Complainant

Respondent

Parties

Hugh  Rance

Cork Education and Training Board

Representatives

Appeared In Person

(Úna Dunphy, Advocacy Group assisting day 1)

Shane Crossan, O'Flynn Exhams Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00060118-001

20/11/2023

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

CA-00060574-001

18/12/2023

On 20 November 2023, the Complainant, a Music Teacher and Lay Litigant submitted a claim that he had not been notified in writing of a change in his terms of his employment by the Respondent, Cork Education and Training Board.

On 18 December 2023, the Complainant submitted a second complaint about having been penalised or being threatened with penalisation following a Protected Disclosure he made to the Respondent.

Both Parties submitted extensive written submissions.

On the first day of hearing, the Complainant was supported by Ms. Úna Dunphy, who was advised that she was welcome at hearing, yet could not assume power of interruption.

The Press were in attendance on the first day of the public hearing.

At the outset of the hearing, I made a declaration that a member of my family was recently employed by Cork ETB and explained that I had no association with the Respondent outside the facts of this case. I invited objections.

The Respondent accepted the declaration.

The Complainant queried if my relative was a manager? I explained they were not. The Complainant accepted the declaration.

The Complainant, as the sole witness in his case, gave evidence by affirmation.

The Respondent 5 witnesses gave sworn evidence.

At the conclusion of the hearing, I requested that the complainant provide details on how the parallel protected disclosures were progressing. He did provide this.

I wish to apologise to the parties for the delay in receiving this decision which was due to a period of unexpected extended sick leave.

The Complainant is a Music Teacher and Lay Litigant. He has worked in this role since 2001. The Complainant has presented a narrative regarding his employment which has attributed a number of historical improvements and certainties in his tenure of employment to the evolution of the application of European Labour Directives and more specifically in Ireland:

1 Protection of Fixed Term (Workers) Act 2003

2 Terms of Employment (Information) Act 1994

Prehearing

The cases for decision have been submitted over two dates in 2023, 20 November and 18 December 2023. During the timeline from submission of complaint to hearing, the complainant engaged in extensive prehearing correspondence with the WRC to express firstly his identified shortfall in a tick box component on the complaint form to reflect his desire to make complaints under amended Acts.

This arose from his concerns that the amendments in both Acts under which he had raised complaints had not been accommodated in new tick box sections on the complaint form.

On 13 March 2024, the Administrative Section of the WRC reassured the Complainant that the compliant form was not a statutory form, and he was welcome to raise issues with the Adjudicator.

On 15 May 2024, the Complainant informed the WRC that he had withdrawn his right to confidentiality under the Protected Disclosure legislation to facilitate various Government Depts in addressing aspects of noncompliance in addition to removing restrictions on press reportage.

On 27 May 2024, the Complainant copied the WRC on inter party correspondence where he had sought his “correct pay “to place on the case detail in case of compensation, He also sought details on the mechanism on witness attendance at hearing.

On May 30, 2024, the Complainant notified the WRC of 7 named witnesses, three of which as teachers were redacted. An outline submission was received and shared with the Respondent.

On 13 June 2024, the Complainant clarified that he would no longer seek a summons to accompany his witnesses to hearing.

A hearing set for July 2024 was postponed on the respondent application. This appears to have caused the Complainant some unease as the file reflects that he filed an appeal of that postponement directly to the Labour Court.

I received carriage of this case on 26 June 2024, when both Parties were notified of a resumed hearing set for 26 August 2024 in Cork.

I wrote to both Parties on 18 July 2024. I acknowledged that I wished to be permitted time to read into the case by exploring both parties’ submissions. I indicated that if an application was being made to compel the attendance of a witness at hearing, I would hear and decide on that application at hearing. I was not canvassing any further documentation at this time.

The Complainant proceeded to contact Mr John Fitzgibbon, Director at CETB in the aftermath of this seeking his attendance as witness at hearing in August. Mr Fitzgibbon wrote to the Complainant in a letter dated 9 August 2024 expressing some reservation on his relevance as a witness but placed a rider at the end which indicated if the Adjudicator sought his attendance, he would attend.

I wrote twice more to the Parties on 12 and 19 August 2024 setting out the parameters of the hearing and seeking both parties’ cooperation.

The Complainant forwarded a copy of both Mr Fitzgibbons completed appeal of the Protected Disclosure in the workplace and his scripted response of 19 August 2024 and sought these documents inclusion in his completed written submissions.

The Hearing:

 On 20 November 2023, the complainant detailed the complaint:

CA-00060118-001 Terms of Employment (Information) Act 1994

I have included a summary from the Complainants written submissions.

The Complainant provides a number of music lessons for students in the Cork area on behalf of the School of Music.

The Complainant outlined that he had not been notified of a new student’s attendance at a music lesson on 25 September 2023. He contended that this was a variance with a long-standing Agreement from 2011 where prior notification of changes of schedule was required. He acknowledged that he had been on sick leave prior to this time.

He rejected the Respondents position that he had been properly on notice of the students’ details on the student IT recording system. It was the complainant case that he had been a habitual reviewer of this schedule. He outlined that the Respondent had omitted to inform him of the new student, who had not paid tuition by 25 September 2023. This commenced later.

The instant claim arose as a component of a Protected Disclosure, September 2023 and now extracted from that document as a standalone complaint framed as a failure by the Respondent to notify the complainant of a change in his terms of employment on 25 September 2023.

The Complainant referred to a long-standing agreement of June 2011.

“It was agreed that a minimum of at least 24 hrs notice would be given in future and whenever possible, more notice of any such changes would be provided “

The Complainant rejected that a universal instruction to “check an online document daily “by the principal does not defeat the protections contained in SS 3-5 of the Act.

Mr Rance recorded that his efforts to seek to resolve the matter short of a formal complaint went unheeded by the Respondent. 

Hi Carol, if you call me back, I will explain the implications of indirect [i.e. passive] online versus actual communications [as required by the Terms of Employment (Information) Act, 1994-2014 among others], in relation to teacher notifications with reference to past legal cases against the VEC. This is an important issue in principal and legally.

 Appendix 2. I did not receive a response from the principal to this or to a second email in which I wrote:

 …Making a change to an online document that sits in the ether does not constitute communication with a teacher. If you cannot accept this, I can make a formal complaint to get it resolved if you prefer.

The Complainant sought a penalty “as deemed appropriate “having regard for the contextual background of historical noncompliance which preceded this contravention.

The Complainant reflected that once he had placed this claim before the WRC, the issue was resolved.

At hearing,

Mr Rance sought to compel the attendance of Mr John Fitzgibbon, Director of Further Education to hearing.

He clarified that he had not responded to his request to seek to mediate the Protected Disclosure complaint. He clarified that Mr Fitzgibbon was not relevant to the CA-00060118-001 complaint.

The Respondent agreed to bring Mr Fitzgibbon to hearing in a voluntary capacity on the resumed hearing date.

Evidence of the Complainant

The Complainant had been on sick leave in early September 2023

Mr Rance outlined that Section 3 of the Act, as amended requires 24 hrs notice in a change of working time. On 25 September 2023, the caretaker in one of the schools he attended told him that a student had attended for a music lesson at 4.40 pm but he had not been notified, so the lesson was not available. He attended the school at 5.20 pm to tutor another student. He submitted that the student had also attended at 4.40 pm on 11 and 18 September 2023.

The Complainant cross referenced information from the Respondents data base secured in 2024.

 This depicted a consistent pattern of his checking on locums during his absence so as to record this detail on his student log.

He was certain that he had a historical Agreement (2011) with the Respondent that he was to be provided with 24 hrs notice of any changes to his work schedule. This was not a collective agreement. He tried to contact the principal, but there was no reply.

I requested that the complainant provide me an email referred to in the papers as

 “August 29 1.02pm “

The Complainant confirmed the matter had since resolved.

During cross examination, the complainant confirmed that he had received his new work schedule on 15 May 2023.

Mr Rance re-affirmed that he had checked his student schedule on his return from sick leave “I believe that it had not changed “It was his case that he would have provided the lesson if he knew about it.

He rejected Mr Crossan’s contention that he had only responded after the Principal, Ms Daly had sent her email. He denied having a personal vendetta against his line Manager.

Mr Rance relied on the 24 hrs Agreement on notification of change in oral argument.

He detailed his working hours week of 25 September 2023. He confirmed that he had been paid a full week pay and had 12 students on his data base.

I inquired on the remedy sought and the complainant pointed to extending the 24-hr notice for all. I explained my limitations on this, an individual matter. (section 7)

The Complainant confirmed that he had not argued the application of the 2011 Agreement in his inter party dealings during September / October 2024.

 He confirmed that the issue of notification of changes in the work schedule went on to ground an aspect of the Protected Disclosure in the second complaint before the WRC.

The Complainant also took a rear-view mirror opportunity to look back on his past resolution of disputes with this employer, all of which predated the law on which he now relied.

CA-00060574-001 Protected Disclosure Act 2014, as amended.

The Complainant has been employed as a Music Teacher in the Post Primary Sector since 8 October 2001. He is employed on a 22-hour full time basis and receives €2845.16 fortnightly in pay.

On 18 December 2023, the complainant submitted a complaint of penalisation by the Respondent for having made a protected Disclosure under the Protected Disclosure Act, 2014.

On 2 October 2023 the Complainant made a protected disclosure to Mr Denis Leamy, CEO.

This reflected:

1.       Gross mismanagement at the School of Music

2.       Failures of Governance, where teachers were paid without their having students to teach.

3.       Resulting in significant waste of public funds “which when audited is expected to exceed one million euro “

The Disclosure was met with a disapproval by the Respondent as:

4.       Time limit not adhered to in acknowledging the protected disclosure, therefore transmitted to the Minister of Education.

5.        His proposal for Mediation was rejected.

6.       Essential information required to substantiate the claims was requested but not secured.

7.       Penalised as a result of protected disclosure, when “complainant was cut off from communication with work colleagues, including Cork ETB Managers who have a duty of care towards him as an employee “

The Complainant outlined that he had been discriminated against for having made a protected disclosure on October 2, 2023. The disclosure had not been acknowledged within the requisite 7 days. He had followed up but had not received a response.

His first course of action in submitting a complaint of wrongdoing was to alert Ms A, a Senior Manager, on 30 September 2023. The email bounced back indicating that she no longer worked there.

 When he found out Ms A had left her position, he had contacted John Fitzgibbon, who had assisted him previously in 2013.

Evidence of the Complainant:

The Complainant gave a background to the protected disclosure of Sept -Oct 2023.

He clarified that he not a staff representative but had carried a real concern regarding an underutilisation of allocated teaching hours at the school of music.

I asked the complainant to take me through the pathway of the protected disclosure.

He said that by the end of September 2023, he had decided to submit a complaint of wrongdoing at the school. He acknowledged that previous difficulties he had experienced at the school had been resolved following high-level intervention in 2013.

Mr Rance had typically taught 30-40 students, which had reduced to 12 students at the time of his protected disclosure i.e. 63% of unutilised time. Fiver teachers had unutilised hours.

He sent a letter to Ms A, which bounced back via email. There was no connection to the office phone and switchboard would not tell him when Ms A had left. He was directed to Human Resources.

He was uncomfortable with that direction as Ms Flynn, Human Resources had a prior involvement in his historical employment issues, and he declared her unsuitable to deal with whistleblowing.

The Organisations Protected Disclosure Officer Ms B was no longer there. A dedicated phone line was unattended.

On 2 October 2023, he sent the CEO, Mr Leamy the protected disclosure with attached documents. At first, he submitted that the CEOs PA had acknowledged receipt on 8 October 2023, then changed his mind. He did eventually accept that the disclosure was acknowledged, but not by the CEO himself, but his PA.

He submitted that the protected disclosure was mainly concerned with “misuse of public funds “

Mr Rance submitted that the Organisations Protected Disclosure Policy 2016 was out of date.

As he had not received a response to his concerns, he sent a Protected Disclosure to the Minister of Education during the morning of 18 October 2023.” This is going its own way “

The Respondent responded later that day.

In parallel to these events, the Complainant said that he initiated a review which sought to improve things with other teachers.

He began to fear redundancy and sought an urgent response to his concerns as he felt vulnerable in the absence of a response. There was not enough work for him as existing flute teacher and yet another flute teacher was hired in September 2023.

Mr Rance submitted that from 2October 2023 to February 2024, a period of 4 months, no new students were facilitated in his area.

He maintained that he had raised these concerns at the staff meeting in September 2023, but no dialogue followed. He had acted in good faith but contended he had not been listened to.

Mr Rance contended that his actions were criticised, and he had been reprimanded. This constituted the first act of penalisation.

Mr Rance outlined that he had set up the service on a green field site. Music lessons in West Cork had thrived and there were no student vacancies 2001-2011/12. The lessons were no longer properly promoted and CETB had concealed the vacancy rate. He contended €5,000 had been wasted in his own case and €215, 000 in the greater group without apparent accountability.

It had not been possible for the School of Music to become accredited with the Dept of Education, yet this had been a topic of teachers’ meetings up to two years previous.

He had wanted to Mediate the difficulty as he had concerns that he was not permitted to run ensembles of 6 students when other teachers were permitted this practice.

When Mr Mc Weeney proceeded with his review of the protected disclosure, he did so on incomplete documents as an issue surrounding an appointment of an Assistant Principal grade had not been included. This constituted a second act of penalisation. His home life was impacted.

The Respondent delayed further in taking action until 19 January 2024, initial assessment by Mr Mc Weeney.

I informed the complainant that I was seeking evidence of detriment in the period prior to his raising the complaint at the WRC.

The Complainant confirmed that he was threatened with disciplinary action by the Respondent in May 2024.

He had waived his right to confidentiality.

Mr Rance was dissatisfied to be provided with a procedural manual surrounding protected disclosure at Cork ETB, but it was missing a “header “

On the second day of hearing, the complainant clarified that he accepted that Section 14 A and Section 6 matters were not before the WRC Adjudication but rather the Inspectorate at WRC. He sought to submit a Medical Report dated 15 November 2024, which was immediately met with an objection by the Respondent.

I read this report and as it contained a clear direction to the complainant to take a course of action in pursuance of a potential diagnosis, I judged the report inadmissible as it was not a diagnostic, and it did not fall within the cognisable period permitted for the claim of detriment.

I read out a summary of the evidence already given.

The complainant reflected that he had suffered detriment as he had not received new students whereas other teachers were given students. He added that his protected disclosures were not recognised and turned down. His applications under freedom of information were refused and were under appeal.

I reminded the parties of the cognisable period for the claim which was rejected by the complainant and endorsed by the Respondent.

The Complainant outlined that he was the only full time Piano teacher.

By 18 October 2023, he had been shocked to receive the CEOs letter which sought to remind him that he was not entitled to progress issues of wrongdoing and took notable exception to his review.

The Respondent had accepted that Ms Flynn was not impartial in the matter, however, he was not prepared for the criticism he received.

By the end of October 2023, he was worried and not sleeping. His home life was affected, and he needed sick leave. He had wanted to benefit the organisation but had no training in protected disclosure. He was not familiar with the Act.

He went on to experience personal difficulties and was under stress and Drs care.

He filed his complaint of penalisation on 18 December 2023 and saw the respondent’s objection to his promoted staff review as a retaliation for making the complaint to the WRC. He had passed his concerns to the Government bodies.

The Complainant identified detriment as not being acknowledged by or listened to by the CEO.

His sleep pattern continued to suffer, and he was worried about his health.

By January 2024, he learned of the review to be undertaken by Mr Mc Weeney by means of Executive Order, which was sent to Human Resource Manager, not meant to be involved.

A meeting was proposed but deemed unnecessary by the complainant at that point.

The Complainant said he was unhappy with the 2016 policy relied on by the respondent, which he had sourced online. He submitted that he had not been provided with the new policy, 2020 but later clarified that an unnamed friend had brought it to his attention on 9 January 2024.

He argued that the outcome of the review on April 2, 2024 “rejected not prime facie “was flawed as Mr Mc Weeney had not considered reference made to the official language Act, he had been refused detail under freedom of information. the procedural manual had been omitted.

He had not responded   on receipt of the review outcome due to annual leave and was uncertain on window of appeal.

He contended his constitutional rights at 40.3 had been infringed and tainted by unfair procedure.

He submitted that he knew that what he submitted had been a protected disclosure and wrote to Mr Weeney, but did not receive a response.

Unexpectedly, he received an offer of an internal review of the decision by John Fitzgibbon.

He engaged with this offer and submitted student vacs 2019-2023 and the “evidence of the full picture “

He said that he offered to meet Mr Fitzgibbon but was told that internal review was by correspondence, and this was concluded one week before the hearing at WRC.

The outcome upheld Mr Mc Weeneys findings and again failed to incorporate reference to Official Languages Act.

“I was informed that I had not proved a Protected Disclosure. I had no idea what information had passed to John Fitzgibbon from Mr Mc Weeney “

The Complainant said that he was still struggling with his sleep pattern.

The Complainant clarified that detriment manifested as:

Criticism and reprimand

Unfair process by CEO October 18, 2023 (deliberate attempt to suppress him)

Absence of a manual on protected disclosures and absence of new policy (omitted 6.8.3 in final version)

Failure to update channels for recording concerns (complainant accepts this is before the WRC Inspectorate)

Threatened with disciplinary action in May 2024. He had considered seeking an injunction in response.

Informed that procedural manual did not exist.

The Complainant referred to a historical application he had made for retirement on the grounds of ill health in 2013, which had been unsuccessful.

He outlined that he was currently on sick leave and had a number of linked absences.

He contended that he had been removed from the email group for one week which amounted to ostracism. He rejected the respondent contention that the email was quarantined.

He faced a delay in securing a real figure for nett pay to ground his complaint to WRC.

He was not acknowledged by the CEO.

In cross examination,

Mr Crossan referred to the documents submitted by the Complainant to the CEO on 2 October 2023 as having no connection with the Irish Language Act. The Complainant confirmed that this came in the latter-day teacher’s document.

He queried why the complainant had sought Mr Fitzgibbon to mediate? The Complainant stated that he was not familiar with the Act and while he was aware of another colleagues protected disclosure, “I didn’t know the procedure “

Mr Crossan put to the complainant that he had looked at the wrong policy, he said the correct policy was available online. He asked the complainant if he had checked the web site, the complainant responded that he had googled.

He outlined that when he had written to human resources that the old policy had disappeared within 7 days.

He attributed Mr Fitzgibbon as directing him to make contact with the CEO, Mr Leamy. He wasn’t sure if both men had spoken on the issue.

When the topic of penalisation was put to the complainant, he responded that penalisation was manifest in the lack of acknowledgement / failure to reply by the CEO within 7 days. He accepted that the CEOs Personal Assistant had acknowledged his protected disclosure on October 9. He countered that he had directed his Protected disclosure to the CEO, and he had felt “shut down” between October 9 and 18.

Mr Crossan directed the complainant to the CEO response dated October 18 at page 93. The Complaint interpreted this response as an unwillingness to progress the protected disclosure. He had not read the DPER guidelines sent by the CEO as “it was not relevant to me “

When asked why he had contacted the Minister on 18 Oct? the Complainant responded that “I felt that I was threatened for my Protected Disclosure “and the Minister superseded the ETB. This matter was still in the legal process after 5 months.

Mr Crossan queried why the complainant despite being asked not to carry out a review of staff that he had pressed on with the venture on November 8, 2023? The Complainant replied “This was my own initiative “

The complainant confirmed he believed that both Mr Mc Weeney and Mr Fitzgibbon were wrong in their findings on the protected disclosure.

Mr Crossan asked Mr Rance how could Mr Mc Weeney be expected to assess his protected disclosure without meeting him?

The Complainant responded in saying that he was left to make inferences.

I reminded the parties that they are charged with having to prove facts and I am charged with identifying inferences.

Mr Rance responded in saying that on April 2, 2024, the official language Act had been omitted in the Mc Weeney review. He had reported on 19 October 2024.

Mr Rance said that he sent three emails in the wake of the April report without his receiving a response.

The Complainant struggled to find the August 16, 2024, letter from Mr Fitzgibbon, but eventually located it and contended that his concerns had not been addressed.

Mr Rance reaffirmed detriment, because he had not received any new students in the preceding year, he had been denied FOI request and ostracised.

He reaffirmed that he was a music teacher, and it should have been “enough that his protected disclosure may indicate wrongdoing “

Mr Crossan sought to establish evidence of email quarantine to which the complainant stated that he had not received a response from (HR), and other teachers were 70% utilised.

He had raised a Parliamentary question on statistics being concealed at the school 2019-2023, which was deemed irrelevant by Mr Crossan.

In pressing the complainant on detriment, the complainant clarified “I have been denied a remedy “

In responding to clarifications from the Adjudicator, the complainant clarified that he was a public servant and had nothing to fall back on when he did not have a full student cohort. He was the only full-time teacher in West Cork and had not received training in protected disclosure.

Travel expenses were not paid if asked to redeploy for certain distances.

I tried to secure a clarity on the actual composition of the documents submitted by the complainant on Oct 2, 2023. As a variety of documents had been submitted.

Mr Rance replied:

Two documents on protected disclosure and a review of schools. He went further on the last day of hearing and demanded that I accept his evidence on what he submitted, or he would leave and go to the Labour Court. I pressed on with the hearing and declared that I did not accept the threat.

Mr Rance confirmed that his role was not subject to a performance appraisal system.

His preferred resolution was an acceptance of the protected disclosure and compensation for penalisation.

I tried to probe on how the circumstances of the protected disclosure of 2023 had differed from the circumstances surrounding the 2011 look back at conflict. The complainant clarified that his grievance had been resolved by a notice of work.

He confirmed that the protected disclosure had its roots 2014-2019 where he was raising his concerns annually and “my main concern was my legacy “.

He clarified that he had not been placed on notice of redundancy. He did not attend the pro offered meeting in October 2023 with Carol Daly.

Mr Rance confirmed that he had attended the Respondent occupational health in 2013 when retirement on ill health was explored but unsuccessful.

In relation to his colleague teachers, he accepted that he was not mandated to take their issues forward and he confirmed that they were unaware that he was using the review to populate the protected disclosure.

He clarified that student issues are not express of implied term of the contract.

I asked the Complainant, why he had not placed the subject matter of Protected Disclosure at the top of his submissions in October 2023? He responded by stating that he did not know the policy and there was not a dedicated form available to him.

He lamented the changed communication framework at the school which was enriched 2001-2011 but changed when Ms Daly took over. When I asked the complainant if he had found the opportunity to actively discuss his concerns, he replied that “it’s all email and text “

In closing, the Complainant concluded that he had made a protected disclosure, the first in the public service after the amended Legislation and was protected by law as a consequence.

 In relying on Barratt at High Court and Court of appeal, he contended that all that was required of him to satisfy the test amounted to his having held a reasonable belief of relevant wrongdoing by the Respondent. He argued that he was faced by an employer who did not accept that he made a protected disclosure on a misuse of state funds. He had endeavoured to raise concerns within his peer group to canvas a review. He was not prepared to experience detriment in the form of compromising his own health and safety, repeated ostracism and exclusion. He stood over his 20 years of unblemished service and called on a recognition for all that he had disclosed. He was assured that he had proved his case based on the balance of possibilities.

Mr Rance sought a remedy of maximum compensation based on the Von Colson principles and in respect of his pain and suffering, Article 23 of the Directive.

At the very conclusion of the hearing, the Complainant departed by declaring that he was joining a Union and supporting his work colleagues in protest.

Cases relied on

Cork County VEC and Hugh Rance (extract from Labour Court) FTC /08/11

Irish and EU case law

The Respondent operates the Cork Education and Training Board (CETB) where the Complainant has been employed as a Music Teacher since 2001. He was provided with a Contract of Indefinite duration, backdated from September 1, 2004.

The Respondent submitted that the Complainant maintains an individual flexibility in start and finish times in scheduling music lessons for students. He is one of 60 teachers employed at the school.  

CA-00060118-001 Terms of Employment (Information) Act 1994

The Respondent has disputed the claim and disputed the existence of a historical agreement from 2011. Mr Crossan contended that the complainant is mistaken in his complaint.

Mr Crossan outlined the system of student allocation: “Live online “managed by Excel. He opened a chronology of notifications to Teachers from May 2023, which subsequently formed a floor discussion in August 2023 on an IT system for music students and their teachers.

Teachers were asked to remove details of any students who were not returning in September, enter the term vacancy and were also asked to notify the School of Music on the student’s name m, place of tuition and instrument to three emails.

  He denied that the complainants particulars of employment had changed in September 2023.

The Respondent case was that the student had been booked in   for tuition on two occasions during the Complainants absence on sick leave in September 2023.

The Respondent had not checked the live schedule which covered 25 September 2023 and thus missed the student’s attendance at the school. He did not suffer any disadvantage as a result.

Mr Crossan exhibited the email from Ms Daly School Principal to the Complainant dated 27 September 2023 seeking to meet with the Complainant on October 10, 2023, to discuss:

1 School Processes and Procedures

2 Communications

3 Recruitment

The Complainant responded:

“A meeting is fine but only if an ETB HR Manager is also present. Ideally Ms A, as she is aware of the implications of the problems, I have brought to your attention concerning the direction communications (or rather failure of) have taken at CETBSM.

I intended to contact Ms A in any case if you did not address these concerns and those of other staff wanting “better communication “clearly voiced in the survey at the start of year meeting and which you said you would send out the results for.

Will you contact Ms A to see if she is free or shall I “

The principal pursued her request to meet but the complainant directed her to Human Resources / CEO.

The Complainant has not submitted a grievance regarding what was described as a “small issue “

Mr Crossan confirmed that a new schedule was now in place and denied that this action was prompted by the complaint lodged with the WRC.

The Respondent exhibited an extensive log of email chain, not disputed by the Complainant.

The Respondent did not give evidence on this claim and relied on oral and written submissions. Ms Daly in her evidence later did address the absence of a 2011 Agreement and reflected that the parties had met on the issue of student allocation on many occasions since 2011.

On Page 43 of the respondent booklet, Mr Crossan pointed to an email which the complainant had sent to the Respondent on his “notification of complaints to the WRC dated 20 November 2023 at 7.17 am.

1 a complaint under Terms of Employment (Information) Act 1994 as amended by the EU Regulations 2022 on Transparent and Predictable Working

2 A Complaint under Organisation of Working ~Time Act 1997

3 A Complaint under Protected Disclosure Act 2014

CETB refusal to provide information related to a protected disclosure had been referred to the Minister for Education.

On that day, the WRC received the first named complaint at 7.45 am. The Complainant clarified that he was preparing the third complaint at that time but had not advanced the second one.

The Respondent concluded that this complaint did not amount to a contravention of the Terms of Employment (Information) Act 1994.

Evidence of John Fitzgibbon. Director of Further Education.

Mr Fitzgibbon outlined that he had been Education Officer prior to assuming his present position in 2016.

He said that the School of Music was not under his remit. He had recei9ved one or two emails from the complainant on the topic of “green energy “

He recalled being copied into the email sent to the CEO on 2 October 2023. He respected that the document would go through normal channels and did not have a conversation at the point of origin. He was not participant in the CEOs response to Mr Rance.

Mr Fitzgibbon submitted that he had been concerned regarding the absence of any terms of reference for the review the complainant had referred to.

Mr Fitzgibbon confirmed that he had received training in protected disclosures but was unsure of the dateline. He understood it predated his review.

He had been approached to conduct an independent review of the October 2 protected disclosure second to the work of Mr Mc Weeney.

He had received documents from Mr Mc Weeneys review.

Mr Fitzgibbon had sought to meet with the Complainant to advance the work, but the complainant requested communication by telephone and refused to meet for his review, saying it “was not necessary “

He furnished his outcome on 16 August 2024.

He had excluded 3 elements as not being part of the original submission (4, 5, 6)

Mr Fitzgibbon confirmed that he had dealt with the complainants’ contractual issues in 2013 in his former role but hearing day 2 was the first day that he had ever met the complainant.

Cross examination:

Mr Fitzgibbon stated he was unaware that Ms Flynn was not deemed impartial. He recalled that her involvement in the protected disclosure was at the assessment on reception stage, and he called it “operational “. He qualified this by stating that she had no input in the confidential process which he had operated.

He rejected Mr Rances question that he held a reasonable perception that Ms Flynn may have been found to have influenced the process as she been engaged in data access request.

In responding to Mr Rances contention that he had not responded to his direct correspondence on mediation, Mr Fitzgibbon responded.

“I didn’t get back to you on this as I understood the matter was being dealt with through the internal process “

He clarified that the scope of his inquiry was directed at underutilisation of teachers which broadened. 4-6 had been excluded.

Mr Fitzgibbon responded to Mr Rances questions on whether he considered that €215, 000 constituted a waste of public funds? He said that he had not added a calculation. He had not specified this detail at the start of his disclosure to Ms A.

He was unaware that the Protected Disclosure Policy had changed in November 2023 and reminded complainant that he had not been critical of the absence of a new policy, simply that it had not been uploaded to the web site.

He confirmed that he had completed his review on 6 points and rejected that he should have set aside the decision of the disclosure not being a protected disclosure for want of fair procedures.

Mr Rance sought to repeat questions already put to the witness and I gave the parties a break to focus minds.

Mr Rance sought to direct questions on Mr Fitzgibbons collegiality to countermand the criticism he believed that Mr Leamy had levied at him and reminded the hearing that he had applied that Mr Fitzgibbon be his witness before the Respondent agreed to include him in their delegation.

I had some difficulty to getting the complainant to respect the process and advised the parties that all questions are welcome, but they must be relevant. I can reserve my position to truncate the process if questions are not relevant.

In responding to my clarifications, Mr Fitzgibbon confirmed that he knew that the complainant had advanced his complaints to the Dept of Education.

I asked Mr Fitzgibbon if the complainant had raised penalisation with him in the course of his involvement? he responded in saying that he viewed what had occurred was an interpersonal conflict with his line manager. The complainant had not been under his remit since 2016.

He contended that the complainant had not made a protected disclosure on 2 October 2023 and the Policy was robust on the distinction between a grievance and a protected disclosure.

He had not considered an internal audit out of his review as he was not met with triggers to invoke such an audit.

In re-examination, Mr Fitzgibbon reaffirmed that he had not found a protected disclosure in his review. There were two main documents in the October 2 submission that of pages 68 and 69, Appendix 14.

The new policy on protected disclosure had prompted a new manual.

Evidence of Carol Daly, Principal School of Music

Ms Daly has been Deputy Principal from 2004 and Principal from 2011 over a multi-site campus of 29 centres and 43 venues.

She has known the complainant for over twenty years and has seen his transition from locum to 22 fixed hours Teacher.

Ms Daly recalled May 15, 2023, when the physical roll book (timetable order of student attendance) was moved to a “Cloud system” to enable immediate access.

This transition had been worked through IT systems 2020 -2022.

For a time, dual systems operated.

A further discussion followed at the welcome back to work meeting in September 2023 and supports offered on the transition to a more efficient system which permitted a direct inputting of student schedules.

Ms Daly sought to offer context and background to her email to the Complainant of 29 August. Recruitment of students to schools was “live all the time “

She recalled that Mr Rance was absent on sick leave from 14 September 2023.  A new student had been booked in, but the respondent was unable to provide a locum for Mr Rance at the first lesson but did cover the second lesson.

Ms Daly was aware that Mr Rance normally contacted his students directly but was unaware of the student as he missed her on her third lesson. Ms Daly clarified that Mr Rance worked 3.50pm to 9 pm and not 4.50 – 5.20 pm on 25 September.

Ms Daly recalled that she issued a reminder on “new procedures “on 27 September. This did not constitute a repercussion or a disciplinary action towards Mr Rance.

Ms Daly recalled receiving several text messages which coincided with weather warnings on September 27.

She found the email correspondence to be unusual in referencing dignity at work and sent as it was “while he was out sick “

She kept it upbeat by ending “see you Monday for recruitment “

Ms Daly was familiar with Mr Rances historical need for intervention when she was Deputy “there were lots of meetings/chats to sort things “

She saw the 30 September letter for the first time on 13 June 2024 in preparation for the case. Her reaction was “speechless “

The Complainant had missed an announcement on Teams in May 2023 as there had been a computer glitch. This caused his students to be late. Ms Daly told Mr Rance this was not a problem and wrote in follow up a week later.

On the topic of the Complainants participation in an attempted review of service, she described being very taken aback and confused, but contended that “he was trying to rile people up “

Ms Daly contended that a review would be a wonderful thing, but it was not the complainant’s place. She found it astonishing.

Ms Daly went on to describe how applications for music lessons were co-ordinated across the county areas. She clarified that Mr Rance taught individuals.

Flute was not popular, Piano was popular. Trio ensembles featured.

Ms Daly submitted that the school was re-energising post covid when anxiety on sharing instruments was large. The school was active on social media and participated in a children’s choir.

She denied that the school was stagnant but was re-energising through promotional videos and external public relations to form a strategy. Budget was low but managed to take some of the public relations ideas in October 2022.

Ms Daly reflected back to how a shortfall in student census had been managed with the complainant in 2019.

Mr Rance had been allocated.

2 sessions Schull, 1 Skibbereen and 1 Bantry

As Schull had not flourished, the prospect of moving a day to Skibbereen was discussed and agreed. He had been unwilling to explore Clonakilty as payment for travel was not part of the proposal. He refused Clonakilty. Ms Daly said she had intended on revisiting the locational bases for Mr Rance in late 2022.

However, when offered an extended area of Dunmanway, the complainant refused and responded if they are that interested, they can come over to Skibbereen.

Ms Daly detailed how positions were filled, and Service was advertised from October 2022-2023 and concluded that she remained “flabbergasted by the complainants’ allegations “

She denied that she been Godmother to a prospective candidate for AP2 child. She had not been on a selection panel for promotional posts in 2015.

In cross examination, Mr Rance set out the differences in both administrative systems pre and post May 2023. Ms Daly accepted that Mr Rances historical practice had been to phone parents individually.

Mr Rance put to Ms Daly if she accepted that his advocacy on seeking notification in advance of changes proved universally successful. Ms Daly denied any amendment to Mr Rances contract.

Ms Daly clarified that she had tried to manage the fall out of a teacher “no show “and a “child being missed “for a music lesson as the reason which grounded her request to meet the complainant dated 27 September. Issues of safeguarding arose.

Ms Daly informed Mr Rance that she was not involved in the screening of his protected disclosure and disputed that the complainants feedback following the staff meeting lacked diligence.

Ms Daly said there had not been a grievance regarding travel time payments.

She denied that there a coincidence on student vacs and reaffirmed that major efforts were targeted at recruitment. Mr Rance had not attended a meeting for teachers in November 2023.

In re-examination, Ms Daly denied gross mismanagement and submitted that extra effort was made to support west cork music.

Ms Daly confirmed that she had worked with the complainant for 20 years, she recalled that she had even mediated with parents recently on his behalf. However, she also acknowledged “that he doesn’t do change well “She said that by April 2022, the complainant was planning his retirement and hoping to do an Art course and substitute teaching, and he was hoping to take his “Croke Park hours “back as a lead in.

Evidence of Denis Leamy, Chief Executive.

Mr Leamy outlined that he leads CETB with 3,800 employees and   holds statutory authority over Cork City and County. He has been in post since 2019.

He recalled receiving an email from the complainant, Mr Rance on 2 October 2023. He decided that he needed Human resource advice, so he forwarded to Ms Sarah Flynn at HR.

The email was acknowledged by his Personal Assistant.

On 11 October, the complainant threatened to escalate the matter.

On 16 October, Mr Leamy submitted that he liaised with Director of OSD, Mr Mc Weeney and sought legal advice.

The Organisation had designated Ms B as the go to person on Protected Disclosure. The Complainant objected to both Ms B, not present at hearing and Ms Flynn.

The Complainant was equipped with the Policy on Protected Disclosure and the published Guidelines from DPER.

Mr Leamy submitted that he was unaware at that time that the complainant had forwarded his claims to the Dept of Education.

Mr Leamy outlined that the Organisation planned to assess Mr Rances claim. This was set against a continuum of threats by the complainant on freedom of information, protected disclosure and data access deadlines “which caused a good deal of upset to staff “

In referencing the letter dated 25 October 2023, he repeated that the review was not part of the process.

Correspondence followed with Mr Rance throughout November 2023 which Mr Leamy thought amounted to the “complainant manufacturing a situation after the fact “

By 24 November’s contact from the Minister, Mr Leamy reflected that CETB had acknowledged the complainants’ papers all along.

On 22 December 2023, Mr Mc Weeney was appointed by Executive Order to assess the October 2 submission. He was to be supported by Ms Sarah Flynn on an administrative basis only. The outcome determined that the complainant had not submitted a protected disclosure to CETB. This did not require further activation of the Organisations Policy to investigate.

In addressing the letter from May 22, 2024, Mr Leamy justified this as appropriate as the nature of the complainant’s interactions” was not acceptable” when balanced against the duty of care to staff.

Mr Leamy denied that the complainant had been penalised “in any way “.

In cross examination, Mr Leamy confirmed that the complainant had referred his protected disclosure to CETB but denied they had received a second protected disclosure.

He reaffirmed that the submissions received on October 2 were not found to constitute a protected disclosure. Ms A had been seconded, and this had been communicated by means of a notice to all staff.

He rejected that Ms Flynn had received a full copy of his submission “that was the only page “.

Mr Leamy did not accept that the correct policy on protected disclosure had been taken down from the website causing the complainant to have to rely on the 2016 version in 2023.

He replied that the nationally agreed policies were being worked on. He did not recollect if the 2022 amendment was reflected in the updated policy.

He rejected that the complainant had not received diligent feedback and countered the complainants randomised questioning when he restated that Mr McWeeney was the organisations appointment in the management of the protected disclosure received through “the correct channels”. 

Mr Leamy denied bias in his direction of the complainant to a process on October 18.” I had no hostility towards you “

Mr Leamy offered a context and background to the Complainants contention that he was threatened in the May 22, 2024, correspondence. Mr Leamy denied threatening the complainant, but reflected that 1,000s of hours had gone into responding to the complainants’ requests which placed a heavy administrative burden on a small team. He was troubled by three emails the complainant had sent to human resources and the correspondence raised was “duly justified “

In re-examination, Mr Leamy confirmed that the information submitted by the complainant in October 2023 was not new “It was not new news, we knew about vacancies “

Evidence of Enda Mc Weeney   Director of OSD

Mr Mc Weeney outlined that he was Director of Finance, Infrastructure, Procurement and Sustainability with CETB.

Mr Mc Weeney outlined that he had completed the review of the protected disclosure received on 2 October 2023. Guidance Document from DPER was issued to him and he had a working knowledge of the Protected Disclosure Policy.

He did not meet with the complainant, who applied a precondition that he accepts his protected disclosure prior to engagement.

On 2 April 2024, he determined that no clear wrongdoing was identified, and he found that the complainant should advance his issues under the grievance procedure.

Mr Mc Weeney confirmed that he availed of legal advice to assist him in his work, and he leaned on that advice.

During cross examination, Mr Mc Weeney reaffirmed that he had not found wrongdoing within his review. The Complainant tested him seeking his knowledge of what a protected disclosure looked like. He responded the objective was public good, procedural wrongdoing, not commonly known.

He was unaware on whether the 2022 amendment had been incorporated into the Policy. Mr Mc Weeney confirmed that training had commenced in the past 3/ 4 months.

He found that the 30 September letter to Ms A was not clear on a protected disclosure. The submission was long, rambling “and not specific on wrongdoing “

He found the letter from Mr Rance to the CEO to be more helpful.

He was unclear on what the subject of the protected disclosure was. In the complaint on terms of employment, only one person was flagged as not being notified, i.e. the complainant himself.

When requested by Mr Rance to define what he meant by no prima facie in relation to the protected disclosure, Mr Mc Weeney responded “There was no body of evidence of protected disclosure “

He clarified that 5 teachers were underutilised as sourced from attendance records. He had not considered a financial audit necessary as the complainant’s submissions were not factually specific or correct.

He had screened 5 records until April 23, 2024, and he had not established that a protected disclosure was in being.

He had sought the complainants’ views but was impeded by the precondition set by the complainant.

He concluded that what was placed before him was a bare allegation and not a protected disclosure.

Evidence of Sarah Flynn Director OSD

Ms Flynn has been Director of Organisational Support (Human Resources) since April 2023.

She outlined that the Complainants historical references to her involvement in his issues at the Labour Court predated her appointment in post.

The Organisations practice was to engage and interact with Union Committees.

Details on Protected disclosure Policy were available via web site and links. Each employee carried a personalised access.

The 2020 May (updated) policy was available at the time of the complaint in October 2023.  Ms Flynn had endeavoured to undertake a search to scope out the 2016 policy relied on by the complainant via the archives and sourced it in HTML.

She submitted that all documents surrounding protected disclosure was available through “single sign on “the individualised access.

She confirmed that work was underway with a Corporate Service forum which resulted in a Draft revised policy in September 2023. By November 2023, it had been prepared for approval of the senior management team. This was further updated prior to Christmas 2023 sign off.

In addressing the Complainant submission of October 2, 2023, Ms Flynn confirmed that she was the Protected Disclosure Officer.

She distinguished this from the Organisations grievance policy, which “lots of people rely on to fix things “

Mr Flynn confirmed that she served as a point of contact in relation to Mr Rances protected disclosure, she did not manage the process. She forwarded the original documents and any further documents to John (Fitzgibbon).

Cyber Security Feb 2024

Ms Flynn outlined that the Respondent imitated “enhanced security “Office 365 in early 2024. On 15 April new procedures were live, complete with firewalls. staff were informed of High Alerys with higher levels of security for senior management.

This resulted in certain documents being quarantined for up to 7 days dependent on when they were found and notified back to IT “with request for release “

As the Complainant uses a certain Device his files were “high risk “of quarantine. Ms Flynn denied that instruction had issued to block the complainant on IT.

Ms Flynn recalled that the complainant had sent a significant number of emails to the respondent during October 2023. There were 3, 4 or 5 during October 9 to various members of management, a personal assistant and in pursuit of FOI requests.

These emails were frequently accompanied by deadlines and demanding of an immediate response.

These contained very challenging allegations and human resource staff reached a wall in relation to correspondence and the organisation wished to reflect “how unhappy we were “

It had been open to the complainant to activate a grievance. The Director of Schools was available, conciliation / mediation was available. Mr Rance was not a staff representative and CETB already engaged with the existing staff forum rep.

Ms Flynn was not involved with the complainant’s application to retire in 2013.

During cross examination, Mr Rance put to Ms Flynn that she had been part of historical meetings with senior management of the respondent in relation to the fixed term issue in 2008, when he was refused a training place at UCC on the master’s Programme. Ms Flynn responded that there were a large number of meetings with the complainant.

Ms Flynn confirmed that the May 2020 Policy on Protected disclosure was available on the website by the beginning of January 2023. Training commenced in September 2024 via regular briefings.

Ms Flynn confirmed that Mr Rance had been granted half of his submitted requests under freedom of information, but that his requests seeking clarifications in under 24 hrs were not normal.

When Mr Rance asked Ms Flynn “would you see how I would view you as not being impartial and seek your exclusion? “Ms Flynn responded that he could not expect to be a judge in his own cause and once more denied any involvement in assessing the protected disclosure.

Mr Rance disputed that it was a coincidence that his emails were quarantined. Ms Flynn remarked that none of the emails had been quarantined between October 2023 to May 2024.

In conclusion, Mr Crossan for the Respondent repeated his submission that no contravention of the Terms of Employment legislation had occurred. Instead, the teaching schedule had been arranged in live format. It had not altered, and the complainant had not been reprimanded.

This system was “pre agreed “and the complainant missed the lesson. The complainant was mistaken in believing that he held authority which the respondent had not delegated when he sought to “dictate every process “.

Mr Crossan concluded that the main tenet of the complainants scripted protected disclosure was a misuse of funds on staffing, which was universally known and not a secret. He contended that everyone was aware of the measures taken to address the shortfall.

He referred to Ms Dalys attempt to meet him directly in the aftermath of the “missed student “occurrence, but she was met with preconditions and the meeting never happened.

The Complainant disregarded the CEOs response.

It remained the Respondent position that the complainant had not made a protected disclosure, his electronic correspondence was not quarantined, CETB was not compelled to mediate under Protected Disclosure legislation, and he was not penalised.

Mr Crossan made a strident submission that the claims made should be found to be frivolous and vexatious and the time spent on this case, spread over three days could be viewed as a “misuse of public funds “

The Complainant declined to comment on these statements.

The Respondent relied on Irish case law.

I have been requested to reach two decisions in this case. In reaching these decisions, I have had regard for the extensive submissions and the evidence adduced at hearing.

At the outset, it has been important for me to reflect that this is a long-standing employment relationship which has had a number of interventions by the States Disputes Resolution bodies of the former LRC, Equality bodies and the Labour Court.

 It is clear that the Complainant has relied on these bodies to offer him clarity and certainty on his terms and conditions of employment in parallel to the transposition of EU Directives such as the 91/533/EEC on Terms of Employment and 1999/70/ EC on Fixed Term workers protection.

It is also important for me to reflect that the Complainant clearly recognises that he has led the development of music lessons for school children in West Cork. He spent a considerable period in reflection and in narrative on the foundation of the service and his role as the Architect of developments in which he was clearly proud. He has also clearly ruminated on how distant he feels in the current CETB culture.

 These transitions appear to have brought him into sporadic conflict zones with the Respondent, the most recent he referred to as 2011, but there is a clear thread of ongoing conflict via staff meetings, many of which the complainant did not attend in person.

It is also clear to me that the Complainant is understandably proud of his role in service improvement.

 The Respondent has approached these claims with a strong contention of denial and a stated preference that the matter was worthy of internal discussions aimed at earlier resolution.

It was of some concern to me that the 7 witnesses first introduced by the Complainant in papers had reduced to one request to invite Mr Fitzgibbon alone. The Respondent claimed Mr Fitzgibbon as their witness. It is my opinion, having observed proceedings and reviewed documents, that it was Mr Fitzgibbons conveyed skill as a trouble shooter that the complainant sought to harness, rather than as a witness to the cases at hand.

 There were times in the case, when it was apparent that the complainant seemed to be chasing a cause of action for personal injury than workplace issues.

CA-00060118-001 Terms of Employment (Information) Act 1994

 I must now address the complaint through the jurisdiction permitted to me by the State. In the first complaint, which is through Section 3, 5 and 7 of the Act.

 However, I am faced with an immediate challenge on the apparent overlap between both complaints before the WRC.

 I have   identified that circumstances outlined in CA-00060118-001 constitute an extract of the dossier of documents relied on by the complainant as forming his Protected Disclosure, CA-00060574-001. The Respondent has rejected that these documents constituted a Protected Disclosure in law.

In drawing from the 30 September 2023 private and confidential letter to Ms A, a Director of Organisation, Support and Development (protected disclosure) The Complainant wrote:

“Ongoing problems with regard to the management (i.e. conduct, decision making and communication) at CETBSM “

“Negative impact on the efficient running of the school “

“ETB management decisions and procedures can be judged by whether or not they are effective, that is do they fulfil the aims for which they were intended?

… or if a new student arrives for a lesson to find no one present because a teacher was not informed the student had been enrolled and would be starting lessons on a particular date, then such procedures can hardly be considered effective. They do not fulfil the aims of Cork ETB, nor do they conform to its principals. See my email below of August 25 to Carol Daly, copied to all staff “

The Complainant went on to flag his intention to retire “later this academic year “2023. He remains in active service, albeit on episodic absence through sick leave.

This correspondence also constituted an overlap in Ms Dalys request of 26 September 2023, to meet the complainant on October 10, 2023, with a tabled agenda.

1 School Processes and Procedures

2 Communications

3 Recruitment

As this complaint was received by the WRC first in time i.e. 20 November 2023, I am bound to reach a decision on the live complaint as presented. The Complainant acknowledged that this matter had been resolved at the school but has not withdrawn the complaint.

 However, having spent time listening to the parties on this claim on day 1 of the hearing, it became apparent to me that the complainant came to hearing with a very real sense of not being fully recognised or appreciated at the school.

I must admit that as I reviewed the documents and evidence relied on in this case, I was struck by two parallel management arms of the organisation, that of the appointed Manager, Ms Daly and that of the complainant who honestly believed that the service would not have prospered without his participation in the service provided. He demonstrated a powerful sense of ownership and choreography for the service which has been an identifiable common denominator throughout.

 He was visibly upset in his reflections of the expressed halcyon days of service foundation and progression from which he now felt excluded on the first day of hearing.

I listened to both Parties and could understand that the complainant, in approaching retirement appeared retrospective and protectionist, whereas the Respondent was seeking to upgrade the IT process incorporating students and plan for the future. The parties were travelling at different paces.

It is the relationship between the Complainant and his Manager that goes to the very heart of this case.

In much of what the Complainant told the hearing, he was seeking to move forward to secure improvements for his colleagues, but he clarified he was not an elected staff representative. I explained that this was an employments rights case in his name only. The Complainant was welcomed as a Lay Litigant.

I have found it necessary to provide this preamble to my findings as both parties held extraordinarily strong views on the complexity of this relationship. I have detailed how I found the parties and my reservations on the overlap between the circumstances which has populated the narratives of both complaints before me.

The Complainant has freely acknowledged that the circumstances that led to the events of him missing a student on 25 September 2023 have been resolved. Yet, he has not withdrawn the complaint.

The Complainant has contended that the Respondent has breached Section 3 and 5 of the Terms of Employment Act, by not acting on the provisions in SI 686/2022 EU (Transparent and Predictable Working Conditions) Regulations 2022 inserted on 16 December 2022.

EU Directive 2019 /1152 revised the Written Statement Directive 91/533/ EEC. The objective of that revision was to reflect the complexity of A typical workers around the EU and the objective for legal clarity in terms of employment through written and IT form. The revision included clauses on penalisation to assist parties make complaints in real time during their employment rather than following conclusion of employment.

Article 2 of the Directive offers some helpful definitions on schedules, patterns and reference hours of work.

Definitions

For the purposes of this Directive, the following definitions apply:

Minimum predictability of work

1.   Member States shall ensure that where a worker’s work pattern is entirely or mostly unpredictable the worker shall not be required to work by the employer unless both of the following conditions are fulfilled:

2.   Where one or both of the requirements laid down in paragraph 1 is not fulfilled, a worker shall have the right to refuse a work assignment without adverse consequences.

3.   Where Member States allow an employer to cancel a work assignment without compensation, Member States shall take the measures necessary, in accordance with national law, collective agreements or practice, to ensure that the worker is entitled to compensation if the employer cancels, after a specified reasonable deadline, the work assignment previously agreed with the worker.

4.   Member States may lay down modalities for the application of this Article, in accordance with national law, collective agreements or practice.

This complaint comes before the WRC from a climate of pronounced conflict between the Parties. The Complainant confirmed that he had delayed his planned retirement so as to conclude the cases before the WRC.

The Respondent contended that the complainant was mistaken in his application of the law to the facts of this case.

The Complainant has submitted that contraventions occurred in Section 3 and Section 5 of the Act in his case. These have been denied by the Respondent.

I would like to draw both parties’ attention to Section 3(1) of the Act

(p) if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of —

(i) the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours,

(ii) the reference hours and days within which the employee may be required to work, and

(iii) the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with section 17 of the Organisation of Working Time Act 1997, and

(q) where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.

The Complainant has recognised himself in 3(1) (p) however I would disagree with that analysis as the complainant has been employed as a permanent worker with pre-determined hours and guaranteed pay and pension as evidenced in the CID reflected as September 2004. He is not an atypical worker with a mostly or entirely unpredictable work pattern.

I appreciate that he may well remain in doubt on that topic. To that end, the Legislation assists him in Section 5 A.

Contracts of employment existing before the commencement of European Union (Transparent and Predictable Working Conditions) Regulations 2022

5A. (1) Where, before the commencement of the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (S.I. No. 686 of 2022), an employee has entered into a contract of employment with an employer, then, the employer shall, if so, requested by the employee, furnish to the employee a statement containing the particulars specified in —

(a) subsections (1) and (1A) of section 3, and

(b) subsections (1) and (1A) of section 4.

(2) Notwithstanding that an employee has not made a request under subsection (1), he or she is entitled to the rights specified in sections 6D to 6H.

The Complainant has had an opportunity to seek a clarification of the impact of SI 686/2022 on his working life, which has gone untested.

I asked the complainant if he was relying on a collective agreement in this claim? I asked this as Collective Agreements stray outside of the scope of Section 5(1). I was reassured that the Complainant was not reliant on a Collective Agreement.

He made repeated reference to an Agreement from 2011, but by his own admission had not relied on it in his inter party correspondence following the 25 September 2023 student issue.

I found the papers he referred to in the first submission forwarded by the complainant. These compromised of meetings regarding notice for changes in student times, but I did not establish the presence of a signed Agreement which appended the particulars of the statement of terms.

It is regrettable that the complainant did not engage with the respondent at the suggested meeting of October 10 ,2023. I say this, as I found that the complainant had been in frequent contact with schools during his sick leave in September 2023 and his return could well have prompted useful dialogue.

Notification of changes.

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute , other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

In conclusion, I find that the Complainant is mistaken on the application of the provisions of the provisions in SI 686/2022 EU (Transparent and Predictable Working Conditions) Regulations 2022 inserted on 16 December 2022 to his work pattern and cannot avail of the protections therein.

I find that it was open to him to tease out the implications of these regulations by means of Section 5 A of the Act directly with his employer, which may have provided the reassurances sought.

The circumstances relied on by the complainant did not arise from a Collective Agreement.

What happened on 25 September 2023 did not amount to a change in any particulars of the statement of employment, but rather the ongoing manifestations of the IT changes for student management.

I note that the matter has since resolved.

I find the claim is not well founded.

CA-00060574-001 Protected Disclosure Act 2014, as amended.

The Complainant submitted a complaint of penalisation by his employer for having made a protected disclosure under the Protected Disclosure Act, 2014 on 18 December 2023.

The Respondent has disputed that the correspondence received from the Complainant on October 2, 2023, is a Protected Disclosure.

Mr Rance has since accepted at hearing that my sole jurisdiction in this matter is derived from Section 12 of the Act with remedies available for Penalisation set out at Schedule 2 of the Act.

The Act at Section 5(8) directs that I accept that a protected disclosure has occurred unless proven otherwise.

By the conclusion of the hearing, the Cork ETB had twice determined that the Complainant had not made a protected disclosure by means of the 2 October 2023 correspondence to the CEO.

The Dept of Education on 13 August 2024 concluded “that the wrongdoing as outlined did not appear to be a relevant wrongdoing as defined by Section 5 of the Act.”

I am conducting my own Inquiry into the case.

I have now set out my jurisdiction.

Other protection of employees from penalisation for having made protected disclosure

12. (1) 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.

SSSCHEDULE 2

RRedress for Contravention of section 12(1)

Section 12.

Decision under section 41 of Workplace Relations Act 2015

1. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 12(1) shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to take a specified course of action,

(c) subject to paragraph 2A, require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding—

(i) subject to clause (ii), 260 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977, or

(ii) in the case of an employee who is a worker referred to in paragraph (h) of the definition of "worker" in section 3(1), and is not in receipt of remuneration, including allowances in the nature of pay and benefits in lieu of or in addition to pay, from the employer concerned, €15,000.

Statutory Time limits

The cognisable period in this case is 19 June 2023 to 18 December 2023. This was something that the complainant visibly struggled to accept and was undisputed by the Respondent.

The Complainant was keen to put before the hearing the circumstances which arose for him after the 18 December 2023 date up to and including Enda Mc Weeney report, April 2024 and John Fitzgibbon report of August 2024.

While this helped me to understand the full pathway of the document of 2 October 2024, relied on by the complainant as “his protected disclosure “. I made it clear to the parties that I was looking for evidence of penalisation within the cognisable period, while presuming that the protected closure existed.

This is a case where the complainant would have benefitted from the support and skill of a trained representative / advocate. I could see that he visibly struggled with the process he had entered and on a number of occasions he paused for want of recollection of events or finding the corresponding page he wished to refer to.

In this I had regard for Moorehall Disability Service T/ A Moorehall Living and Mr Marian Jaroslaw Nowak at the Labour Court PDD 242, which was a 6-day hearing, where.

 “The Court spent considerable time clarifying what protected disclosures were alleged, when they were made, to whom they were made, and what acts of alleged penalisation resulted “

The Complainant confirmed that he had not considered application for interim relief to the Circuit Court in accordance with Section 12 (7(a). (Penalisation)

7A) An employee who claims to have suffered penalisation for having made a protected disclosure may apply to the Circuit Court for interim relief within 21 days immediately following the date of the last instance of penalisation or such longer period as the Court may allow.

The Parties will recall on the last day of hearing, that the complainant sought to submit a report from a health care professional dated November 2024. I explained that this report was submitted on circumstances outside of the cognisable period and I did not accept it.

However, on a human level, I did ask the Complainant if he had taken due note of the recommended action points personalised to him on the second page? He responded that he was considering the recommendations.  I hope by now that that process has been helpfully concluded by him.

Respondent Application to Dismiss the case:

The Respondent has come to hearing and raised a petition that this claim should be dismissed as futile and misconceived. Mr Crossan argued that the Complainant had acted in bad faith and had failed to check his own student schedule and had broadened his response to being managed by furnishing a protected disclosure.

The Respondent sought application of section 42(1) of the Workplace Relations Act 2015 on frivolous and vexatious grounds Farley v Ireland [1997] IESC 60 to dismiss the case.

The Complainant initially rejected this petition in the Respondent submission when he said that he didn’t understand the submission.

 I was surprised when Mr Crossan repeated the petition at the end of the hearing that the Complainant chose not to respond.

For my part, the field of Protected Disclosure through a statutory framework is relatively new in Irish Legislation 2014.

"Directive" means Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law, as amended by Regulation (EU) 2020/1503 of the European Parliament and of the Council of 7 October 2020”.

has as its objective “common minimum standards providing for a higher level of protection of persons reporting breaches of Union law “

The Protected Disclosures (Amendment)Act 2022 in implementing the Directive, made amendments to the 2014 Act on the definition of worker, detriment, penalisation, internal reporting channels, exclusion of personal grievances from relevant wrong doings, reversal of burden of proof.

In my consideration of the facts as presented in this case, I read an energetic review of the Amendments which were incorporated in the 2022 Act.

My attention was specifically drawn to Ms Pepes’ commentary on the exclusion of personal grievances from protected disclosures.

 This had previously prompted Supreme Court jurisprudence in Baranya v Rosderra Irish Meats Group ltd [2021] IESC 77 at para-42.

This is a case where a worker made a protected disclosure on seeking an alternative work placement due to pain, which led to his dismissal. Whilst arguments ensued on whether on the facts this a manifestation of a grievance or a protected disclosure was, the Supreme Court found that the disclosure could be recognised as a protected disclosure and the matter was returned to the Labour Court.

This is where the role of the fact finder assumes critical importances. Given the dispute as to what was actually said and the precise context in which those words were uttered, it fell to the Labour Court to make very clear findings of fact on these points. The Court was thus obliged to find primary facts (i.e. what was actually said) and then to draw such conclusions or inferences (which are sometimes described as secondary facts) from those words and their surrounding general context as it thought appropriate.

In academic commentary, 2024, Ms Pepa, TCD Law Graduate offers an opinion on the limitations on the amendment, which alongside the Directive has not offered a definition of “interpersonal grievance “

A New Era for Whistleblower Rights, Casey Pepa IELJ 2024 21(3)

The 2022 Act does not address the issues faced under the 2014 Act and it does not eliminate “conundrums” that arose in Baranya. During the drafting process of the 2022 Act, the Bar of Ireland recommended that the term “interpersonal grievances” be defined in order to ensure that its exclusion is interpreted narrowly by the courts. However, this recommendation was not implemented as no definition was introduced. The 2022 Act has, therefore, failed to provide protection for those whistleblowers who may potentially find themselves confronted by an employer who, with the means to hire the legal support necessary, could argue that the disclosure was a personal grievance as opposed to a relevant wrongdoing, thereby undermining the entirety of the whistleblowing legislation.

In the High Court case of Clarke v CGI Foods Services ltd and CGI Holdings ltd [2021] 32 ELR 25, on appeal from the Circuit Court a case where a group financial controller was dismissed following a protected disclosureand where the contract was continued until a final determination by the WRC.

Humphreys J held at

19.

The employer claims that the dismissal of the plaintiff was due to performance issues, but it is also clear that the complaint about performance only began after the plaintiff started raising awkward questions. Unfortunately, it is not difficult to “performance manage” someone out of a job. Such a process is manipulative, of course, and insofar as it impacts on an employee's wellbeing it is bullying and abusive; but decision-makers have to be alive as to how relatively easy it is to remove somebody from a position for ostensibly plausible reasons. On the other side of the equation, it is possible for someone who is dismissed for legitimate reasons to claim that removal was due to some improper purpose, or to characterise the imposition of legitimately high standards as the infliction of stress and bullying. The upshot really is that the court must look beyond mere face value on either side.

20.

The evidence here establishes substantial grounds for contending that the performance issues were an attempt, as put in submissions by the employee, “to dress up the dismissal as a performance-related dismissal”. As put by Lord Wilson in Royal Mail Group Ltd v Jhuti [2019] UKSC 55 at para.60, “If a person in the hierarchy of responsibility above the employee … determines that, for reason A (here the making of protected disclosures the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here inadequate performance), it is the court's duty to penetrate through the invention rather than to allow it also to infect its own determination.”

There is no doubt that the parties have both presented a very complex employment relationship for me consider, in seeking whether in the context of making a protected disclosure, was the complainant penalised?

I find it would do both parties a disservice if I were to dismiss the case.

Therefore, I am unable to accede to the respondent petition to dismiss this case.  

Penalisation:

Penalisation is defined in Section 3 of the Revised Act as:

"penalisation" means any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes—

(a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of 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) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training,

(j) a negative performance assessment or employment reference,

(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals.

Protected Disclosure:

Protected disclosures.

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6)] and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 7B, 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 a work-related context.

In this case, the complainant has made a number of protected disclosures to his employer, the Minister for Education and the Protected Disclosure Commissioner.

For the purposes of this case, I am satisfied that the complainant submitted a number of documents as disclosures to his employer on 2 October 2023 in accordance with Section 6(1) (a).

A protected disclosure will be presumed to be in being until proven otherwise.

The other disclosures are confirmed as “ongoing” by the complainant.

In my review of this case, I was struck by the high level of viscosity surrounding the subject matter. The parties were not at one on what documents comprised the protected disclosure. There was a very early push by the complainant in distancing Ms Sarah Flynn from the management of this issue.

Yet, Ms Flynn was clearly the person in the organisation most familiar with the Protected Disclosure Act, given her role in interfacing with other education and training boards.

 Mr Leamy, who received the disclosures along with Mr Fitzgibbon were self-declared novices and Mr Mc Weeney confirmed that he had leaned on legal advice to help him navigate his role in the case.

I also found a deep body of evidence of historical dissatisfaction expressed by the complainant within his employment, which went further than legislative unease, which on its own was rectified by the employment for a referred to by the complainant.

 I also found a large dossier of documents of historical declarations by the complainant on student vacancies and problems regarding student scheduling which went back to 2011. These also captured some discord between the Complainant and his Manager, Ms Daly.

The complainant, by his own admission declared he was not familiar with the Act, the local policy, 2020 0r 2023 or the DPER guidance document when he made his complaint to the WRC.

I have not been convinced by the Complainants relegation of Ms Flynn, who I met at hearing or Ms B who had relocated. Human Resources carries a body of knowledge on the policies and procedure of the day. The Respondent service was no different. Ms Flynn in her evidence gave an accomplished account of her knowledge of the parameters of the Act.

 I found that the complainant seemed to use his personal email address in contact with CETB rather than the one assigned to him. It was his reliance on “googling “that separated him from sourcing the live policy on protected disclosures at Sept / Oct 2023.

However, the three emails dated 9 -11 October 2023, from Mr Rance to Ms B caused me to pause my thinking with shock, momentarily.

The Complainant was clearly seeking a personal acknowledgement of his October 2 correspondence and was dissatisfied by the acknowledgment from the CEOs PA. I found a pronounced overtness and indeed hostility   in this correspondence which I followed up at hearing.

I found the content menacing in the face of a prior acknowledgement from the CEOs office. I can attribute some of this to his lack of understanding of the Act, however, I found that this would well short of best practice in workplace dialogue.

“…. But now that Cork ETB has a serious issue to answer for, Sarah Flynn may not be involved due to this history and resulting conflict of interest because of her involvement in defending the indefensible ……. If I don’t get a reply from him on his second opportunity, I won’t hesitate to make a protected disclosure and a complaint of penalisation to the Workplace Relations Commission “

This opened a joint exploration of Andrew Conway v Dept of Agriculture Food and Marine [2020] IEHC 66, where Hyland J focused on proving harm in a claim for penalisation for protected disclosure. I explained to the parties, this was a case of which I had knowledge at first instance.

As I write today, I accept that a protected disclosure is built on the foundation stone of relevant information, which in the reasonable belief of the worker tends to show one or more relevant wrongdoings, it should never be presented as a retaliatory response or leverage for attention.

The concept of whistleblowing is a safeguarding measure and is not to be confused with a Trojan horse approach.

It is reasonable to presume that a carrier of a protected disclosure in whatever form it is delivered , oral , written , chance encounter, or anonymously , that the reporting person will obtain some comfort or peace of mind for having had  the courage to raise a concern that has been bothering them and where they genuinely believe that harm has happened or may happen . they are then expected to hand over the baton of Protected disclosure.

 There is no onus on them to investigate this concern, but rather, following a screening of the concern, which determines the presence of protected disclosure, they will be expected to participate in an investigation where the law, protects them from harm/ penalisation as a result.

In this case, the standout moment for me was when the Complainant continued to claim ownership of the protected disclosure long after it was submitted as it served as an umbrella moment for him to launch his internal review of his organisational unit. This is akin to an accumulation of Chairman, Secretary, Treasurer approach in club parlance.

By adopting this approach, the complainant did not benefit from the 2020 or 2024 CETB Policy and DPER guideline for a Public Body.

I reviewed the communicated issued by the complainant seeking to populate his protected disclosure and once more I was struck by his silence in explaining to his colleagues that the review was to bolster the protected disclosure

I am not here to critique Policies, but I listened carefully as the Respondent witnesses, Mr Fitzgibbon, Mr Leamy and Mr McWeeney distinguished the October 2 correspondence from a protected disclosure.

I accept their evidence.

I was also struck by Ms Dalys declared incredulity on seeing the October correspondence in June 2024.

This supported the solemnity of the process.

I also listened to the complainant who visibly struggled in trying to move on from his 2011 encounters at the school and in seeking to take me through the pathway of the protected disclosure on what exactly he wanted to convey as a relevant wrongdoing. Baranya

Mr Fitzgibbon, who gave extremely cogent evidence told me that he believed that what had occurred was the complainant’s interpersonal difficulty with his line manager. He spoke that in a very compelling manner that stayed with me for its conviction.

Ms Daly, on the other hand was very positively disposed towards the complainant and surprisingly for me did not seem to detect any sense of ill will directed towards her.

She was clear that the complainant did not do change well, but she continued to lead him on her team. It was apparent to me that change was occurring at many levels of the organisation.

I found it unfortunate that performance appraisal was not relied on in this setting.

Mr Leamy made an interesting submission when he told me that he believed the complainant was building a story after the fact by the myriad of inter party correspondences from 2 October 2023. He also spoke with a conviction that stayed with me.

I now come to the complainant, who carries a high level of disconnect with his employer, and who on three key occasions chose not to meet with the purveyors of his correspondence of 2 October 2023. This did not convince me of his good faith in addressing the contents.

 I found it necessary to listen to all connected events in this case, in particular both screenings of the protected disclosure and the complainant’s experiences during this period. I was sorry to hear that the complainant experienced his personal problems that co incided with December 2023.

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.

I considered this provision very carefully and note that the complainant highlighted his personal unease with music school management in May 2023 following some late arrival of students for exams. He raised some topics, but did not attend the subsequent staff meeting. I noted that he returned to these points in August 2023 when he wrote to Ms Daly copying all staff on these concerns.

I find that it is the responsibility of the workers employer to detect, investigate and if necessary, prosecute the issues of student recruitment and communications as evidenced in the 29 August email from Ms Daly to the complainant. I did not establish an act or omission on behalf of the employer.

On May 15, 2023, a new procedure for communicating student vacancies was launched by the respondent.

On August 25, 2023, the Complainant sent an email to Ms Daly critical of her management and sought that she confirms for all staff that meetings would be inclusive and open. He sent this to all staff, yet he confirmed to me that he had no mandate to represent staff.

 This was followed by the August 28 meeting, at which the complainant attended.

On August 29, 2023, Ms Daly wrote to the complainant and introduced a recruitment initiative at primary schools and offered to join the complainant. The complainant emailed back agreeing to go, yet did not attend the recruitment.

The matter of the missed student followed on September 25.

The complainant confirmed that he received the email dated 27 September 2023 @10.50 am, issued to all teachers, which had as a subject matter.

Reminder to check the live student schedule each working day you have vacancies.

The complainant made a very unusual response within two hours.

Later that afternoon at 15.40 hrs Ms Daly invited the complainant to meet with her to discuss.

School processes, communications and recruitment. She suggested the 10 October.

Ten minutes later the complainant said a meeting is fine if HR present naming his preferred choice of Ms A to attend.

I found the complainants response at 4.08 pm on the same day to be of interest.

“I will need more time to get together the information required to present to HR at a meeting, as it involves historical documents concerning past cases, my own centre reports in relation to effective recruitment, stored on hard drive) as well as more recent email about notification/ communication failures. So, I suggest 17 or 24 October depending on Ms as availability or her designated HR representative. I will email her in any case nearer to the time, so she is briefed “

On October 2 at 10.03 Ms Daly responded and requested an in-person meeting.

“I hope to listen to and talk through all of your concerns, plan the recruitment sessions that we had mentioned and find a way forward”.

She expressed a preference to press on to meet on 10th to aide recruitment scheduling.

At 12.05 pm, on that same day, the complainant sent a strictly private and confidential email to Mr Leamy and attached the 30 September letter to Ms A and asked his views on resolution.

At 1.53 pm on the same day, he sent an email and letter to Ms A to Mr Fitzgibbons and asked that he liaise with Mr Leamy and then Ms Daly so we can agree a way forward.

The Complainant did not introduce this correspondence as anything other than concerns he had for which he was seeking to resolve, with help. He even referred to Mediation, which is not a feature of protected disclosure. The use of the word resolves fits with grievance.

If I read the letter of 30 September again, I see first and foremost a reference to Ms Dalys suggested agenda for meeting with the complainant. During this meeting the complainant announced that he intended to conduct a review of the service.

“I am willing to provide a written review for the ETB because I trust it will lead to an improvement in CETBSM management practice, procedures and communication. This in turn would lead to more contented staff. less disruption to exams, lessons and student learning all of which have been negatively affected over the last year as well as inconvenience to parents “

What followed, for me goes to the very root of this case?

The complainant marked the letter private and confidential and asked that it is not shared with management

 “Pending my provision of a full written report on the above issues. When you and Ms Daly have my written review, then a meeting may be beneficial. But I will leave it to you whether or not you require a written response from Ms Daly. I am more interested in getting the School of Music back on track than of making accusations of personal misconduct in a formal complaint and seeking an apology even though I would be fully justified in lodging one “

The Complainant went on to say that he was protected in law in making such disclosures, but did not specify which law as there are penalisation clauses in both Acts.

For me at that point, he had sought to swap positions with the management of the service. I asked to see the job description for teachers, and I could not identify provision for conduction of service audits outside of Management endorsement.

(5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.

I am met by the dilemma of many others in seeking to differentiate what is a grievance and what is a protected disclosure.

 The Supreme Court in Baranya was incisive that a grievance can be elevated and recognised as a protected disclosure. I fully understand that elevation on health and safety grounds.

However, I am met by the opposite challenge, can a protected disclosure be a grievance as argued and contended by the Respondent in this case?

The remedies available for both communiques are so vastly different that clarity is optimal.

To make progress here, I must consider the information imparted by the complainant.

I have found that the Complainant by his own admission declared that his legacy was his priority prior to retirement.

I have found that the complainant carried and sustained a strong opposition to his Manager, Ms Daly and had shared that across the Senior Management team during September, October and November 2023 when he avoided meeting her as requested. It is also very clear to me on the evidence that this had lingered from the historical conflict in 2011.

He came alone to tell his story, saying other colleagues were fearful of the respondent. I found no proof of this.

I cannot establish that the information imparted by the Complainant on October 2 to Mr Leamy and Mr Fitzgibbon constituted relevant information in accordance with Section 5(2) of the Act as it did not demonstrate a relevant wrongdoing. I have found that the document hosted bare allegations and a strong desire by the complainant to be recognised by his employer.

In his cross examination of the Respondent witnesses, he sought to test their knowledge of the scope of the Protected Disclosure Act and was almost combative in his approach.

(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 a work-related context.

I find that the complaints disclosures of October 2 are more properly recognised in the exception clauses of Section 5 and Section 5(a)

In Baranya, the complainant raised an individual concern about being asked to work in an area where he understood conflicted with his personal safety, and he sought an alternative work zone.

The facts in this case are distinguished. The complainant came to hearing alone. His correspondence, while mentioning other teachers did not carry their endorsement or indeed parallel statements of concern by them. Mr Rance was not an elected representative, and I am satisfied that he was speaking his own words in his own case in response to avoidance of meeting Ms Daly, as requested in September 2023. I am strengthened in that view by the incorporation of Ms Dalys stated reason for meeting in the body of the letter to Ms A, dated Sept 30.

I have had to exempt the claim for breach of terms of employment as I had addressed this earlier in the first complaint. Parkins v Sodexo [2002] IRLR 109

What occurred in this case amounted to a matter of interpersonal grievance exclusively affecting the complainant and his line manager. The Complainant had a different opinion in how the school was progressing and somehow could not find a platform to express these views through individual or collection grievances. I find I cannot elevate these grievances to what the law requires in a protected disclosure.

I am mindful that the complainant did not engage with the Screening process by Mr Mc Weeney as he sought to set a pre-condition of acceptance that his correspondence already amounted to a protected disclosure. This showed a disregard for the steps the CETB sought to take in accordance with their Policy. I found Mr Mc Weeney to have run a very thorough screening of the October 2 correspondence, and he helpfully suggested a route to help the complainant through the grievance procedure.

I fully accept his response to me when I asked him if he had considered whether a financial audit was necessary, when he responded, there was nothing to audit.  

I was not convinced by the complainant’s lack of engagement with Mr Leamy, Mr Mc Weeny and Mr Fitzgibbon and conclude that the complainant missed an opportunity for recognition.

I noted an inconsistency in the complainant’s evidence when he demanded Mr Fitzgibbons presence at hearing, only to be overtaken by the Respondent bringing him as their witness.

He sought Mr Fitzgibbon as collateral for collegiality. While Mr Fitzgibbon had troubleshot in a previous dispute, the parties met for the first time at hearing.

I found his disregard for Ms Flynn to be a red herring in light of her abundance of knowledge on protected disclosure.

I am also mindful that Mr Rance has not raised a grievance at any time in this case. It is my opinion that he may benefit from a refresher induction on the CETB policies and how to access through “sign in “

It has taken me some time to wade through the viscosity of the circumstances and arrive at specificity of this case both in considering the past, present and the events that fell in the aftermath of the October 2, 2023, correspondence.

It would have helped me to have had a legal definition of grievance as distinct from a protected disclosure.

However, I accept the Respondent evidence when Mr Fitzgibbon confirmed that the distinction was operationally clear in the CETB Policy.

I have found that the Complainant did not make a protected disclosure in law on 2 October 2023. I am prevented from making a decision on penalisation on this occasion.

I find the claim is not well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of Terms of Employment (Information) Act 1994 requires that I make a decision in relation to the complaint in accordance with Section 5 of that Act.

CA-00060118-001 Terms of Employment (Information) Act 1994

 In conclusion, I find that the Complainant is mistaken on the application of the provisions   in SI 686/2022 EU (Transparent and Predictable Working Conditions) Regulations 2022 inserted in the Terms of Employment (Information) Act 1994 on 16 December 2022.

I find that it was open to him to tease out the implications of these regulations by means of Section 5 A of the Act directly with his employer. This did not occur.

I have not established a contravention of Section 3 or 5 of the Act.

I find the claim is not well founded.

CA-00060574-001 Protected Disclosure Act 2014, as amended.

Schedule 2 of Protected Disclosure Act 2014, as amended requires that I make a decision in accordance with Section 5 and 12 of the Act .

The Complainant has not made a protected disclosure in law.

I find the claim is not well founded.

Notification of change in terms of employment. Penalisation following a Protected Disclosure.