Complainant

Respondent

Anonymised Parties

An Individual

A member of a governing body 

Representatives

Mary Fay BL instructed by Denis I Finn Solicitors

Alan Dodd BL instructed by Sean Costello Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059990-001

14/11/2023

The Complainant was a member of An Garda Síochána (“AGS”). At the relevant time associated with the complaint the Respondent was also a member. They both sat on the governing body of an organisation associated with AGS ( which I will refer to as the “Organisation” for the purposes of this decision).

Complaints were submitted by the Complainant against the Respondent and seven other members of that Organisation’s governing body on the 14th of November 2023. These cases, ADJ-00048733/48734/48735/48739/48739/48740/48741/48742 are linked and were heard together.

The complaint in this case was addressed to the Respondent at the Organisation’s headquarters. It states: I made a Protected  disclosure to a Senior Garda Staff member and a Garda Superintendent. This involved what I believed and still believe to be be wrongdoing in relation to non payment of taxes. During a seperate investigation into a Bullying and Harrassment complaint, the Garda Superintendent then gave three parties my protected disclosures. Those people then issued 4 High Court writes against me for defamation. The people involved, in issuing the writs, are or were all employees of the employer (at that time) This party disclosed my protected disclosure to others to allow them take this action against me

A hearing was held on the 17th of September 2024. At this hearing the Complainant sought to substitute the Respondent for the Organisation they also submitted that they were a “worker” under the Protected Disclosures Act when they had served as an officer of that Organisation. The WRC has jurisdiction of this act on the basis of Section 12 which concerns employees and not workers. The Complainant later, in a letter of the 4th of October to the Organisation, asserted that they were in fact an employee of the Organisation while also an employee of AGS and supported this argument with revenue records.

While, on the basis of the Complainant’s application, any one of the eight members could have been the substituted case the Complainant sought that this complaint specifically be amended owing to the Respondent’s role within the Organisation at the time the complaint was submitted. As such the request to amend the complaint and substitute the Respondent for another party is considered in this decision.

The Complainant accepts they have never been an employee of the Respondent. Their application to substitute this Respondent for another party is considered below.

The Respondent believes the complaint is misconceived and does not come within the scope of Section 12. The WRC has no jurisdiction to consider it further.

Request to Substitute Respondent

On the hearing of the 17th of September 2024 the Respondent’s representatives were clear that they had no basis to act for the Organisation which the Complainant sought to substitute in as respondent. In the circumstances I was required to adjourn and invite the Complainant to write to the Organisation for consent to amend the complaint to show them as the Respondent. I further requested that the Complainant put any legal arguments that it might have in favour of the request being granted in that letter so that the Organisation would be on notice of these and be in a position to respond. They set these out in a letter of the 4th of October 2024.

In this letter they referred to County Louth VEC and the Equality Tribunal and Pearse Brannigan [2009] IEHC 370 which considered amendments to WRC complaints.

That case concerned an error on the form then submitted to the Equality Tribunal (an EEI form). McGovern J held that the form “was only intended to set out in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case discrimination on the grounds of sexual orientation remains the same”.                                                                                                                                                                                               

They also referred to the Patricia Cullen v Department of Foreign Affairs cited the Labour Court considering and applying the above case:

“The fundamental principle adumbrated by the Judge is that, by analogy with the practice in civil proceedings in the ordinary Courts, a complainant should be permitted to amend his or her original claim where the justice of the case requires it. McGovern J did, however, add an important qualification to this general principle in pointing out that an amendment can only be made where the general nature of the complainant remains the same”.

They submit it is clear from the claim forms that the general nature of the Complainant’s complaint is that he was penalised for having made a protected disclosure and that several senior members of the Organisation governing body who received the disclosure via a confidential process disseminated it further amongst other members of the Organisation. A number of them used the content of the disclosure to launch four sets of High Court proceedings against the Complainant. They argue that as those proceedings remain active the acts of penalisation are therefore ongoing.

The Complainant then listed a number of specific additional allegations against the Organisation accusing them of penalisation however these were not contained in the complaint form and as such I do not think can reasonably support their argument for substitution.

Response of the Organisation

The Organisation responded to this letter outlining that they did not consent to any substitution.

They pointed out that the Complainant had submitted complaints against specific named individuals who had instigated High Court proceedings against him and referred to those proceedings. While these individuals were members of their governing body they pointed out that the Organisation were not party to those proceedings and that the Complainant had omitted to name the other members of the governing body at that time who were not associated with that dispute. They argue that this clearly isn’t an error and the Complainant had meant to bring cases against those individuals and only sought to change their case when they discovered it was misconceived.

They further point out that the Complainant had brought complaints against Organisation in the past and properly named them. As such it just isn’t credible for him to argue now that this complaint was actually a complaint against the Organisation.

They rely on the Labour Court determination in Travelodge Management Ltd and Sylwia Wach (EDA 1511).

This case concerned a genuine mistake in naming the wrong entity as Respondent in a complaint under the Employment Equality Act.

Chairman Duffy on behalf of the division in that decision

outlined as follows:

“The only evidence before the Court is that the Complainant was never employed by Travelodge Management Limited. In the absence of any evidence to the contrary that must be accepted. Consequently, the only question that the Court must decide is whether the entity that is the actual employer can be substituted for the entity impleaded in the claim.

The Complainant relies on s.88 of the Act in urging the Court to amend the proceedings. In the Court’s view s.88 is not intended to deal with a situation such as that which arose in this case. That section is intended to enable the Court (or the Equality Tribunal) to amend a determination or a decision, as the case may be, where an error of a formal or verbal nature appears on the face of a written determination or decision. That can include a formal or verbal error in the name of a party that participated in the investigation.

What is in issue in this case does not involve a formal or verbal error. Nor does the Complainant’s application relate to a Determination issued by the Court. The wrong Respondent was impleaded and the Union’s application is to amend the claim by substituting another legal person for the Respondent cited. In the Court’s view that goes beyond was intended by s.88 of the Act.

The decision of the High Court in County Louth VEC v Equality Tribunal[2009] IEHC 370 is a seminal case on the question of when proceedings before a statutory tribunal can be amended. In that case McGovern J set out the following principle of law: (the court cited the same section as the Complainant above).

The ratio of that case appears to be that the procedures adopted by statutory tribunals in relation to the amendment of non-statutory forms used in the initiation of claims should not be more stringent than those that apply in the ordinary courts. That is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice. …….

Order 15, Rule 13 of the Rules of the Superior Courts (S.I. No.15 of 1986) makes provision for the amendment of proceeding initiated in the High Court in which parties are improperly named. It provides: -

“No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added….”

It could cogently be argued that in keeping with the decision in County Louth VEC v Equality Tribunal, and by application of the principle of equivalence, the Court should not adopt a more stringent stance in relation to the substitution of parties that is available in the High Court pursuant to that rule.

…….

the preponderance of authority is that the Superior Courts will not add or substitute a party to proceedings where the limitation period in the action has expired as against that party. It appears to the Court that even if it had a discretion analogous to that available to the Superior Courts under O.15 r13 of the Rules of the Superior Courts, (and the Court makes no such finding) it would not be appropriate to exercise that discretion in this case. The applicable statutory time-limit prescribed is that prescribed by s.77(5) of the Act. The section provided that a complaint under the Act must be referred to the Equality Tribunal within a period of six months from the occurrence of the event giving raise to the complaint, with a possibility of an extension of a further six months for reasonable cause shown.

Prima facie, the time limit has passed in this case but whether that is or is not the case would depend on other considerations. In that regard it is noted that the Complainant has instituted fresh proceedings against her actual employer. It will be a matter for the Equality Tribunal in considering that claim to decide whether the claim is statute barred as against the Respondent in that case. It would be inappropriate to pre-empt the decision of the Equality Tribunal on that point, which can be appealed by either party to this Court.”

Decision Regarding Substitution

I accept the Organisation’s position that the Complainant intended to name the Respondent following their having initiated High Court proceedings against the Complainant. This is clear from the complaint form and the submissions of the Organisation. The letter of the 4th of October from the Complainant does not seem dispute this.

The fact that the Complainant sought to proceed against the Respondent in their complaint form rather than the Organisation means that an amendment would not be within the general nature of the original complaint. They are two different cases.  

For the avoidance of doubt in reviewing the complaint form it is clear to me that the employer referenced in the narrative is AGS and not the Organisation. The Complainant only began to assert they were an employee of the Organisation in October 2024 nearly a year after the complaint was submitted.

That purported employment relationship ended between the Organisation and the Complainant more than 6 months from the date this request for substitution was made.

In light of the above as well as in deference to the position of the Labour Court in Travelodge Management Ltd and Sylwia Wach I am satisfied that I should not substitute the Organisation for the Respondent in this case.

For completeness, I note that the Complainant submits that penalisation is ongoing because High Court cases are ongoing and therefore the issue of time outlined in Travelodge might not arise. This argument relies on an assumption that the WRC, a non-court adjudicative body of the executive, can sanction a person for initiating proceedings in the superior courts. The Complainant has not supported this position in their extensive written submissions nor have they addressed the obvious issues associated with it. In the circumstances I do not believe it would be reasonable to substitute the Respondent for the Organisation solely to facilitate this argument being advanced further. If the Complainant is seriously standing over this position, then this decision can cause them no prejudice and they can file fresh complaints.

Conclusion

It is accepted that the Complainant is not nor has ever been an employee of the Respondent. In the circumstances the complaint of contravention of Section 12 of the Protected Disclosures Act must fail.

The complaint is not well founded.