whether the Complainant made disclosures which fall within the protections of the Act.

Protected Disclosure One

Then Complainant asserted that on 20 February 2020, she attended a meeting to represent a colleague who had made a protected disclosure. 

During the course of the hearing, the Complainant accepted that she did not make alleged protected disclosure one. Given that the Complainant did not make the protected disclosure, I find that alleged protected disclosure one is not a protected disclosure within the meaning of the Act.

Protected Disclosure Two

The Complainant contends that, in June 2020, Local Authority A would not accept her nominee for the Lead Worker Representative (LWR) position under the COVID-19 Return to Work Safely Protocol even though she had agreed this with Trade Union B.  The Complainant submitted that her Sector Organiser made an agreement with the Trade Union A, who had a much lower union membership amongst the outdoor staff in the Local Authority so that no safety checks would be made by the LWR.

In its evidence, the Respondent submitted a copy of an email from the Complainant to management in Local Authority A dated 18 June 2020 where she wrote that she had spoken to her Sector Organiser who confirmed that the agreed protocol was intended to “comply fully with the Return to Work Safely protocol including the role of the Lead Work Representative”.

At the hearing, the Complainant expressed her displeasure that the Respondent had acquired a copy of her email to Local Authority A of 18 June 2020. However, she confirmed that she had written the email.

Given the confirmation of compliance contained in her email of 18 June 2020, I find that alleged protected disclosure two is not a protected disclosure within the meaning of the Act.

Protected Disclosure Three

The Complainant contends that in 2020, the practices applied by the Respondent’s management in relation to its own employees were inconsistent with its ethos, values and principles.  The Complainant submits that she disclosed that: some staff were really struggling with their mental health and were burnt out; bullying was going on; the Respondent’s IR model was not fit for purpose and void of independence; management were engaging in anti-union practices; the treatment of staff, particularly female staff, was disgraceful and contrary to what the Respondent purported to stand for; activists and members were being subject to abuse; other staff were not getting support or training to deal with vicious hostility; and activists and members were angry and many had no trust in the Respondent organisation.

I note that the Respondent has accepted that the Complainant made protected disclosure three. I find, therefore, that protected disclosure three is a protected disclosure within the meaning of the Act.

Protected Disclosure Four

The Complainant asserts that she emailed an Assistant General Secretary (AGS) and her Divisional Organiser on 13 January 2021 to say that traffic wardens, who were non-essential workers, were required to attend work in person in contravention of the Government instructions to stay at home and that the Respondent did not do anything about this.

The Respondent submitted copies of its correspondence with external parties regarding this matter which included a letter from the Complainant’s Sector Organiser to Minister Darragh O’Brien TD on 28 January 2021. The Respondent submitted that the Complainant was sent a copy of relevant correspondence on several dates commencing on 25 January 2021.

I note, however, that the Complainant’s email to the AGS and her Divisional Organiser, which she contends was a protected disclosure, was sent on 13 January 2021 which predated the Respondent’s copying of its correspondence to her.

I find that, therefore, that the Complainant could have held a reasonable belief at the time she sent her email, that the Respondent had committed “a relevant wrongdoing” in relation to traffic wardens. Accordingly, I find that protected disclosure four is a protected disclosure within the meaning of the Act.

Protected Disclosure Five

On 12 February 2021, the Complainant wrote to the HR Manager in an organisation whose staff she represented to raise a number of serious concerns.  She copied her letter to one of the Respondent’s Assistant General Secretaries and to her Divisional Organiser. 

I find that the Complainant complied with the requirements of section 6(1) of the Act in that she “reasonably believe[d] that the relevant wrongdoing which the disclosure tends to show relates solely or mainly (i) to the conduct of a person other than the worker’s employer, or (ii) to something for which a person other than the worker’s employer has legal responsibility” and she made the disclosure “to that other person”.

I note, however, the Respondent’s position that the Complainant’s alleged protected disclosures related to matters which it was her “role and responsibility as an Industrial Organiser to detect and represent the members upon”. The Respondent further submitted that:

The service of a trade union organiser includes negotiating with members’ employers, representing members’ interests and addressing members’ collective grievances and / or employment rights issues at local level or at the relevant third-party fora including the Workplace Relations Commission, the Labour Court, and Conciliation Services.

It is, therefore, the core function of a trade union and a trade union organiser to detect, investigate and prosecute members’ workplace grievances. The Respondent submits that the work of a trade union and the industry itself would operate on a wholly impractical basis if every workplace issue that members of a trade union brought to their organiser attractedthe protections of the Act for that organiser.

The Respondent further asserts that the Complainant is also “not alleging any act or omission on the part of the Respondent organisation in relation to these letters”.

In Nolan v Fingal County Council [2022] IEHC 335, Phelan J summarised the position of the respondent as being “that the complaints did not constitute protected disclosures because they were reported under the Respondent’s Health and Safety Framework and not the Respondent’sProtected Disclosure policy and because they did not disclose relevant information in relation to wrongdoing by an employer”. 

At para 47 of Nolan, Phelan J provided the following interpretation of section 5(5) of the Act:

It seems to me that the language of “function to detect, to investigate or to prosecute” connotes either a public law role or at least an official role pursuant to a particular contractual obligation in detecting, investigating or prosecuting rather than a role which might be implied as arising from the general duties on an employer.  Otherwise, s. 5(5) would render s. 5(3) entirely devoid of effect because an obligation to investigate wrongdoing in the workplace could be implied as a general duty of any employer.  This cannot have been the statutory intention and the construction adopted by the Labour Court would substantially reduce the effectiveness of the 2014 Act.

Relying on the judgment in Nolan cited above, I am of the view that the Complainant as a trade union official does not hold “an official role pursuant to a particular contractual obligation in detecting, investigating or prosecuting” and, therefore, that the Respondent cannot rely on section 5(5) to exclude this protected disclosure from the protections of the Act.

In her correspondence to the HR Manager of the organisation whose staff she represented, the Complainant alleged that the lack of resources and the consequential pressure on staff had a detrimental effect on residents. She further alleged that staffing levels were “seriously inadequate to provide the standards of care that the community residents require”. She further referred to the agony that was being experienced by residents and staff.

Consequently, I am of the view that the Complainant could have held a reasonable belief that the Charity had committed “a relevant wrongdoing” in relation to the treatment of its residents and staff. Accordingly, I find that protected disclosure five is a protected disclosure within the meaning of the Act.

Protected Disclosure Six

On 18 August 2021, the Complainant sought sanction from the relevant AGS for industrial action in Local Authority B. Included in the documentation which was sent to the AGS was a letter to the HR Director of Services in Local Authority B detailing a number of issues affecting the Respondent’s members in the Water Services section of the Local Authority.

I find that the Complainant complied with the requirements of section 6(1) of the Act in that she “reasonably believe[d] that the relevant wrongdoing which the disclosure tends to show relates solely or mainly (i) to the conduct of a person other than the worker’s employer, or (ii) to something for which a person other than the worker’s employer has legal responsibility” and she made the disclosure “to that other person”.

In her correspondence to the HR Director of Services in Local Authority B whose staff she represented, the Complainant alleged that Local Authority B was in breach of the Public Service Agreement. I am of the view, that breaches of public service agreements do not constitute a relevant wrongdoing within the meaning of the Act but are part of the normal cut and thrust of the public sector industrial relations landscape. Public service agreements have their own policing mechanisms; it would not be feasible or realistic to classify breaches of public service agreements as relevant wrongdoings attracting the full protections of the Act.

However, in addition to alleging breaches of the public service agreement in her email to the HR Manager of Local Authority B, the Complainant alleges that Local Authority B has breached the right of its staff to disconnect. She further alleged institutionalised bullying within Local Authority B.

Consequently, I am of the view that the Complainant could have held a reasonable belief that the Local Authority B had committed “a relevant wrongdoing” in relation to the treatment of its staff. Accordingly, I find that protected disclosure six is a protected disclosure within the meaning of the Act.

Protected Disclosures Seven

The Complainant contends that she made a protected disclosure at a meeting with representatives of the Respondent’s Organisational Development and Support Services Department on 10 July 2020 which she attended in her role as Chair of the SRC.

I note that the Respondent has accepted that the Complainant made protected disclosure seven. I find, therefore, that protected disclosure seven is a protected disclosure within the meaning of the Act.

Protected Disclosure Eight

On 6 October 2021, the secretary of the SRC sent an email to the NEC seeking a meeting to discuss a range of staff matters.  When no response was received, the SRC unanimously decided that a letter detailing the matters of concern should be sent to the NEC. In her role as Chair of the SRC, the Complainant agreed the text of the letter with the two other SRC Officers.  Under cross-examination, the Complainant asserted that she was the author of the letter and the two other SRC officers had only made minor changes to her initial draft. On 1 November 2021, the Complainant sent the finalised version of the letter to the NEC.

Section 5(1) of the Act defines “protected disclosure” as “a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker …”

Section 3(1) of the Act defines “worker” as an individual who—

(a) is an employee,

(b) entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business, …

I note that the letter from the SRC to the NEC dated 1 November 2022 was signed by the entire committee of the SRC and not by an individual worker.

I find, therefore, that alleged protected disclosure eight is not a protected disclosure within the meaning of the Act as it was not made by an individual worker in accordance with the provisions of sections 5(1) and 3(1) of the Act.

Protected Disclosure Nine

On 25 May 2022, the Complainant sent an email to the General Secretary and the relevant DGS to “give you an insight into what our activists, members and staff are enduring as the hand of management in [named] County Council so that you can advise us and support us in remaining on the pitch there.” The Complainant provided a brief synopsis of the issues, and she attached relevant documentation.  The letter finished with a request for advice.

I find that the Complainant did not comply with the provisions of section 6(1) of the Act in that she “reasonably believe[d] that the relevant wrongdoing which the disclosure tends to show relates solely or mainly (i) to the conduct of a person other than the worker’s employer, or (ii) to something for which a person other than the worker’s employer has legal responsibility” but she did not make the disclosure “to that other person”.

I find, therefore, that alleged protected disclosure nine is not a protected disclosure within the meaning of the Act.

Protected Disclosure Ten

During the cross-examination of the Complainant by the Respondent, the Complainant said that “after she wrote to the General Secretary and a Deputy General Secretary (DGS) of the Respondent organisation on 1 June 2022 seeking their assistance, she was upset and distressed because neither of the senior officers could take a minute to contact her”.

On 14 June 2022, the Complainant sent an email to the relevant DGS in response to what she viewed as “his feeble response to her request for advice and support”.

I accept that the Complainant believed that she was not adequately supported by management of the Respondent organisation. I do not accept, however, that the Complainant could have held a reasonable belief that management of the Respondent organisation could have committed “a relevant wrongdoing” within the meaning of the Act. I find, therefore, that alleged protected disclosure ten is not a protected disclosure within the meaning of the Act.

Protected Disclosure Eleven

The Complainant contends that on 2 June 2022, she disclosed to the Sector Committee that Local Authority A was systematically victimising the Shop Stewards.  She gave examples of the refusal to accept her chosen and agreed Lead Worker Representative; how reps were stressed out and how she had lost a very good Shop Steward who could not stick the abuse. She alleged that management frequently unilaterally deducted wages; were setting staff up for dismissal; were not paying staff for leave; were following staff; and were giving unreasonable instructions. The Complainant explained that management were refusing to agree to an independent investigator and that she needed help.  She contended that the Respondent’s management were not giving her any support.

I find that the Complainant did not comply with the provisions of section 6(1) of the Act in that she “reasonably believe[d] that the relevant wrongdoing which the disclosure tends to show relates solely or mainly (i) to the conduct of a person other than the worker’s employer, or (ii) to something for which a person other than the worker’s employer has legal responsibility” but she did not make the disclosure “to that other person”.

I find, therefore, that alleged protected disclosure eleven is not a protected disclosure within the meaning of the Act

Protected Disclosure Twelve

The Complainant submits that on 21 June 2022, she disclosed to the Head of the Respondent’s Legal Rights Department that she was formulating a petition to send to the County Councillors of Local Authority A to outline the multiple wrongdoings which had occurred.

I find that the Complainant did not comply with the provisions of section 6(1) of the Act in that she “reasonably believe[d] that the relevant wrongdoing which the disclosure tends to show relates solely or mainly (i) to the conduct of a person other than the worker’s employer, or (ii) to something for which a person other than the worker’s employer has legal responsibility” but she did not make the disclosure “to that other person”.

I find, therefore, that alleged protected disclosure twelve is not a protected disclosure within the meaning of the Act.

Protected Disclosure Thirteen

The Complainant submits that on 27 July 2022, she disclosed to the General Secretary that she was seeking approval to appeal two Labour Court determinations.

I do not accept that the Complainant could have held a reasonable belief that the General Secretary of the Respondent organisation could have committed “a relevant wrongdoing” within the meaning of the Act when she sought approval to appeal two Labour Court determinations. I find, therefore, that alleged protected disclosure thirteen is not a protected disclosure within the meaning of the Act.

Protected Disclosure Fourteen

The Complainant submits that on 16 August 2022, she disclosed to the Divisional Organiser, and copied to the General Secretary, the DGS, the Head of Legal and her Sector Organiser, that she did not agree with the Union’s decision not to appeal the Labour Court determinations to the High Court.

I do not accept that the Complainant could have held a reasonable belief that management of the Respondent organisation could have committed “a relevant wrongdoing” within the meaning of the Act when it decided not to appeal determinations of the Labour Court to the High Court. I find, therefore, that alleged protected disclosure fourteen is not a protected disclosure within the meaning of the Act.

Protected Disclosure Fifteen

The Complainant submits that on 26 July 2022, she gave a lengthy speech in which she relayed how union activists had 42 complaints that Local Authority A was refusing to investigate; the bullying; the nonsense code of practice; the detrimental effects on the individual and the family; the discrimination; the endless “get out of jail free cards” that the Local Authority had available; the inadequate dispute resolution processes; the effects on workers; the union bashing; and the worldwide trends from the International Trade Union Confederation.

I find that the Complainant did not comply with the provisions of section 6(1) of the Act in that she “reasonably believe[d] that the relevant wrongdoing which the disclosure tends to show relates solely or mainly (i) to the conduct of a person other than the worker’s employer, or (ii) to something for which a person other than the worker’s employer has legal responsibility” but she did not make the disclosure “to that other person”.

I find, therefore, that alleged protected disclosure fifteen is not a protected disclosure within the meaning of the Act.

Protected Disclosure Sixteen

The Complainant submits that she disclosed that Local Authority B had not hired any outdoor direct labour staff since 2008, despite the fact that section 3.3.5 of the National Agreements since before then obliged them to do so, to provide details of contractors and to consult with unions prior to doing so.  The Complainant submits that she also disclosed that the bullying was a strategy designed to divide and conquer enabled by an inadequate Code of Practice, which provides for no protection, no accountability, no impartiality and no proper remedies.

I find that the Complainant did not comply with the provisions of section 6(1) of the Act in that she “reasonably believe[d] that the relevant wrongdoing which the disclosure tends to show relates solely or mainly (i) to the conduct of a person other than the worker’s employer, or (ii) to something for which a person other than the worker’s employer has legal responsibility” but she did not make the disclosure “to that other person”.

I find, therefore, that alleged protected disclosure sixteen is not a protected disclosure within the meaning of the Act.

Protected Disclosure Seventeen

On 10 November 2022, the Complainant and four union activists did interviews with Gript Media. In her interview, the Complainant disclosed that some members had confided in her that they had contemplated suicide.

During the course of the hearing, I viewed the Complainant’s interview with Gript Media. At no stage during the interview did the Complainant mention the Respondent. The entirety of the interview was focused on the actions of the Local Authority A.

Accordingly I find that the Complainant did not comply with the provisions of section 6(1) of the Act in that she “reasonably believe[d] that the relevant wrongdoing which the disclosure tends to show relates solely or mainly (i) to the conduct of a person other than the worker’s employer, or (ii) to something for which a person other than the worker’s employer has legal responsibility” but she did not make the disclosure “to that other person”.

I find, therefore, that alleged protected disclosure seventeen is not a protected disclosure within the meaning of the Act.

Penalisation within the cognisable period

Now that I have established that the Complainant made protected disclosures within the meaning of the Act, I must investigate whether she was penalised for making those disclosures.

Section 3(1) of the Act provides the following definition of penalisation:

“penalisation” means any act or omission that affects a worker to the worker’s detriment, and in particular includes—

(a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal;

In Conway v Department of Agriculture [2020] IEHC 665 Hyland J confirmed that, under the Act, the worker bears the evidential burden of establishing detriment and penalisation. Hyland J found that to establish that a worker had suffered “detriment” (which is required to establish penalisation), there must be evidence of harm or damage caused to the worker.

In this regard, I note the findings of the Labour Court in Cisco Systems Internetworking (Ireland) Limited and Olumide Smith EDA1829, where the Court stated that “It is well settled law that mere assertion cannot be elevated to the status of evidence”. 

I must now investigate whether the Complainant provided any evidence to show that she suffered detriment and the nature of that detriment. If I find that the Complainant has suffered detriment, I must then investigate if there is a causal connection between the detriment suffered by the Complainant and the fact that she made one or more protected disclosures. If I find that there is a causal connection between the detriment suffered by the Complainant and the making of one or more protected disclosures, it is then open to me to make a finding of penalisation under the Act. However, if I do not make a finding that the Complainant suffered detriment as a result of making a protected disclosure, then I will not be in a position to make a finding of penalisation under the Act.

I will now investigate each alleged act of penalisation which falls within the cognisable period of this complaint.

Act of Penalisation Nineteen

The Complainant asserts that she was penalised when she did not receive support from management within the Respondent organisation. She takes particular issue with a DGS who did not remain at a Sector Committee meeting to hear her give a report on alleged union bashing in Local Authority A.

Not unsurprisingly, the Respondent’s position on this matter differs from that of the Complainant. The Respondent asserts that the Complainant did not give the DGS advance notice of her request that he remain at the Sector Committee meeting to hear her report. The Respondent said that the DGS had another engagement and was unable to stay. In its submission, the Respondent noted email communication between the Complainant and the DGS in which the DGS offered to meet with the Complainant to discuss the issues she was having with Local Authority A. The Respondent asserted that the Complainant did not avail of the DGS’s offer.

Clearly, the Complainant was disappointed when the DGS departed the Sector Committee meeting before she spoke. She was also disappointed at what she perceived was a lack of support from the senior management of the Respondent organisation.

The Complainant, however, did not make any submission or adduce any evidence to show how an act or omission of the DGS and the senior management of the Respondent was detrimental to her in a manner which amounted to penalisation within the meaning of section 3(1) of the Act.

I find, therefore, that alleged act of penalisation nineteen is not an act of penalisation within the meaning of the Act.

Act of Penalisation Twenty

The Complainant alleges that she was penalised when a petition and a flyer which she intended to use in connection with a protest was amended by the Respondent’s Head of Legal.

In its submission, the Respondent opened an email chain which it asserted showed that the Complainant had misrepresented advice she had received from the Head of Legal and that the Head of Legal had explained to her that it was her role to be “risk adverse”. The Respondent also asserted that the Complainant had not followed agreed procedures when she collected signatures on an unsanctioned version of the petition. 

During the cross-examination, the Complainant accepted that she had acknowledged in her evidence that that it was the prerogative of management to disagree with the proposed wording for a petition. When asked to clarify what penalisation she was alleging, the Complainant replied that “it was an attempt to conceal and protect the local authority, rather than to, I suppose, support me and go all out with this. That was the whole problem here, there was no support. And that in itself was an act of penalisation”.

What appears to be at play here is a difference in approach by the Complainant and the Respondent organisation. The Complainant favoured a “no-holds-barred” approach whereas the Respondent organisation was more cautious and wished to avoid including anything that was potentially defamatory in a petition or flyer in order to protect itself and its members. Clearly, the Complainant was disappointed with the Respondent’s more cautious approach.

The Complainant did not make any submission or adduce any evidence to show how an act or omission of the Respondent was detrimental to her in a manner which amounted to penalisation within the meaning of section 3(1) of the Act.

I find, therefore, that alleged act of penalisation twenty is not an act of penalisation within the meaning of the Act.

Act of Penalisation Twenty-One

The Complainant contends that the failure of the Sector Committee to hold a meeting in County A despite promises to the contrary represents an act of penalisation.

The Respondent rejects the Complainant’s assertion.

The Complainant did not make any submission or adduce any evidence to show how an act or omission of the Respondent was detrimental to her in a manner which amounted to penalisation within the meaning of section 3(1) of the Act.

I find, therefore, that alleged act of penalisation twenty-one is not an act of penalisation within the meaning of the Act.

Act of Penalisation Twenty-Two

The Complainant alleged that the manner in which the Respondent dealt with her request for equipment to be used at a protest in County A amounted to penalisation under the Act.

The Respondent asserted that although the Complainant followed procedures when ordering equipment for the planned protest in County A, she did not seek prior sanction as was required when she arranged for the equipment to be couriered to her home. Rather than incurring the expense of a courier, the Complainant’s Sector Organiser offered to bring the equipment to the protest himself.

The Complainant also expressed dissatisfaction with the Respondent’s failure to provide a stage for the protest. The Respondent, however, disputed that the Complainant had ordered a stage.

The Complainant listed a number of additional penalisations to which she was allegedly subjected in relation to the protest which she did not particularise in either her submission or oral evidence.

I note that the Complainant concluded her submission on alleged act of penalisation twenty-two by stating that the “protest was a great success so much so that the Local Authority B members wanted to do the same”. It is difficult to reconcile this statement with the requirement for the Complainant to show how an act or omission of the Respondent was detrimental to her in a manner which amounted to penalisation within the meaning of section 3(1) of the Act.

I find, therefore, that alleged act of penalisation twenty-two is not an act of penalisation within the meaning of the Act.

Act of Penalisation Twenty-Three

During the course of the cross-examination of the Complainant by the Respondent’s representative, the Complainant confirmed that the penalisation for her was that unofficial action arose as a consequence of the Labour Court not upholding a complaint which she submitted on behalf of workers she represented, and she was left to deal with the unofficial action on her own.

The Complainant did not make any submission or adduce any evidence to show how an act or omission of the Respondent was detrimental to her in a manner which amounted to penalisation within the meaning of section 3(1) of the Act.

I find, therefore, that alleged act of penalisation twenty-three is not an act of penalisation within the meaning of the Act.

Act of Penalisation Twenty-Four

The Complainant asserts that she was penalised when the wording on flyers she proposed to use at a protest in County B was altered by the Respondent. She asserts that she was further penalised when, following the protest, her Sector Organiser emailed the Industrial Officers in his sector and asked them to forward individual complaints to the Respondent’s Workers Rights Centre which had been established to deal with individual complaints. The Complainant alleged that her Sector Organiser made this request to conceal the truth.

The Respondent rejected the Complainant’s assertions and submitted that it was the prerogative of the Respondent to edit any communication that was being issued in its name. The Responded further submitted that the Workers Rights Centre had been established to deal with individual complaints so that industrial organisers could focus on collective issues which were of relevance to a body of workers.

The Complainant did not make any submission or adduce any evidence to show how an act or omission of the Respondent was detrimental to her in a manner which amounted to penalisation within the meaning of section 3(1) of the Act.

I find, therefore, that alleged act of penalisation twenty-four is not an act of penalisation within the meaning of the Act.

Act of Penalisation Twenty-Five

The Complainant asserted that she was penalised when the Respondent sought external legal advice regarding her request to appeal a decision of the Labour Court to the High Court.

Under the heading “Protected Disclosure Thirteen”, the Complainant submitted that on 27 July 2022, she disclosed to the General Secretary that she was seeking approval to appeal two Labour Court determinations.

Elsewhere in this decision, I found that alleged protected disclosure thirteen was not a protected disclosure within the meaning of the Act as I did not accept that the Complainant could have held a reasonable belief that the General Secretary of the Respondent organisation could have committed “a relevant wrongdoing” within the meaning of the Act.

It is a requirement of the Act that, in order to establish penalisation an employee must show that penalisation follows from, and is a consequence of, having reported a wrongdoing. 

I am of the view that alleged act of penalisation twenty-five follows from alleged protected disclosure thirteen as both relate to the same event. Given my finding that alleged protected disclosure thirteen was not a protected disclosure within the meaning of the Act, it is not possible for the Complainant to establish a causal connection between it and alleged act of penalisation twenty-five.

I find, therefore, that alleged act of penalisation twenty-five is not an act of penalisation within the meaning of the Act.

Act of Penalisation Twenty-Six

The Complainant asserted that by meeting with management of Local Authority A while she was on leave, her Sector Organiser penalised her by undermining her in public.

The parties differed in their recollection of events which preceded the meeting.  The Respondent asserted that after the protest in County B on 19 August 2022 several members from Local Authority A asked the Complainant’s Sector Organiser to try to resolve an outstanding dispute with Local Authority A which related to the non-implementation of the Labour Court recommendation for two members and had been ongoing since 2018, a period of four years.

The Respondent asserted that the Complainant’s Sector Organiser spoke to the Complainant at the protest and advised her of the members’ request. The Respondent asserted that the Complainant told her Sector Organiser that she had no issue with him representing the members while she was on annual leave.

The Complainant, however, asserted that the first she heard of her Sector Organiser’s meeting with the management of Local Authority A was when a shop steward contacted her while she was on leave to inform her that a meeting had been arranged to take place in her absence.

From the submissions and evidence put before me, it was clear that there was a tension between the Complainant and her Sector Organiser regarding the nature of their working relationship. The Complainant submitted that she regularly sought support from her Sector Organiser which was not forthcoming. The Respondent, on the other hand, submitted that the Complainant did not always accept the guidance and direction that was given to her.

On the face of it, the fact that the Complainant’s Sector Organiser held a meeting to deal with one of the Complainant’s issues while she was on leave would appear to represent an undermining of her. However, given that the dispute was ongoing for four years, it was not unreasonable for the Complainant’s Sector Organiser, as her line manager, to attempt to resolve the dispute particularly since he was requested to do so by the workers. On balance, therefore, I find that alleged act of penalisation twenty-six is not an act of penalisation within the meaning of the Act.

Act of Penalisation Twenty-Seven

In August 2022 the Complainant was nominated for the position of staff representative on the National Executive Council (NEC) of the Respondent organisation. As another member of staff had also been nominated, there was a requirement to conduct an election to select the staff representative.

The Complainant asserted that the election was not carried out in line with the agreed protocol and procedure. The Complainant asserts that the Respondent was planning to get rid of her, so the protocol was abandoned. In cross-examination, Ms O’Loughlin suggested that in all the communications between the Complainant and staff members of the Respondent organisation in relation to this matter, the Complainant never actually sought the application of a particular protocol because her own evidence shows that she asked several times what protocol was being followed. Ms O’Loughlin suggested to the Complainant that the specifics of her request to the Respondent organisation were outside the parameters of the protocol. Ms O’Loughlin mentioned that the protocol does not allow for online voting but in her correspondence the Complainant was insisting that there be an online vote. Ms O’Loughlin also referred to the Complainant’s request for information which was not provided for in the protocol.

In cross-examination, Ms O’Loughlin pointed out that the Returning Officer had written to the Complainant and informed her that the arrangements for the election had been agreed at the October meeting of the NEC, and they were circulated on 24 October 2022 with the ballot papers. Ms O’Loughlin suggested that Complainant would have received this information as it was circulated to all staff. Ms O’Loughlin asked the Complainant how she had been penalised.

The Complainant responded that as a candidate she had the right to see the procedure and had a right to a response. The Complainant believed that there was a requirement on the Returning Officer to give the candidates the information in advance. This belief was not supported by evidence.

The Complainant also asserted that voters did not have the option of casting their vote in-person which they should have had. The Complainant asserted that she would have been elected if there had been an opportunity to vote in-person.

The Respondent said that due to unavoidable time constraints it was decided that in-person voting would not be facilitated as it was not logistically possible.

The Complainant also understood that 17 or more staff with less than one year’s service were permitted to vote which was contrary to the agreed procedure.

At my request, the Respondent inspected the election records as a result of which it confirmed that three staff members were hired by the Respondent organisation on a permanent basis during the relevant period of 14 December 2021 to 1 November 2022. One staff member had been working with the union since 2018 on a secondment arrangement and therefore had more than 12 months’ service with the Respondent organisation at the time of the election and the other two individuals were hired from an external panel commencing employment on 1 January 2022.

The Complainant further asserted that the gender rule had not been complied with. She alleged that the gender target of 40% would have been met if she had got the position. Instead, women only held 38.9% of the positions on the NEC after the disputed election.

In its submission, the Respondent said that Rule 79 in the rules of the Respondent organisation requires that “the number of members on the NEC shall be inclusive of gender balance which would be no less than 40% female and no less than 40% male members”. The Respondent confirmed that after the elections for NEC members took place at the Biennial Delegate Conferences in October and November 2022, the gender balance percentage was 42.31% female. The Respondent also confirmed that after the Staff Representative election on 15 December 2022, the gender balance percentage was 40.74%. Therefore, the gender balance requirement was achieved prior to the election for the staff representative position on the NEC taking place.

The Complainant also asserted that a scrutineer had not been appointed even though one was required.

The Respondent confirmed that the Returning Officer appointed the five trustees of the Respondent organisation as the scrutineers and invited both nominees and the officers of the Staff Representative Council to the count.

The Complainant asserted that there was no realistic chance that she would get onto the committee. The Complainant submitted that the election did not stand up to legal scrutiny. The Complainant contended that everything that was done was done to ensure that she did not get elected. The Complainant asserted that this act of penalisation was a reaction to all the protected disclosures she had made. The Complainant asserted that she was penalised because there was a campaign to get her out.

It is clear that the Complainant was deeply unhappy about the fact that she was not elected as staff representative to the NEC, and she has asserted a number of significant shortcomings with the conduct of the election. I am satisfied that the Respondent has addressed these assertions. In some cases, it has been able to refute them in their entirety; in others it has provided a reasonable defence of the actions it took.

I am of the view that the Complainant did not make any sustainable submission or adduce any irrefutable evidence to show how an act or omission of the Respondent was detrimental to her in a manner which amounted to penalisation within the meaning of section 3(1) of the Act.

I find, therefore, that alleged act of penalisation twenty-seven is not an act of penalisation within the meaning of the Act.

Act of Penalisation Twenty-Eight

The Complainant asserts that her Sector Organiser’s email of 18 November 2022 asking his staff to arrange cover for annual leave represents an act of penalisation.

While under cross-examination, the Complainant asserted that her Sector Organiser’s act of emailing his staff to reminding them to put cover arrangements in place for annual leave was designed to provoke her.

The Complainant said that she responded in the same way as she had responded since 2018 when she joined the sector in that she responded that she would not be seeking cover for annual leave. The Complainant asserted that her Sector Organiser’s response that he would have to bring the matter to the attention of the Divisional Organiser was complete penalisation.

The Complainant asserted that her Sector Organiser asked her about her annual leave because he knew what her answer would be. She contends that he did so on purpose. The Complainant asserts that the email was sent deliberately to penalise her. The Complainant contends that her managers were using her response to the email about annual leave to build a case behind the scenes.

The Respondent asserts that it is a well-established practice within the Respondent organisation that staff members put cover arrangements in place when they are taking annual leave. The Respondent asserts that the Complainant’s response to her Sector Organiser represented a refusal to abide by the direction she had been given.

The Complainant did not make any submission or adduce any evidence to show how an act or omission of the Respondent was detrimental to her in a manner which amounted to penalisation within the meaning of section 3(1) of the Act.

I find, therefore, that alleged act of penalisation twenty-eight is not an act of penalisation within the meaning of the Act.

Act of Penalisation Twenty-Nine

On 16 November 2022, the Complainant’s Sector Organiser asked her to send him a draft of a letter she intended to send to the HR manager in Local Authority B before she issued it given that it related to a contentious matter. The Complainant did not follow her Sector Manager’s instruction – she issued the final version of the letter without sending a prior draft to him.

Under cross-examination, the Complainant asserted that she did not send a draft of a letter she proposed to send to HR in Local Authority B to her Sector Organiser as had been agreed because she was resisting and protecting herself at that point in time: resisting being subjugated and demoted by stealth by somebody suggesting to her that she hadn't got the competence to write a letter to the management.

The Complainant said that she was confident that management of the Respondent organisation was trying to undermine her – they were breaking her confidence step, by step, by step, by step.

The Complainant did not make any submission or adduce any evidence to show how an act or omission of the Respondent was detrimental to her in a manner which amounted to penalisation within the meaning of section 3(1) of the Act.

I find, therefore, that alleged act of penalisation twenty-nine is not an act of penalisation within the meaning of the Act.

Article in Liberty

During the course of the hearing, the Complainant alleged that her omission from an article in the Respondent’s in house newsletter, Liberty, concerning the demonstration in County A represented an act of penalisation against her in that the Respondent failed to recognise her central role in the protest.

The Respondent said that it was not responsible for the content of articles in Liberty – these were submitted by officials and activists.

I find, therefore, that the omission of any reference to the Complainant in an article in Liberty pertaining to the protest in County A is not an act of penalisation within the meaning of the Act.

Having considered the submissions of both parties and all the evidence adduced at the adjudication hearing, I declare that the complaint of alleged penalisation under the Protected Disclosures Act 2014 is not well founded.

No penalisation as a result of making protected disclosures